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Unformatted text preview: This page intentionally left blank International Law and International Relations This volume is intended to help readers understand the relationship between international law and international relations (IL/IR). As a testament to this dynamic area of inquiry, new research on IL/IR is now being published in a growing list of traditional law reviews and disciplinary journals. The excerpted articles in this volume, all of which were first published in International Organization, represent some of the most important research since serious social science scholarship began in this area more than twenty years ago. They are important milestones toward making IL/IR a central concern of scholarly research in international affairs. The contributions have been selected to cover some of the main topics of international affairs and to provide readers with a range of theoretical perspectives, concepts, and heuristics that can be used to analyze the relationship between international law and international relations. Beth A. Simmons is Professor of Government and Director of the Weatherhead Center for International Affairs at Harvard University, Cambridge, Massachusetts. Richard H. Steinberg is Professor of Law at the University of California, Los Angeles, and Senior Scholar in the Division of International, Comparative and Area Studies at Stanford University, Stanford, California. International Organization Books Issues and Agents in International Political Economy, edited by Benjamin J. Cohen and Charles Lipson Theory and Structure in International Political Economy, edited by Charles Lipson and Benjamin J. Cohen International Institutions, edited by Lisa L. Martin and Beth A. Simmons International Institutions and Socialization in Europe, edited by Jeffrey T. Checkel International Law and International Relations, edited by Beth A. Simmons and Richard H. Steinberg International Law and International Relations Edited by BETH A. SIMMONS and RICHARD H. STEINBERG CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York Information on this title: © 2006 IO Foundation This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2007 eBook (NetLibrary) ISBN-13 978-0-511-29648-2 ISBN-10 0-511-29648-7 eBook (NetLibrary) hardback ISBN-13 978-0-521-86186-1 hardback ISBN-10 0-521-86186-1 paperback ISBN-13 978-0-521-67991-6 paperback ISBN-10 0-521-67991-5 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Contents Contributors page ix Abstracts xiii Preface Beth A. Simmons and Richard H. Steinberg Editors’ Note xxix xxxvii part i. international regimes theory: does law matter? 1 Structural Causes and Regime Consequences: Regimes as Intervening Variables (1982) Stephen D. Krasner 2 The Demand for International Regimes (1982) Robert O. Keohane 3 18 part ii. commitment and compliance 3 Democratic States and Commitment in International Relations (1996) Kurt Taylor Gaubatz 4 On Compliance (1993) Abram Chayes and Antonia Handler Chayes 5 Is the Good News About Compliance Good News About Cooperation? (1996) George W. Downs, David M. Rocke, and Peter N. Barsoom v 43 65 92 vi Contents part iii. legalization and its limits 6 The Concept of Legalization (2000) 115 Kenneth W. Abbot, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal 7 Legalized Dispute Resolution: Interstate and Transnational (2000) 131 Robert O. Keohane, Andrew Moravcsik, and Anne-Marie Slaughter 8 Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note (2000) 157 Judith Goldstein and Lisa L. Martin 9 Alternatives to ‘‘Legalization’’: Richer Views of Law and Politics (2001) 188 Martha Finnemore and Stephen J. Toope part iv. international law and international norms 10 Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World (1987) Robert H. Jackson 205 11 Which Norms Matter? Revisiting the ‘‘Failure’’ of Internationalism (1997) Jeffrey W. Legro 233 12 The Territorial Integrity Norm: International Boundaries and the Use of Force (2001) Mark W. Zacher 259 part v. treaty design and dynamics 13 Why Are Some International Agreements Informal? (1991) Charles Lipson 14 The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts (2000) James McCall Smith 15 Loosening the Ties that Bind: A Learning Model of Agreement Flexibility (2001) Barbara Koremenos 16 Driving with the Rearview Mirror: On the Rational Science of Institutional Design (2001) Alexander Wendt 293 331 375 403 Contents 17 The Dynamics of International Law: The Interaction of Normative and Operating Systems (2003) Paul F. Diehl, Charlotte Ku, and Daniel Zamora vii 426 part vi. law and legal institutions 18 Europe Before the Court: A Political Theory of Legal Integration (1993) Anne-Marie Slaughter [Burley] and Walter Mattli 457 19 The European Court of Justice, National Governments, and Legal Integration in the European Union (1998) Geoffrey Garrett, R. Daniel Kelemen, and Heiner Schulz 486 part vii. other substantive areas of international law Security 20 Scraps of Paper? Agreements and the Durability of Peace (2003) Virginia Page Fortna 515 Trade 21 In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO (2002) Richard H. Steinberg 543 Money 22 The Legalization of International Monetary Affairs (2000) Beth A. Simmons 568 War Crimes 23 Constructing an Atrocities Regime: The Politics of War Crimes Tribunals (2001) Christopher Rudolph Human Rights 24 The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe (2000) Andrew Moravcsik Environment 25 Regime Design Matters: Intentional Oil Pollution and Treaty Compliance (1994) Ronald B. Mitchell 594 622 653 viii Contents Intellectual Property 26 The Regime Complex for Plant Genetic Resources (2004) Kal Raustiala and David G. Victor 684 References 711 Index 713 Contributors Volume Editors Beth A. Simmons is Professor of Government and Director of the Weatherhead Center for International Affairs at Harvard University, Cambridge, Massachusetts. Richard H. Steinberg is Professor of Law at the University of California, Los Angeles, and Senior Scholar in the Division of International, Comparative and Area Studies at Stanford University, Stanford, California. Contributors Kenneth W. Abbot is Professor of Law at Arizona State University, Tempe, Arizona. Peter N. Barsoom is Director of Credit Card Services at Merrill Lynch, New York, New York. Abram Chayes (1922–2000) was Professor of Law at Harvard University, Cambridge, Massachusetts. Antonia Handler Chayes is Adjunct Lecturer in Public Policy at the John F. Kennedy School of Government at Harvard University, Cambridge, Massachusetts. Paul F. Diehl is Professor of Political Science at the University of Illinois at Urbana-Champaign. ix x Contributors George W. Downs is Professor of Politics at New York University, New York, New York. Martha Finnemore is Professor of Political Science and International Affairs at George Washington University, Washington, D.C. Virginia Page Fortna is Assistant Professor of Political Science at Columbia University, New York, New York. Geoffrey Garrett is Professor of International Relations at University of Southern California, Los Angeles, and President of the Pacific Council on International Policy, Los Angeles, California. Kurt Taylor Gaubatz is Associate Professor of International Studies at Old Dominion University, Norfolk, Virginia. Judith Goldstein is Professor of Political Science, Sakurako and William Fisher Family Director of International, Comparative and Area Studies, and The Kaye University Fellow in Undergraduate Education at Stanford University, Stanford, California. Robert H. Jackson is Professor of International Relations and Political Science at Boston University, Boston, Massachusetts. R. Daniel Kelemen is University Lecturer and Tutorial Fellow at Lincoln College, University of Oxford. Robert O. Keohane is Professor of International Affairs at Princeton University, Princeton, New Jersey. Barbara Koremenos is Assistant Professor of Political Science at the University of Michigan, Ann Arbor. Stephen D. Krasner is Director of Policy Planning at the United States Department of State, Washington, D.C., and Professor of Political Science at Stanford University, Stanford, California. Charlotte Ku is Executive Vice President and Executive Director of the American Society of International Law, Washington, D.C. Jeffrey W. Legro is Associate Professor of International Relations at the University of Virginia, Charlottesville, Virginia. Charles Lipson is Professor of Political Science at the University of Chicago, Chicago, Illinois. Contributors xi Lisa L. Martin is Professor of Government and a member of the Executive Committee of The Weatherhead Center for International Affairs at Harvard University, Cambridge, Massachusetts. Walter Mattli is the Fellow in Politics at St. John’s College and Professor of International Political Economy, Oxford University, Oxford, England. Ronald B. Mitchell is Professor of Political Science at the University of Oregon, Eugene, Oregon. Andrew Moravcsik is Professor of Politics at Princeton University, Princeton, New Jersey. Kal Raustiala is Professor of Law and Global Studies at the University of California, Los Angeles. David M. Rocke is Professor of Biostatistics, Professor of Applied Science, and Co-Director of the Institute for Data Analysis and Visualization at the University of California, Davis. Christopher Rudolph is Professor of International Politics at American University, Washington, D.C. Heiner Schulz is Assistant Professor of Political Science at University of Pennsylvania, Philadelphia, Pennsylvania. Anne-Marie Slaughter [Burley] is Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University, Princeton, New Jersey. James McCall Smith is Assistant Professor of Political Science and International Affairs at George Washington University, Washington, D.C. Duncan Snidal is Associate Professor of Political Science and a member of the Committee on International Relations at the University of Chicago, Chicago, Illinois. Stephen J. Toope is Professor of Law at McGill University, Quebec, Canada. David G. Victor is Associate Professor of Political Science at Stanford University and director of the Program on Energy and Sustainable Development at the Center for Environmental Science and Policy, Stanford, California. xii Contributors Alexander Wendt is the Ralph D. Mershon Professor of International Security and the Mershon Center Professor of Political Science at Ohio State University, Columbus, Ohio. Mark W. Zacher is Professor Emeritus of Political Science, Senior Research Fellow at the Centre of International Relations, and Faculty Fellow, St. John’s College, University of British Columbia, Vancouver, Canada. Daniel Zamora is an associate at the law firm of Tobin & Tobin, San Francisco, California. Abstracts Structural Causes and Regime Consequences: Regimes as Intervening Variables (1982) by Stephen D. Krasner International regimes are defined as principles, norms, rules, and decisionmaking procedures around which actor expectations converge in a given issue-area. As a starting point, regimes have been conceptualized as intervening variables, standing between basic causal factors and related outcomes and behavior. There are three views about the importance of regimes: conventional structural orientations dismiss regimes as being at best ineffectual; Grotian orientations view regimes as an intimate component of the international system; and modified structural perspectives see regimes as significant only under certain constrained conditions. For Grotian and modified structuralist arguments, which endorse the view that regimes can influence outcomes and behavior, regime development is seen as a function of five basic causal variables: egoistic self-interest, political power, diffuse norms and principles, custom and usage, and knowledge. The Demand for International Regimes (1982) by Robert O. Keohane International regimes can be understood as results of rational behavior by the actors – principally states – that create them. Regimes are demanded in part because they facilitate the making of agreements, by providing information and reducing transaction costs in world politics. Increased xiii xiv Abstracts interdependence among issues – greater ‘‘issue density’’ – will lead to increased demand for regimes. Insofar as regimes succeed in providing high-quality information, through such processes as the construction of generally accepted norms or the development of transgovernmental relations, they create demand for their own continuance, even if the structural conditions (such as hegemony) under which they were first supplied change. Analysis of the demand for international regimes thus helps us to understand lags between structural change and regime change, as well as to assess the significance of transgovernmental policy networks. Several assertions of structural theory seem problematic in light of this analysis. Hegemony may not be a necessary condition for stable international regimes; past patterns of institutionalized cooperation may be able to compensate, to some extent, for increasing fragmentation of power. Democratic States and Commitment in International Relations (1996) by Kurt Taylor Gaubatz Making credible commitments is a formidable problem for states in the anarchic international system. A long-standing view holds that this is particularly true for democratic states in which changeable public preferences make it difficult for leaders to sustain commitments over time. However, a number of important elements in the values and institutions that have characterized the liberal democratic states should enhance their ability to sustain international commitments. Indeed, an examination of the durability of international military alliances confirms that those between democratic states have endured longer than either alliances between nondemocracies or alliances between democracies and nondemocracies. On Compliance (1993) by Abram Chayes and Antonia Handler Chayes A new dialogue is beginning between students of international law and international relations scholars concerning compliance with international agreements. This article advances some basic propositions to frame that dialogue. First, it proposes that the level of compliance with international agreements in general is inherently unverifiable by empirical procedures. That nations generally comply with their international Abstracts xv agreements, on the one hand, or that they violate them whenever it is in their interest to do so, on the other, are not statements of fact or even hypotheses to be tested. Instead, they are competing heuristic assumptions. Some reasons why the background assumption of a propensity to comply is plausible and useful are given. Second, compliance problems very often do not reflect a deliberate decision to violate an international undertaking on the basis of a calculation of advantage. The article proposes a variety of other reasons why states may deviate from treaty obligations and why in many circumstances those reasons are properly accepted by others as justifying apparent departures from treaty norms. Third, the treaty regime as a whole need not and should not be held to a standard of strict compliance but to a level of overall compliance that is ‘‘acceptable’’ in the light of the interests and concerns the treaty is designed to safeguard. How the acceptable level is determined and adjusted is considered. Is the Good News About Compliance Good News About Cooperation? (1996) by George W. Downs, David M. Rocke, and Peter N. Barsoom Recent research on compliance in international regulatory regimes has argued (1) that compliance is generally quite good; (2) that this high level of compliance has been achieved with little attention to enforcement; (3) that those compliance problems that do exist are best addressed as management rather than enforcement problems; and (4) that the management rather than the enforcement approach holds the key to the evolution of future regulatory cooperation in the international system. While the descriptive findings are largely correct, the policy inferences are dangerously contaminated by endogeneity and selection problems. A high rate of compliance is often the result of states formulating treaties that require them to do little more than they would do in the absence of a treaty. In those cases where noncompliance does occur and where the effects of selection are attenuated, both self-interest and enforcement play significant roles. The Concept of Legalization (2000) by Kenneth W. Abbot, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal We develop an empirically based conception of international legalization to show how law and politics are intertwined across a wide range of xvi Abstracts institutional forms and to frame the analytic and empirical articles that follow in this volume. International legalization is a form of institutionalization characterized by three dimensions: obligation, precision, and delegation. Obligation means that states are legally bound by rules or commitments and are therefore subject to the general rules and procedures of international law. Precision means that the rules are definite, unambiguously defining the conduct they require, authorize, or proscribe. Delegation grants authority to third parties for the implementation of rules, including their interpretation and application, dispute settlement, and (possibly) further rule making. These dimensions are conceptually independent, and each is a matter of degree and gradation. Their various combinations produce a remarkable variety of international legalization. We illustrate a continuum ranging from ‘‘hard’’ legalization (characteristically associated with domestic legal systems) through various forms of ‘‘soft’’ legalization to situations where law is largely absent. Most international legalization lies between the extremes, where actors combine and invoke varying degrees of obligation, precision, and delegation to create subtle blends of politics and law. Legalized Dispute Resolution: Interstate and Transnational (2000) by Robert O. Keohane, Andrew Moravcsik, and Anne-Marie Slaughter We identify two ideal types of international third-party dispute resolution: interstate and transnational. Under interstate dispute resolution, states closely control selection of, access to, and compliance with international courts and tribunals. Under transnational dispute resolution, by contrast, individuals and nongovernmental entities have significant influence over selection, access, and implementation. This distinction helps to explain the politics of international legalization – in particular, the initiation of cases, the tendency of courts to challenge national governments, the extent of compliance with judgments, and the long-term evolution of norms within legalized international regimes. By reducing the transaction costs of setting the process in motion and establishing new constituencies, transnational dispute resolution is more likely than interstate dispute resolution to generate a large number of cases. The types of cases brought under t...
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