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Hard and Soft Law in International Governance

Published online by Cambridge University Press:  09 July 2003

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We examine why international actors—including states, firms, and activists—seek different types of legalized arrangements to solve political and substantive problems. We show how particular forms of legalization provide superior institutional solutions in different circumstances. We begin by examining the baseline advantages of “hard” legalization (that is, precise, legally binding obligations with appropriate third-party delegation). We emphasize, however, that actors often prefer softer forms of legalization (that is, various combinations of reduced precision, less stringent obligation, and weaker delegation). Soft legalization has a number of significant advantages, including that it is easier to achieve, provides strategies for dealing with uncertainty, infringes less on sovereignty, and facilitates compromise among differentiated actors.

Although our approach is largely interest-based, we explicitly incorporate the normative elements that are central in law and in recent international relations theorizing. We also consider the important role of nonstate actors who, along with states, are central participants in contemporary international legalization. We illustrate the advantages of various forms of international legal arrangements with examples drawn from articles in this special issue and elsewhere.

Legalization and Dispute Resolution
Copyright © The IO Foundation 2000

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For helpful comments as we developed this article, we thank participants in the conferences leading up to this special issue; our discussant Alexander Thompson and other participants at the Program on International Politics, Economics, and Security Workshop at the University of Chicago; and participants at the “half-baked lunch” discussion at Northwestern University Law School. We also thank the editors of this special issue, especially Judith Goldstein and Robert Keohane, and the editors and referees of International Organization for valuable comments.

1. We have profited from the insights in Keohane, Moravcsik, and Slaughter 1997, which was prepared in connection with this project.

2. For an extensive discussion of these three dimensions, which guide the articles in this issue, see Abbott, Keohane, Moravcsik, Slaughter, and Snidal, this issue.

3. The international legal system has developed over several centuries. International law includes secondary norms prescribing how primary rules are to be made, interpreted, and applied, as well as institutions through which both kinds of rules are implemented. The background legal system shapes many international interactions—indeed, it helps define the very notion of an international actor.

4. To be sure, there may be irreconcilable paradigmatic differences between interest-based and normative approaches at the level of grand theory. On the ground, however, either approach can be improved by carefully incorporating the arguments made by the other, with appropriate adaptation. One can profitably employ both a hammer and a wrench without declaring one tool better for all problems and without resolving whether carpenters or plumbers are the better handymen. This is especially true when analyzing law, which inherently combines both trades.

5. This perspective is so deeply held among neorealists that they rarely discuss international law at all. Classical realists such as Hans Morgenthau recognized that states generally obeyed international law but took the lack of enforcement to mean that law did not cover the significant issues of international affairs. A modern reprise of this theme is offered by Downs and his colleagues, who critique much international cooperation for consisting of agreements that reflect what states would have done on their own and so do not change behavior. Downs, Rocke, and Barsoom 1996.

6. Weil 1983, 423.

7. For a related discussion of the benefits and costs of informal agreements, see Lipson 1991.

8. We draw on Koremenos's insightful work on how states structure treaties to enable mutual learning. Koremenos 1999.

9. Because our examples are illustrative, we do not develop formalized coding criteria. Note that a dash (-) indicates a low level of a property, not its absence. Low delegation, for example, would include an international consultative body that facilitates political bargaining among member states. Where an international institution handles more extensive administrative functions—such as substantial information gathering, monitoring, and nonbinding arbitration—we would code delegation as d. Finally, where an institution includes strong adjudicative capacity or independent administrative power, we would code delegation as D. The dimensions of obligation and precision pose similar problems and possibilities. A more fine-grained discussion of these dimensions is contained in Abbott et al., this issue; and Abbott and Snidal 1997. The eight rows of Table 1 in Abbott et al., which reflect only high and low values of the three elements of legalization, correspond to combinations of capital letters and dashes in our notation (that is, {O,P,D}, {O,-,D}…{O,-, -}, {-,-,-}).

10. Some agreements with strong normative content are entitled “covenants,” most notably the covenants on civil and political and on economic, social, and cultural rights. But this usage is not widespread. Many human rights agreements, for example, are simply entitled “treaty” or “convention.”

11. Tyler 1990.

12. Katzenstein, Keohane, and Krasner 1998.

13. Martin and Simmons 1998.

14. In this they follow modern liberal theorists. Moravcsik 1997.

15. See Finnemore 1996; Keck and Sikkink 1998. Recent years have witnessed some convergence. Rationalists increasingly recognize that interests require explanation and that institutions do much to shape them. Keohane 1988. Constructivists stress that norm entrepreneurs pursue their goals rationally, even strategically, seeking to modify the utility functions of others to accord with preferred norms. Finnemore and Sikkink 1998.

16. Klotz 1995.

17. See Klotz 1995; Keck and Sikkink 1998; and Koh 1996.

18. As noted earlier, the first and second sections of this article focus on states and the third section on nonstate actors. Even in the first and second sections, however, some arguments turn on actions by and effects on nonstate actors, often in domestic politics.

19. Our emphasis, then, is on treaties, especially multilateral regulatory treaties. Chayes and Chayes 1995. Customary law is also an important element of the international legal system, but we do not address it systematically here. Our impression, though, is that much customary law today is the result of conscious political action by states and other actors, rather than the gradual accretion of state practice. To the extent this is correct, much of our analysis will also apply to custom.

20. Williamson 1989.

21. Keohane 1984, 88–89.

22. A more extreme way to address commitment problems, analogous to the merger of firms in business relationships that raise assurance problems, is to integrate separate sovereignties into a single political unit, such as a federal state. Integration can be partial as well as complete, as the EU illustrates. Even full integration, though, cannot solve commitment and other contracting problems among the many political, economic, and other interests within and across societies.

23. Deconstructionists, of course, would contest these statements. In practice, however, even observers of this bent see law as constraining interpretation. Koskenniemi 1999.

24. Keohane observes that states can reduce the force of reputational effects by distinguishing the circumstances of a violation from those surrounding other agreements. Keohane 1995. In the nineteenth century, the United States sought in this way to distinguish its treaties with “savage” Indian tribes, which it frequently violated, from agreements with European countries. The effort devoted to making this distinction, however, suggests that reputational effects would otherwise have spread across all legal agreements.

25. Setear 1999.

26. Lutz and Sikkink, this issue.

27. See Burley and Mattli 1993: and Helfer and Slaughter 1997.

28. The rule of pacta sunt servanda is to some extent weakened by exceptions and defenses, notably the broad change-of-circumstances defense known as rebus sic stantibus. Yet these doctrines introduce needed flexibility; when they are found inapplicable, the normative force of the basic rule is enhanced.

29. See Wight 1977; Bull 1977; Hurrell 1993; and Buzan 1993.

30. Franck 1990.

31. Coordination agreements may not be self-enforcing when the benefits of moving the group to a new equilibrium are high. In these situations, especially when the gains to certain parties are large enough to make such attempts feasible, hard law may be useful as an assurance device.

32. Abbott and Snidal 2000.

33. Kahler, this issue.

34. As discussed later, the costs of reaching a fully legalized agreement are often relatively high, leading actors to adopt softer forms of legalization.

35. Keohane 1984.

36. Compare Abbott and Snidal 1998.

37. We consider later the specific forms of legalization preferred by powerful and weak states.

38. Koh 1997.

39. This reverses the process associated with more traditional institutions like the Iran—U.S. Claims Tribunal, where private actors encourage governments to initiate proceedings and provide support and encouragement to government litigators.

40. See Burley and Mattli 1993; Helfer and Slaughter 1997; Alter 1998b; Garrett, Kelemen, and Schulz 1998; and Mattli and Slaughter 1998b.

41. Alter, this issue.

42. Incomplete contracting problems arise when any agreement is negotiated under conditions of incomplete or asymmetric information, risk, and uncertainty. For a recent overview, see Hart 1995.

43. The regimes literature does not always distinguish between the costs of transacting within regimes and the costs of creating regimes. In early work, regimes are seen as the legacy of hegemony, so that their creation is not directly addressed.

44. Maupain 1998.

45. Kellman 1998.

46. Diebold 1952.

47. Krasner offers four meanings or categories of sovereignty: domestic sovereignty (the organization of authority and control within the state), interdependence sovereignty (the ability to control flows across borders), international legal sovereignty (establishing the status of a political entity in the international system), and Westphalian sovereignty (preventing external actors from influencing or determining domestic authority structures). Krasner 1999. These categories overlap and do not covary in any necessary pattern.

Krasner argues that sovereignty has never been immutable, although legal sovereignty has tended to be more respected than Westphalian or other types of sovereignty. Indeed, some legal purists see sovereignty as a fundamental and inviolable legal concept relating to state supremacy in making and withdrawing from international treaties. But recent legal theorists argue that such a view is untenable given ongoing developments in international legalization; they conclude that “it is time to slowly ease the term out of polite language in international relations, surely in law.” See Henkin et al. 1993, 19. We skirt these conceptual debates, focusing instead on the fact that states often perceive international legalization as infringing on their sovereignty, broadly construed.

48. Lindblom 1977, 24.

49. Abbott and Snidal 1998.

50. Shapiro takes the extreme view that such developments are an inevitable part of the development of any legal system. Shapiro 1981. Our view is that the advantages of legalization exert a powerful pull in this direction but that sovereignty costs provide significant resistance; we should expect a mixed level of international legalization according to the characteristics of issues and states, at least in the foreseeable future.

51. F. Abbott, this issue.

52. Colombatto and Macey offer a related view in arguing that governmental agencies seek international legalization in order to protect their administrative positions at a cost to domestic groups. Colombatto and Macey 1996.

53. In Krasner's terminology, these constitute international legal and Westphalian sovereignty, respectively.

54. Simmons 2000a.

55. See Knight 1921; and Ellsberg 1963.

56. More precise agreements might, for example, contain renegotiation provisions so that states can modify the agreement as events unfold. See Koremenos 1999. This case for greater precision assumes risk-averse states; risk seekers would gamble on imprecise, binding agreements. Finally, optimization of the agreement will be second-best when it is constrained by asymmetries of information exemplified in standard principal-agent models.

57. Ambiguity aversion means that actors prefer known outcomes (including the status quo) to unknown ones. When actors know the possible outcomes but do not know which of two alternative probability distributions governs them, Ellsberg characterizes ambiguity aversion as assuming that an act leads to the minimum possible expected outcome. Ellsberg 1963. In this case, agents prefer incomplete to complete contracts even at zero contracting costs. See Mukerji 1998.

58. Abbott and Snidal 1998.

59. Gold 1983.

60. For a rational approach to learning, see Morrow 1994; and Koremenos 1999. For a more constructivist approach, see Finnemore 1996. Our view is that both learning as acquiring information and learning as changing preferences or identity are relevant (and compatible) aspects of legalization.

61. Mekouar 1998.

62. Dursht 1997.

63. Maresca 1985. U.S. negotiators and the American public also underestimated the long-term significance of these arrangements.

64. Weil 1983, 442.

65. Reisman 1988, 377.

66. Lindblom 1977.

67. Lutz and Sikkink, this issue.

68. Where power is very asymmetric, dominant states may prefer bilateral bargaining. Thus Doremus finds that the United States pursued legalized arrangements through the patent regime for biotechnology where bargaining power was relatively equal among states, used the more political mechanism of bilateral reciprocity for semiconductors where the United States was most powerful, and used its unilateral power to enforce the copyright regime for software where its power advantage was moderate. Doremus 1996. Doremus also argues that legalization will be more likely during stages of the product cycle in which no country has a strong market advantage.

69. The legalization of the Eastern bloc during the Cold War provides another intriguing example. The Soviet Union was coercively preponderant within its sphere of influence throughout the period, but it learned early on that rule by stick was not as efficient as more balanced relations. Beginning in the mid-1950s, it transformed the Council for Mutual Economic Assistance (CMEA) from an instrument of unilateral control into an arrangement that offered Eastern European states the carrot of subsidized and secure supplies of fuel and raw materials in exchange for acquiescence to Soviet control. See Marreese 1986. The level of legalization in the CMEA was low, {o,p,-}, and the Soviet Union could readily have reverted to a coercive strategy, as it did in Czechoslovakia in 1968. Still, the CMEA promoted continuing cooperation among the Eastern bloc states.

70. Abbott and Snidal 1998.

71. Haas 1992.

72. See Slaughter 1997a; Risse-Kappen 1995a; and Raustiala 1997.

73. Keck and Sikkink 1998.

74. Moravcsik 1997.

75. Slaughter 1997b and 1995a,b.

76. Moravcsik 1997.

77. Keck and Sikkink 1998, 12–13.

78. Participation by private actors is also crucial to the political strategies of supranational judges seeking to enhance the strength and scope of their own institutions and the bodies of law they administer. Helfer and Slaughter 1997.

79. The supporters of TRIPs did not have to make this choice: they obtained both domestic implementation and delegation to the strengthened WTO dispute settlement system.

80. Keck and Sikkink 1998, 24–25.

81. See Zaring 1998; and Slaughter 2000.

82. Colombatto and Macey 1996.

83. The parallel agreement on environmental protection included an innovative provision allowing private parties to initiate reviews of compliance.

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