Between Power and principle widely understood that states cannot be bound by a treaty unless they agree thereto Commitment does not operate in the same way for customary law(with limited exceptions, states are regarded to be obligated by international customary law regardless of whether they wish to be). As a consequence, although many of the same factors will likely be important Customary international law does not require the same kind of affirmative act on the part of a state to subject it to the law, but it is generally accepted that states can-with some important exceptions-avoid application of customary international law simply b persistently objecting to it. The persistent objector rule "is an accepted application of the aditional principle that international law essentially depends on the consent of states. Restatement Third) of the Foreign Relations Law of the United States 5 102, Reporters Note 2(1987). On the persistent objector rule, see Ian Brownlie, Principles of Public International Law 10(Oxford 5th ed 1998)(concluding that the persistent objector doctrine is well recognized by international tribunals and in the practice of states); Jonathan Charney Universal International Law, 87 Am J Intl L 529, 538-42(1993)(noting the existence of the ersistent objector rule, but concluding that the rule is open to doubt due to its infrequent use and the existence of several exceptions to it). For an application of the rule, see Fisheri Case United Kingdom v Norway), 1951 IC] 116, 139(holding that the international rule concerning fisheries zones is inapplicable because Norway has always opposed any attempt states to be "bound"by, or have an obligation under, international laip Possible for to apply it to the Norwegian coast). Indeed, some question whether it is even ven sovereignty. Perhaps the most famous statement of the notion that in a world of independent states, sovereignty resides in the states was made by the Permanent Court of International Justice in 1927 in the S.s. Lotus case: " International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law. "The S.S. Lotus(France v Turkey), 1927 PCIj(ser A) No 10, 18. Several works have discussed the dilemma inherent in the notion of obligating a sovereign state, including David Kennedy, International Law and the Nineteenth Century: A History of an Illusion, 17 Quinnipiac L Rev 99, 112-31(1997); Rosalyn Higgins, Problems and Process International Law and How We Use It 13-16(Clarendon 1994); Thomas M. Franck, The Power of legitimacy Among Nations 187-94, 202-07(Oxford 1990); Richard A Falk, The Status of Law in International Society 19-23(Princeton 1970)(concluding that sovereign consent has stalemated attempts to obligate nations to comply with international law derived through consensus, natural law, or consent);JE S. Fawcett, The Law of Nations 6-11 (Oxford 1968)(concluding that international law has a moral basis and an arbitrary structure that is accepted because it makes the conduct of states more constant, more predictable, and so more effectual); Oscar Schachter, Towards a Theory of International Obligation, 8 Vaj Intl L 300, 307(1968)(arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); W. Friedmann, Legal Theory 574-80( Columbia 5th ed 1967); James Brierly, The Law of Nations: An Introduction to the International Law of Peace 49-56(Oxford 6th ed 1963); C. Wilfred Jenks, Law, Freedom and Welfare 83-100(Stevens Sons 1963); Hans Kelsen, General Theory of Law and State 341-63(Russell Russell 1961)(Anders Wedberg, transI); James
Between Power and Principle 6 widely understood that states cannot be bound by a treaty unless they agree thereto.11 Commitment does not operate in the same way for customary law (with limited exceptions, states are regarded to be obligated by international customary law regardless of whether they wish to be).12 As a consequence, although many of the same factors will likely be important 11 See Part II.A. 12 Customary international law does not require the same kind of affirmative act on the part of a state to subject it to the law, but it is generally accepted that states can—with some important exceptions—avoid application of customary international law simply by persistently objecting to it. The persistent objector rule “is an accepted application of the traditional principle that international law essentially depends on the consent of states.” Restatement (Third) of the Foreign Relations Law of the United States § 102, Reporters’ Note 2 (1987). On the persistent objector rule, see Ian Brownlie, Principles of Public International Law 10 (Oxford 5th ed 1998) (concluding that the persistent objector doctrine is well recognized by international tribunals and in the practice of states); Jonathan Charney, Universal International Law, 87 Am J Intl L 529, 538–42 (1993) (noting the existence of the persistent objector rule, but concluding that the rule is open to doubt due to its infrequent use and the existence of several exceptions to it). For an application of the rule, see Fisheries Case (United Kingdom v Norway), 1951 ICJ 116, 139 (holding that the international rule concerning fisheries zones is inapplicable because Norway has always opposed any attempt to apply it to the Norwegian coast). Indeed, some question whether it is even possible for states to be “bound” by, or have an obligation under, international law given their sovereignty. Perhaps the most famous statement of the notion that in a world of independent states, sovereignty resides in the states was made by the Permanent Court of International Justice in 1927 in the S.S. Lotus case: “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.” The S.S. Lotus (France v Turkey), 1927 PCIJ (ser A) No 10, 18. Several works have discussed the dilemma inherent in the notion of obligating a sovereign state, including David Kennedy, International Law and the Nineteenth Century: A History of an Illusion, 17 Quinnipiac L Rev 99, 112–31 (1997); Rosalyn Higgins, Problems and Process: International Law and How We Use It 13–16 (Clarendon 1994); Thomas M. Franck, The Power of Legitimacy Among Nations 187–94, 202–07 (Oxford 1990); Richard A. Falk, The Status of Law in International Society 19–23 (Princeton 1970) (concluding that sovereign consent has stalemated attempts to obligate nations to comply with international law derived through consensus, natural law, or consent); J.E.S. Fawcett, The Law of Nations 6–11 (Oxford 1968) (concluding that international law has a moral basis and an arbitrary structure that is accepted because it makes the conduct of states more constant, more predictable, and so more effectual); Oscar Schachter, Towards a Theory of International Obligation, 8 Va J Intl L 300, 307 (1968) (arguing that obligatory norms, established through the same, consistent five processes, are the basis of obligation in international law); W. Friedmann, Legal Theory 574–80 (Columbia 5th ed 1967); James Brierly, The Law of Nations: An Introduction to the International Law of Peace 49–56 (Oxford 6th ed 1963); C. Wilfred Jenks, Law, Freedom and Welfare 83–100 (Stevens & Sons 1963); Hans Kelsen, General Theory of Law and State 341–63 (Russell & Russell 1961) (Anders Wedberg, transl); James
Between Power and principle to explaining state compliance with customary law, the way in which the theory operates necessarily will be quite different. The Article proceeds as follows. I begin in Part I by briefly examining the existing international relations and legal literature on the influence of international law on state behavior. I classify the literature into two broad camps--interest-based models and norm- based modelsand seek to trace out in broad outlines the competing explanations offered by each. I conclude this Part by briefly discussing the start of a promising convergence of these two theories upon which this Article seeks to build. Part II begins to delineate my own account of the reach and limits of international law. In this Part, I examine the aspects of international treaty law that have sown the seeds of doubt as to whether it is really "lawat all. I focus particularly on treaty law's largely voluntary nature and the relative absence of central enforcement mechanisms in international law. This discussion forms the foundation for my integrated theory of international law, which I develop in Part Ill. Part IV assesses the theory against existing accounts using new empirical evidence on state behavior under key human rights and environmental treaties, as well as existing empirical studies. Finally, Part V concludes with suggestions for future research and for designing international law arness its real but limited power more effectively Existing literature The divide between advocates and skeptics of international law is in part the legacy of a gradually disappearing schism in scholarship and teaching between students of law and tudents of international relations, manifested institutionally as a split between law schools and political science departments. From the close of World War II through the last decade, scholars at law schools who taught and studied international law ignored many of the questions of context and power relations that had become the central concern of international study in political science departments. Political scientists, for their part, tended to dismiss international law altogether Even within legal academia, international law was, until the last decade, regarded largely as a curiosity-a subject of study truly relevant only to the few who devoted themselves to it. With increased globalization, the isolation of international law has begun to melt away. But what has replaced it is, in many cases, almost equally dismissive. Rather than integrate the work of international legal scholars into the rest of the curriculum, legal academics have instead tended to regard international law merely as an extension of existing areas of domestic law-as simply torts, corporate law, or criminal law that happens to cross Leslie Brierly, The Basis of Obligation in International Law 1-68(Oxford 1958)(Sir Hersch Lauterpacht and C.H.M. Waldock, eds): H. Lauterpacht, The Function of Law in the International Community 3-4(Oxford 1933). For a particularly interesting refutation of the assertion that sovereign states cannot be bound by international law, see H.L.A. Hart, The Concept of Law 215-21(Clarendon 1961). See also Richard L. O'Meara, Note, Applving the Critical urisprudence of International Law to the _ Case Concerning the military and Paramilitary Activities in and against Nicaragua, 71 Va l rev 1183, 1203(1985)(claiming that" a truly independent, sovereign state cannot be bound without its consent")
Between Power and Principle 7 to explaining state compliance with customary law, the way in which the theory operates necessarily will be quite different. The Article proceeds as follows. I begin in Part I by briefly examining the existing international relations and legal literature on the influence of international law on state behavior. I classify the literature into two broad camps—interest-based models and normbased models—and seek to trace out in broad outlines the competing explanations offered by each. I conclude this Part by briefly discussing the start of a promising convergence of these two theories upon which this Article seeks to build. Part II begins to delineate my own account of the reach and limits of international law. In this Part, I examine the aspects of international treaty law that have sown the seeds of doubt as to whether it is really “law” at all. I focus particularly on treaty law’s largely voluntary nature and the relative absence of central enforcement mechanisms in international law. This discussion forms the foundation for my integrated theory of international law, which I develop in Part III. Part IV assesses the theory against existing accounts using new empirical evidence on state behavior under key human rights and environmental treaties, as well as existing empirical studies. Finally, Part V concludes with suggestions for future research and for designing international law to harness its real but limited power more effectively. I. Existing Literature The divide between advocates and skeptics of international law is in part the legacy of a gradually disappearing schism in scholarship and teaching between students of law and students of international relations, manifested institutionally as a split between law schools and political science departments. From the close of World War II through the last decade, scholars at law schools who taught and studied international law ignored many of the questions of context and power relations that had become the central concern of international study in political science departments. Political scientists, for their part, tended to dismiss international law altogether. Even within legal academia, international law was, until the last decade, regarded largely as a curiosity—a subject of study truly relevant only to the few who devoted themselves to it. With increased globalization, the isolation of international law has begun to melt away. But what has replaced it is, in many cases, almost equally dismissive. Rather than integrate the work of international legal scholars into the rest of the curriculum, legal academics have instead tended to regard international law merely as an extension of existing areas of domestic law—as simply torts, corporate law, or criminal law that happens to cross Leslie Brierly, The Basis of Obligation in International Law 1–68 (Oxford 1958) (Sir Hersch Lauterpacht and C.H.M. Waldock, eds); H. Lauterpacht, The Function of Law in the International Community 3–4 (Oxford 1933). For a particularly interesting refutation of the assertion that sovereign states cannot be bound by international law, see H.L.A. Hart, The Concept of Law 215–21 (Clarendon 1961). See also Richard L. O’Meara, Note, Applying the Critical Jurisprudence of International Law to the Case Concerning the Military and Paramilitary Activities in and against Nicaragua, 71 Va L Rev 1183, 1203 (1985) (claiming that “a truly independent, sovereign state cannot be bound without its consent”)
Between Power and principle borders. This vision, while partially accurate, fails to acknowledge the ways in which international law is fundamentally different from its domestic counterpart.+ Nonetheless, over the past decade, two broad theoretical approaches regarding the role of international law in state behavior have started to cut across the disciplinary divide between political science and international legal scholarship. The first, which I term the interest-based approach, argues that states create and comply with international law only when there is some clear objective reward for doing so; in other words, states follow consequentialist reasoning or what has been termed the "logic of consequences. The ond, which I label the norm-based approach, argues that governments create and comply with treaties not only because they expect a reward for doing So, but also because of their commitment(or the commitment of transnational actors that influence them)to the norms or ideas embodied in the treaties. Hence in this view states often follow what has been termed the "logic of appropriateness"rather than that of consequences. Moreover, nonstate and substate actors are the focus of much more attention in the norm-centered account than in the interest-centered one, for they play an important role in constructing state preferences. As I shall show in the brief review that follows, each of the valuable insights into the ways in which states react to international law. />se accounts offers 13 Harold Koh writes: [T]hat reminds me of something a former law school dean told me sixteen ras coming to Yale to teach International H Transactions: that there is no genuinely transnational body of international business law because transnational business law is like that famous non- book, The Law of the Horse, which consists of Chapter I: Contracting for a Horse, " Chapter II: Owning a Horse, Chapter Ill, "Torts by a Horse, and Chapter Iv: "Litigating over a Horse Harold Hongju Koh, The Globalization of Freedom, 26 Yale J Intl L 305, 305 (2001). Moreover, international law is rarely a required course in law school; this reflects a widespread belief among legal academics that an understanding of international law is uperfluous to a solid legal education See discussion in Part IL. A-B James G. March and Johan P. Olsen introduce the terms"logic of consequences" and"logic of appropriateness, which they draw from their study of cognitive psychology in their research on organizations and political institutions. James G. March and Johan P Olsen, Rediscovering Institutions: The Organizational Basis of Politics 160-62 (Free Press 1989)(comparing the logic of consequences-where behavior is willful, fills subjective desires, and is driven by preferences and expectations about consequences-with the logic of appropriateness--where behavior is intentional, fills the obligations of a role in a situation, and stems from a conception of necessity, rather than preference). See also James G. March and Johan P Olsen, The Institutional Dynamics of International Political Orders 52 Intl Org 943, 949-54(1998); John W. Meyer and Brian Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 Am J Sociology 340(1977) (critiquing the reliance on consequentialist logic in the social sciences The line between the interest-based and norm-based approaches is far absolute. Interest-based models often fall back on normative insights in order to explain
Between Power and Principle 8 borders.13 This vision, while partially accurate, fails to acknowledge the ways in which international law is fundamentally different from its domestic counterpart.14 Nonetheless, over the past decade, two broad theoretical approaches regarding the role of international law in state behavior have started to cut across the disciplinary divide between political science and international legal scholarship. The first, which I term the interest-based approach, argues that states create and comply with international law only when there is some clear objective reward for doing so; in other words, states follow consequentialist reasoning or what has been termed the “logic of consequences.”15 The second, which I label the norm-based approach, argues that governments create and comply with treaties not only because they expect a reward for doing so, but also because of their commitment (or the commitment of transnational actors that influence them) to the norms or ideas embodied in the treaties. Hence, in this view, states often follow what has been termed the “logic of appropriateness” rather than that of consequences. Moreover, nonstate and substate actors are the focus of much more attention in the norm-centered account than in the interest-centered one, for they play an important role in constructing state preferences.16 As I shall show in the brief review that follows, each of these accounts offers valuable insights into the ways in which states react to international law.17 13 Harold Koh writes: [T]hat reminds me of something a former law school dean told me sixteen years ago when I said I was coming to Yale to teach International Business Transactions: that there is no genuinely transnational body of international business law, because transnational business law is like that famous nonbook, The Law of the Horse, which consists of Chapter I: “Contracting for a Horse,” Chapter II: “Owning a Horse;” Chapter III, “Torts by a Horse,” and Chapter IV: “Litigating over a Horse.” Harold Hongju Koh, The Globalization of Freedom, 26 Yale J Intl L 305, 305 (2001). Moreover, international law is rarely a required course in law school; this reflects a widespread belief among legal academics that an understanding of international law is superfluous to a solid legal education. 14 See discussion in Part II.A–B. 15 James G. March and Johan P. Olsen introduce the terms “logic of consequences” and “logic of appropriateness,” which they draw from their study of cognitive psychology in their research on organizations and political institutions. James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics 160–62 (Free Press 1989) (comparing the logic of consequences—where behavior is willful, fills subjective desires, and is driven by preferences and expectations about consequences—with the logic of appropriateness—where behavior is intentional, fills the obligations of a role in a situation, and stems from a conception of necessity, rather than preference). See also James G. March and Johan P. Olsen, The Institutional Dynamics of International Political Orders, 52 Intl Org 943, 949–54 (1998); John W. Meyer and Brian Rowan, Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 Am J Sociology 340 (1977) (critiquing the reliance on consequentialist logic in the social sciences). 16 The line between the interest-based and norm-based approaches is far from absolute. Interest-based models often fall back on normative insights in order to explain
Between Power and principle A. Interest-Based Models The interest-based approach has its roots in the realist view of international cooperation, which became dominant in American political science scholarship in the wake of World War II. In this view, states are seen as rational, unitary actors in pursuit of self interest. Early realist accounts used this vision of state action to argue that internationa agreements exist and are enforced only when they serve the interests of the most powerful states. More recent scholarship, by contrast, argues that regimes"including legal otherwise inexplicable state behavior in the human rights arena, and norm-centered accounts do not deny the power of rational self-interest to motivate state behavior. Indeed, Moravcsik has aptly labeled this a"curious convergenceof the two main theoretical accounts in his work on the European Convention on Human Rights. Moravcsik, 54 Intl Org at 224-25 (cited in note 7). Moreover, several scholars have done excellent work at the intersection of interest-based and norm-based accounts. See, for example, Martin Shapiro Alec Stone Sweet, Governing with Judges: Constitutional Powers in Europe(2000). And much work in the so-called English School of international relations cannot be characterized as falling solely within one camp or the other. The goal here is therefore not to exaggerate the differences between the approaches, but simply to outline the prevailing modes of thought on the role of international law in shaping state behavior 17 This outline (as well as what follows) necessarily simplifies what are deeply complex theoretical accounts For a more comprehensive introduction to these theoretical approaches, see Oona A Hathaway and Harold Hongju Koh, Foundations of International Law and Politics(Foundation Press 2004). See also Oona A Hathaway, Do Human Rights Treaties Make a Difference,, 111 Yale L J 1935, 1942-62(2002) 8 Indeed, E H. Carr and Hans Morgenthau, among others, made the case that states are simply rational unitary actors motivated by their geopolitical interests. Law, in this view, is nothing more than one of a variety of tools used by states to enhance their own power See generally Morgenthau, Politics Among Nations(cited in note 3); Carr, The Twenty Years Crisis(cited in note 3); Morgenthau, 34 Am J Intl L 260(cited in note 3). In the 1970s, Kenneth Waltz and others expanded on the realist perspective, arguing that states may pursue a broader set of interests and sometimes make strategic decisions to engage in international cooperation. Nonetheless, even in this "neorealist" approach, states primary motivation remains preservation and accumulation of power. As Waltz put it in his classic book, Theory of International Politics, states are "unitary actors who, at a minimum seek their own preservation and, at a maximum, drive for universal domination. Kenneth N Waltz, Theory of International Politics 118(McGraw-Hill 1979). In this view, the most powerful states create and join treaties that advance their power interests and then force eaker states to join and comply by threatening sanctions or promising benefits defined as "sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors' expectations converge in a given area of international relations. Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables in Stephen D. Krasner, ed, International Regimes 1, 2 (Cornell 1983). Compare Robert O. Keohane and Joseph S. Nye, Power and
Between Power and Principle 9 A. Interest-Based Models The interest-based approach has its roots in the realist view of international cooperation, which became dominant in American political science scholarship in the wake of World War II. In this view, states are seen as rational, unitary actors in pursuit of selfinterest. Early realist accounts used this vision of state action to argue that international agreements exist and are enforced only when they serve the interests of the most powerful states.18 More recent scholarship, by contrast, argues that regimes19—including legal otherwise inexplicable state behavior in the human rights arena, and norm-centered accounts do not deny the power of rational self-interest to motivate state behavior. Indeed, Moravcsik has aptly labeled this a “curious convergence” of the two main theoretical accounts in his work on the European Convention on Human Rights. Moravcsik, 54 Intl Org at 224–25 (cited in note 7). Moreover, several scholars have done excellent work at the intersection of interest-based and norm-based accounts. See, for example, Martin Shapiro & Alec Stone Sweet, Governing with Judges: Constitutional Powers in Europe (2000). And much work in the so-called English School of international relations cannot be characterized as falling solely within one camp or the other. The goal here is therefore not to exaggerate the differences between the approaches, but simply to outline the prevailing modes of thought on the role of international law in shaping state behavior. 17 This outline (as well as what follows) necessarily simplifies what are deeply complex theoretical accounts. For a more comprehensive introduction to these theoretical approaches, see Oona A. Hathaway and Harold Hongju Koh, Foundations of International Law and Politics (Foundation Press 2004). See also Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L J 1935, 1942–62 (2002). 18 Indeed, E.H. Carr and Hans Morgenthau, among others, made the case that states are simply rational unitary actors motivated by their geopolitical interests. Law, in this view, is nothing more than one of a variety of tools used by states to enhance their own power. See generally Morgenthau, Politics Among Nations (cited in note 3); Carr, The Twenty Years Crisis (cited in note 3); Morgenthau, 34 Am J Intl L 260 (cited in note 3). In the 1970s, Kenneth Waltz and others expanded on the realist perspective, arguing that states may pursue a broader set of interests and sometimes make strategic decisions to engage in international cooperation. Nonetheless, even in this “neorealist” approach, states’ primary motivation remains preservation and accumulation of power. As Waltz put it in his classic book, Theory of International Politics, states are “unitary actors who, at a minimum seek their own preservation and, at a maximum, drive for universal domination.” Kenneth N. Waltz, Theory of International Politics 118 (McGraw-Hill 1979). In this view, the most powerful states create and join treaties that advance their power interests and then force weaker states to join and comply by threatening sanctions or promising benefits. 19 Regimes are defined as “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations.” Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables in Stephen D. Krasner, ed, International Regimes 1, 2 (Cornell 1983). Compare Robert O. Keohane and Joseph S. Nye, Power and
Between Power and principle regimes--can influence the behavior of international actors. States create and comply with the requirements of international regimes, these scholars claim, because the regimes allow Interdependence: World Politics in Transition 19(Little Brown 1977)(defining internation regimes as " governing arrangements that affect relationships of interdependence, or networks of rules, norms, and procedures that regularize behavior and control its effects") term"regimes"is now commonly used interchangeably with "institutions. See, for example, Ronald B. Mitchell and Patricia M. Keilbach, Situation Structure and Institutional Design: Reciprocity, Coercion, and Exchange, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 131, 133(2004)(We also use the term regime interchangeably with institution. )(emphasis added In political science, recent variants of this approach are variously labeled"modified tructural realism,”“ intergovernmental institutionalism,”"“ neoliberal institutionalism,”and new institutionalism. See, for example, Robert O. Keohane, Theory of World Politics: Structural Realism and Bevond, in Robert O Keohane, ed, Neorealism and Its Critics_158, 190-97( Columbia 1986)(outlining a research plan for Modified Structural Realism) Friedrich Kratochwil and John Gerard Ruggie, International Organization: A State of the Art on an Art of the State, 40 Intl Org 753, 759-60(1986)(explaining that international regimes can help clarify why in the 1970s states did not respond to the pressure on institutional arrangements in "beggar-thy-neighbor terms"); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 63(Princeton 1984)("Theories of regimes can incorporate realist insights about the role of power and interest, while also indicating the inadequacy of theories that define interests so narrowly that they fail to take he role of institutions into account. ) Modified Structural Realism is the immediate bridge from Structural Realism, often referred to as Neorealism. See, for example, Robert O Keohane, Realism, Neorealism and the Study of World Politics, in Keohane, ed, Neorealism and Its Critics 1, 17. See, for example, Judith Goldstein, et al, eds, Legalization and World Politics (MiT 2001)(examining the legalization of regimes and the impact of regimes on world politics); Barbara Koremenos, Charles Lipson, and Duncan Nidal, The Rational Design of International Institutions, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 1, 2, 3, 7(2004)(referring to various treaties as included among the institutions the volume examines). Legal scholars have contributed to this reconceptualization by using institutionalist approaches to examine state compliance with international law. See Andrew T Guzman, A Compliance-Based Theory of International Law, 90 Cal L Rev 1823(2002)(putting forward a theory of international legal compliance in which rational, self-interested states and international law punish violations through reputational and direct sanctions); Jack L. Goldsmith and Eric A. Posner, A Theory of Customary International Law, 66 U Chi L Rev 1113(1999)(presenting a theory of customary international law that draws on rational choice theory); John K. Setear, Ar Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv Intl LJ 139(1996)(using an institutional approach to explain the Law of Treaties
Between Power and Principle 10 regimes—can influence the behavior of international actors.20 States create and comply with the requirements of international regimes, these scholars claim, because the regimes allow Interdependence: World Politics in Transition 19 (Little Brown 1977) (defining international regimes as “governing arrangements that affect relationships of interdependence,” or “networks of rules, norms, and procedures that regularize behavior and control its effects”). The term “regimes” is now commonly used interchangeably with “institutions.” See, for example, Ronald B. Mitchell and Patricia M. Keilbach, Situation Structure and Institutional Design: Reciprocity, Coercion, and Exchange, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 131, 133 (2004) (“We also use the term regime interchangeably with institution.”) (emphasis added). 20 In political science, recent variants of this approach are variously labeled “modified structural realism,” “intergovernmental institutionalism,” “neoliberal institutionalism,” and “new institutionalism.” See, for example, Robert O. Keohane, Theory of World Politics: Structural Realism and Beyond, in Robert O Keohane, ed, Neorealism and Its Critics 158, 190–97 (Columbia 1986) (outlining a research plan for Modified Structural Realism); Friedrich Kratochwil and John Gerard Ruggie, International Organization: A State of the Art on an Art of the State, 40 Intl Org 753, 759–60 (1986) (explaining that international regimes can help clarify why in the 1970s states did not respond to the pressure on institutional arrangements in “beggar-thy-neighbor terms”); Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy 63 (Princeton 1984) (“Theories of regimes can incorporate realist insights about the role of power and interest, while also indicating the inadequacy of theories that define interests so narrowly that they fail to take the role of institutions into account.”). Modified Structural Realism is the immediate bridge from Structural Realism, often referred to as Neorealism. See, for example, Robert O. Keohane, Realism, Neorealism and the Study of World Politics, in Keohane, ed, Neorealism and Its Critics 1, 17. See, for example, Judith Goldstein, et al, eds, Legalization and World Politics (MIT 2001) (examining the legalization of regimes and the impact of regimes on world politics); Barbara Koremenos, Charles Lipson, and Duncan Snidal, The Rational Design of International Institutions, in Barbara Koremenos, Charles Lipson, and Duncan Snidal, eds, The Rational Design of International Institutions 1, 2, 3, 7 (2004) (referring to various treaties as included among the institutions the volume examines). Legal scholars have contributed to this reconceptualization by using institutionalist approaches to examine state compliance with international law. See Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 Cal L Rev 1823 (2002) (putting forward a theory of international legal compliance in which rational, self-interested states and international law punish violations through reputational and direct sanctions); Jack L. Goldsmith and Eric A. Posner, A Theory of Customary International Law, 66 U Chi L Rev 1113 (1999) (presenting a theory of customary international law that draws on rational choice theory); John K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv Intl L J 139 (1996) (using an institutional approach to explain the Law of Treaties)