Between Power and Principle An Integrated Theory of International Law Oona A hathaway in the Chicago lam reriew (20 In March of 2003, as American tanks rolled toward Baghdad, international lawyers in the United States and abroad decried the action as a violation of the United Nations Charter The invasion, some worried, would strip away the last pretense that international law could constrain state action. Others openly questioned whether the increasingly wounded global legal regime was worth saving. If states so openly flouted it, was international law really worth the trouble? The hand-wringing and condemnation were scarcely new. Well before the invasion of Iraq the tide of events had given pause to all but the staunchest believers in international law. Within six short months of entering office, President George w. Bush had withdrawn from the Kyoto global climate accord, threatened to unilaterally abrogate the 1972 Anti Ballistic Missile Treaty, and revoked the U.S. signature on the treaty creating the International Criminal Court. The U.S. president thus looked ready to make good on the promise that Jesse Helms, then-chairman of the Senate Foreign Relations Committee, had made to the UN Security Council only a year earlier to resist any effort to "impose the UNs power and authority over nation states. 2 t Associate Professor, Yale Law SchooL. J D, Yale Law School. I thank the Carnegie Foundation for its generous support of this project through the Carnegie Scholars Program. My thanks also to Craig Estes, Galit Sarfaty, and Alan Schoenfeld for their research assistance and to Ulrich Wagner and especially Alexandra Miltner for their help with compiling and analyzing the datasets used in this Article. I am grateful to Bruce Ackerman, Yochai Benkler, William Bradford, Jutta Brunnee, Steve Charnovitz, Robert Ellickson, Ryan Goodman, Larry Helfer, Rob Howse, Dan Kahan, Alvin Klevorick, Barbara Koremenos Ariel Lavinbuk, Mike Levine, Jonathan R. Macey, Daniel Markovits, Eric Posner, Kal Raustiala, Roberta romano, Scott Shapiro, Peter Shuck, Alan Schwartz, Jim Whitman, Tim Wu, Kenji Yoshino, the faculty of the University of Bremen, and participants in the University of Southern California Conference on Compliance with International Law, the nternational Law Roundtable at Vanderbilt Law School, the Yale World Fellows program, and the University of Toronoto's workshop on international law for helpful conversations about and comments on earlier drafts. Thanks are also due to Gene Coakley and the rest of the staff of the Yale Law School library for their outstanding assistance. Finally i owe the greatest debt to Jacob S Hacker, for his support at every stage of this project. For an interesting discussion that places the decision of the United States to withdraw from the Kyoto Protocol into a broader context by considering the US approach to international environmental law since 1992, see Jutta Brunnee, The United States and International Environmental Law: Living with an Elephant, 15 EJIL 617(200 Senator Jesse Helms, Speech to the United Nations Security Council (an 19, 2000) onlineathttp://www.sovereignty.net/center/helms.htm(visitedNov30,2004)
Between Power and Principle: An Integrated Theory of International Law Oona A. Hathaway† Forthcoming in the Chicago Law Review (2005) In March of 2003, as American tanks rolled toward Baghdad, international lawyers in the United States and abroad decried the action as a violation of the United Nations Charter. The invasion, some worried, would strip away the last pretense that international law could constrain state action. Others openly questioned whether the increasingly wounded global legal regime was worth saving. If states so openly flouted it, was international law really worth the trouble? The hand-wringing and condemnation were scarcely new. Well before the invasion of Iraq the tide of events had given pause to all but the staunchest believers in international law. Within six short months of entering office, President George W. Bush had withdrawn from the Kyoto global climate accord,1 threatened to unilaterally abrogate the 1972 AntiBallistic Missile Treaty, and revoked the U.S. signature on the treaty creating the International Criminal Court. The U.S. president thus looked ready to make good on the promise that Jesse Helms, then-chairman of the Senate Foreign Relations Committee, had made to the UN Security Council only a year earlier to resist any effort to “impose the UN’s power and authority over nation states.”2 † Associate Professor, Yale Law School. J.D., Yale Law School. I thank the Carnegie Foundation for its generous support of this project through the Carnegie Scholars Program. My thanks also to Craig Estes, Galit Sarfaty, and Alan Schoenfeld for their research assistance and to Ulrich Wagner and especially Alexandra Miltner for their help with compiling and analyzing the datasets used in this Article. I am grateful to Bruce Ackerman, Yochai Benkler, William Bradford, Jutta Brunnée, Steve Charnovitz, Robert Ellickson, Ryan Goodman, Larry Helfer, Rob Howse, Dan Kahan, Alvin Klevorick, Barbara Koremenos, Ariel Lavinbuk, Mike Levine, Jonathan R. Macey, Daniel Markovits, Eric Posner, Kal Raustiala, Roberta Romano, Scott Shapiro, Peter Shuck, Alan Schwartz, Jim Whitman, Tim Wu, Kenji Yoshino, the faculty of the University of Bremen, and participants in the University of Southern California Conference on Compliance with International Law, the International Law Roundtable at Vanderbilt Law School, the Yale World Fellows program, and the University of Toronoto’s workshop on international law for helpful conversations about and comments on earlier drafts. Thanks are also due to Gene Coakley and the rest of the staff of the Yale Law School library for their outstanding assistance. Finally, I owe the greatest debt to Jacob S. Hacker, for his support at every stage of this project. 1 For an interesting discussion that places the decision of the United States to withdraw from the Kyoto Protocol into a broader context by considering the US approach to international environmental law since 1992, see Jutta Brunnee, The United States and International Environmental Law: Living with an Elephant, 15 EJIL 617 (2004). 2 Senator Jesse Helms, Speech to the United Nations Security Council (Jan 19, 2000), online at http://www.sovereignty.net/center/helms.htm (visited Nov 30, 2004)
Between Power and principle Yet the blame for todays crisis atmosphere cannot be laid in Bush's lap. While the Bush administration fanned the flames of concern, the issue of what role international law can play in regulating international relations has bedeviled the world community for decades After World War Il, even as the world pressed ahead with the United Nations and other nev international institutions, widespread dismay over the failure of earlier institutions to prevent the collapse of order prompted a wave of attacks on the Wilsonian ideal of an international system founded on global legal order. As long as there was no sovereign power to manage enforcement, critics argued, international law was meaningless. Regarding it as otherwise was not just unrealistic but dangerous In the face of these attacks, international lawyers have worked assiduously to refine, interpret, and apply international law. But they have not yet done enough to respond to the ever more intense concerns about the fields validity. It is perhaps not surprising, then, that S See, for example, Hans J. Morgenthau, Politics Among Nations(Knopf 3d ed 1966) (offering a realist critique of international law); Edward Hallett Carr, The Twenty Years Crisis: 1919-1932(MacMillan 2d ed 1946)(same); Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AmJ Intl L 260(1940)(same) See, for example, Raymond Aron, The Anarchical Order of Power, in Stanley Hoffman, ed, Conditions of World Order 25, 47(Houghton 1968)(concluding that international society is an anarchical order of power in which might is supreme); Charles W Briggs, The Cloudy Prospects for "Peace Through Law, 46 ABA J 490, 493-95(1960) (acknowledging that international law can only be enforced by a world sovereign, but concluding that establishment of a world government is a dream) 6 Louis Henkin writes: "These depreciations of international law challenge much of what the international lawyer does. Indeed, some lawyers seem to despair for international law until there is world government or at least effective international organization. " Lou Henkin, How Nations Behave: Law and Foreign Policy 25-26( Columbia 2d ed 1979)). For more, see Part II. There are, of course, exceptions. For example, the " new stream scholarship has long been critical of traditional approaches to international law. See generally Jason Mark Anderman, Note, Swimming the New Stream: The Disjunctions Between and Within Popular and Academic International Law, 6 Duke J Comp Intl L 293(1996) (criticizing the traditional"new world order?"international law theory and concluding that the "new stream?"academic international law theory is logically and morally superior); Nigel Purvis, Critical Legal Studies in Public International Law, 32 Harv Intl L J 81(1991) (discussing traditional international law theory's reduction to marginality due to its impossibility); Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law, 2 Eur J Intl L 66(1991)(providing an analytic presentation of the main themes of four contemporary international law scholars, all of whom advocate nontraditional concepts of international law and criticize traditional international legal theory); Phillip r. Trimble, International Law, World Order, and Critical Legal Studies, 42 Stan L Rev 811(1990)(reviewing Lung-Chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective(Yale 1989); Richard A. Falk, Revitalizing International Law(lowa State 1989); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987): Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument(Finnish Lawyers'1989); David Kennedy, A New Stream of
Between Power and Principle 2 Yet the blame for today’s crisis atmosphere cannot be laid in Bush’s lap. While the Bush administration fanned the flames of concern, the issue of what role international law can play in regulating international relations has bedeviled the world community for decades. After World War II, even as the world pressed ahead with the United Nations and other new international institutions, widespread dismay over the failure of earlier institutions to prevent the collapse of order prompted a wave of attacks on the Wilsonian ideal of an international system founded on global legal order.3 As long as there was no sovereign power to manage enforcement, critics argued, international law was meaningless. Regarding it as otherwise was not just unrealistic but dangerous.4 In the face of these attacks, international lawyers have worked assiduously to refine, interpret, and apply international law. But they have not yet done enough to respond to the ever more intense concerns about the field’s validity.5 It is perhaps not surprising, then, that 3 See, for example, Hans J. Morgenthau, Politics Among Nations (Knopf 3d ed 1966) (offering a realist critique of international law); Edward Hallett Carr, The Twenty Years’ Crisis: 1919–1939 (MacMillan 2d ed 1946) (same); Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 Am J Intl L 260 (1940) (same). 4 See, for example, Raymond Aron, The Anarchical Order of Power, in Stanley Hoffman, ed, Conditions of World Order 25, 47 (Houghton 1968) (concluding that international society is an anarchical order of power in which might is supreme); Charles W. Briggs, The Cloudy Prospects for “Peace Through Law,” 46 ABA J 490, 493–95 (1960) (acknowledging that international law can only be enforced by a world sovereign, but concluding that establishment of a world government is a dream). 5 Louis Henkin writes: “These depreciations of international law challenge much of what the international lawyer does. Indeed, some lawyers seem to despair for international law until there is world government or at least effective international organization.” Louis Henkin, How Nations Behave: Law and Foreign Policy 25–26 (Columbia 2d ed 1979)). For more, see Part II. There are, of course, exceptions. For example, the “new stream” scholarship has long been critical of traditional approaches to international law. See generally Jason Mark Anderman, Note, Swimming the New Stream: The Disjunctions Between and Within Popular and Academic International Law, 6 Duke J Comp & Intl L 293 (1996) (criticizing the traditional “new world order” international law theory and concluding that the “new stream” academic international law theory is logically and morally superior); Nigel Purvis, Critical Legal Studies in Public International Law, 32 Harv Intl L J 81 (1991) (discussing traditional international law theory’s reduction to marginality due to its impossibility); Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law, 2 Eur J Intl L 66 (1991) (providing an analytic presentation of the main themes of four contemporary international law scholars, all of whom advocate nontraditional concepts of international law and criticize traditional international legal theory); Phillip R. Trimble, International Law, World Order, and Critical Legal Studies, 42 Stan L Rev 811 (1990) (reviewing Lung-Chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective (Yale 1989); Richard A. Falk, Revitalizing International Law (Iowa State 1989); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987)); Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Finnish Lawyers’ 1989); David Kennedy, A New Stream of
Between Power and principle much of the public debate over international law has been polarized and unproductive Skeptics argue strenuously that international law is mere window dressing. Advocates frequently assume that states abide by their international legal commitments " almost all of the time More must be done to evaluate critically the role that international law can and does lay in shaping state behavior. Legal and political science scholars have begun to meet this challenge, yet we still remain remarkably ill-equipped to predict or explain the real-world International Law Scholarship, 7 Wis Intl L J 1(1988)(criticizing traditional conceptions of international law and advocating a rhetorical and interactive theory); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987)(criticizing traditional theories of international law and advocating an internal analysis of international laws doctrinal and rhetorical cohesiveness); James Boyle, Ideals and Things: International Legal Scholarship and the Prison-House of Language, 26 Harv Intl L J 327( 1985)(critiquing attempts to define international law as manifestations of a pervasive reification by legal scholars); David Kennedy, Theses About International Law Discourse, 23 Ger YB Intl L 353(1980)(identifying a crisis in traditional international legal scholarship and advocating ar analytical approach that examines the transformational rules governing discourse for hints about the structure of the international law dilemma) Henkin, How Nations Behave at 25-26(cited in note 5) In recent years, a significant literature has arisen on the topic, among both political scientists and international legal scholars. See William Bradford, International Legal Compliance: An Annotated Bibliography (unpublished manuscript 2004), online at http://papers.ssrn.com/so13/papers.cfmpabstraCt_id=577104(visitedNov25,2004) (examining significant literature that evaluates the role of international law in state behavior) Some notable examples include William Bradford, In the Minds of Men: A Theory of Compliance with the Laws of War(unpublished manuscript on file with author); James Raymond Vreeland, Why Do Governments and the IMF Enter into Agreements:: Statistically Selected Cases, 24 Intl Polit Sci Rev 321(2003)(examining the national considerations of governments in entering into International Monetary Fund(IMF agreements through evaluation of the national motivations in two outlying cases); James Raymond Vreeland, Institutional Determinants of IMF Agreements(Dec 11, 2002), online at http://pantheon.yaleedu/-jrv9/veto.pdfvisitedNov24,2004)(examiningwhether domestic institutions influence decisions to participate in IMF programs); Beth Simmons, Why Commit? Explaining State Acceptance of International Human Rights Obligations (2002)(unpublished manuscrI ipt on file with author); Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Intl Org 217(2000) (examining why governments allow an international human rights regime to constrain domestic sovereignty); Beth Simmons, International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94 Am Polit Sci Rev 819(2000) (examining patterns of commitment to and compliance with international monetary law) Martha Finnemore, National Interests in International Society 69-88( Cornell 1996) (examining the national motivations behind the Geneva Conventions' rules for warfare
Between Power and Principle 3 much of the public debate over international law has been polarized and unproductive. Skeptics argue strenuously that international law is mere window dressing. Advocates frequently assume that states abide by their international legal commitments “almost all of the time.”6 More must be done to evaluate critically the role that international law can and does play in shaping state behavior. Legal and political science scholars have begun to meet this challenge,7 yet we still remain remarkably ill-equipped to predict or explain the real-world International Law Scholarship, 7 Wis Intl L J 1 (1988) (criticizing traditional conceptions of international law and advocating a rhetorical and interactive theory); David Kennedy, International Legal Structures (Nomos Verlagsgesellschaft 1987) (criticizing traditional theories of international law and advocating an internal analysis of international law’s doctrinal and rhetorical cohesiveness); James Boyle, Ideals and Things: International Legal Scholarship and the Prison-House of Language, 26 Harv Intl L J 327 (1985) (critiquing attempts to define international law as manifestations of a pervasive reification by legal scholars); David Kennedy, Theses About International Law Discourse, 23 Ger YB Intl L 353 (1980) (identifying a crisis in traditional international legal scholarship and advocating an analytical approach that examines the transformational rules governing discourse for hints about the structure of the international law dilemma). 6 Henkin, How Nations Behave at 25–26 (cited in note 5). 7 In recent years, a significant literature has arisen on the topic, among both political scientists and international legal scholars. See William Bradford, International Legal Compliance: An Annotated Bibliography (unpublished manuscript 2004), online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=577104 (visited Nov 25, 2004) (examining significant literature that evaluates the role of international law in state behavior). Some notable examples include William Bradford, In the Minds of Men: A Theory of Compliance with the Laws of War (unpublished manuscript on file with author); James Raymond Vreeland, Why Do Governments and the IMF Enter into Agreements?: Statistically Selected Cases, 24 Intl Polit Sci Rev 321 (2003) (examining the national considerations of governments in entering into International Monetary Fund (IMF) agreements through evaluation of the national motivations in two outlying cases); James Raymond Vreeland, Institutional Determinants of IMF Agreements (Dec 11, 2002), online at http://pantheon.yale.edu/~jrv9/Veto.pdf (visited Nov 24, 2004) (examining whether domestic institutions influence decisions to participate in IMF programs); Beth Simmons, Why Commit? Explaining State Acceptance of International Human Rights Obligations (2002) (unpublished manuscript on file with author); Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Intl Org 217 (2000) (examining why governments allow an international human rights regime to constrain domestic sovereignty); Beth Simmons, International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94 Am Polit Sci Rev 819 (2000) (examining patterns of commitment to and compliance with international monetary law); Martha Finnemore, National Interests in International Society 69–88 (Cornell 1996) (examining the national motivations behind the Geneva Conventions’ rules for warfare)
Between Power and principle impact of the over 50,000 international treaties now in force, covering nearly every aspect of international relations and nearly every facet of state authority. This Article offers a theory of international treaty law that helps fill this gap. I call the theory an "integrated"theory of international law because it brings together and builds upon two cross-cutting facets of existing scholarship on international law and politics. First, the theory draws on both political science and legal scholarship, using them together to construct a broader and deeper understanding than is possible working solely within either discipline alone. Second, it operates at the intersection of two distinct theoretical approaches regarding the role of international law-what I term the interest-based and norm-based approaches--that cut across the disciplinary divide between political science and international legal scholarship The theory--and this Article--is integrated in yet another sense as well. It accepts and seeks to respond to the challenge mounted by the critics of international law. B integrating their insights into an analysis of how international law affects what states actually do. Rather than reject altogether the arguments of international law skeptics-as international lawyers and scholars are sometimes want to do-I seek to show when and why their claims have power and when and why they do not. I begin by confronting the root auses of doubt about the power of international law. I focus attention on the voluntary nature of international treaty law(the fact that countries often choose whether to be bound by it) and on the frequent absence of any central it powe to show how despite and at times because of these distinctive features, international treaty law can profoundly shape state behavior. The central goal of this Article is to explain the impact of international treaty law on state behavior(that is, on countries' decisions to comply or not with treaty law). The integrated theory I develop herein begins with the claim that understanding the political interplay between countries' decisions to commit and to comply is essential to a complet picture of the influence of international treaty law. I thus argue that we must pay attention to he interaction of the domestic and transnational levels at each stage of a country's entry into an international legal framework: its decision to commit (or not) to international legal rules; and its decision to comply (or not) with them. When we do so, we find that compliance not only depends upon the decision to commit, but commitment also depends upon the decision tO comp Beginning with this interactive mode of thinking about state decisionmaking, the transnational level. Legal enforcement occulr: terms or bays in which treaties shape what Article proceeds to describe and elaborate the two central countries do: through legal enforcement of the the treaty and by bringing about collateral consequences for state interests. Both operate at the domestic as well use the country's own legal system to enforce the terms of international legal agreements. At the transnational level, legal enforcement occurs when international bodies or other states The United Nations Treaty Series currently contains over 50,000 treaties. United Treaty Overview online http://untreaty.un.org/english/overView.asp(visitedNov24,2004) This Article adopts the definition of"transnational"used by Philip Jessup: he wrote that "transnational law" includes " all law which regulates actions or events that transcend
Between Power and Principle 4 impact of the over 50,000 international treaties now in force, covering nearly every aspect of international relations and nearly every facet of state authority.8 This Article offers a theory of international treaty law that helps fill this gap. I call the theory an “integrated” theory of international law because it brings together and builds upon two cross-cutting facets of existing scholarship on international law and politics. First, the theory draws on both political science and legal scholarship, using them together to construct a broader and deeper understanding than is possible working solely within either discipline alone. Second, it operates at the intersection of two distinct theoretical approaches regarding the role of international law—what I term the interest-based and norm-based approaches—that cut across the disciplinary divide between political science and international legal scholarship. The theory—and this Article—is integrated in yet another sense as well. It accepts and seeks to respond to the challenge mounted by the critics of international law. By integrating their insights into an analysis of how international law affects what states actually do. Rather than reject altogether the arguments of international law skeptics—as international lawyers and scholars are sometimes want to do—I seek to show when and why their claims have power and when and why they do not. I begin by confronting the root causes of doubt about the power of international law. I focus attention on the voluntary nature of international treaty law (the fact that countries often choose whether to be bound by it) and on the frequent absence of any central enforcement power. I go on to show how, despite and at times because of these distinctive features, international treaty law can profoundly shape state behavior. The central goal of this Article is to explain the impact of international treaty law on state behavior (that is, on countries’ decisions to comply or not with treaty law). The integrated theory I develop herein begins with the claim that understanding the political interplay between countries’ decisions to commit and to comply is essential to a complete picture of the influence of international treaty law. I thus argue that we must pay attention to the interaction of the domestic and transnational levels at each stage of a country’s entry into an international legal framework: its decision to commit (or not) to international legal rules; and its decision to comply (or not) with them. When we do so, we find that compliance not only depends upon the decision to commit, but commitment also depends upon the decision to comply. Beginning with this interactive mode of thinking about state decisionmaking, the Article proceeds to describe and elaborate the two central ways in which treaties shape what countries do: through legal enforcement of the terms of the treaty and by bringing about collateral consequences for state interests. Both operate at the domestic as well as transnational level. Legal enforcement occurs at the domestic level when domestic actors use the country’s own legal system to enforce the terms of international legal agreements. At the transnational level,9 legal enforcement occurs when international bodies or other states 8 The United Nations Treaty Series currently contains over 50,000 treaties. United Nations Treaty Series Overview (2003), online at http://untreaty.un.org/English/overview.asp (visited Nov 24, 2004). 9 This Article adopts the definition of “transnational” used by Philip Jessup: he wrote that “transnational law” includes “all law which regulates actions or events that transcend
Between Power and principle that are party to the treaty respond to violations of a treaty in ways provided for in the treaty Collateral consequences, by contrast, arise when domestic and transnational actors premise their actions toward a state on the states decision to accept or not accept international legal rules. The reactions of these actors to the states actions can affect, among other things, foreign investment, aid donations, international trade, domestic political support, and political contributions, and hence create powerful incentives for states to commit to and com Viewing state decisions to commit and comply in with broader lens makes it possible to understand why countries behave in ways that standard theories miss--failing to join treaties, for instance, that they could easily comply with(because they have little to gain and much to lose), or joining treaties that they have little inclination to obey(because they have much to gain and little to lose). For example, it is often thought that countries with poor luman rights records will be reluctant to join treaties that embody higher standards. Yet in fact these countries often have stronger incentives(and weaker disincentives) to join human rights treaties than states with better records--first, because such countries usually have weak rule of law and thus create limited opportunities for domestic legal enforcement; second, because human rights treaties usually lack transnational legal enforcement mechanisms, such as supranational enforcement or credible threats of state-to-state retaliation; and finally, because such countries, by displaying their(sometimes commitment to human rights, increase their standing among other nations, international bodies, private investors, domestic actors, and others and thereby obtain significant collateral benefits. The integrated theory thus predicts that, holding other factors constant, countries with very poor human rights records can be as likely or even more likely to ratify treaties as countries with better records, but that unlike those with better records, they are unlikely to comply with those commitments--which is in fact the pattern found. In short, the theory not only provides a comprehensive vision of the potential and the limits of international law, it also gives rise to unique(and often counterintuitive) predictions that are consistent with the available evidence This Article focuses exclusively on international treaty law. For the purposes of this first effort to articulate the theory, I put customary international law to one side. The focus in this piece is on state decisions to commit to and comply with international treaty law. It is national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories. "Philip C.Jessup, Transnational Law 2 (Yale 1956). Hence "transnationaL"is used here in its literal sense: it means across nations, as opposed to "international, "which means between nations. The term "transnational herefore encompasses a larger universe of activity and interactions than does the term international. When applied to law, for example, transnational law includes any law that as cross-border effect, whereas international law refers only to treaties or other law that governs interactions between states io This Article is aimed only at explaining international treaty law. Hence references to"international law?are intended to include only international treaty law and not customary international law, jus cogens norms, private transnational legal interactions, or domestic law that extends across borders
Between Power and Principle 5 that are party to the treaty respond to violations of a treaty in ways provided for in the treaty. Collateral consequences, by contrast, arise when domestic and transnational actors premise their actions toward a state on the state’s decision to accept or not accept international legal rules. The reactions of these actors to the state’s actions can affect, among other things, foreign investment, aid donations, international trade, domestic political support, and political contributions, and hence create powerful incentives for states to commit to and comply with treaties. Viewing state decisions to commit and comply in with broader lens makes it possible to understand why countries behave in ways that standard theories miss—failing to join treaties, for instance, that they could easily comply with (because they have little to gain and much to lose), or joining treaties that they have little inclination to obey (because they have much to gain and little to lose). For example, it is often thought that countries with poor human rights records will be reluctant to join treaties that embody higher standards. Yet in fact these countries often have stronger incentives (and weaker disincentives) to join human rights treaties than states with better records—first, because such countries usually have weak rule of law and thus create limited opportunities for domestic legal enforcement; second, because human rights treaties usually lack transnational legal enforcement mechanisms, such as supranational enforcement or credible threats of state-to-state retaliation; and finally, because such countries, by displaying their (sometimes insincere) commitment to human rights, increase their standing among other nations, international bodies, private investors, domestic actors, and others and thereby obtain significant collateral benefits. The integrated theory thus predicts that, holding other factors constant, countries with very poor human rights records can be as likely or even more likely to ratify treaties as countries with better records, but that unlike those with better records, they are unlikely to comply with those commitments—which is in fact the pattern found. In short, the theory not only provides a comprehensive vision of the potential and the limits of international law; it also gives rise to unique (and often counterintuitive) predictions that are consistent with the available evidence. This Article focuses exclusively on international treaty law. For the purposes of this first effort to articulate the theory, I put customary international law to one side.10 The focus in this piece is on state decisions to commit to and comply with international treaty law. It is national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.” Philip C. Jessup, Transnational Law 2 (Yale 1956). Hence “transnational” is used here in its literal sense: it means across nations, as opposed to “international,” which means between nations. The term “transnational” therefore encompasses a larger universe of activity and interactions than does the term “international.” When applied to law, for example, transnational law includes any law that has cross-border effect, whereas international law refers only to treaties or other law that governs interactions between states. 10 This Article is aimed only at explaining international treaty law. Hence references to “international law” are intended to include only international treaty law and not customary international law, jus cogens norms, private transnational legal interactions, or domestic law that extends across borders