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Political Science Research on International Law: The State of the Field

Published online by Cambridge University Press:  20 January 2017

Emilie M. Hafner-Burton ,
David G. Victor  and
Yonatan Lupu
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Extract

The discipline of political science has developed an active research program on the development, operation, spread, and impact of international legal norms, agreements, and institutions. Meanwhile, a growing number of public international lawyers have developed an interest in political science research and methods. For more than two decades, scholars have been calling for international lawyers and political scientists to collaborate, and have suggested possible frameworks for doing so. Some prominent collaborations are under way—sharing research methods and insights.

Type
Research Article
Information
American Journal of International Law , Volume 106 , Issue 1 , January 2012 , pp. 47 - 97
Copyright
Copyright © American Society of International Law 2012

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References

1 Some of these legal works that draw, in part, on political science methods and concepts look across many substantive areas of law and focus on topics such as the role of law in managing economic relations, the effectiveness of law, legitimacy, and game-theoretic perspectives. See, e.g., Dunoff, Jeffrey L. & Trachtman, Joel P., Economic Analysis of International Law, 24 Yale J. Int‘l L. 1, 3 (1999)Google Scholar; Jack L. Goldsmith, Eric A. Posner, The Limits of International Law (2005); Goldsmith, Jack, Sovereignty, International Relations Theory, and International Law, 52 Stan. L. Rev. 959 (2000)CrossRefGoogle Scholar (book review); Kelly, Claire R., Realist Theory and Real Constraints, 44 Va. J. Int’l L. 545 (2004)Google Scholar; Falk, Richard A., The Relevance of Political Context to the Nature and Functioning of International Law: An Intermediate View, in The Relevance of International Law: Essays in Honor of Leo Gross 133 (Deutsch, Karl W. & Hoffmann, Stanley eds., 1968)Google Scholar; Jutta Brunnée & Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2010); Setear, John K., An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv. Int’l L.J. 139 (1996)Google Scholar; Ohlin, Jens David, Nash Equilibrium and International Law, 96 Cornell L. Rev. 869 (2011)Google Scholar. Some legal studies, drawing on political science methods and concepts, examine the functioning of legal machinery. See, e.g., Setear, John K., Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remediation in the Law of Treaties and the Law of State Responsibility, 83 Va. L. Rev. 1 (1997)CrossRefGoogle Scholar. A large and growing body of legal literature, drawing from political science, focuses on particular issue areas, most notably human rights. See, e.g., Hathaway, Oona A., Do Human Rights Treaties Make a Difference?, Ill Yale L.J. 1935 (2002)CrossRefGoogle Scholar; Helfer, Laurence R., Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes, 102 Colum. L. Rev. 1832 (2002)CrossRefGoogle Scholar. In addition, a large literature addresses the environment. See, e.g., Brunnée, Jutta & Toope, Stephen J., The Changing Nile Basin Regime: Does Law Matter?, 43 Harv. Int’l L.J. 105 (2002)Google Scholar; Benvenisti, Eyal, Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law, 90 AJIL 384 (1996)CrossRefGoogle Scholar; Wiener, Jonathan Baert, Global Environmental Regulation: Instrument Choice in Legal Context, 108 Yale L.J. 677 (1999)CrossRefGoogle Scholar. Trade law is one among various other areas drawing on political science scholarship. See, e.g., Shell, G. Richard, Trade Legalism and International Relations Theory: An Analysis of the World Trade Organization, 44 Duke L.J. 829 (1995)CrossRefGoogle Scholar.

2 For important work encouraging the collaboration between the two fields, see Abbott, Kenneth W., Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335 (1989)Google Scholar (overview of international relations (IR) theory and legal scholars’ approaches); Slaughter Burley, Anne-Marie, International Law and International Relations Theory: A Dual Agenda, 87 AJIL 205, 220 (1993)Google Scholar (discussing the changes in the approach of IR scholars to international law); and Beck, Robert, International Law and International Relations: The Prospects for Interdisciplinary Collaboration, in International Rules: Approaches From International Law and International Relations 3 (Beck, Robert J., Clark Arend, Anthony & Vander Lugt, Robert eds., 1996)Google Scholar.

3 For reviews of the progress of this collaboration, see Abbott, Kenneth W., Toward a Richer Institutionalism for International Law and Policy, 1 J. Int’l L. & Int’l REL. 9 (2005)Google Scholar; Hathaway, Oona A. & Lavinbuk, Ariel N., Rationalism and Revisionism in International Law, 119 Harv. L. Rev. 1404 (2006)Google Scholar (book review); Symposium, Rational Choice and International Law, 31 J. Legal Stud. S1 (2002); Keohane, Robert O., International Relations and International Law: Two Optics, 38 Harv. Int’l L.J. 487 (1997)Google Scholar (noting a significant convergence in the research agendas of IR and international law); Slaughter, Anne-Marie, Tulumello, Andrew S. & Wood, Stepan, International Law and International Relations Theory:A New Generation of Interdisciplinary Schohrship, 92 AJIL 367 (1998)CrossRefGoogle Scholar (reviewing the convergence of IR and international legal scholarship and providing a bibliography of sources); and Dunoff, Jeffrey L., Why Constitutionalism Now? Text, Context and the Historical Contingency of Ideas, 1 J. Int’l L. & Int’l Rel. 191 (2005)Google Scholar.

4 Krasner, Stephen D. notes that, while IR scholarship has become increasingly interested in international law, the “term ‘international law’ still hardly ever occurs in the titles of articles published in the three leading international relations journals, International Organization, International Studies Quarterly, and World Politics.” International Law and International Relations: Together, Apart, Together? , 1 Chi. J. Int’l L. 93, 95 n.6 (2000)Google Scholar. This trend is now shifting. See generally Shaffer, Gregory & Ginsburg, Tom, The Empirical Turn in International Legal Scholarship: A Review and Prospectus, 106 AJIL 1 (2012)CrossRefGoogle Scholar.

5 See generally Ratner, Steven R. & Slaughter, Anne-Marie, Appraising the Methods of International Law: A Prospectus for Readers, 93 AJIL 291 (1999)CrossRefGoogle Scholar.

6 We thank Ken Abbott for emphasizing this point.

7 We thank Martha Finnemore for this point.

8 See Abbott, supra note 2. While Abbott’s essay was the last major one that took a broad survey of political science that relates to public international law, in the intervening two decades many other essays have reviewed aspects of political science research for international lawyers, as well as points of collaboration between the fields. For a partial update of Abbott’s original essay applied to a particular topic—internal conflicts such as civil wars—see Abbott, Kenneth W., International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts, 93 AJIL 361, 362 (1999)CrossRefGoogle Scholar.

9 See infra part II.

10 See, e.g., Keohane, Robert O., After Hegemony: Cooperation and Discord in the World Political Economy (1984); International Regimes (Krasner, Stephen D. ed., 1983)Google Scholar. On the role of institutions in lowering transaction costs by reducing uncertainty, see David A. Lake, Entangling Relations: American Foreign Policy in its Century (1999). Attention to transaction costs builds on a large literature, mainly in economics and decision theory, on the role of information in bargaining. On the role of information generally, see Rasmusen, Eric, Games and Information: An Introduction to Game Theory (2d ed.1994)Google Scholar. On the problem of uncertainty in multiparty negotiations, see generally Howard Raiffa, The Art and Science of Negotiation (1982), and Lax, David & Sebenius, James K., Thinking Coalitionally: Party Arithmetic, Process Opportunism, and Strategic Sequencing, in Negotiation Analysis 153 (Young, H. Peyton ed., 1991)Google Scholar. On the mechanism by which uncertainty increases transaction costs, see Akerlof, George, The Market for “Lemons”: Quality Uncertainty and the Market Mechanism, 84 Q. J. Econ. 488 (1970)CrossRefGoogle Scholar, and Oliver E. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications: A Study in the Economics of Internal Organization (1975).

11 ‘ See Downs, George W., Rocke, David M. & Barsoom, Peter N., Is the Good News About Compliance Good News About Cooperation?, 50 Int’l Org. 379 (1996)CrossRefGoogle Scholar; Simmons, Beth A., Compliance with International Agreements, 1 Ann. Rev. Pol. Sci. 75 (1998)CrossRefGoogle Scholar. But see Henkin, Loxns, How Nations Behave: Law and Foreign Policy 47 (2d ed. 1979)Google Scholar (“[A]lmost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”); Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995).

12 See infra note 136 and accompanying text.

13 But see, e.g., Steinberg, Richard H. & Zasloff, Jonathan M., Power and International Law, 100 AJIL 64 (2006)CrossRefGoogle Scholar; Goldsmith & Posner, supra note 1. Other legal scholars emphasize different forms of power that, for example, lead to discrimination against certain groups. See, e.g., Charlesworth, Hilary, Chinkin, Christine & Wright, Shelley, Feminist Approaches to International Law, 85 AJIL 613 (1991)CrossRefGoogle Scholar; Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2005).

14 See Kenneth N. Waltz, Theory of International Politics (1979) (arguing that international rules are the pronouncements of powerful states and are subject to change along with the distribution of state power); Mearsheimer, John J., The False Promise of International Institutions, 19 Int’l Security, Winter 1995 Google Scholar, at 5 (arguing that international institutions cannot have independent effects on state behavior); Hans Morgenthau, La Notion Du “Politique” Et La Théorie Des Différends Internationaux 65-71 (1933) (arguing that international law is biased toward stability). For a review of the influence of realist thought on legal scholarship, see Steinberg & Zasloff, supra note 13.

15 See generally Lukes, Steven, Power: A Radical View (2d ed. 2005)CrossRefGoogle Scholar; see also Barnett, Michael & Duvall, Raymond, Power in International Politics, 59 Int’l Org. 39 (2005)Google Scholar.

16 See generally Dahl, Robert A., The Concept of Power, 2 Behav. Sci. & L. 201 (1957)CrossRefGoogle Scholar.

17 See generally McKelvey, Richard, Intransitivities in Multidimensional Voting Models and Some Implications for Agenda Control, 12 J. Econ. Theory 472 (1976)CrossRefGoogle Scholar; Shepsle, Kenneth A., Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27 (1979)CrossRefGoogle Scholar; Riker, William, Implications from the Disequilibrium of Majority Rule for the Study of Institutions, 74 Am. Pol. Sci. Rev. 432 (1980)CrossRefGoogle Scholar.

18 See infra notes 29-42 and accompanying text.

19 See infra notes 43-65 and accompanying text.

20 For example of work by so-called realist scholars on the interaction of state power and international legal institutions, see John Ikenberry, G., Institutions, Strategic Restraint, and the Persistence of American Postwar Order, 23 Int’l Security, Winter 1999 Google Scholar, at 43 (arguing that while state power is a dominant force, the Western order and post-WWII institutions have endured and facilitated cooperation despite changes in the power of their creators); Pape, Robert, Soft Balancing Against the United States, 30 Int’l Security, Summer 2005 Google Scholar, at 45 (arguing that other powers are likely to respond to growing U.S. power using “soft-balancing,” nonmilitary tools, including international institutions); Krasner, Stephen, Sharing Sovereignty: New Institutions for Collapsed and Failing States, 29 Int’l Security, Fall 2004 Google Scholar, at 85 (arguing that states should deploy a variety of new domestic and international institutional arrangements to govern failed states that have left vacuums in power); Wohlforth, William C., The Stability of a Unipolar World, 24 Int’l Security, Summer 1999 Google Scholar, at 5 (arguing that, as a unipolar power, the United States should maintain international security institutions to reduce conflict behavior and limit expansion by other major powers); and Lloyd Gruber, Ruling the World: Power Politics and the Rise of Supranational Institutions (2000) (focusing on the ability of extremely powerful states to “go it alone” in creating international laws and institutions that mirror their interests at the expense of other states that participate only because they have no better option).

21 ‘ For example, scholarship on the Treaty on the Non-proliferation of Nuclear Weapons (NPT), July 1, 1968, 21 UST 483, 729 UNTS 161, has explored how powerful states mobilized both inducements and penalties in support of the Treaty’s goals. See Trevor Mc Tate, Morris, Regime-Building in the Non-proliferation System, 27 J. Peace Research 399 (1990)CrossRefGoogle Scholar (arguing that major powers are keeping the regime’s aim global, thereby insulating it from political wrangling on both domestic and international levels); Keeley, James F., Legitimacy, Capability, Effectiveness and the Future of the Non-proliferation Treaty?, in Nuclear Non-Proliferation and Global Security (Dewitt, David ed., 1987)Google Scholar (arguing that certain powerful members are more apt to strengthen or weaken the regime than others); Müller, Harald, Compliance Politics: A Critical Analysis of Multilateral Arms Control Treaty Enforcement, 7 Nonproliferation Rev., Summer 2000 CrossRefGoogle Scholar, at 77 (arguing that for the NPT to be effettive, powerful states must be able to sanction violators visibly and effectively or at least to delegate sufficient resources and backing to an agent of the regime to do so).

22 See generally Tollison, Robert D. & Willett, Thomas D., An Economic Theory of Mutually Advantageous Issue Linkages in International Negotiations, 33 Int’l Org. 425 (1979)CrossRefGoogle Scholar; Sebenius, James K., Negotiation Arithmetic: Adding and Subtracting Issues and Parties, 37 Int’l Org. 281 (1983)CrossRefGoogle Scholar; Alt, James E. & Eichengreen, Barry, Parallel and Overlapping Games: Theory and an Application to the European Gas Trade, 1 Econ. & Pol. 119 (1989)CrossRefGoogle Scholar; Haas, Ernst B., Why Collaborate? Issue-Linkage and International Regimes, 32 World Pol. 357 (1980)CrossRefGoogle Scholar. Yet linkage is also used strategically by international negotiators to expand their negotiating space. See Putnam, Robert D., Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427 (1988)CrossRefGoogle Scholar. Susanne Lohmann argues that issue linkage fosters cooperation when actors enforce punishments in one policy area for lack of compliance in others. Lohmann, Susanne, Linkage Politics, 41 J. Conflict Resol. 38 (1997)CrossRefGoogle Scholar. Michael McGinnis makes a similar argument, yet notes that the attempts to introduce new issues to be linked are perilous and may result in the breakdown of cooperation. McGinnis, Michael D., Issue Linkage and the Evolution of International Cooperation, 30 J. Conflict Resol. 141 (1986)CrossRefGoogle Scholar. Christina Davis argues that issue linkage can be especially useful for overcoming domestic obstacles to cooperation. Davis, Christina, International Institutions and Issue Linkage: Building Support for Agricultural Trade Liberalization, 98 Am. Pol. Sci. Rev. 153 (2004)CrossRefGoogle Scholar.

23 See Pollack, Mark A., Delegation, Agency, and Agenda Setting in the European Community, 51 Int’l Org. 99, 101–02 (1997)Google Scholar (arguing that in some circumstances the European Commission’s ability to set agendas has a large impact on the decisions taken by the Council of Ministers); see abo Tsebelis, George, The Power of the European Parliament as a Conditional Agenda Setter, 88 Am. Pol. Sci. Rev. 128 (1994)CrossRefGoogle Scholar; Garrett, Geoffrey & Tsebelis, George, An Institutional Critique of lntergovernmentalism, 50 Int’l Org. 269 (1996)CrossRefGoogle Scholar; Tsebelis, George & Kreppel, Amie, The History of Conditional Agenda-Setting in European Institutions, 33 Eur. J. Pol. Res. 41 (1998)CrossRefGoogle Scholar.

24 They also played important roles in connection with lobbying, second-track diplomacy, and consulting for political leaders. See Adler, Emanuel, The Emergence of Cooperation: National Epistemic Communities and the International Evolution of the Idea of Nuclear Arms Control, 46 Int’l Org. 101 (1992)CrossRefGoogle Scholar; Harold Karan Jacobson & Eric Stein, Diplomats, Scientists, and Politicians: The United States and the Nuclear Test Ban Negotiations (1966).

25 See Smithson, Amy E., Implementing the Chemical Weapons Convention, 36 SURVIVAL, Spring 1984 Google Scholar, at 80.

26 See O’Dwyer, Diana, First Landmines, Now Small Arms? The International Campaign to Ban Landmines as a Model for Small-Arms Advocacy, 17 Irish Stud. Int’L Aff. 77 (2006)CrossRefGoogle Scholar; see abo Price, Richard, Reversing the Gun Sights: Transnational Civil Society Targets Land Mines, 52 Int’l Org. 613 (1998)CrossRefGoogle Scholar. On wildlife, see infra note 177.

27 See Vogel, David, Private Global Business Regulation, 11 Ann. Rev. Pol. Sci. 261 (2008)CrossRefGoogle Scholar; Vogel, David, The Private Regulation of Global Corporate Conduct, in The Politics of Global Regulation 151 (Mattli, Walter & Woods, Ngaire eds., 2009)Google Scholar. One of the frontiers of research in this area concerns the option of private regulation and the ability of firms to control access to essential information. For a survey of current research on private regulation, including several studies that point to the interplay between private and public regulation, see Büthe, Tim, Private Regulation in the Global Economy, 12 Bus. & Pol. (Biithe, Tim ed., 2010)Google Scholar (special issue), available at http://www.bepress.com/bap/vol12/iss3/artl.

28 See, e.g., Annegret Flohr, Hard, Soft or Fuzzy? Corporate Self-Regulation and International Legalization in the Financial Sector (2011) (unpublished Ph.D. dissertation, Technischen Universität Darmstadt) (on file with authors).

29 Earlier political science research on international institutions (called regimes in the most influential study on this topic in the early 1980s) included a place for norms, but in this research, “norms” were generally limited to facilitating cooperation between similarly self-interested actors or to constraining their behavior. See John Ruggie, Gerard, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, 36 Int’l Org. 379 (1982)CrossRefGoogle Scholar; International Regimes, supra note 10; Keohane, supra note 10.

30 See Finnemore, Martha, International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy, 47 Int’l Org. 565 (1993)CrossRefGoogle Scholar; Martha Flnnemore, National Interests in International Society (1996); The Culture of National Security: Norms and Identity (Peter J. Katzenstein ed., 1996); Audie Klotz, Norms in International Relations: The Struggle Against Apartheid (1995); Yasemin NuhoĞlu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (1994).

31 See Ann E. Towns, Women and States: Norms and Hierarchies in International Society (2010).

32 Several legal scholars have argued that international law has the power to create or change norms and influence state behavior. See, e.g., Henkin, supra note 11; Hongju Koh, Harold, Why Do Nations Obey International Law?, 106 Yale L.J. 2599 (1997)Google Scholar (book review). In recent years political scientists have helped elaborate on those arguments. See, e.g., Lutz, Ellen L. & Sikkink, Kathryn, International Human Rights Law and Practice in Latin America, 54 Int’l Org. 633 (2000)CrossRefGoogle Scholar; Kelley, Judith, Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements, 101 Am. Pol. Sci. Rev. 573 (2007)CrossRefGoogle Scholar.

33 See, e.g., Koh, supra note 32, at 2602 (arguing that a transnational legal process consisting of three phases— interaction, interpretation, and internalization—provides the necessary description of how international norms become successfully internalized and how state obedience becomes second nature). For similar views, see also Chayes & Chayes, supra note 11; Thomas M. Franck, The Power of Legitimacy Among Nations (1990); and Howse, Robert, The Legitimacy of the World Trade Organization, in The Legitimacy of International Organizations 355 (Coicaud, Jean-Marc & Heiskanen, Veijo eds., 2001)Google Scholar. Many of these process-oriented approaches to studying law build on what is known as the New Haven approach and resonate with process-oriented theories from political science (that is, models based on the third and fourth faces of power and rooted in processes such as persuasion and legitimacy). See generally Harold D. Lasswell & Myres S. Mcdougal, Jurisprudence for a Free Society.: Studies in Law, Science, and Policy (1992); see ab Phillip Allott, Eunomia: New Order For a New World (1990).

34 See Dunoff, Jeffrey L., The Misguided Debate over NGO Participation at the WTO, 1 J. Int’l Econ. L. 433 (1998)CrossRefGoogle Scholar; Dahl, Robert A., Can International Organizations Be Democratic? A Skeptic’s View, in Democracy’s Edges (Shapiro, Ian & Hacker-Cordón, Casiano eds., 1999)Google Scholar; Nye, Joseph S. Jr., Globalization ‘s Democratic Deficit: How to Make International Institutions More Accountable, 80 Foreign Aff., July/August 2001 CrossRefGoogle Scholar, at 2; Moravcsik, Andrew, Is There a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, 39 Gov’t & Opposition 336 (2004)CrossRefGoogle Scholar.

35 Much of that work has been within what political scientists call the constructivist paradigm and has been focused on the social actors and mechanisms within societies that cause change and “construct” meaning and behavior. See Checkel, Jeffrey T., The Constructivist Turn in International Relations Theory, 50 World Pol. 324 (1998)CrossRefGoogle Scholar (book review).

36 For a study that focuses on international legal institutions, including international organizations, as agents of norm creation and influence, see Finnemore, Martha & Sikkink, Kathryn, International Norm Dynamics and Political Change, 52 Int’l Org. 887, 888 (1998)Google Scholar (describing the origins of norms, how they exercise influence, and the conditions for that influence). A theory similar to that presented by Goodman, Ryan and Jinks, Derek, see infra note 54, is proposed in The Power of Human Rights: International Norms and Domestic Change (Risse, Thomas, Ropp, Stephen & Sikkink, Kathryn eds., 1999)Google Scholar. See also Barnett, Michael N. & Finnemore, Martha, The Politics, Power, and Pathologies of International Organizations, 53 Int’l Org. 699 (1999)CrossRefGoogle Scholar (arguing that the rational-legal authority that international organizations embody gives them power independent of the states that created them, and channels that power in particular directions; also that bureaucracies make rules but in so doing create social knowledge, define shared tasks, develop and define new types of actors, create new interests for actors, and transfer models of political organization around the world).

37 See Thomson, Janice E., State Practices, International Norms, and the Decline of Mercenarism, 34 Int’l Stud. Q. 23 (1990)CrossRefGoogle Scholar (analyzing the role of the behavioral norms around use of mercenaries, although her analysis has implications for legal norms in this area); Sikkink, Kathryn, The Power of Principled Ideas: Human Rights Policies in the United States and Western Europe, in Ideas and Foreign Policy: Beliefs, Institutions, and Political Change 139 (Goldstein, Judith and Keohane, Robert O. eds., 1993)Google Scholar; Sikkink, Kathryn, Human Rights, Principled Issue-Networks, and Sovereignty in Latin America, 47 Int’l org. 411 (1993)CrossRefGoogle Scholar; Klotz, supra note 30; Klotz, Audie, Transnational Activism and Global Transformations: The Anti-apartheid and Abolitionist Experiences, 8 Eur. J. Int’l Rel. 49 (2002)CrossRefGoogle Scholar.

38 See Towns, supra note 31; Towns, Ann, Norms and Social Hierarchies: Understanding International Policy Diffusion “from Below,” 66 Int’l Org. (forthcoming 2012)Google Scholar; see also Miller, Carol, Women in International Relations? The Debate in Inter-war Britain, in Gender and International Relations 64 (Grant, Rebecca & Newland, Kathleen eds., 1991)Google Scholar; Miller, Carol, “Geneva —the Key to Equality”: Inter-war Feminists and the League of Nations, 3 Women’s Hist. Rev. 219 (1994)CrossRefGoogle Scholar; Deborah Stienstra, Women’s Movements and International Organisations (1994); Sandra Whitworth, Feminism and International Relations: Towards A Political Economy of Gender in Interstate and Non-Governmental Institutions (1994); Nitza Berkovttch, From Motherhood to Citizenship. Women’s Rights and International Organizations (1999); Reinalda, Bob, The International Women‘s Movement as a Private Political Actor Between Accommodation and Change, in Private Organizations in Global Politics 165 (Ronit, Karsten & Schneider, Volker eds., 2000)Google Scholar.

39 See Checkel, Jeffrey T., Norms, Institutions, and National Identity in Contemporary Europe, 43 Int’l Stud. Q. 83, 87 (1999)Google Scholar (defining cultural match as “a situation where the prescriptions embodied in an international norm are convergent with domestic norms,” which are reflected in the legal system and bureaucratic agencies, and arguing that the mechanism of norm diffusion varies depending on the domestic structure); see also Gurowitz, Amy, Mobilizing International Norms: Domestic Actors, Immigrants, and the Japanese State, 51 World Pol. 413, 415 (1999)CrossRefGoogle Scholar (arguing that international norms have been crucial in causing changes in Japanese policy toward Korean migrant workers, both through legal action and activist pressure on governments); Lutz, Ellen L. & Sikkink, Kathryn, International Human Rights Law and Practice in Latin America, 54 Int’l Org. 633, 640 (2000)Google Scholar (finding that the number of international human rights norms incorporated into international and regional Latin American law significantly increased between the mid-1970s and 1990s); Sharman, J. C., Power and Discourse in Policy Diffusion: Anti-Money Laundering in Developing States, 52 Int’l Stud. Q. 635, 636 (2008)Google Scholar (using survey and interview data to argue that the recent adoption of anti-money laundering policies by 170 states represents an example of international norm diffusion caused by “discursively mediated exercises of power,” and not by coercion or learning); Daniel C. Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (2001).

40 See Klotz, supra note 37 (on the role of activism and transnational movements in norm diffusion); see also Klotz, supra note 30 (arguing that norms have a constitutive, rather than solely constraining, effect on interests). The idea that there are norm entrepreneurs of various types has been studied widely, although usually not with much specific focus on the law. See, e.g., Ingebritsen, Christine, Norm Entrepreneurs: Scandinavia‘s Role in World Politics, 37 Coop Eration & Conflict 11 (2002)CrossRefGoogle Scholar.

41 See Benjamin Brake & Peter J. Katzenstein, The Transnational Movement of American Procedural Law: Circulating Legal Norms and Practices (2011) (unpublished manuscript) (on file with authors) (challenging the conventional idea that legal norms tend to diffuse primarily across similar legal systems, and focusing, instead, on linguistic, conceptual, and epistemic mechanisms).

42 See Hurd, Ian, Legitimacy and Authority in International Politics, 53 Int’l Org. 379 (1999)CrossRefGoogle Scholar; see also Barnett, Michael N., Bringing in the New World Order: Liberalism, Legitimacy, and the United Nations, 49 World Pol. 526 (1997)CrossRefGoogle Scholar (book review); Towns, supra note 31 (arguing that diffusion of norms is a function of hierarchy when positions within the hierarchy are determined by conformity with norms—leading to diffusion downward from high- position states).

43 Andreea Deciu Ritivoi, Paul Ricoeur: Tradition and Innovation in Rhetorical Theory (2006).

44 See Michel Foucault, Discipline and Punish: The Birth of the Prison (1977); Foucault, Michel, Two Lectures, in Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (Gordon, Colin ed., Marshall, Leo, Merpham, John & Soper, Kate trans., 1980)Google Scholar; Foucault, Michel, Politics and Ethics, in The Foucault Reader (Rabinbow, Paul ed., 1984)Google Scholar. We thank Ann Towns for making this point.

45 See, e.g., Power in Global Governance 3 (Michael Barnett & Raymond Duvall eds., 2005) (referring to this process as productive power, or “the socially diffuse production of subjectivity in systems of meaning and signification”); Michael Barnett & Martha Finnemore, The Power of Liberal International Organizations, in Power in Global Governance, supra, at 161 (arguing that the power of international organizations results from the authority conferred on them because of their moral position, rational-legal standing, and expertise, and that this authority takes many forms, including the ability to use productive power to “participate in the production and the constitution of global governance,” Michael Barnett & Raymond Duvall, Power in Global Governance, in Power in Global Governance, supra, at l, 28); Helen M. Kinsella, Securing the Civilian: Sex and Gender in the Laws of War, in Power in Global Governance, supra, at 31 (arguing that the categories of combatant and civilian embodied in the Geneva Convention are “dependent upon discourses of gender that naturalize sex and sex difference”); Alderson, Kai, Making Sense of State Socialization, 27 Rev. Int’l Stud. 415 (2001)Google Scholar (exploring from a theoretical perspective how changes in beliefs, political pressure, and institutionalization help explain the process of state socialization).

46 See Reus-Smit, Christian, The Politics of International Law, in The Politics of International Law 14, 36 (Reus-Smit, Christian ed., 2004)CrossRefGoogle Scholar (arguing that institutions are “created by political actors as structuring or ordering devices, as mechanisms for framing politics in ways that enshrine predominant notions of legitimate agency, stabilise individual and collective purposes, and facilitate the pursuit of instrumental goals”).

47 See Wiener, Antje, Contested Compliance: Interventions on the Normative Structure of World Politics, 10 Eur. J. Int’l Rel. 189, 190 (2004)Google Scholar (arguing that a “reflexive” understanding of law helps explain how social practice changes the normative structure of law); see also Wiener, Antje, Contested Meanings of Norms: A Research Framework, 5 Comp. Eur. Pol. 1 (2007)CrossRefGoogle Scholar.

48 See Barnett, Michael & Martha Finnemore, Rules for the World: International Organizations in Global Politics 6 (2004)Google Scholar (arguing that international organizations have authority in part because they “orient action and create social reality”).

49 See Friedrich V. Kratochwil, Rules Norms, and Decisions: on the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989) (focusing on the style of legal argumentation and the role of legal norms in decision making—including how they help reduce uncertainty in contracting).

50 See, e.g., Neta C. Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humanitarian Intervention (2002); Risse, Thomas, “Let’s Argue!”: Communicative Action in World Politics, 54 Int’l Org. 1, 2 (2000)Google Scholar (claiming that arguing creates common knowledge about both the rules of the game and the definition of the situation, and that it allows actors to seek an optimal solution and common normative framework); see also Farrell, Henry, Constructing the International Foundations of E-Commerce—The EU-U.S. Safe Harbor Arrangement, 57 Int’l Org. 277 (2003)Google Scholar (examining the preference-changing effects of persuasion); Deitelhoff, Nicole, The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case, 63 Int’l Org. 33, 35 (2009)Google Scholar (arguing that states’ willingness to give up sovereignty to the International Criminal Court resulted from persuasion during negotiations that caused states’ interests to change).

51 See Krebs, Ronald R. & Lobasz, Jennifer K., Fixing the Meaning of 9/11: Hegemony, Coercion, and the Road to War in Iraq, 16 Security Stud. 409 (2007)CrossRefGoogle Scholar (focusing on the role of argumentation in the lead-up to the U.S. invasion of Iraq, arguing that the Bush administration used the so-called war on terror as a means of legitimizing the use of force). Although not focused on international law explicitly, this line of argument affected the context in which international legal norms were interpreted and adjusted, whereas inconvenient norms were ignored or explained away as irrelevant.

52 See Checkel, Jeffrey T., Why Comply? Social Learning and European Identity Change, 55 Int’l Org. 553 (2001)CrossRefGoogle Scholar.

53 See, e.g., Payne, Rodger A., Persuasion, Frames and Norm Construction, 7 Eur. J. Int’l Rel. 37, 39 (2001)Google Scholar (arguing that much of the constructivist literature focuses excessively on persuasion and framing, and overlooks the underlying social processes that determine the outcome of highly contested normative struggles); Krebs, Ronald R. & Thaddeus Jackson, Patrick, Twisting Tongues and Twisting Arms: The Power of Political Rhetoric, 13 Eur. J. Int‘l Rel. 35, 36–37 (2007)Google Scholar (emphasizing the role of rhetoric but suggesting that others have been incorrect in focusing on its role in persuasion rather than coercion); Grobe, Christian, The Power of Words: Argumentative Persuasion in International Negotiations, 16 Eur. J. Int’l Rel. 5, 6 (2010)Google Scholar (bridging persuasion-based arguments through a focus on strategic bargaining found in the rational choice literature, arguing that rational actors will be receptive to persuasion or argumentation only when such communication provides new causal knowledge that helps alleviate uncertainty, and implying that bargaining positions change only because of changes in available information, rather than changes in preferences).

54 See Goodman, Ryan & Jinks, Derek, How to Influence States: Socialization and International Human Rights Law, 54 Duke L.J. 621 (2005)Google Scholar (arguing that, although most theories attribute state compliance to coercion and persuasion, acculturation is a social mechanism that profoundly affects state behavior yet remains poorly understood).

55 See Ian Johnstone, The Power of Deliberation: International Law, Politics and Organizations (2011) (arguing that the Security Council can address its deliberative deficit through a series of procedural reforms, based on a theory of deliberative democracy, that would be politically easier to achieve than other widely discussed reforms such as changes in membership).

56 See BrunnÉe & Toope, supra note 1, at 6 (arguing that the traits of “generality, promulgation, non-retroactivity, clarity, non-contradiction, not asking the impossible, constancy, and congruence between rules and official action” generate commitment and can help promote compliance).

57 Id. Political scientists of the English School have long made arguments along this line. See infra note 196.

58 See, e.g., Ian Clark, Legitimacy in International Society (2005).

59 See Thomas, Ward, Legitimacy in International Relations: Ten Propositions, in Justifying War? From Humanitarian Intervention to Counterterrorism (Andréani, Gilles & Hassner, Pierre eds., 2008)Google Scholar (exploring with anecdotal evidence a variety of issues related to the sources and effects of international legitimacy, including the role of international organizations, and noting that no single mechanism or institution has a monopoly on conferring legitimacy).

60 On the role of Security Council decisions as focal points, rather than authoritative moral statements, see Voeten, Erik, The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force, 59 Int’l Grc. 527 (2005)Google Scholar.

61 See Finnemore, Martha, Legitimacy, Hypocrisy, and the Social Structure of Unipolarity: Why Being a Unipole Isn’t All It’s Cracked Up to Be, 61 World Pol. 58 (2009)CrossRefGoogle Scholar (arguing that legitimacy imposes significant limitations on power, even on that of a unipolar actor.)

62 See Finnemore, supra note 30; Finnemore & Sikkink, supra note 36; Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998); Alderson, supra note 45; Towns, supra note 31.

63 See, e.g., Reus-Smit, Christian, American Power and World Order 4 (2004)Google Scholar. Reus-Smit argues “that all political power is deeply embedded in webs of social exchange and mutual constitution; that stable political power…ultimately rests on legitimacy; and that institutions play a crucial role in sustaining such power.”Id. at 41; see also Johnston, Alastair Iain, Treating International Institutions as Social Environments, 45 Int’l Stud. Q. 487 (2001 CrossRefGoogle Scholar)(arguing that socialization also takes place, in part, through persuasion and social influence that inculcate pro-norm behavior by dispensing social rewards, such as status, and punishments, such as exclusion or shaming); Sisson Runyan, Anne, Women in the Neoliberal “Frame,“ in Gender Politics in Global Governance 210 (Meyer, Mary K. & Priigl, Elisabeth eds., 1999)Google Scholar; Elisabeth Priigl, What Is a Worker? Gender, Global Restructuring, and the ILO Convention on Homework, in Gender Politics in Global Governance, supra, at 197.

64 See Power of Human Rights, supra note 36.

65 See Bearce, David H. & Bondanella, Stacy, Intergovernmental Organizations, Socialization, and Member-State Interest Convergence, 61 Int‘l Org. 703 (2007)Google Scholar. Some of the research on global administrative law points to similar observations about convergence but suggests different pathways. See, e.g., Kingsbury, Benedict, Krisch, Nico & Stewart, Richard B., The Emergence of Global Administrative Law, 68 L. & Contemp. Probs., Summer/Autumn 2005, at 15Google Scholar.

66 see Hooghe, Liesbet, Several Roads Lead to International Norms, But Few via International Socialization: A Case Study of the European Commission, 59 Int’l Org. 861 (2005)Google Scholar; Kelley, Judith, International Actors on the Domestic Scene: Membership Conditionality and Socialization by International Institutions, 58 Int’l Org. 425 (2004)Google Scholar.

67 See Beyers, Jan, Multiple Embeddedness and Socialization in Europe: The Case of Council Officials, 59 Int’l Org. 899 (2005)Google Scholar.

68 A few legal scholars have also analyzed international cooperation by considering problem types rooted in game theory. See, e.g., Goldsmith & Posner, supra note l; Andrew T. Guzman, How International Law Works: A Rational Choice Theory (2008); see also Norman, George & Trachtman, Joel P., The Customary International Law Game, 99 AJIL 541 (2005)CrossRefGoogle Scholar; Mock, William B.T., Game Theory, Signalling and International Legal Relations, 26 Geo. Wash. J. Int’l L. & Econ. 33 (1992)Google Scholar; Benvenisti, supra note 1; Posner, Eric A. & Sykes, Alan O., Optimal War and Jus Ad Bellum, 93 Geo. L.J. 993 (2005)Google Scholar; Scott, Robert E. & Stephan, Paul B., Self-Enforcing International Agreements and the Limits of Coercion, 2004 Wls. L. Rev. 551 (2004)Google Scholar; Robert E. Scott & Paul B. Stephan, The Limits of Leviathan: Contract Theory and the Enforcement of International Law (2006); Ohlin, supra note 1.

69 For a recent survey of international governance that includes attention to problem construction, see Who Governs the Globe? (Deborah D. Avant, Martha Finnemore & Susan K. Sell eds., 2010).

70 See, e.g., Price, Richard, A Genealogy of the Chemical Weapons Taboo, 49 Int’l Org. 73 (1995)CrossRefGoogle Scholar. Price argues against scholars who claim that the nonuse of chemical weapons was rooted in their lack of utility or in the fear of reciprocity. He shows, instead, that a norm against these weapons arose and that its stigma was a necessary condition for the emergence of tacit and formal agreements not to develop and deploy chemical weapons. In particular, chemical weapons came to be associated with poison, the use of which has been stigmatized in many cultures. Price’s line of argument, though not directly focusing on legal obligations, helps explain how norms could influence customary international law and also formal legal obligations related to chemical weapons.

71 See, e.g., Thomas, Ward, Norms and Security: The Case of International Assassination, 25 Int’l Security, Summer 2000, at 105, 121–22 Google Scholar (arguing that assassination is a form of interstate violence that is a potential competitor to large-scale war, that prohibiting it benefits the major powers (which are more likely to be able to deploy other forms of violence), and, in tracing the rise and development of this legal norm, that “the norm itself served a legitimizing function, reinforcing institutional changes by providing them with a normative foundation based on natural law principles of justice and honor”); Ward Thomas, The Ethics of Destruction: Norms and Force in International Relations (2001).

72 See, e.g., Price, supra note 26 (arguing that transnational civil society, especially nongovernmental organizations, used moral persuasion and social pressure to perpetuate a norm against antipersonnel land mines).

73 See, e.g., Tannenwald, Nina, Stigmatizing the Bomb: Origins of the Nuclear Taboo, 29 Int‘l Security, Spring 2005 Google Scholar, at 5. In tracing the evolution of the taboo against the use of nuclear weapons as a result of the global antinuclear weapons movement, Tannenwald identifies key forces in the rise of this norm—including social groups pressuring leaders to change state policy, rhetoric and diplomacy intended to delegitimize practices such as possessing nuclear weapons and threatening to them, and the visibility of state leaders who spoke against nuclear weapons for reasons of moral conscience or on the basis of particular cognitive assumptions. She argues, in particular, that this norm developed through actual practice—a process that, she suggests, confers a status to the norm akin to customary international law. See also Tannenwald, Nina, The Nuclear Taboo: The United States and the Normative Basis of Nuclear Non-use, 53 Int’l Org. 433 (1999)CrossRefGoogle Scholar.

74 See Krebs & Lobasz, supra note 51.

75 See also Legro, Jeffrey W., Culture and Preferences in the International Cooperation Two-Step, 90 Am. Pol. Sci. Rev. 118 (1996)CrossRefGoogle Scholar. Focusing on the rise of norms during the interwar period to stigmatize submarine warfare, aerial bombing of nonmilitary targets, and chemical warfare, Legro argues that these stigmata affected state preferences, partially through changes in bureaucratic culture. He contrasts this argument with more conventional explanations rooted in strategic interaction or the balance of power. Legro uses similar lines of argument in addressing other issues. See Legro, Jeffrey W., Which Norms Matter? Revisiting the “Failure” of Internationalism, 51 Int’l Org. 31 (1997)CrossRefGoogle Scholar; see also Jeffrey W. Legro, Rethinking the World: Great Power Strategies and International Order (2005) (arguing that national ideas about how a state should interact with other states result in changes to both national identities and interests); Jeffrey W. Legro, Cooperation Under Fire: Anglo-German Restraint During World War II (1995); see generally Anne-Marie Slaughter, A New World Order (2004); Goodman, Ryan & Jinks, Derek, Toward an Institutional Theory of Sovereignty, 55 Stan. L. Rev. 1749 (2003)Google Scholar.

76 See Power in Global Governance, supra note 45; see generally Wendt, Alexander, Anarchy Is What States Make of It: The Social Construction of Power Politics, 46 Int’l Org. 391 (1992)CrossRefGoogle Scholar.

77 More precisely, the strategic context usually begins with three questions: (1) Which parties stand to benefit from cooperation, and to what extent? (2) To what extent are the potential benefits from cooperation tangible or intangible? (3) Once an agreement is put in place, to what extent would actors have an incentive to violate it? On the relation between game theory and IR, see generally Thomas C. Schelling, The Strategy of Conflict (1960). For significant applications of game theory to IR, see, for example, Fearon, James D., Signaling Foreign Policy Interests: Tying Hands Versus Sinking Costs, 41 J. Conflict Resol. 68 (1997)CrossRefGoogle Scholar; Lipson, Charles, Why Are Some International Agreements Informal? 45 Int’l Org. 495 (1991)CrossRefGoogle Scholar; Fearon, James D., Bargaining, Enforcement, and International Cooperation, 52 Int’l Org. 269 (1998)CrossRefGoogle Scholar; Maggi, Giovanni, The Role of Multilateral Institutions in International Trade Cooperation, 89 Am. Econ. Rev. 190 (1999)CrossRefGoogle Scholar; Bagwell, Kyle & Staiger, Robert W., Domestic Policies, National Sovereignty, and International Economic Institutions, 116 Q.J. Econ. 519 (2001)CrossRefGoogle Scholar; and Gilligan, Michael J., Is There a Broader-Deeper Trade-Off in International Multilateral Agreements?, 58 Int’l Org. 459 (2004)Google Scholar.

78 See generally Stein, Arthur A., Coordination and Collaboration: Regimes in an Anarchic World, 36 Int’l Org. 299 (1982)CrossRefGoogle Scholar; Robert Axelrod, The Evolution of Cooperation (1984); Oye, Kenneth A., Explaining Cooperation Under Anarchy: Hypotheses and Strategies, in Cooperation Under Anarchy 1 (Oye, Kenneth A. ed., 1986)Google Scholar; Todd Sandler, Global Collective Action (2004); Abbott, supra note 2.

79 See Goldsmith & Posner, supra note 1; Guzman, supra note 68; Hirsch, Moshe, Game Theory, International Law, and Future Environmental Cooperation in the Middle East, 27 Denv. J. Int’l L. & PolĽy 75 (1998)Google Scholar; Frischmann, Brett, A Dynamic Institutional Theory of International Law, 51 Buff. L. Rev. 679 (2003)Google Scholar; see also Thompson, Alexander, Applying Rational Choice Theory to International Law: The Promise and Pitfalls, 31 J. Legal Stud. 285 (2002)CrossRefGoogle Scholar (a political scientist applying game-theoretic approaches directly to law).

80 Not all collective action problems are helpfully analyzed in terms of the prisoner’s dilemma. Another game that scholars often use for analysis is the stag hunt, in which two mutually beneficial outcomes are available, but one is significantly more so than the other. While players in the stag hunt would prefer a more beneficial outcome, they will choose the safer, but less beneficial, outcome unless they can coordinate and both choose the better option. On the prisoner’s dilemma, see generally William Poundstone, Prisoner’s Dilemma (1992) (describing the intellectual history of this problem); Axelrod, supra note 78 (showing that cooperation can be achieved in a prisoner’s dilemma game through multiple interactions); Ward, Hugh, Game Theory and the Politics of the Global Commons, 37 J. Conflict Resol. 203 (1993)CrossRefGoogle Scholar (arguing that some issues concerning global common-pool resources can be analyzed as prisoners dilemmas); and Snidal, Duncan, Coordination Versus Prisoners’ Dilemma: Implications for International Cooperation and Regimes, 79 Am. Pol. Sci. Rev. 923 (1985)CrossRefGoogle Scholar (arguing that coordination problems will lead to different types of solutions than prisoner’s dilemma problems).

81 These strategic incentives also explain why so many arms control agreements are rooted in bold aspirations yet struggle to have much real impact on the development and deployment of important weapons systems; it has proved difficult to monitor and enforce agreements with the precision needed to make states willing to risk disarmament. See George W. Downs, David M. Rocke & Randolph M. Siverson, Arms Races and Cooperation, in Cooperation Under Anarchy, supra note 78, at 118.

82 See Lipson, Charles, International Cooperation in Economic and Security Affairs, 37 World Pol. 1 (1984)CrossRefGoogle Scholar; Hart, John & Fedchenko, Vitaly, WMD Inspection and Verification Regimes: Political and Technical Challenges, in Combating Weapons of Mass Destruction: The Future of International Nonproliferation Policy 95 (Busch, Nathan E. & Joyner, Daniel H. eds., 2009)Google Scholar (arguing that verifiability of compliance is the key to effectiveness for arms control law). Several scholars have noted that technology often limits the ability of inspectors and technical secretariats to verify compliance. See Helm, Robert W. & Westervelt, Donald R., The New Test Ban Treaties: What Do They Mean? Where Do They lead?, 1 Int’l Security, Winter 1977, at 162Google Scholar; Tucker, Jonathan B., Verifying the Chemical Weapons Ban: Missing Elements, 37 Arms Control Today, Jan./Feb. 2007, at 6Google Scholar.

83 Nearly all states, to different degrees, gain from policies that lower the barriers to trade and allow for a more efficient global economy. Most also face temptations, however, to erect trade barriers that protect their own industries—especially when the interest groups that benefit are well organized politically and can exert great influence over national policy. For key scholarship on international trade law by political scientists, see, for example, Bailey, Michael A., Goldstein, Judith & Weingast, Barry R., The Institutional Roots of American Trade Policy: Politics, Coalitions, and International Trade, 49 World Pol. 309 (1997)CrossRefGoogle Scholar (discussing the ways in which domestic law interacts with international law); Steinberg, Richard H., In the Shadow of Law or Power? Consensus-Based Bargaining and Out comes in the GATT/WTO, 56 Int’l Org. 339 (2002)CrossRefGoogle Scholar; Busch, Marc L., Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade, 61 Int’l Org. 735 (2007)Google Scholar (arguing that the potential for dispute resolution decisions that create long-term precedents affects state incentives to use the mechanisms in question); Goldstein, Judith L., Rivers, Douglas & Tomz, Michael, Institutions in International Relations: Understanding the Effects of the GATT and the WTO on World Trade, 61 Int’l Org. 37 (2007)Google Scholar; Gowa, Joanne & Yeon Kam, Soo, An Exclusive Country Club: The Effects of the GATT on Trade, 1950-94, 57 World Pol. 453, 459–62 (2005)CrossRefGoogle Scholar (arguing that the institutional design of the General Agreement on Tariffs and Trade (GATT) provides the loopholes necessary for strong states to capture the majority of benefits from trade liberalization); Rosendorff, B. Peter & Milner, Helen V., The Optimal Design of International Trade Institutions: Uncertainty and Escape, 55 Int’l Org. 829 (2001)CrossRefGoogle Scholar (arguing that flexibility is especially beneficial in the context of domestic uncertainty); and Peter Rosendorff, B., Stability and Rigidity: Politics and Design of the WTO’s Dispute Settlement Procedure, 99 Am. Pol. Sci. Rev. 389 (2005)CrossRefGoogle Scholar.

84 See, e.g., Stein, supra note 78.

85 See Sykes, Alan O., Constructive Unilateral Threats in International Commercial Relations: The Limited Case for Section 301, 23 L. & Pol’y Int’l Bus. 263 (1992)Google Scholar; Sykes, Alan O., “Mandatory” Retaliation for Breach of Trade Agreements: Some Thoughts on the Strategic Design of Section 301, 8 B.U. Int’l L.J. 301 (1990)Google Scholar. Indeed, trade law and enforcement is an area where political scientists and legal scholars have already initiated many fruitful collaborations. See, e.g., Guzman, Andrew & Simmons, Beth A., To Settle or Empanel? An Empirical Analysis of Litigation and Settlement at the World Trade Organization, 31 J. Legal Stud. S 205 (2002)CrossRefGoogle Scholar; Guzman, Andrew & Simmons, Beth A., Power Plays and Capacity Constraints: The Selection of Defendants in World Trade Organization Disputes, 34 J. Legal Stud. 557 (2005)CrossRefGoogle Scholar; Marc Busch, Eric Reinhardt & Gregory Shaffer, Does Legal Capacity Matteri?: Explaining Dispute Initiation and Antidumping Actions in the WTO (International Centre for Trade and Sustainable Development, Programme on Dispute Settlement, Issue Paper No. 4, 2008), at http://ictsd.org/downloads/2009/02/legal_capaciryl.pdf.

86 The hallmarks of a CPR are that it is difficult to exclude other players from using the resource, and when any player uses the resource, the amount left for others is diminished. This combination of factors has often led analysts to refer to the problem of CPR regulation as the tragedy of the commons. See Hardin, Garrett, The Tragedy of the Commons, 162 Sci. 124 (1968)Google ScholarPubMed. Most international fisheries, for example, are depleted because any fishermen or their states know that they can easily avoid inconvenient fishing regulations. Long ago, political scientist Arild Underdal referred in this context to the law of the least ambitious program and showed that, because some fishing nations know that restrictions are hard to enforce, efforts to set and manage fishing quotas are usually not effective in protecting fish. Underdal, Arild, The Politics of International Fisheries Management: The Case of the Northeast Atlantic 36 (1980)Google Scholar. For the law and economics of a variety of ocean-based CPRs and other cooperation problems, see Posner, Eric A. & Sykes, Alan O., Economic Foundations of the Law of the Sea, 104 AJIL 569 (2010)CrossRefGoogle Scholar.

87 The term enforcement mechanism is often not used since the political sensitivities to enforcement are acute in most areas of international cooperation. For example, the Montreal Protocol on Substances That Deplete the Ozone Layer, 26 ILM 1550 (1987), includes a “multilateral consultative process.” See Victor, David G., The Operation and Effectiveness of the Montreal Protocol’s Non-compliance Procedure, in The implementation and Effectiveness of International Environmental Commitments: Theory and Practice 137 (Victor, David G., Raustiala, Kal & Skolnikoff, Eugene eds., 1998)Google Scholar.

88 Some optimism is also found in the literature on “local” CPRs, which finds an abundance of effective collective action in local settings because the players are more likely to know each other, making it easier to monitor and punish defectors. See Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (1990); Gibson, Clark C., Williams, John T. & Ostrom, Elinor, Local Enforcement and Better Forests, 33 World Dev. 273 (2005)CrossRefGoogle Scholar; Elinor Ostrom, Roy Gardner & James Walker, Rules, Games, and Common-Pool Resources (1994); Michael D. Mcginnis, Polycentricity and Local Public Economies: Readings From the Workshop in Political Theory and Policy Analysis (1999); Local Commons and Global Interdependence: Heterogeneity and Cooperation in Two Domains (Robert O. Keohane & Elinor Ostrom eds., 1995). That same logic suggests that the management of international common-pool resources will be more successful when the number of parties is smaller, as in the Interim Convention on Conservation of North Pacific Fur Seals, Feb. 9, 1957, 314 UNTS 105. See Scott Barrett, Environment and Statecraft: The Strategy of Environmental Treaty-Making 19-48 (2003).

89 This solution has its origins in the insights of economist Coase, Ronald H., The Problem of Social Cost, 3 J.L. & Econ. 1 (1960)CrossRefGoogle Scholar.

90 See Bernauer, Thomas, Protecting the Rhine River Against Chloride Pollution, in Institutions for Environ Mental Aid: Pitfalls and Promise 201 (Keohane, Robert O. & Levy, Marc A. eds., 1996)Google Scholar.

91 See generally Controlling Immigration: A Global Perspective (Wayne A. Cornelius, Philip L. Martin & James Frank Hollifield eds., 1988); Global Migration Governance (Alexander Betts ed., 2011); O’Dwyer, supra note 26; Price, supra note 26.

92 See infra notes 224-227 and accompanying text.

93 In reciprocal settings, enforcement is so straightforward that analysts often consider the agreements as self-enforcing. We are skeptical that these agreements actually exist, but the classic example that many scholars cite is the early cooperation under the GATT. The tariff reductions that one state offered to other GATT members were reciprocal, with the consequence that failures to honor those tariff promises could be met with swift, targeted retaliation. In reality, the benefits and costs of participation in tariff-reducing agreements are more asymmetrical; enforcement is not costless; and most scholars today view most cooperation on trade as a problem of collaboration. See supra note 81 and accompanying text.

94 On coordination games, see generally Stein, supra note 78; David Lewis, Convention: A Philosophical Study (1969); and Laitin, David D., The Tower of Babel as a Coordination Game: Political Linguistics in Ghana, 88 Am. Pol. Sci. Rev. 622 (1994)CrossRefGoogle Scholar. Other types of problems are also often considered to be self-enforcing. For example, when the actors interact repeatedly, reciprocity can emerge in cooperation problems with incentives to defect. See Axelrod, supra note 78.

95 For example, a few political scientists have examined the process of setting technical standards within the WTO. When the WTO was created, the task of negotiating trade-related standards was delegated to several inter national bodies—among them the WHO/FAO Codex Alimentari us Commission for food safety standards. In practice, the work of the Codex has become much more politicized now that its standards are more relevant, and even when Codex agrees on standards, such as on the use of hormones in beef, trade disputes still arise because important states violate the rules. See David G. Victor, Effective Multilateral Regulation of Industrial Activity (1997) (unpublished Ph.D. dissertation, Massachusetts Institute of Technology) (on file with authors); Transatlantic Governance in the Global Economy (Mark A. Pollack & Gregory C. Shaffer eds. 2001); What’s the Beef?: The Contested Governance of European Food Safety (Christopher K. Ansell & David Vogel eds., 2006); Büthe, Tim, The Globalization of Health and Safety Standards: Delegation of Regulatory Authority in the SPS Agreement of the 1994 Agreement Establishing the World Trade Organization, 71 L. & Contemp. Probs. 218 (2008)Google Scholar.

96 See Krasner, Stephen D., Global Communications and National Power: Life on the Pareto Frontier, 43 World Pol. 336 (1991)CrossRefGoogle Scholar; Cowhey, Peter F., The International Telecommunications Regime: The Political Roots of International Regimes for High Technology, 44 Int’l Org. 169 (1990)CrossRefGoogle Scholar.

97 See supra notes 29-65 and accompanying text; seealso Crawford, supra note 50 (arguing that foreign policy decisions derive from prior beliefs and the process of ethical argumentation).

98 See, e.g., Heifer, supra note 1; Hathaway, supra note 1; Goodman & Jinks, supra note 54.

99 See Emilie M. Hafner-Burton, Forced to Be Good: Why Trade Agreements Boost Human Rights (2009).

100 See, e.g., Chayes & Chayes, supra note 11; C. M.|Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 Int’l & Comp. L.Q. 850 (1989)CrossRefGoogle Scholar; Weil, Prosper, Towards Relative Normativity in International Law?, 77 AJIL 413 (1983)CrossRefGoogle Scholar.

101 See infra notes 179-83 and accompanying text.

102 See, e.g., Posner, Eric A. & Yoo, John C., Judicial Independence in International Tribunals, 93 Cal. L. Rev. 1 (2005)Google Scholar (arguing that when behavior is uncertain, a tribunal can provide the neutral information necessary to restore interstate cooperation).

103 See Hafner-Burton, Emilie M. & Tsutsui, Kiyoteru, Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most, 44 J. Peace Res. 407 (2007)CrossRefGoogle Scholar.

104 See Lipson, Charles, International Cooperation in Economic and Security Affairs, 37 World Pol. 1 (1984)CrossRefGoogle Scholar (arguing that arms control is faced with high costs of betrayal, monitoring problems, and the perception of strict competition, thus making cooperation unlikely); Downs et al., supra note 81 (arguing that arms races are actually often “deadlock” games (rather than prisoner’s dilemmas), in which actors prefer defection to cooperation, which suggests that the problem cannot be solved using the types of institutions created in other areas).

105 See generally Henkln, supra note 11, at 228-40.

106 See, e.g., Alston, Philip, “Core Labour Standards” and the Transformation of the International Labour Rights Regime, 15 Eur. J. Int’l L. 457 (2004)CrossRefGoogle Scholar; Gerard Ruggie, John, Business and Human Rights: The Evolving International Agenda, 101 AJIL 819 (2007)Google Scholar; Vogel, supra note 27. Legal scholars have explored similar questions. See, e.g., Ratner, Steven R., Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.]. 443 (2001)CrossRefGoogle Scholar; Weissbrodt, David & Kruger, Muria, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 97 AJIL 901 (2003)CrossRefGoogle Scholar.

107 See Neil J. Mitchell. Agents Of Atrocity: Leaders, Followers, and the Violation of Human Rights in Civil War (2004).

108 See, e.g., Bitzinger, Richard A., The Globalization of the Arms Industry: The Next Proliferation Challenge, 19 Int’l Security, Autumn 1994, at 170Google Scholar; Cockayne, James, Regulating Private Military and Security Companies: The Content, Negotiation, Weaknesses and Promise of the Montreux Document, 13 J. Conflict & Security L. 401 (2008)CrossRefGoogle Scholar; Percy, Sarah V., Mercenaries: Strong Norm, Weak Law, 61 Int’l Org. 367 (2007)Google Scholar.

109 See Edward L. Miles, Arild Underdal, Steinar Andresen & Jorgen Wettestad, Environmental Regime Effectiveness: Confronting Theory with Evidence (2001) (arguing that problem-solving capacity is a function of three main determinants: the institutional setting, the distribution of power among the actors involved, and the skill and energy available for the political engineering of cooperative solutions); see also Local Commons and Global Interdependence: Heterogeneity and Cooperation in Two Domains (Robert O. Keohane & Elinor Ostrom eds., 1995) (arguing that heterogeneity in actor capabilities in both the local and global domains has a large effect on the prospects for cooperation).

110 For example, the original strategic arms control talks focused on numbers of missiles because those were easier to measure than actual warheads, but technological changes (in part spurred by the existence of arms control treaties) encouraged the United States and Soviet Union to develop multiple independently targetable reentry vehicles (MIRVs). Those kinds of changes in technology made both sides wary about making promises to regulate their arms and made it harder to convince skeptical domestic audiences that arms control would improve national security. See Ted Greenwood, Making the Mirv: A Study of Defense Decision Making (1975); Schelling, Thomas C., What Went Wrong with Arms Control?, 64 Foreign Aff. 219 (1985)CrossRefGoogle Scholar; York, Herbert F., ABM MIRV and the Arms Race, 169 Sci. 257 (1970)CrossRefGoogle Scholar; see also Miller, Steven E., Politics over Promise: Domestic Impediments to Arms Control, 8 Int’l Security, Spring 1984, at 67Google Scholar.

111 SeeDavid G. Victor, The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming (2001); see generally von Stein, Jana, The International Law and Politics of Climate Change: Ratification of the United Nations Framework Convention and the Kyoto Protocol, 52 J. Conflict Resol. 243 (2008)CrossRefGoogle Scholar; Pizer, William A., The Optimal Choice of Climate Change Policy in the Presence of Uncertainty, 21 Resource & Energy Econ. 255 (1999)CrossRefGoogle Scholar.

112 See, e.g., Jacobson & Stein, supra note 24.

113 See Koremenos, Barbara, Lipson, Charles & Snidal, Duncan, The Rational Design of International Institutions, 55 Int’l Org. 761 (2001)CrossRefGoogle Scholar.

114 See Moravcsik, Andrew, Taking Preferences Seriously: A Liberal Theory of International Politics, 51 Int’l Org. 513, 514 (1997)Google Scholar; Finnemore & Sikkink, supra note 36; Thompson, Alexander, Coercion Through IOs: The Security Council and the Logic of Information Transmission, 60 Int’l Org. 1 (2006)Google Scholar.

115 See Koremenos et al., supra note 113 (arguing that uncertainty about preferences leads to restrictive membership criteria); Kydd, Andrew, Trust Building, Trust Breaking: The Dilemma of NATO Enlargement, 55 Int’l Org. 801 (2001)CrossRefGoogle Scholar; Morrow, James D., The Institutional Features of the Prisoners of War Treaties, 55 Int’l Org. 971 (2001)CrossRefGoogle Scholar; Martin, Lisa, Interests, Power, and Multilateralism, 46 Int’l Org. 765 (1992)CrossRefGoogle Scholar. We note, however, that some scholars suggest the opposite—namely, that ignorance about exactly how the world will unfold, including the preferences of key states, could make it easier for states to establish institutions that would, in turn, stabilize norms and expectations. See Oran R. Young, International Cooperation: Building Regimes for Natural Resources and the Environment (1989); Oran R. Young, Compliance and Public Authority: A Theory with International Applications (1979); Sobel, Joel, A Theory of Credibility, 52 Rev. Econ. Stud. 557, 570 (1985)CrossRefGoogle Scholar (“Long-term arrangements are of value when there is uncertainty about preferences because past transactions provide relevant information to agents.”).

116 See Morrow, supra note 115, at 971-72.

117 How these attributes of problems affect the choice of policy mechanism is a question that has been at the forefront of many disciplines—not just political science, but also economics and law. For a review, see Wiener, Jonathan B. & Richman, Barak D., Mechanism Choice, in Research Handbook on Public Choice and Public Law 363 (Farber, Daniel A. & Joseph, Anne O’Connell, eds., 2010)Google Scholar (reviewing literature from multiple disciplines on the political economy of regulatory-instrument choice at the national and international levels). One sign of the central role of transaction costs in the study of contracting is that, in a major stocktaking of research on collective action at the local and global domains, two leaders in the study of IR and common-pool resources identified transaction costs as one area where scholars agreed both that the topic was important and that much of what mattered for research had already been extensively studied. See Local Commons and Global Interdependence, supra note 109.

118 See supra notes 29-65 and accompanying text; see also Bringing Transnational Relations Back in: Non-State Actors, Domestic Structures and International Institutions (Thomas Risse-Kappen ed., 1995) (including essays analyzing how domestic social movements, private actors, and political institutions affect IR); Power of Human Rights, supra note 36 (discussing the effects of international human rights norms and transnational advocacy movements on domestic human rights practices).

119 See Putnam, Robert D., Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 Int’l Org. 427 (1988)CrossRefGoogle Scholar; Double-Edged Diplomacy: International Bargaining and Domestic Politics (Peter B. Evans, Harold K. Jacobson & Robert D. Putnam eds., 1993). These studies build on Thomas Schelling’s famous conjecture that actors constrained by third parties will fare better in bargaining situations. Schelling, supra note 77.

120 Helen V. Mllner, Interests, Institutions, and Information: Domestic Politics and International Relations (1997); see also Gourevitch, Peter, The Second Image Reversed: The International Sources of Domestic Politics, 32 Int’l Org. 881 (1978)CrossRefGoogle Scholar; Lisa L. Martin, Democratic Commitments: Legislatures and International Cooperation (2000); Pevehouse, Jon C., Democracy from the Outside-In? International Organizations and Democratization, 56 Int’l Org. 515 (2002)CrossRefGoogle Scholar; Mansfield, Edward D. & Pevehouse, Jon C., Democratization and the Varieties of International Organizations, 52. J. Conflict Resol. 269 (2008)CrossRefGoogle Scholar.

121 See Grossman, Gene M. & Helpman, Elhanan, Protection for Sale, 84 Am. Econ. Rev. 833 (1994)Google Scholar.

122 See Cowhey, supra note 96.

123 See Rosendorff & Milner, supra note 83.

124 See Ashley, Brett Leeds, Domestic Political Institutions, Credible Commitments, and International Cooperation, 43 Am. J. Pol. Sci. 979 (1999)Google Scholar (finding that democratic states or autocratic states are more likely to cooperate with other states in the same category than in mixed combinations); Simmons, Beth. A., International Law and State Behavior: Commitment and Compliance in International Monetary Affairs, 94 Am. Pol. Sci. Rev. 819 (2000)CrossRefGoogle Scholar (examining extent to which domestic factors, including rule of law and electoral democracy, shape reputation for fulfilling commitments); McGillivray, Fiona & Smith, Alastair, Trust and Cooperation Through Agent-Specific Punishments, 54 Int’l Org. 809 (2000)CrossRefGoogle Scholar (using game-theoretic model to explore when democratic leaders accountable to their own people are more likely to cooperate); see also Doyle, Michael W. & Carlson, Geoffrey S., Silence of the Laws? Conceptions of International Relations and International Law in Hobbes, Kant & Locke, 46 Colum. J. Transnat’l L. 648 (2008)Google Scholar (surveying recent literature on whether democratic states are more likely than other regime types to choose their commitments carefully and to live up to the ones that they have accepted); cf. Powell, Emilia Justyna & Mitchell, Sara McLaughlin, The International Court of Justice and the World’s Three Legal Systems, 69 J. Pol. 397, 407–11 (2007)CrossRefGoogle Scholar (examining democracy as potentially correlated with willingness to undertake and maintain commitments, in context of studying whether civil law, common law, or Islamic law states are relatively more likely to accept ICJ jurisdiction).

125 See Taylor Gaubatz, Kurt, Democratic States and Commitment in International Relations, 50 Int’l Org. 109 (1996)CrossRefGoogle Scholar; McGillivray & Smith, supra note 124; Mansfield, Edward D., Milner, Helen V. & Rosendorff, B. Peter, Why Democracies Cooperate More: Electoral Control and International Trade Agreements, 56 Int’l Org. 477 (2002)CrossRefGoogle Scholar; Xinyuan Dai, International Institutions and National Policies (2007).

126 See, e.g., Poe, Steven C., Neal Tate, C. & Keith, Linda Camp, Repression of the Human Right to Personal Integrity Revisited: A Global, Cross-national Study Covering the Years 1976-1993, 43 Int’l Stud Q. 291 (1999)CrossRefGoogle Scholar.

127 See, e.g., Powell, Emilia Justyna & Staton, Jeffrey K., Domestic Judicial Institutions and Human Rights Treaty Violation, 53 Int’L Stud. Q. 149, 150–51 (2009)Google Scholar (arguing that understanding the effectiveness of domestic judicial institutions is the key to understanding how domestic institutions, treaty ratification, and treaty compliance are related); see also Yonatan Lupu, Best Evidence: The Role of Information in Domestic Judicial Enforcement of lnternational Human Rights Agreements (Aug. 26, 2011), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1876728 (arguing that enforcement of international human rights law by independent domestic courts is effective only for violations subject to low evidence-production costs and low legal standards of proof).

128 See Moravcsik, Andrew, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Intl Org. 217 (2000)CrossRefGoogle Scholar; see also Jonc. Pevehouse, Democracy from Above: Regional Organizations and Democratization (2005); Emilie Marie Hafner-Burton, Jon Pevehouse & Edward Mansfield, Human Rights Institutions, Sovereignty Costs, and Democratization (2009), at http://papers.ssrn.com/sol3/papers.cfm? abstract_id= 1450445. For a similar argument about the effect of international commitments in constraining domestic politics in trade, see Goldstein, Judith, International Law and Domestic Institutions: Reconciling North American “Unfair” Trade Laws, 50 Int’l Org. 541 (1996)CrossRefGoogle Scholar.

129 Notably, see Richard H. Steinberg, International Trade Law as a Mechanism for State Transformation (2011) (unpublished manuscript) (on file with authors).

130 See Koremenos et al., supra note 113; Koremenos, Barbara, Contracting Around International Uncertainty, 99 Am. Pol. Sci. Rev. 549 (2005)CrossRefGoogle Scholar. The particular term rational design is barely a decade old. As represented in international law, this type of analysis has a much older pedigree. See, e.g., Keohane, supra note 10.

131 See Abbott, Kenneth W., Keohane, Robert O., Moravcsik, Andrew, Slaughter, Anne-Marie & Snidal, Duncan, The Concept of Legalization, 54 Int’l Org. 401 (2000)CrossRefGoogle Scholar.

132 See, e.g., Aust, Anthony, The Theory and Practice of Informal International Instruments, 35 Int’l & Comp. L.Q. 787 (1986)CrossRefGoogle Scholar; Hillgenberg, Hartmut, A Fresh Look at Soft Law, 10 Eur. J. Int’l L. 499 (1999)CrossRefGoogle Scholar; Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Dinah Shelton ed., 2000); Ho, Daniel E., Compliance and International Soft Law: Why Do Countries Implement the Basle Accord?, 5 J. Int’l Econ. L. 647 (2002)CrossRefGoogle Scholar; Shelton, Dinah, Normative Hierarchy in International Law, 100 AJIL 291 (2006)CrossRefGoogle Scholar.

133 For earlier arguments along these lines, see, for example, Schachter, Oscar, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977)CrossRefGoogle Scholar, and Franck, supra note 33.

134 For a similar argument, see Downs, George W., Danish, Kyle W. & Barsoom, Peter N., The Transformational Model of International Regime Design: Triumph of Hope or Experience?, 38 Colum. J. Transnat’l L. 465 (2000)Google Scholar.

135 This insight originates with economics research on uncertainty and industrial organization. See, e.g., Williamson, supra note 10; Joskow, Paul L., Contract Duration and Relationship-Specific Investments: Empirical Evidence from Coal Markets, 77 Am. Econ. Rev. 168 (1987)Google Scholar.

136 See Lipson, supra note 77; Abbott, Kenneth W. & Snidal, Duncan, Hard and Soft Law in International Governance, 54 Int’l Org. 421 (2000)CrossRefGoogle Scholar. But see Franck, supra note 33.

137 See, e.g., Jon Birger Skjærseth, The Making and Implementation of North Sea Commitments: The Politics of Environmental Participation, in Implementation AND EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL COMMITMENTS, supra note 87; Jørgen Wettestad, Participation in NOx Policy-Making and Implementation in the Netherknds, UK, and Norway: Different Approaches, but Similar Results, in Implementation and Effectiveness of International Environmental Commitments, supra note 87. For research that reaches more general conclusions of this type, see Koremenos, supra note 130. For an application to the problem of climate change, along with a review of the environmental literature on binding versus nonbinding agreements, see David G. Victor, Global Warming Gridlock: Creating More Effective Strategies for Protecting the Planet (2011).

138 See, e.g., Raustiala, Kal, Form and Substance in International Agreements, 99 AJIL 581 (2005)CrossRefGoogle Scholar; Engaging Countries: Strengthening Compliance with International Environmental Accords (Edith Brown Weiss & Harold K. Jacobson eds., 2000).

139 See Abbott & Snidal, supra note 136; Koremenos, supra note 130.

140 For similar arguments, see Brennan, Donald G, A Comprehensive Test Ban: Everybody or Nobody, 1 Int’l Security, Summer 1976 Google Scholar, at 92, and Nye, Joseph S., Maintaining a Nonproliferation Regime, 35 Int’l Org. 15 (1981)CrossRefGoogle Scholar.

141 Here, too, little collaboration has occurred between law and political science. See, e.g., Abbott et al., supra note 131 (a joint effort by political scientists and lawyers to study the legalization of international cooperation).

142 See, e.g., Franck, supra note 33 (arguing that the extent to which a particular law affects behavior depends upon the clarity of the law, among other factors); Lobel, Jules & Ratner, Michael, Bypassing the Security Council: Ambiguous Authorizations to Use of Force, Cease-Fires and the Iraqi Inspection Regime, 93 AJIL 124 (1999)CrossRefGoogle Scholar.

143 See Chayes & Chayes, supra note 11.

144 See Abbott & Snidal, supra note 136; Koremenos, supra note 130.

145 See Goldstein, Judith & Martin, Lisa, Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note, 54 Int’l Org. 603 (2000)CrossRefGoogle Scholar.

146 See Kucik, Jeffrey & Reinhardt, Eric, Does Flexibility Promote Cooperation? An Application to the Global Trade Regime, 62 Int’l Org. 477 (2008)Google Scholar.

147 See McCall Smith, james, The Politics of Dispute Settlement Design: Explaining Legalism in Regional Trade Pacts, 54 Int’l Org. 137 (2000)CrossRefGoogle Scholar.

148 See generally Delegation and Agency in International Organizations (Darren G. Hawkins, David A. Lake., Daniel L. Nielson & Michael J. Tierney eds., 2006); Abbott, Kenneth W. & Snidal, Duncan, Why States Act Through Formal International Organizations, 42 J. Conflict Resol. 3 (1998)CrossRefGoogle Scholar; Abbott et al., supra note 132; Koremenos et al., supra note 113 (referring to delegation as “centralization” but exploring similar ideas).

149 See, e.g., Rosendorff, supra note 83; Steinberg, Richard H., In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 Int’l Org. 339 (2001)CrossRefGoogle Scholar; Busch, supra note 83; Steinberg, Richard H., Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AJIL 247 (2004)CrossRefGoogle Scholar.

150 See, e.g., Keohane, Robert O., Moravcsik, Andrew & Slaughter, Anne-Marie, Legalized Dispute Resolution: Interstate and Transnational, 54 Int’l Org. 457 (2000)CrossRefGoogle Scholar (discussing three dimensions of delegation to international judicial institutions).

151 See, e.g., Posner & Yoo, supra note 102 (arguing that independent tribunals have the capacity to make decisions that violate state interests, which makes them less effective than dependent tribunals, which take those interests into account); Heifer, Laurence & Slaughter, Anne-Marie, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 Cal. L. Rev. 899 (2005)Google Scholar (arguing that independent courts are more effective, in part because they enhance the credibility of state commitments).

152 See Montreal Protocol on Substances That Deplete the Ozone Layer, supra note 87; Edward Parson, Protecting the Ozone Layer: Science and Strategy (2003). For a recent assessment, see Victor, David G., Gridlock On Global Warming: Creating More Effective Strategies for Protecting the Planet 203–40 (2011)Google Scholar.

153 This line of argument builds on the literature from economics about the role of institutions in reducing transaction costs. See generally Keohane supra note 10; Keohane, Robert O. & Martin, Lisa L., The Promise of institutional list Theory, 20 Int’l Security, Summer 1995 Google Scholar, at 39.

154 See supra notes 145-47 and accompanying text.

155 See Milner, supra note 120; David A. Lake & Mathew D. McCubbins, The Logic of Delegation to International Organizations, in Delegation and Agency in International Organizations, supra note 148; Lake, supra note 10. Often the function of delegated enforcement takes the form of providing information rather than actually meting out punishment. See, e.g., Morrow, supra note 115 (on how delegation reduced uncertainty and made decentralized enforcement easier).

156 The beneficiaries of this delegation, known by the awkward term principal, must find ways to entice the agent to do business reliably. On principal-agent relationships in politics, see generally McCubbins, Mathew D. & Schwartz, Thomas, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 Am. J. Pol. Sci. 165 (1984)CrossRefGoogle Scholar; D. Roderick Kiewiet & Mathew D. Mccubbins, The Logic of Delegation: Congressional Parties and the Appropriations Processs (1991); and Miller, Gary J., The Political Evolution of Principal-Agent Models, 8 Ann. Rev. Pol. Sci. 203 (2005)CrossRefGoogle Scholar. As delegation rises, so must attention to monitoring and control of agents. For some of the many applications, see Delegation and Agency in International Organizations, supra note 149; Pollack, supra note 23; and Majone, Giandomenico, Two Logics of Delegation: Agency and Fiduciary Relations in EU Governance, 2 Eur. Union Pol. 103 (2001)CrossRefGoogle Scholar.

157 See generally Delegation and Agency in International Organizations, supra note 148.

158 See Goldstein & Martin, supra note 145.

159 See Mansfield & Pevehouse, supra note 120. On time-inconsistency problems, see generally Kydland, Finn E. & Prescott, Edward C., Rules Rather than Discretion: The Inconsistency of Optimal Plans, 85 J. Pol. Econ. 473 (1977)CrossRefGoogle Scholar; Greif, Avner, Milgrom, Paul & Weingast, Barry, Coordination, Commitment, and Enforcement: The Case of the Merchant Guild, 102 J. Pol. Econ. 745 (1994)CrossRefGoogle Scholar; and Barro, Robert J. & Gordon, David B., Rules, Discretion and Reputation in a Model of Monetary Policy, 12 J. Monetary Econ. 101 (1983)CrossRefGoogle Scholar.

160 See Randall W. Stone, Lending Credibility: The International Monetary Fund and the Post-Communist Transition (2002).

161 See supra notes 145-47 and accompanying text.

162 See Powell & Staton, supra note 127; Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009).

163 See, e.g., Benvenisti, Eyal & Downs, George W., National Courts, Domestic Democracy, and the Evolution of International Law, 20 Eur. J. Int’l L. 59 (2009)CrossRefGoogle Scholar; Benvenisti, Eyal & Downs, George W., Court Cooperation, Executive Accountability, and Global Governance, 41 N.Y.U. J. Int’l L. & Pol’y 931 (2009)Google Scholar; Alter, Karen J. & Heifer, Laurence R., Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice, 64 Int’l Org. 563 (2010)CrossRefGoogle Scholar.

164 See, e.g., Ehrmann, Markus, Procedures of Compliance Control in International Environmental Treaties, 13 Colo. J. Int’l Envtl. L. & Pol’y 377, 402 (2002)Google Scholar (arguing “that the final aim of the [Montreal] Protocol can only be achieved with a universal membership”); Beard, Jack M., The Shortcomings of Indeterminacy in Arms Control Regimes: The Case of the Biological Weapons Convention, 101 AJIL 271, 309 (2007)Google Scholar (arguing that to “advance the complete elimination of a class or type of weapon, multinational disarmament regimes strive to achieve universal membership and attract nonstate parties that are acting in conformity with the regime’s obligations”); Suleman, Arsalan M., Bargaining in the Shadow of Violence: The NPT, IAEA, and Nuclear Non-proliferation Negotiations, 26 Berkeley J. Int’l L. 206, 229 (2008)Google Scholar (arguing, with respect to the NPT, that the “lack of universal membership, particularly with regard to the four of nine states that possess nuclear weapons, and the system’s lack of symmetry between its goals and its oversight, monitoring, and implementation mechanisms are two serious shortfalls in need of significant attention”).

165 See Helfer, Laurence R., Nonconsensual International Lawmaking, 2008 U. Ill. L. Rev. 71, 86 Google Scholar (noting that in “the six decades since the Second World War, global and regional human rights treaties have, for the most part, overcome international law’s participation deficit. Many of these treaties now have large numbers of states parties, with a few agreements approaching universal membership.”).

166 See Franck, supra note 33.

167 On small groups and clubs, see Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (1965). For applications to international cooperation, see Victor, David G., How to Slow Global Warming, 349 Nature 451 (1991)CrossRefGoogle Scholar; Keohane, Robert O. & Nye, Joseph S. Jr., The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy, in Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium 264 (Sauvé, Robert B. Porter Pierre, Subramanian, Arvind & Zampetti, Americo Beviglia eds., 2001)Google Scholar; and Kahler, Miles, Multilateralism with Small and Large Numbers, 46 Int’l Org. 681 (1992)CrossRefGoogle Scholar.

168 See supra notes 85-86 and accompanying text.

169 See Kydd, supra note 115. Similar logic is explored with respect to the international system for managing prisoners of war. See Morrow, supra note 115.

170 Indeed, the membership of international agreements concerning the environment may vary more than in any of the other issue areas that we review in this article. Those agreements are consequently a terrific laboratory for studying membership effects—something that few scholars have done in detail. While some underlying problems are generally perceived as global, in practice most international environmental cooperation relates to problems having a narrower geographical focus. Scholars looking at membership effects have shown that explicit efforts to exclude the least ambitious governments made it possible to gain agreement on stronger and more effective commitments pertaining to the North Sea. See Jon Birger Skjærseth, The Making and Implementation of North Sea Commitments: The Politics of Environmental Participation, in Implementation and Effectiveness of International Environmental Commitments, supra note 87. These insights build on earlier work that shows, using the example of fisheries, that agreements are prone to reflect the interests of the least ambitious actor. See Underdal, supra note 86; see also Barrett, supra note 88. But see Peter M. Haas, Saving the Mediterranean: The Politics of International Environmental Cooperation (1990) (on the case of the Mediterranean Action Plan, arguing that large membership made the institution more effective from the outset).

171 See Hafner-Burton, Emilie M., Trading Human Rights: How Preferential Trade Agreements Influence Government Repression, 59 Int’; Org. 593 (2005)Google Scholar. For example, the European Union is able to improve the behavior of prospective member states with initially low human rights compliance by making entry contingent upon efforts to uphold the thirteen protocols of the European Convention on Human Rights. See Jordan, Pamela A., Does Membership Have Its Privileges?: Entrance into the Council of Europe and Compliance with Human Rights Norms, 25 Hum. Rts. Q. 660 (2003)CrossRefGoogle Scholar. Moreover, some scholars have looked at the dynamic influence of membership, showing that certain transitional states that sign universal human rights agreements without intending to comply are sometimes later induced to comply. See Simmons, supra note 162.

172 See Rosendorff & Milner, supra note 83. A few legal scholars have also examined the ways in which domestic politics influence international trade law negotiations. See, e.g., Sykes, Alan O., Regulatory Protectionism and the Law of International Trade, 66 U. Chi. L. Rev. 1 (1999)CrossRefGoogle Scholar; Schwartz, Warren F. & Sykes, Alan O., The Economics of the Most Favored Nation Clause, in Economic Dimensions in International Law: Comparative and Empirical Perspectives 43 (Bhandari, Jagdeep S. & Sykes, Alan O. eds., 1997)Google Scholar; Petersmann, Ernst-Ulrich, Trade Policy as a Constitutional Problem: On the “Domestic Policy Functions” of International Trade Rules, 41 Aussenwirtschaft 405 (1986)Google Scholar, reprinted in 1 The World Trading System: Critical Perspectives on the World Economy 121 (Robert Howse ed., 1998).

173 A few studies have turned this question around and looked at the benefits that accrue to nonmembers as well as at the timing of benefits in relation to the decision to become a member. See, e.g., Goldstein et al., supra note 83.

174 See Busch, supra note 83. Trade economists have examined similar questions about forum shopping, especially given that the WTO, which has nearly universal membership, must contend with the rise of many smaller regional free trade agreements. Most economics research sees those smaller agreements as diversionary and argues for stronger WTO oversight of those agreements. See, e.g., Schott, Jeffrey J., Free Trade Agreements: Boon or Bane of the World Trading System?, in Free Trade Agreements: Us Strategies and Priorities 3 (Schott, Jeffrey J. ed., 2004)Google Scholar.

175 See, e.g., Warren, Elizabeth, Bankruptcy Policy, 54 U. Chi. L. Rev. 775 (1987)CrossRefGoogle Scholar.

176 See supra notes 20-21 and accompanying text.

177 See Reeve, Rosalind, Wildlife Trade, Sanctions and Compliance: Lessons from the CITES Regime, 82 Int’l Aff. 881 (2006)CrossRefGoogle Scholar; Sand, Peter H., Commodity or Taboo?: International Regulation of Trade in Endangered Species, in Green Globe Yearbook of International Co-Operation on Environment and Development 19 (Bergesen, Helge Ole & Parmann, Georg eds., 1997)Google Scholar; Robert L. Freidheim, Toward a Sustainable Whaling Regime (2001); Polar Politics: Creating International Environmental Regimes (Oran R. Young & Gail Osherenko eds., 1993).

178 See Robert O. Keohane, Governance and Legitimacy, Keynote Speech at the Opening Conference of the Research Center (SFB) 700, Freie Universität Berlin (Feb. 23, 2007) (with comments by Fritz W. Scharpf), at http://www.srb-governance.de/en/publikationen/srbgov_ls/index.html; Esty, Daniel C., Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L. J. 1490 (2006)CrossRefGoogle Scholar.

179 See supra notes 145-46 and accompanying text. But see Smith, supra note 147, at 138-39, who argues that flexibility and opt-out clauses decrease the effectiveness of the WTO and its dispute settlement mechanism (DSM). He also argues that the WTO is more effective when its DSM is invoked to validate the use of the opt-out clauses or other mechanisms that states use to obtain flexibility in their WTO commitments. Id. at 143-50.

180 See Abbott, Kenneth W., “Trust but Verify”: The Production of Information in Arms Control Treaties and Other International Agreements, 26 Cornell Int’l L.J. 1 (1993)Google Scholar. Because governments are acutely concerned about survival, it is uncommon for arms control agreements to incorporate flexibility measures such as opt-out procedures, derogations, and such, lest other parties use them to undercut the agreement’s effectiveness. Instead, much of the experience with flexibility arises through interpretation of agreements, imperfect enforcement, and ultimately through membership. See Kuppuswamy, Chamundeeswari, Is the Nuclear Non-proliferation Treaty Shaking at Its Foundations? Stock Taking After the 2005 NPT Review Conference, 11 J. Conflict & Security L. 141 (2006)CrossRefGoogle Scholar.

181 See, for example, the legal research by Fitzpatrick, Joan in States of Emergency in the Inter American Human Rights System, in The Inter-American System of Human Rights 371 (Harris, David J. & Livingstone, Stephen eds., 1998)Google Scholar, by Jaime Oraá in Human Rights in States of Emergency in International Law (1992), by McGoldrick, Dominic in The Interface Between Public Emergency Powers and International Law, 2 Int’l J. Const. L. 430 (2004)Google Scholar, and by Oren Gross and Fionnuala Ní Aoláin in Law in Times of Crisis: Emergency Powers in Theory and Practice (2006). New empirical political science research shows that most derogating states are stable democracies. See, e.g., Hafner-Burton, Emilie M., Helfer, Laurence R. & Fariss, Christopher J., Emergency and Escape: Explaining Derogations from Human Rights Treaties, 65 Int’l Org. 673 (2011)CrossRefGoogle Scholar. That conclusion is consistent with the fact that democracies are more likely than other regimes to file reservations when they join human rights treaties. See Neumayer, Eric, Do International Human Rights Treaties Improve Respect for Human Rights?, 49 J. Conflict Resol. 925 (2005)CrossRefGoogle Scholar. States use these flexibility tools to respond to domestic political uncertainty. Derogations enable some governments facing threats at home to buy time and legal breathing space to confront crises while, at the same time, signaling to concerned domestic audiences that rights suspensions are temporary and lawful. For a legal perspective on denunciations, see Helfer, supra note 1, and Helfer, Laurence R., Exiting Treaties, 91 Va. L. Rev. 1579 (2005)Google Scholar. Even so, the use of derogations is hardly perfect, not the least because nondemocratic states can derogate freely without incurring real costs. Likewise, during emergencies, autocracies increase violations of most rights covered by human rights treaties. See Eric Neumayer, Do Governments Mean Business When They Derogate? Human Rights Violations During Declared States of Emergency (Sept. 2011) (unpublished manuscript), available at http://www2.lse.ac.uk/geographyAndEnvironment/whosWho/profiles/neumayer/pdf/Derogations.pdf. What these writings suggest is that derogations clauses and other treaty flexibility tools need to be redesigned in ways that enhance, rather than undermine, compliance with international law.

182 See Kucik, Jeffrey & Reinhardt, Eric, Does Flexibility Promote Cooperation? An Application to the Global Trade Regime, 62 Int’l Org. 477 (2008)Google Scholar. So far, little research has compared the types of flexibility systems across types of agreements—a topic to which we return in part V of this article.

183 Many legal scholars stress the potential for abuse of escape clauses. In the area of human rights, for example, scholars argue that derogations can undermine the raison d’être of human rights treaties and should be subject to strict international standards and monitoring mechanisms. See, e.g., Joseph, Sarah, Schultz, Jenny & Castan, Melissa, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary 824 (2d ed. 2005)Google Scholar; Gross & Ní Aoláin, supra note 181. Others have argued that the escape-clause provisions in the GATT/WTO should be scaled back. See Merciai, Patrizio, Safeguard Measures in GATT, 15 J. World Trade 41 (1981)Google Scholar; Richardson, J. David, Safeguards Issues in the Uruguay Round and Beyond, in Issues in the Uruguay Round 24 (Baldwin, Robert E. & Richardson, J. David eds., 1988)Google Scholar. But see Schwartz, Warren F. & Sykes, Alan O., The Economics of the Most Favored Nation Clause, in Economic Dimensions in International Law 43 (Bhandari, Jagdeep S. & Sykes, Alan O. eds., 1997)Google Scholar (arguing that WTO rules provide insufficient flexibility); Sykes, Alan O., Protectionism as a “Safeguard”: A Positive Analysis of the GATT “Escape Clause” with Normative Speculations, 58 U. Chi. L. Rev. 255 (1991)CrossRefGoogle Scholar.

184 Notably, see the critique by Wendt, Alexander, Driving with the Rearview Mirror: On the Rational Science of Institutional Design, 55 Int’l Org. 1019 (2001)CrossRefGoogle Scholar. See also Duffield, John S., The Limits of”Rational Design,” 57 Int’l Org. 411 (2003)Google Scholar (arguing that important institutional forms, such as informal institutions, tacit bargaining, and intersubjective institutions often arise from processes other than agreement, and that political science studies on rational design and legalization have ignored important independent variables such as interests, power/capabilities, institutional path dependence, and the role of ideas).

185 See generally Finnemore, Martha & Toope, Stephen J., Alternatives to “Legalization”: Richer Views of Law and Politics, 55 Int’l Org. 743 (2001)CrossRefGoogle Scholar; see also Reus-Smit, supra note 46.

186 See Pierson, Paul, Increasing Returns, Path Dependence, and the Study of Politics, 94 Am. Pol. Sci. Rev. 251 (2000)CrossRefGoogle Scholar; Mark Axelrod, Saving Institutional Benefits: Path Dependence in International Law (2008) (unpublished Ph.D. dissertation, Duke University) (on file with the authors); Linos, Katerina, Path Dependence in Discrimination Law: Employment Cases in the United States and the European Union, 35 Yale J. Int’l L. 115 (2010)Google Scholar.

187 We thank Marty Finnemore for this point. For an illustration of this convergence, see generally Henry Farrell, the Political Economy of Trust: Institutions, Interests, and Inter-Firm Cooperation in Italy and Germany (2011).

188 See Finnemore & Toope, supra note 185 (arguing that studies of legalization and rational design have been too vague in their assumptions about the role of “obligation” and ignored the importance of legitimacy); Duffield, supra note 184, at 415-16 (arguing that other missing variables include specificity); Brütsch, Christian & Lehmkuhl, Dirk, Complex Legalization and the Many Moves to Law, in Law and Legalization in Transnational Relations 9 (Brütsch, Christian & Lehmkuhl, Dirk eds., 2007)Google Scholar (arguing that political science research on legalization has ignored political agency and identity and that such studies have ignored the social fabric within which states make choices such as those surrounding legalization and the design of legal institutions); Mathias Albert, Beyond Legalization: Reading the Increase, Variation and Differentiation of Legal and Law-Like Arrangements in International Relations Through World Society Theory, in Law and Legalization in Transnational Relations, supra, at 185 (arguing that legalization is part of the international system’s broader evolutionary processes rather than simply a mechanism for ordering particular political affairs).

189 See Hafner-Burton, Emilie M., Kahler, Miles & Montgomery, Alexander H., Network Analysis For International Relations, 63 Int’l Org. 559 (2009)CrossRefGoogle Scholar; Emilie Marie Hafner-Burton & Alexander H. Montgomery, Centrality in Politics: How Networks Confer Influence, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594386 (explaining how the availability of diverse outside options gives actors direct access to other important actors and decreases their dependency on any one actor).

190 See Voeten, Erik, Outside Options and the Logic of Security Council Action, 95 Am. Pol. Sci. Rev. 845 (2001)CrossRefGoogle Scholar.

191 See Kittrie, Orde F., Averting Catastrophe: Why the Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity and How to Restore It, 28 Mich. J. Int’l L. 337 (2006)Google Scholar. Indeed, many security agreements are sensitive to a cascading effect, which gives disproportionate power over legal content and impact to the first domino that falls or window that breaks; governments keen on security cooperation and mindful of those cascades become especially attentive to weak links in the system. See Smithson, supra note 25 (arguing that if treaties are to be effective in stopping a domino effect of states arming themselves—either because the treaty is not respected or because states try to protect themselves from their neighbors—universal adherence is eventually necessary); Lipson, Charles, International Cooperation in Economic and Security Affairs, 37 World Pol. 1 (1984)CrossRefGoogle Scholar (arguing that when states observe defection, they defect themselves because their security is threatened by that defection, not because of a lack of respect for the rules, with the consequence that that even a weak state can cause defections by more powerful states).

192 See Elizabeth R. DeSombre & Joanne Kaufman, The Montreal Protocol Multilateral Fund: Partial Success Story, in Institutions for Environmental Aid, supra note 90.

193 See Ruggie, supra note 29 (arguing that international economic regimes provide a permissive environment for the emergence of specific kinds of international transaction flows that actors take to be complementary to the particular fusion of power and purpose that is embodied within those regimes); Goldstein, supra note 128 (arguing that international institutions can and do directly constrain domestic policy, and that, in its resolution of disputes, despite possessing no formal authority over U.S. domestic law, the North American Free Trade Agreement panel effectively changed International Trade Commission and International Trade Administration interpretations of rules regarding antidumping and countervailing duty sanctions).

194 See infra notes 204-06 and accompanying text.

195 See infra notes 201-15 and accompanying text.

196 See supra notes 29-42 and accompanying text. Perhaps the most prominent intellectual tradition in IR outside the United States is the English School, which holds that the international system is a society of states that is reflected in the institutions created to regulate state behavior, including international legal institutions. See generally Hedley Bull, the Anarchical Society: A Study of Order in World Politics (1977); Martin Wight, International Theory: The Three Traditions (1991); Barry Buzan, from International to World Society?: English School Theory and the Social Structure of Globalisation (2004).

197 See HAAS, supra note 170; Haas, Peter M., Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone, 46 Int’l Org. 187 (1992)CrossRefGoogle Scholar.

198 See Peterson, M. J., Whalers, Cetologists, Environmentalists, and the International Management of Whaling, 46 Int’l Org. 147 (1992)CrossRefGoogle Scholar (arguing that the influence of cetologists was usually outweighed by that of other groups, such as industry groups and, later, environmentalists).

199 See, e.g., Slaughter, supra note 75.

200 For additional commentary and review, see Shaffer & Ginsburg, supra note 4.

201 See Keohane et al., supra note 150.

202 See, e.g., Posner & Yoo, supra note 102; Heifer & Slaughter, supra note 151.

203 See Alter, Karen J., Private Litigants and the New International Courts, 39 Comp. Pol. Stud. 22 (2006)CrossRefGoogle Scholar. Alter finds that, while older international courts (such as the International Court of Justice) lacked private rights of action and compulsory jurisdiction, newer courts often incorporate these design elements. She argues that this trend is likely to lead to a greater number of private actors claiming their rights in international courts, but she notes that these developments mostly apply to Europe. Id. at 23.

204 See Busch, Marc L., Democracy, Consultation, and the Paneling of Disputes Under GATT, 44 J. Conflict Resol. 425, 426–27 (2000)CrossRefGoogle Scholar (arguing that these settlements occur because democracies are better able to credibly commit to negotiated settlements, and that this finding indicates that democracies use WTO’s DSM not to ensure adherence to international legal norms, but to tie the hands of other parties).

205 See Davis, Christina L. & Shirato, Yuki, Firms, Governments, and WTO Adjudication: Japan’s Selection of WTO Disputes, 59 World Pol. 274 (2007)CrossRefGoogle Scholar.

206 See Davis, Christina L. & Bermeo, Sarah Blodgett, Who Files? Developing Country Participation in GATT/WTO Adjudication, 71 J. Pol. 1033 (2009)CrossRefGoogle Scholar.

207 See Geoffrey Garrett & Barry Weingast, Ideas, Interests and Institutions: Constructing the Ec’s Internal Market, in Ideas and Foreign Policy, supra note 37; Garrett, Geoffrey, Kelemen, Daniel & Schulz, Heiner, The European Court of Justice, National Governments and Legal Integration in the European Union, 52 Int’l Org. 149 (1998)CrossRefGoogle Scholar; Carrubba, Clifford J., Courts and Compliance in International Regulatory Regimes, 67 J. Pol. 669 (2005)CrossRefGoogle Scholar; Delegation and Agency in International Organizations, supra note 148.

208 See Alter, Karen J., Agents or Trustees? International Courts in Their Political Context, 14 Eur. J. Int’l Rel. 33 (2008)Google Scholar; see also Alter, Karen J., Who Are the “Masters of the Treaty”? European Governments and the European Court of Justice, 52 Int’l Org. 121 (1998)CrossRefGoogle Scholar.

209 See generally Staton, Jeffrey K. & Moore, Will H., Judicial Power in Domestic and International Politics, 65 Int’l Org. 553 (2011)CrossRefGoogle Scholar.

210 See Voeten, Erik, The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights, 61 Int’l Org. 669 (2007)Google Scholar; see also Voeten, Erik, The Impartiality of International Judges: Evidence from the European Court of Human Rights, 102 Am. Pol. Sci. Rev. 417 (2008)CrossRefGoogle Scholar.

211 See Carrubba, Clifford J., Gabel, Matthew & Hankla, Charles, Judicial Behavior Under Political Constraints: Evidence from the European Court of Justice, 102 Am. Pol. Sci. Rev. 435 (2008)CrossRefGoogle Scholar. For an argument regarding the ways in which the WTO’s DSM operates strategically, see Busch, Marc L. & Pelc, Krzysztof J., The Politics of Judicial Economy at the World Trade Organization, 64 Int’l Org. 257 (2010)CrossRefGoogle Scholar.

212 See Deitelhoff, supra note 50.

213 See Voeten, Erik, Borrowing and NonborrowingAmong International Courts, 39 J. Legal Stud. 547 (2010)CrossRefGoogle Scholar.

214 Legal scholars have already paid significant attention to similar questions, such as the use of foreign law in domestic courts. See, e.g., Benvenisti, Eyal, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AJIL 241 (2008)CrossRefGoogle Scholar.

215 See Yonatan Lupu & Erik Voeten, Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights, Brit. J. Pol. Sci. (forthcoming 2012). For a related argument regarding the political constraints in the WTO system, see Steinberg, supra note 149.

216 See Checkel, supra note 52; Haas, Peter M. & Haas, Ernst B., Learning to Learn: Improving International Governance, 1 Global Governance 255 (1995)Google Scholar.

217 On the Montreal Protocol generally, see Victor, David G., Enforcing International Law: Implications for an Effective Global Warming Regime, 10 Duke Envtl. L. & Pol’y F. 147 (1999)Google Scholar (showing that diplomats initially focused on the easiest areas of agreement). On the Rhine River, see Bernauer, supra note 90 (showing that as the Netherlands learned how to make financial incentives conditional upon French behavior, it became easier to achieve deep reductions in pollution from French industrial sources).

218 See, e.g., Alvarez, José E., How Not to Link: Institutional Conundrums of an Expanded Trade Regime, 7 Widener L. Symp. J. 1 (2001)Google Scholar; Alvarez, José E., The WTO as Linkage Machine, 96 AJIL 146 (2002)CrossRefGoogle Scholar. These linkages are often framed and created by international organizations, such as discussed in Barnett & Finnemore, supra note 48. See also Kelly, Claire R., Power, Linkage and Accommodation: The WTO as an International Actor and Its Influence on Other Actors and Regimes, 24 Berkeley J. Int’l L. 79 (2006)Google Scholar (arguing that the WTO itself plays a key role in setting boundaries, though without giving much attention to the underlying interests of key WTO members).

219 See Susan K. Sell, Power and Ideas: North-South Politics of Intellectual Property and Antitrust (1998); Sell, Susan K., Intellectual Property Rights, in Governing Globalization: Power, Authority and Global Governance 171 (Held, David & McGrew, Anthony eds., 2002)Google Scholar.

220 See Raustiala, Kal & Victor, David G., The Regime Complex for Plant Genetic Resources, 58 Int’l Org. 277 (2004)Google Scholar.

221 See Victor, supra note 152.

222 The early research on these questions focused on hierarchical legal systems—so-called nested regimes. See Institutional Designs For a Complex World: Bargaining Linkages, and Nesting (Vinod K. Aggarwal ed., 1998). For other work looking at more fragmented outcomes, see, for example, Raustiala & Victor, supra note 220, and Alter, Karen J. & Meunier, Sophie, Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute, 13 J. Eur. Pub. Pol’y 362 (2006)CrossRefGoogle Scholar. For recent reviews, see Karen J.Alter & Meunier, Sophie, The Politics of International Regime Complexity, 7 Perspectives On Pol. 13 (2009)Google Scholar; Biermann, Frank, Pattberg, Philipp, van Asselt, Harro & Zelli, Fariborz, The Fragmentation of Global Governance Architectures: A Framework for Analysis, 9 Global Envt’l Pol., Nov. 2009, at 14Google Scholar; and Benvenisti, Eyal & Downs, George W., The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. (2007)Google Scholar (arguing that fragmentation results from a strategic effort by powerful states to achieve greater autonomy—a strategy built, in part, on weaker states’ relative difficulty engaging with fragmented legal systems). For similar discussions by political scientists who study local (that is, not international) common-pool resources, see Polycentricity and Local Public Economies: Readings from the Workshop in Political Theory and Policy Analysis (Michael D. McGinnis ed., 1999).

223 See Keohane, Robert O. & Victor, David G., The Regime Complex for Climate Change, 9 Perspectives on Pol. 7 (2011)CrossRefGoogle Scholar.

224 See generally Simmons, Beth, Treaty Compliance and Violation, 13 Ann. Rev. Pol. Sci. 273 (2010)CrossRefGoogle Scholar.

225 See, e.g., Inis L. Claude Jr., Swords Into Plowshares: The Problems and Process of International Organisation (1959); Henkin, supra note 11; Franck, supra note 33; Chayes & Chayes, supra note 11. For a discussion that incorporates arguments from law and political science, see Raustiala, Kal & Slaughter, Anne-Marie, International Law, International Relations and Compliance, in Handbook of International Relations (Carlsnaes, Walter, Risse, Thomas & Simmons, Beth A. eds., 2002)Google Scholar.

226 In recent years, this insight has also been adopted in the legal literature, including in collaborations between political scientists and lawyers or by scholars trained in both fields. See, e.g., Raustiala, Kal, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 Va. J. Int’l L. 1 (2002)Google Scholar; Raustiala, Kal, Compliance & Effectiveness in International Regulatory Cooperation, 32 Case W. Res. J. Int’l L. 387 (2000)Google Scholar; Hathaway, Oona, Why Do Countries Commit to Human Rights Treaties?, 51 J. Conflict Resol. 588 (2007)CrossRefGoogle Scholar; Ho, supra note 132; Golove, David M., Leaving Customary International Law Where It Is: Goldsmith and Posner’s The Limits of International Law, 34 Ga. J. Int’l & Comp. L. 333 (2006)Google Scholar; Symposium, How Are Nations Behaving?, 96 ASIL Proc. 205 (2002).

227 Several studies by legal scholars have also reached similar conclusions. See, e.g., Purvis, Nigel, Critical Legal Studies in Public International Law, 32 Harv. Int’l L.J. 81 (1991)Google Scholar; Koskenniemi, Martti, Book Review, 86 AJIL 175, 177 (1992)Google Scholar; Koskenniemi, supra note 13; Kingsbury, Benedict, The Concept of Compliance as a Function of Competing Conceptions of International Law, 19 Mich. J. Int’l L. 345 (1998)Google Scholar; Goodman & Jinks, supra note 54; Howse, Robert & Teitel, Ruti, Beyond Compliance: Rethinking Why International Law Really Matters, 1 Global Pol’y, May 2010, at 127Google Scholar.

228 See Downs et al., supra note 11.

229 See, e.g., Hathaway, supra note 1.

230 But see Lisa Martin, Against Compliance (2011) (unpublished manuscript) (arguing that political scientists should abandon the study of compliance altogether) (on file with authors).

231 See Simmons, Beth A. & Hopkins, Daniel J., The Constraining Power of International Treaties: Theory and Methods, 99 Am. Pol. Sci. Rev. 623 (2005)CrossRefGoogle Scholar; von Stein, Jana, Do Treaties Constrain or Screen? Selection Bias and Treaty Compliance, 99 Am. Pol. Sci. Rev. 611 (2005)CrossRefGoogle Scholar; Yonatan Lupu, The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects (2011) (unpublished manuscript) (on file with authors). For a methodological discussion of the problem that selection effects pose for attempts to make causal inference from data, see Judea Pearl, Causality: Models, Reasoning, and Inference (2000). For a more detailed review of empirical research rooted in these debates, see Shaffer & Ginsburg, supra note 4.

232 See generally Fearon, James D., Counterfactuals and Hypothesis Testing in Political Science, 43 World Pol. 169 (1991)CrossRefGoogle Scholar; King, Gary, Keohane, Robert O. & Verba, Sidney, The Importance of Research Design in Political Science, 89 Am. Pol. Sci. Rev. 475 (1995)CrossRefGoogle Scholar.

233 See, e.g., Gowa, Joanne & Kim, Soo Yeon, An Exclusive Country Club: The Effects of the GATT on Trade, 1950—94, 57 World Pol. 453 (2005)CrossRefGoogle Scholar; Goldstein et al., supra note 83. But see Rose, Andrew K., Do We Really Know That the WTO Increases Trade?, 94 Am. Econ. Rev. 98 (2004)CrossRefGoogle Scholar (arguing that the WTO has not caused an increase in trade levels).

234 See Bernauer, Thomas, The Effect of International Environmental Institutions: How We Might Learn More, 49 Int’l Org. 351 (1995)CrossRefGoogle Scholar (arguing that the right measure of effectiveness should be the actual solution of underlying environmental problems); see also Mitchell, Ronald B., Evaluating the Performance of Environmental Institutions: What to Evaluate and How to Evaluate It?, in Institutions and Environmental Change: Principal Findings, Applications, and Research Frontiers 79 (Young, Oran R., Schroeder, Heike & King, Leslie A. eds., 2008)Google Scholar.

235 See Ku, Julian & Nzelibe, Jide, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777 (2006)Google Scholar (arguing that criminal tribunals can undermine cooperation by targeting actors whose participation in the peace process is vital). Oona Hathaway argued several years ago that commitment to several human rights treaties was associated with higher levels of human rights abuses. Hathaway, supra note 1. That finding spawned a significant body of research among political scientists. See, e.g., Goodliffe, Jay & Hawkins, Darren G., Explaining Commitment: States and the Convention Against Torture, 68 J. Pol. 358 (2006)CrossRefGoogle Scholar; Vreeland, James Raymond, Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture, 62 Int’l Org. 65 (2008)Google Scholar; James R. Hollyer & B. Peter Rosendorff, Why Do Authoritarian Regimes Sign the Convention Against Torture? Signaling Domestic Politics and Non-compliance, Q. J. POL. SCI. (forthcoming).

236 For an in-depth review of recent empirical scholarship on other issue areas by the legal community, see Shaffer & Ginsburg, supra note 4.

237 See Robert L. Freidheim, Toward a Sustainable Whaling Regime (2001).

238 See supra note 20.

239 See, e.g., Lisa L. Martin, Coercive Cooperation: Explaining Multilateral Economic Sanctions (1992); Mansfield, Edward D., International Institutions and Economic Sanctions, 47 World Pol. 575 (1995)CrossRefGoogle Scholar (book review); Drezner, Daniel W., Bargaining, Enforcement, and Multilateral Sanctions: When Is Cooperation Counterproductive?, 54 Int’l Org. 73 (2000)CrossRefGoogle Scholar; Bapat, Navin A. & T. Morgan, Clifton, Multilateral Versus Unilateral Sanctions Reconsidered: A Test Using New Data, 53 Int’l Stud. Q. 1075 (2009)CrossRefGoogle Scholar.

240 See supra note 87; Hafher-Burton, supra note 171.

241 See Mitchell, Ronald B., Regime Design Matters: Intentional Oil Pollution and Treaty Compliance, 48 Int’l Org. 425 (1994)CrossRefGoogle Scholar.

242 See Neumayer, supra note 181; Hafner-Burton, Emilie M. & Tsutsui, Kiyoteru, Human Rights in a Globalizing World: The Paradox of Empty Promises, 110 Am. J. Soc. 1373 (2005)CrossRefGoogle Scholar. For studies by legal scholars that look at similar issues, see, for example, Hathaway, supra note 1.

243 See, e.g., Arild Underdal, Determining the Causal Significance of Institutions: Accomplishments and Challenges, in Institutions and Environmental Change, supra note 234.

244 See Levy, Marc A., European Acid Rain: The Power of Tote-Board Diplomacy, in Institutions for the Earth: Sources of Effective International Environmental Protection 75 (Haas, Peter M., Keohane, Robert O. & Levy, Marc A. eds., 1993)Google Scholar.

245 See Finnemore & Sikkink, supra note 36; see also Lutz, Ellen L. & Sikkink, Kathryn, International Human Rights Law and Practice in Latin America, 54 Int’l Org. 633 (2000);CrossRefGoogle Scholar Kelley, Judith, Who Keeps International Commitments and Why? The International Criminal Court and Bilateral Nonsurrender Agreements, 101 Am. Pol. Sci. Rev. 573 (2007)CrossRefGoogle Scholar. This type of argument has also been made by several legal scholars. See, e.g., Henkin, supra note 11; Koh, supra note 32. Drawing on sociology, some scholars have studied the propensity of nations to join international commitments because that is part of being a member in good standing in the international community. See, e.g., Meyer, John W., Boli, John, Thomas, George M. & Ramirez, Francisco O., World Society and the Nation-State, 103 Am. J. Soc. 144 (1997)CrossRefGoogle Scholar. Similarly, political scientist Krasner argues that, among other reasons, states often sign these agreements “to follow the script of modernity.” Stephen D. Krasner, Sovereignty: Organized Hypocrisy 121 (1999). A similar logic has been extended to explain why so many firms join voluntary codes of conduct. Firms seek safety in numbers. See Vogel, supra note 27.

246 See Greenhill, Brian, The Company You Keep: International Socialization and the Diffusion of Human Rights Norms,> 54 Int’l Stud. Q. 127 (2010)CrossRefGoogle Scholar.

247 See Deitelhoff, supra note 50.

248 This “critical” perspective covers a broad array of studies that do not fit well under any simple label. See, e.g., Adriana Sinclair, International Relations Theory and International Law: A Critical Approach (2010).

249 Many of these views are rooted in critical legal studies. See, e.g., David Kennedy, International Legal Structures (1987) (arguing that there are no objective standards of justice in international society). Koskenniemi, supra note 13, argues that international law, coming largely from the Western liberal tradition, has not succeeded in its goals of creating a system based on sovereignty and consent. The result, he concludes, is a European, Christian, developed-state bias in the international legal system. See also Hilary Charlesworth & Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (2000) (offering a feminist approach to international law and arguing that the legal order places insufficient emphasis on women’s economic and social rights); Charlesworth et al., supra note 13 (pointing to the notion that the primary subjects of international law are states and international organizations, and that leadership in both underrepresents women). Another branch of legal scholarship focuses on race. See, e.g., Román, Ediberto, A Race Approach to International Law (RAIL): Is There a Need for Yet Another Critique of International Law?, 33 U.C. Davis L. Rev. 1519 (1999)Google Scholar (arguing that most international legal scholarship marginalizes race).

250 See also supra notes 23, 109-10, and accompanying text.

251 See Garrett & Weingast, supra note 207; Garrett, Geoffrey, The Politics of Legal Integration in the European Union, 49 Int’l Org. 171 (1995)CrossRefGoogle Scholar; see also Downs et al., supra note 11.

252 See Alter, Who Are the “Masters of the Treaty”? European Governments and the European Court of Justice, supra note 208.

253 Several of these scholars have since moderated their positions. See, e.g., Garrett, Geoffrey, Kelemen, Daniel & Schulz, Heiner, The European Court of Justice, National Governments and Legal Integration in the European Union, 52 Int’l Org. 149 (1998)CrossRefGoogle Scholar (noting that in some instances domestic governments comply with decisions that they would prefer to ignore); Karen J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (2001) (noting that governments would sometimes prefer to ignore ECJ rulings but that in many cases the potential legitimacy cost of doing so prevents such noncompliance).

254 See Burley, Anne-Marie & Mattli, Walter, Europe Before the Court: A Political Theory of Legal Integration, 47 Int’l Org. 41 (1993)CrossRefGoogle Scholar; Mattli, Walter & Slaughter, Anne-Marie, Law and Politics in the European Union: A Reply to Garrett, 49 Int’l Org. 183 (1995)CrossRefGoogle Scholar.

255 See, e.g., Cichowski, Rachel A., Courts, Rights, and Democratic Participation, 39 Comp. Pol. Stud. 50 (2006)CrossRefGoogle Scholar.

256 See, e.g., Carrubba, Clifford J., The European Court of Justice, Democracy, and Enlargement, 4 Eur. Union Pol. 75 (2003)CrossRefGoogle Scholar; see generally Carrubba, supra note 207; Gilligan, Michael, Johns, Leslie & Rosendorff, B. Peter, Strengthening International Courts and the Early Settlement of Disputes, 54 J. Conflict Resol. 5 (2010)CrossRefGoogle Scholar.

257 See, e.g., Todd Landman, Protecting Human Rights: A Comparative Study (2005) (arguing that human rights agreements mostly exert influence on government behavior indirectly).

258 See Abbott et al., supra note 131; Kenneth W. Abbott & Snidal, Duncan, Pathways to International Cooperation, in The Impact of International Law on International Cooperation: Theoretical Per Spectives 50 (Benvenisti, Eyal & Hirsch, Moshe eds., 2004)Google Scholar (exploring different pathways through which states can obtain flexibility needed to promote deeper cooperation); Victor, supra note 152 (explaining how flexibility could help address the particular challenges of global climate change); Richard B. Bilder, Managing The Risks of International Agreement (1981) (analyzing the special role of soft law as a source of flexibility).

259 See, e.g., Hafner-Burton et al., supra note 181.

260 See Koremenos et al., supra note 113.

261 See supra note 174 and accompanying text.

262 See supra notes 25—26 and accompanying text.

263 See, e.g., Raymond Vernon, Sovereignty At Bay: The Multinational Spread of U.S. Enterprises (1971).

264 See, e.g., The Politics of Global Regulation (Walter Manli & Ngaire Woods eds., 2009). But see Mosley, Layna, Private Governance for the Public Good? Exploring Private Sector Participation in Global Financial Regulation, in Power, Interdependence and Nonstate Actors in World Politics (Milner, Helen v. & Moravcsik, Andrew eds., 2009)Google Scholar; Ronie Garcia-Johnson, Exporting Environmentalism: U.S. Multinational Chemical Corporations in Brazil and Mexico (2000).

265 See Braithwaite, John & Drahos, Peter, Global Business Regulation (2009); Private Authority and International Affairs (Cutler, A. Claire, Haufler, Virginia & Porter, Tony eds., 2005)Google Scholar; Pattberg, Phillip, Institutionalization of Private Governance, 18 Governance 589 (2005)CrossRefGoogle Scholar. Research on private regulation has also overlapped with the study of corporate social responsibility and with debates over whether firms will (and should) self-regulate in ways that may be immediately contrary to their particular financial interests. See, e.g., Baron, David P., Morally Motivated Self Regulation, 100 Amer. Econ. Rev. 1299 (2010)CrossRefGoogle Scholar.

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268 Supra note 87. On the ozone layer, see generally Parson, supra note 152. On firms, see Maxwell, James & Briscoe, Forrest, There’s Money in the Air: The CFC Ban and DuPont’s Regulatory Strategy, 6 Bus. Strategy & Envir. 276 (1997)3.0.CO;2-A>CrossRefGoogle Scholar; David L. Levy & Peter J. Newell, The Business of Global Environmental Governance (2004); and Horst Albach, Krupa, Ellen & Koster, Dieter, Entry, Entry-Deterrence and Exit: A Study of the Market for CFCs, 51 KYKLOS 469 (1998)Google Scholar.

269 See Peltzman, Sam, Toward a More General Theory of Regulation, 19 J.L. & Econ. 211 (1976)CrossRefGoogle Scholar; Stigler, George J., The Theory of Economic Regulation, 2 Bell J. Econ & Mgmt. Sci. 3 (1971)CrossRefGoogle Scholar; A Reader on Regulation (Robert Baldwin, Colin Scott & Christopher Hood eds., 1998).

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271 See supra note 13 and accompanying text.

272 See, e.g., Johnston, supra note 63; see also supra notes 29-65 and accompanying text.

273 See Abbott, supra note 2.