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The Review of International Organizations

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01-06-2013

Non-compliance by design: Moribund hard law in international institutions

Authors: Christopher Marcoux, Johannes Urpelainen

Published in: The Review of International Organizations | Issue 2/2013

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Abstract

States often create international institutions that impose legally binding rules on member states, and then do not even attempt to enforce these rules. Why? In this article, we present a game-theoretic model of moribund hard law in international institutions. We show that if some states face domestic pressure to negotiate a hard law treaty, their incentive to insist on hard law in the negotiations is maximized when less enthusiastic states expect that the hard law will probably not be enforced. Domestic proponents of hard law reward states for negotiating a hard law treaty, while states that oppose hard law can accept it because they expect no enforcement. As a form of informal governance, moribund hard law allows non-compliance by design.

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By hard law, we refer to treaty provisions that are legally binding and formally enforceable (Abbott and Snidal 2000). This narrow definition restricts the domain of hard law to legal rules that are accompanied by a sanctioning mechanism.

In this article, hard law is “moribund” if states choose not to enforce compliance with legally binding provisions despite the existence of a sanctioning mechanism. For examples, see the data analysis below.

While this strategy may not fool environmentalists in the long run, it does reduce political pressure on the government until the failure to enforce the treaty becomes apparent. We elaborate on this temporal dynamic below.

This is not to say all hard law goes unenforced. If this were the case, the domestic audience would immediately disregard the hard law as cheap talk. Instead, we expect it to become moribund with some probability.

This dynamic is similar to the enforcement of loan conditions in the International Monetary Fund (Stone 2011).

An extension shows that if South sets the negotiation agenda with some positive probability, the results are unchanged. South obviously has an incentive to propose soft law, but as long as North moves first with nonzero probability, the comparative statics remain intact.

In the model, uncertainty pertains to North’s willingness to enforce. In the rational design literature, “uncertainty about preferences” refers to some state parties’ willingness to cooperate being in doubt (Koremenos et al. 2001, 779).

In principle, the NGO could also be some other interested domestic constituency. For concreteness, we use the label NGO.

Our model can also be applied in these cases, though it is important to recognize that the choice between hard and soft law must apply to issues that are of NGO interest. For example, if labor unions are vocal, their preference for hard law probably pertains to labor standards instead of intellectual property rights.

For an exception, see Price (1998).

At the same time, the conjecture that South’s low compliance costs induce hard law is valid. This logic accords with the intuition that if treaty participation is voluntary, as opposed to mandatory, the need for enforcing compliance among members is limited (Aakre and Hovi 2010).

Again, the Clinton administration’s insistence on an environmental side agreement to NAFTA is instructive here. Although environmentalists eventually grew dissatisfied with environmental side agreement, including it served the short-term goal of dampening opposition, facilitating ratification and avoiding the alienation of key Democratic constituencies prior to Clinton’s re-election campaign in 1996.

Downs et al. (1996) and Von Stein (2005) argue that, generally, states only consent to treaties with which they are prepared to comply. Proposition 3 revises and extends this claim, noting that states are more likely to consent to costly treaties when the expectation of enforcement is relatively low.

Compliance verification falls somewhere between soft and hard law. Indeed, the findings are stronger for enforcement than for verification mechanisms.

We were only able to check coding of the compliance and enforcement variables. IRD data concerning NGO presence at negotiations is based on the primary research of dozens of scholars.

IRD codes expert groups such as epistemic communities separately from NGOs. We define NGOs narrowly to exclude these groups. This allows us to focus on reputational value, and to eliminate potential false positives, such as delegation to expert groups.

To be sure, the possibility remains that significant non-compliance remains hidden. However, after two decades there is little evidence to support this hypothesis.

This is not to suggest that compliance has been perfect. Benedick (1998) cites the existence of a black market for ozone-depleting substances (ODS) at a number of U.S. ports. However, the black market for ODS predates the Montreal Protocol. It developed following domestic U.S. regulations, and the imposition of high taxes on ODS. The spread of the international black market during the Montreal regime is actually a tribute to the success with which other industrialized countries complied with treaty obligations by adopting effective ODS regulations (DeSombre 2000).

In doing so, we also avoid one of the more common mistakes in the study of treaty politics, which is to ignore negotiations that fail (Dimitrov et al. 2007).

While Lomé IV addresses hazardous waste, the regime is much broader. The Lomé regime was established in 1975 to promote development, particularly among newly independent ACP states, by providing ACP states (1) preferential, non-reciprocal access to European markets, (2) financial support to mitigate hardships experienced by ACP states due to collapsing commodity prices, and (3) foreign aid for development (Mahler 1994).

Germany and the UK ultimately did support a ban on exports of hazardous wastes to non-OECD states, but this agreement was not reached until 1994 (Clapp 2001; O’Neill 2000).

It is also true that G-77 countries (the global South) faced potentially significant compliance costs. To secure the participation of those countries, the Kyoto Protocol famously exempted developing countries from mandatory emissions reductions in the treaty’s first compliance period.

While NGOs were concerned about the possibility of carbon sinks weakening cooperation, they were highly motivated to secure stronger compliance rules. They were also aware that the definition of carbon sinks might increase the probability of South’s (i.e., the U.S. and the umbrella group) acceptance of other hard law provisions. We thank a reviewer for bringing this to our attention.

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Title: Non-compliance by design: Moribund hard law in international institutions
Authors: Christopher Marcoux
Johannes Urpelainen
Publication date: 01-06-2013
Publisher: Springer US
Published in: The Review of International Organizations / Issue 2/2013
Print ISSN: 1559-7431
Electronic ISSN: 1559-744X
DOI: https://doi.org/10.1007/s11558-012-9157-6

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