Between Power and principle states to engage in cooperative activity that would otherwise be impossible. By allowing states to restrain themselves and others from pursuing short-term interests at the expense of shared long-term goa 22 Yet as different as the many variants of this approach are, they share als, regimes make it possible for states to obtain benefits that exceed the costs of membership at least two key assumptions: States engage in consequentialist means-end calculations, and state interests can be deduced from the state's material characteristics and the objective conditions it faces. Moreover, these models traditionally focused exclusively on state-level interactions, with scholars largely ignoring substate dy namics Despite increased attention to international law by interest-based scholars, current interest-based approaches remain ill-equipped to explain the existence of--much less state compliance with--treaties that impose costs in return for little or no apparent benefit Human rights and environmental treaties, for example, impose substantial sovereignty costs on states in return for the collective goods of human dignity and a healthier world environment. In a world where self-interest is the central motivating force of state action, why would states waste time and energy creating treaties that yield little obvious individualized benefit? And why would they ever abide by them? Interest-based theorists commonly argue such treaties are simply "cheap talk'-used by the governments o powerful states to justify actions that are in fact taken for self-interested reasons Proponents of this view, however, give no explanation as to why such cover is valuable-a to why, that is, the great powers feel the need to justify the pursuit of their interests Moreover, they are at a loss to explain why it is that the most powerful nations commonly refuse to join such treaties. Alternatively, rationalists argue that countries are willing to join readies that offer little in the way of benefits if they also ask countries to modify their behavior little or not at all and hence impose minimal cost. 4 In this view, then, compliance 21 See Robert O. Keohane, The Demand for International Regimes, in Krasner, ed, International Regimes 141, 147(cited in note 19)(In general, we expect states to join those regimes in which they expect the benefits of membership to outweigh the costs. See Keohane, Demand for International Regimes at 147(cited in note 21) altz, Theory of International Politics at 200(cited in note 18); Carr, The Twenty Years'Crisis at 71-75(cited in note 3)(explaining that states have engaged in"morally discrediting the policy of a potential enemy and morally justifying their own?"in order to aid their efforts to obtain geopolitical power): Morgenthau, 34 AmJ Intl L at 11 (cited in note 3) (All nations are tempted-and few have been able to resist the temptation for long- clothe their own particular aspirations and actions in the moral purposes of the universe. > In this view, states will create treaties in these areas only if the treaties require very little of them. Once the treaties are created, countries with practices consistent with the treaty's requirements might join, whereas countries with noncomplying practices will not See George W. Downs, David M. Rocke, and Peter N. Barsoom, Is the Good News About Compliance Good News About Cooperation,, 50 Intl Org 379, 380(1996)(arguing that he high level of compliance and the marginality of enforcement result from the fact that most treaties require states to make only modest departures from what they would have done in the absence of an agreement ). Jack Donnelly argues that support for human rights treaty making evaporates when it comes to efforts to create strong human rights treaties Donnelly explains, "It]he most important problem .. was and remains the fact that a
Between Power and Principle 11 states to engage in cooperative activity that would otherwise be impossible.21 By allowing states to restrain themselves and others from pursuing short-term interests at the expense of shared long-term goals, regimes make it possible for states to obtain benefits that exceed the costs of membership.22 Yet as different as the many variants of this approach are, they share at least two key assumptions: States engage in consequentialist means-end calculations, and state interests can be deduced from the state’s material characteristics and the objective conditions it faces. Moreover, these models traditionally focused exclusively on state-level interactions, with scholars largely ignoring substate dynamics. Despite increased attention to international law by interest-based scholars, current interest-based approaches remain ill-equipped to explain the existence of—much less state compliance with—treaties that impose costs in return for little or no apparent benefit. Human rights and environmental treaties, for example, impose substantial sovereignty costs on states in return for the collective goods of human dignity and a healthier world environment. In a world where self-interest is the central motivating force of state action, why would states waste time and energy creating treaties that yield little obvious individualized benefit? And why would they ever abide by them? Interest-based theorists commonly argue such treaties are simply “cheap talk”—used by the governments of powerful states to justify actions that are in fact taken for self-interested reasons.23 Proponents of this view, however, give no explanation as to why such cover is valuable—as to why, that is, the great powers feel the need to justify the pursuit of their interests. Moreover, they are at a loss to explain why it is that the most powerful nations commonly refuse to join such treaties. Alternatively, rationalists argue that countries are willing to join treaties that offer little in the way of benefits if they also ask countries to modify their behavior little or not at all and hence impose minimal cost.24 In this view, then, compliance 21 See Robert O. Keohane, The Demand for International Regimes, in Krasner, ed, International Regimes 141, 147 (cited in note 19) (“In general, we expect states to join those regimes in which they expect the benefits of membership to outweigh the costs.”). 22 See Keohane, Demand for International Regimes at 147 (cited in note 21). 23 Waltz, Theory of International Politics at 200 (cited in note 18); Carr, The Twenty Years’ Crisis at 71–75 (cited in note 3) (explaining that states have engaged in “morally discrediting the policy of a potential enemy and morally justifying [their] own” in order to aid their efforts to obtain geopolitical power); Morgenthau, 34 Am J Intl L at 11 (cited in note 3) (“All nations are tempted—and few have been able to resist the temptation for long—to clothe their own particular aspirations and actions in the moral purposes of the universe.”). 24 In this view, states will create treaties in these areas only if the treaties require very little of them. Once the treaties are created, countries with practices consistent with the treaty’s requirements might join, whereas countries with noncomplying practices will not. See George W. Downs, David M. Rocke, and Peter N. Barsoom, Is the Good News About Compliance Good News About Cooperation?, 50 Intl Org 379, 380 (1996) (arguing that “the high level of compliance and the marginality of enforcement result from the fact that most treaties require states to make only modest departures from what they would have done in the absence of an agreement”). Jack Donnelly argues that support for human rights treaty making evaporates when it comes to efforts to create strong human rights treaties. Donnelly explains, “[t]he most important problem . . . was and remains the fact that a
Between Power and principle with international law is widespread, but only because states only join treaties that require them to act no differently than they already do. Yet the empirical evidence shows this claim to be false. Countries frequently commit to treaties with which they cannot easily comply; they then, perhaps not so surprisingly, fail to meet those treaty commitments. Indeed countries with the poorest practices-and hence the highest cost of compliance--are sometimes more likely to ratify treaties than those with better practices, all else held equal Traditional interest-based theory thus leaves many unanswered questions: Why do states create and join treaties that provide for sometimes significant intrusions on state sovereignty, particularly when many countries later fail to abide by their requirements? When and why, that is, do countries create and join treaties that, on their face at least, go beyond the aspirational? And, most important for this Article, when and why do they comply or fail to comply with those treaties? B Norm-Based models Norm-based models of international law reject rationalist scholars'contention that the consequentialist pursuit of self-interest alone can explain state behavior. While acknowledging that state behavior is often motivated by self-interest, normative scholars stronger international human rights regime does not rest on any perceived material interest of a state or coalition willing and able to supply it. Jack Donnelly, International Human Rights: A Regime Analysis, 40 Intl Org 599, 616(1986). Instead, the existing regime rests on tates' sense of moral interdependence-an interdependence that he suggests is strong enough to sustain a weak human rights regime but not strong enough to lead to the creation of a regime with authoritative decisionmaking powers. A stronger regime does not exist, in other words, because states are reluctant to surrender sovereign authority and do not see a stronger international human rights regime as presenting "a safe prospect of obtaining otherwise unattainable national benefits. Id at 616-19 See, for example, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85(Dec 10, 1984, entered into force June 26, 1987)(hereinafter Convention Against Torture); American Convention on Human Rights, 1144 UNTS 123(Nov 22, 1969, entered into force July 18, 1978; International Covenant on Economic, Social, and Cultural Rights, 993 UNTS 3Dec 16, 1966, entered into force Jan 3, 1976); Convention on the Political Rights of Women, 193 UNTS 135(Mar 31, 1953, entered into force July 7, 1954); Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221(Nov 4, 1950, entered into force Sept 3, 1953) Each of these treaties requires international inspection of member countries' human rights practices. While many of the treaties cited in note 25 have strong requirements on their face, the enforcement and monitoring provisions are for the most part quite weak. Hence countries can and do compliance without meeting rebuke. Se Hathaway, 111 Yale L J at 1951, 1976-88(cited in note 17) See, for example, Hathaway, 111 Yale L J 1935; Oona A Hathaway, Why Do Countries Commit to Human Rights Treaties?(2004)(unpublished manuscript, on file with author
Between Power and Principle 12 with international law is widespread, but only because states only join treaties that require them to act no differently than they already do. Yet the empirical evidence shows this claim to be false. Countries frequently commit to treaties with which they cannot easily comply;25 they then, perhaps not so surprisingly, fail to meet those treaty commitments.26 Indeed, countries with the poorest practices—and hence the highest cost of compliance—are sometimes more likely to ratify treaties than those with better practices, all else held equal.27 Traditional interest-based theory thus leaves many unanswered questions: Why do states create and join treaties that provide for sometimes significant intrusions on state sovereignty, particularly when many countries later fail to abide by their requirements? When and why, that is, do countries create and join treaties that, on their face at least, go beyond the aspirational? And, most important for this Article, when and why do they comply or fail to comply with those treaties? B. Norm-Based Models Norm-based models of international law reject rationalist scholars’ contention that the consequentialist pursuit of self-interest alone can explain state behavior. While acknowledging that state behavior is often motivated by self-interest, normative scholars stronger international human rights regime does not rest on any perceived material interest of a state or coalition willing and able to supply it.” Jack Donnelly, International Human Rights: A Regime Analysis, 40 Intl Org 599, 616 (1986). Instead, the existing regime rests on states’ sense of moral interdependence—an interdependence that he suggests is strong enough to sustain a weak human rights regime but not strong enough to lead to the creation of a regime with authoritative decisionmaking powers. A stronger regime does not exist, in other words, because states are reluctant to surrender sovereign authority and do not see a stronger international human rights regime as presenting “a safe prospect of obtaining otherwise unattainable national benefits.” Id at 616–19. 25 See, for example, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (Dec 10, 1984, entered into force June 26, 1987) (hereinafter Convention Against Torture); American Convention on Human Rights, 1144 UNTS 123 (Nov 22, 1969, entered into force July 18, 1978); International Covenant on Economic, Social, and Cultural Rights, 993 UNTS 3 (Dec 16, 1966, entered into force Jan 3, 1976); Convention on the Political Rights of Women, 193 UNTS 135 (Mar 31, 1953, entered into force July 7, 1954); Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221 (Nov 4, 1950, entered into force Sept 3, 1953). Each of these treaties requires international inspection of member countries’ human rights practices. 26 While many of the treaties cited in note 25 have strong requirements on their face, the enforcement and monitoring provisions are for the most part quite weak. Hence countries can and do engage in widespread noncompliance without meeting rebuke. See Hathaway, 111 Yale L J at 1951, 1976–88 (cited in note 17). 27 See, for example, Hathaway, 111 Yale L J 1935; Oona A. Hathaway, Why Do Countries Commit to Human Rights Treaties? (2004) (unpublished manuscript, on file with author)
Between Power and principle contend that it is also motivated by the power of principled ideas--ideas that are not given by nature but are themselves constructed through interaction among individuals, groups, and states There is a rich normative scholarship in both political science and law. In political science, the norm-based scholarship is built on the insights of"constructivist" theory. In this view, interest-based scholars are wrong to assume that states engage only in consequentialist pursuit of objective self-interest. Rather, states internalize norms and act in accordance with them because they understand them to be correct or appropriate. Moreover, in contrast with the rationalist approach, the normative approach argues that transnational actors and their interests are not fully formed or unchanging. Rather, they are constituted or"constructed" by and through interaction with one another. In other words It]he international system can change what states want. International law can change state action, in this view, not by constraining states with a given set of preferences from acting, but by changing their preferences The legal norm-based scholarship starts with the assumption that nations obey international law "almost all of the time. It also takes international law as a given, for the most part assuming that treaties exist and states join them without seeking to explain why or Some notable examples of constructivist work are as follows: Finnemore, National Interests in International Society at 2(cited in note 7(IS]tates are embedded in dense networks of transnational and international social relations that shape their perceptions of the world and their role in that world. States are socialized to want certain things by the international society in which they and the people in them live ) Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics 3 n 6(Cornell 1998)(noting the constructivist influence on their work); Alexander Wendt, Social Theory of International Politics( Cambridge 1999)(defending an international system constructivist theory that draws especially on structurationist and symbolic interactionist sociology); John Gerard Ruggie, What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge, 52 Intl Org 855(1998)(providing an analytical account of social constructivism in current international relations); Alexander Wendt, Anarchy is What States Make of It: The Social Construction of power Politics, 46 Intl Org 391(1992)( developing a constructivist theory of power politics) They may also do so simply out of a sense of habit. See James N. Rosenau, Before Cooperation: Hegemons, Regimes, and Habit-Driven Actors in World Politics, 40 Intl Org 849, 861-74(1986)(examining countries as habit-driven actors) Finnemore, National Interests in International Society at 5(cited in note 7 (emphasis in original) 3dat5-6. See, for example, Harold Hongju Koh, Why Do Nations Obey International Law? 106 Yale L J 2599(1997)(presenting a theory of compliance that combines managerial and fairness approaches with analyses of interaction, interpretation, and internalization of international legal norms); Abram Chayes and Antonia Handler Chayes, Th Sovereignty: Compliance with International Regulatory Agreements 3-9(Harvard 1995) (presenting a theory of compliance in which practitioners assume a general propensity states to comply with international obligations)
Between Power and Principle 13 contend that it is also motivated by the power of principled ideas—ideas that are not given by nature but are themselves constructed through interaction among individuals, groups, and states. There is a rich normative scholarship in both political science and law. In political science, the norm-based scholarship is built on the insights of “constructivist” theory.28 In this view, interest-based scholars are wrong to assume that states engage only in consequentialist pursuit of objective self-interest. Rather, states internalize norms and act in accordance with them because they understand them to be correct or appropriate.29 Moreover, in contrast with the rationalist approach, the normative approach argues that transnational actors and their interests are not fully formed or unchanging. Rather, they are constituted or “constructed” by and through interaction with one another. In other words, “[t]he international system can change what states want.”30 International law can change state action, in this view, “not by constraining states with a given set of preferences from acting, but by changing their preferences.”31 The legal norm-based scholarship starts with the assumption that nations obey international law “almost all of the time.”32 It also takes international law as a given, for the most part assuming that treaties exist and states join them without seeking to explain why or 28 Some notable examples of constructivist work are as follows: Finnemore, National Interests in International Society at 2 (cited in note 7) (“[S]tates are embedded in dense networks of transnational and international social relations that shape their perceptions of the world and their role in that world. States are socialized to want certain things by the international society in which they and the people in them live.”); Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics 3 n 6 (Cornell 1998) (noting the constructivist influence on their work); Alexander Wendt, Social Theory of International Politics (Cambridge 1999) (defending an international system constructivist theory that draws especially on structurationist and symbolic interactionist sociology); John Gerard Ruggie, What Makes the World Hang Together? Neo-utilitarianism and the Social Constructivist Challenge, 52 Intl Org 855 (1998) (providing an analytical account of social constructivism in current international relations); Alexander Wendt, Anarchy is What States Make of It: The Social Construction of Power Politics, 46 Intl Org 391 (1992) (developing a constructivist theory of power politics). 29 They may also do so simply out of a sense of habit. See James N. Rosenau, Before Cooperation: Hegemons, Regimes, and Habit-Driven Actors in World Politics, 40 Intl Org 849, 861–74 (1986) (examining countries as habit-driven actors). 30 Finnemore, National Interests in International Society at 5 (cited in note 7) (emphasis in original). 31 Id at 5–6. 32 See, for example, Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L J 2599 (1997) (presenting a theory of compliance that combines managerial and fairness approaches with analyses of interaction, interpretation, and internalization of international legal norms); Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements 3–9 (Harvard 1995) (presenting a theory of compliance in which practitioners assume a general propensity of states to comply with international obligations)
Between Power and principle when they do so. Hence these theories focus almost exclusively on the question of compliance: Why, they ask, do states obey international law most of the time? In legal scholarship, two separate variants of normative theory have gained widespread attention--fairness theory and legal process theory. The fairness model primarily associated with Thomas Franck focuses on the perceived fairness of the legal obligations at issue: A"fair"legal obligation exerts a"compliance pull"that leads states to comply with it A second legal normative account instead focuses on legal process, with separate branches of the theory focusing on horizontal and vertical interactions among countries. Abram and Antonia Chayes offer a model of horizontal legal process, which they entitle "managerial legal process. In this view, states obey international law not because of sanctions, but because their prior agreement to do so creates an"obligation of obedience. 3>Harold Koh elated"transnational legal process theory"focuses less on horizontal ties across states and more on vertical interactions within states and between the international and domestic arenas. In his view, state behavior is influenced by international law through a process of interaction,interpretation, internalization, and obedience, by virtue of the efforts of various agents of internalization, including transnational norm entrepreneurs. A central step in this process is legal internalization- when an international norm is incorporated into the domestic legal system through executive action, judicial interpretation, legislative action, or some combination of the three. When that internalization is complete, he argues, states mply Norm-based scholarship offers important corrective to rationalist theories by focusing attention on the powerful role of ideas in international law. Many norm-based accounts also encourage attention to the role and influence of nonstate actors that are often ignored in traditional interest-based accounts. Yet the central drawback of such theories is that they do not yield much in the way of specific expectations for state behavior. Perhaps the only consistent prediction that emerges is that states can, for the most part, be expected S3 Thomas M. Franck, Fairness in International Law and Institutions 7-9(Clarendon 1995). Fairness, in Franck's view, has both a substantive and procedural component: To fair, rules must lead to distributive justice and they"must be arrived at discursively in accordance with what is accepted by the parties as right process. " Id at 7(emphasis origin Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements. 2-3, 34-67(Harvard 1995) 35 Id at 115-16. To deal with the few states that fail to meet this obligation, they argue for "managing "compliance by, among other things, ensuring transparency of legal requirements and of parties' success or failure in meeting them, creating a mechanism for resolving disputes under the regime, and building capacity for compliance. Together, these processes will persuade noncomplying states to conform their behavior to the requirements f the legal regime Home, 35 Houston L Rev 623, 644-55(1998). See also Harold Hongju Koh, How Is International Human Rights Law Enforced,, 74 Ind L J 1397, 1413-14(1999) 5/ Koh, 106 Yale L J at 2657(cited in note 32)
Between Power and Principle 14 when they do so. Hence these theories focus almost exclusively on the question of compliance: Why, they ask, do states obey international law most of the time? In legal scholarship, two separate variants of normative theory have gained widespread attention—fairness theory and legal process theory. The fairness model primarily associated with Thomas Franck focuses on the perceived fairness of the legal obligations at issue: A “fair” legal obligation exerts a “compliance pull” that leads states to comply with it.33 A second legal normative account instead focuses on legal process, with separate branches of the theory focusing on horizontal and vertical interactions among countries. Abram and Antonia Chayes offer a model of horizontal legal process, which they entitle “managerial legal process.” In this view, states obey international law not because of sanctions,34 but because their prior agreement to do so creates an “obligation of obedience.”35 Harold Koh’s related “transnational legal process theory” focuses less on horizontal ties across states and more on vertical interactions within states and between the international and domestic arenas. In his view, state behavior is influenced by international law through a process of “interaction, interpretation, internalization, and obedience,” by virtue of the efforts of various agents of internalization, including transnational norm entrepreneurs.36 A central step in this process is legal internalization—“when an international norm is incorporated into the domestic legal system through executive action, judicial interpretation, legislative action, or some combination of the three.”37 When that internalization is complete, he argues, states comply. Norm-based scholarship offers important corrective to rationalist theories by focusing attention on the powerful role of ideas in international law. Many norm-based accounts also encourage attention to the role and influence of nonstate actors that are often ignored in traditional interest-based accounts. Yet the central drawback of such theories is that they do not yield much in the way of specific expectations for state behavior. Perhaps the only consistent prediction that emerges is that states can, for the most part, be expected 33 Thomas M. Franck, Fairness in International Law and Institutions 7–9 (Clarendon 1995). Fairness, in Franck’s view, has both a substantive and procedural component: To be fair, rules must lead to distributive justice and they “must be arrived at discursively in accordance with what is accepted by the parties as right process.” Id at 7 (emphasis in original). 34 Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, 2–3, 34–67 (Harvard 1995). 35 Id at 115–16. To deal with the few states that fail to meet this obligation, they argue for “managing” compliance by, among other things, ensuring transparency of legal requirements and of parties’ success or failure in meeting them, creating a mechanism for resolving disputes under the regime, and building capacity for compliance. Together, these processes will persuade noncomplying states to conform their behavior to the requirements of the legal regime. 36 Harold Hongju Koh, The 1998 Franckel Lecture: Bringing International Law Home, 35 Houston L Rev 623, 644–55 (1998). See also Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 Ind L J 1397, 1413–14 (1999). 37 Koh, 106 Yale L J at 2657 (cited in note 32)
Between Power and principle to join and comply with treaties. Yet this proposition finds mixed empirical support, as detailed in Part IV 3 To be sure, norm-centered theory does allow us to trace after the fact why some laws succeed while others do not, and it offers good reason for thinking that norms matter in the formulation of key areas of international law. But current accounts do not provide a clear guide in advance to which laws will succeed and which will not. Which norms will b internalized and which not, and why? Why are some laws persuasive and others not? Even when a norm-based approach does provide some guidance(fairness theory, for example tells us that laws that are substantively and procedurally fair will be followed, and managerial theory predicts that laws with clear and specific requirements are more likely to be followed than those that impose vague restrictions), it does not explain why some states commit themselves more readily than do others. Finally, current norm-based theories do little to help us account in advance for state-to-state variation in compliance: What makes some states more likely than others to comply with treaties? C. A Promising Convergence A more recent strand of scholarship in the rationalist vein offers the promise of finding some common ground between interest-based and norm-based approaches. This model, termed the "liberal institutionalist'perspective by its proponents(sometimes al referred to as "institutional liberalism"), addresses some of the shortcomings of existing rationalist accounts. The theory, which has been developed and applied by both legal and political science scholars, opens the black box of domestic politics that is largely s8 Normative theories appear to fare no better than rationalist theories when tested against the available empirical evidence. As I show in greater detail in Part IV, the predictions of these theories not only find little support in the evidence, but are in some cases clearly contradicted by it. Most notably, compliance with treaties is much less widespread than normative theories would predict. See Hathaway, 111 Yale Lj at 1987 (cited in note 17). Moreover, countries with practices that are more consistent with a given treaty(indicating a stronger ideological commitment to the norms embodied in the treaty) are no more likely than those with less consistent practices to commit to the treaty. See Hathaway, Why Do Countries Commit to Human Rights Treaties? (cited in note 27) 39 This perspective is put forward most prominently in political science scholarship by Andrew Moravcsik. See generally Moravcsik, 54 Intl Org 217(cited in note 7); Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Intl Org 513( 1997)(positing a "nonideological and "nonutopian"formulation of liberal international relations theory). See also Andrew Moravcsik, Negotiating the Single European Act: National Interests and Conventional statecraft in 45 Intl Org 19, 27(1991)("The theory of] intergovernmental institutionalism locates the sources of regime reform not only in the changing power distribution but also in the changing interests of states. States are not black boxes; they are entities entrusted to governments, which themselves are responsible to domestic constituencies ). In international law scholarship, the most prominent advocate is Anne-Marie Slaughter. See, for example, Laurence R. Helfer and Anne-Marie Slaughter, Toward a Theory of Effective
Between Power and Principle 15 to join and comply with treaties. Yet this proposition finds mixed empirical support, as detailed in Part IV.38 To be sure, norm-centered theory does allow us to trace after the fact why some laws succeed while others do not, and it offers good reason for thinking that norms matter in the formulation of key areas of international law. But current accounts do not provide a clear guide in advance to which laws will succeed and which will not. Which norms will be internalized and which not, and why? Why are some laws persuasive and others not? Even when a norm-based approach does provide some guidance (fairness theory, for example, tells us that laws that are substantively and procedurally fair will be followed, and managerial theory predicts that laws with clear and specific requirements are more likely to be followed than those that impose vague restrictions), it does not explain why some states commit themselves more readily than do others. Finally, current norm-based theories do little to help us account in advance for state-to-state variation in compliance: What makes some states more likely than others to comply with treaties? C. A Promising Convergence A more recent strand of scholarship in the rationalist vein offers the promise of finding some common ground between interest-based and norm-based approaches. This model, termed the “liberal institutionalist” perspective by its proponents (sometimes also referred to as “institutional liberalism”), addresses some of the shortcomings of existing rationalist accounts. The theory, which has been developed and applied by both legal and political science scholars,39 opens the black box of domestic politics that is largely 38 Normative theories appear to fare no better than rationalist theories when tested against the available empirical evidence. As I show in greater detail in Part IV, the predictions of these theories not only find little support in the evidence, but are in some cases clearly contradicted by it. Most notably, compliance with treaties is much less widespread than normative theories would predict. See Hathaway, 111 Yale L J at 1987 (cited in note 17). Moreover, countries with practices that are more consistent with a given treaty (indicating a stronger ideological commitment to the norms embodied in the treaty) are no more likely than those with less consistent practices to commit to the treaty. See Hathaway, Why Do Countries Commit to Human Rights Treaties? (cited in note 27). 39 This perspective is put forward most prominently in political science scholarship by Andrew Moravcsik. See generally Moravcsik, 54 Intl Org 217 (cited in note 7); Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Intl Org 513 (1997) (positing a “nonideological” and “nonutopian” formulation of liberal international relations theory). See also Andrew Moravcsik, Negotiating the Single European Act: National Interests and Conventional Statecraft in the European Community, 45 Intl Org 19, 27 (1991) (“[The theory of] intergovernmental institutionalism . . . locates the sources of regime reform not only in the changing power distribution but also in the changing interests of states. States are not ‘black boxes’; they are entities entrusted to governments, which themselves are responsible to domestic constituencies.”). In international law scholarship, the most prominent advocate is Anne-Marie Slaughter. See, for example, Laurence R. Helfer and Anne-Marie Slaughter, Toward a Theory of Effective