Feedback to SSRN (Beta)
What type of feedback would you like to send?
Abstract: The WTO Doha negotiations are often referred to as a "development round." Yet that characterization is controversial, due to weaknesses in the Doha Declaration and limited progress in the early negotiations. This paper offers a comprehensive assessment of the Doha Round from the perspective of development policy. It draws on recent summit-level commitments on development, initiatives by development organizations, and policy analyses by scholars and NGOs. Together, these instruments establish a coherent and highly legitimate set of global norms on development. Trade negotiations like Doha are poorly suited to many aspects of development policy. Yet they can still make major contributions: e.g., by modifying trade rules that impede development, giving priority to issues of concern to developing countries (DCs), allowing DCs to implement market reforms gradually while developing appropriate social policies and institutions, and providing for full DC participation in WTO affairs. Thus, the WTO should not leave development policy to multilateral development banks and other specialized organizations, but rather should strengthen its collaboration with them to more effectively promote development. The paper identifies two schools of thought on reform of the trade regime among development specialists. (1) An "enlightened standard view" emphasizes access to Northern markets for DC exports, especially in sectors like labor-intensive manufactures and agriculture; complementary policy changes within DCs (including market reforms and social policies); aid for trade and reform; and improved WTO participation. (2) A more critical view also calls for rebalancing TRIPs and other agreements, enhancing special and differential treatment (SDT), exempting DCs from inappropriate institutional requirements, and acting on important issues like food security and access to medicines. The Doha Declaration authorized negotiations on some issues in both groups, while giving unprecedented rhetorical prominence to development. However, it failed to act on other issues, or did so only in limited ways, e.g., by requiring new DC concessions as the price of rule modifications. The first 18 months of negotiations have also been troubling: Stalemates on agriculture and other central issues have thrown the timetable of the Round into doubt, and governments appear reluctant to give concrete effect to the rhetoric of the Declaration, deadlocking on SDT, TRIPs and public health, and other development issues, mainly along North-South lines. The paper concludes by outlining strategies of political action that advocates might adopt to restore development concerns to the heart of the Round. These include hard bargaining at the Cancun ministerial meeting and in other settings, invocation of accepted norms and commitments, and public diplomacy.
International trade, development, WTO, Doha Round, developing countries
Abstract: This paper represents a very early stage of a collaborative research project on transnational NT regulation. In this project, we seek to apply a multidisciplinary perspective to the question of regulation of nanotechnology (NT). We begin in Section I by considering the nature of NT and some risks it may pose as it is more fully developed and utilized over time. We next consider the nature of transnational "regulation," suggesting the range of legal, institutional and substantive forms this term can encompass. Because NT and its regulation are (like our project) at such early stages of development, we emphasize the importance of regulatory flexibility. In Section II, we consider a series of strategic choices that must be faced in designing transnational regulation in any issue area, including NT; these include the level and scope of regulation, the actors authorized to promulgate regulatory norms, the legal and institutional form of regulation, and finally its substantive content. In Section III, we argue that it is useful, although not definitive, to study models of transnational regulation developed for similar issues arising out of other forms of technology. While few if any of these models will be directly applicable to the unique characteristics of NT, the designers of these regulatory regimes faced similar strategic choices as well as similar problems, and the models they created can offer useful lessons. We briefly discuss a few potential models to illustrate the approach. Our larger research project will expand the study of transnational models beyond those discussed here, with a view to developing more specific recommendations for NT regulation. Consistent with our emphasis on regulatory flexibility, we conclude by tentatively suggesting a sequencing of regulatory approaches designed to allow NT regulation to develop over time into broader, more elaborate and more highly legalized form as we gain greater knowledge of, and experience with, the benefits and costs of NT.
nanotechnology, regulation, international law, technology, international relations, soft law
Abstract: With nanotechnology now a major funding priority for governments and industry around the world, devising the manner and timing of regulation presents a challenge. Too much regulation too soon could hinder development of beneficial technologies, while too little regulation too late may allow dangerous technologies to enter the market. Kenneth Abbott, Gary Marchant, and Douglas Sylvester argue that any solution to this regulatory dilemma must have four basic characteristics: the solution must be flexible, innovative, international, and official. In this Article, they advocate a framework convention on nanotechnology as a regulatory tool meeting these four requirements. The authors use a series of case studies to reveal framework convention best practices, and conclude with a summary of how a nanotechnology framework convention might be structured.
nanotechnology, regulation, international law, technology, international relations, soft law, framework, convention, environmental, trade, Gatt, WTO, tobacco convention
Abstract: As an international policy issue, nanotechnology (NT) presents a unique set of attributes and poses an extraordinary set of regulatory challenges. Given that NT is a major funding priority for governments and industry groups around the world, it is expected to rapidly evolve and advance, presenting risks and benefits that are still largely unknown and even unanticipated. While some politicians, social scientists and activists call for robust regulatory oversight, regulators struggle with their lack of data and knowledge, still far more limited than the levels of information they typically require as a prerequisite for regulatory action. This situation poses a dilemma: while the lack of regulation has the potential to undercut public confidence in this nascent technology, premature and inappropriate regulation could impede the development of socially beneficial products and applications. One regulatory tool that may prove useful is an international framework convention for NT. This paper describes the concept of the framework convention, briefly discusses several examples of framework conventions and related agreements that may provide relevant analogues or lessons for NT, and concludes with a summary on how a framework convention on NT might be structured.
Abstract: Risk management of nanotechnology is challenged by enormous uncertainties about the properties, risks, benefits, and future direction of nanotechnology applications. Because of these uncertainties, traditional risk management principles including acceptable risk, cost-benefit analysis and feasibility are unworkable, as is the more recent precautionary principle. Yet simply waiting for these uncertainties to be resolved before attempting to manage nanotechnology risks would not be prudent, in part because of growing public concerns driven by risk perception heuristics such as affect and availability. A more reflexive, incremental, and cooperative approach is required. Such an approach will not only help manage emerging risks from nanotechnology, but will also serve as a model for managing future technologies.
Technology, Psychology, Heuristics, Nanotechnology, Regulation, International, precautionary, risk regulation, risk perception, voluntary programs, norms
Abstract: Over the past 20 years, the rational choice (RC) approach has produced a remarkable flowering of Institutionalist theory in International Relations (IR) and a substantial body of scholarship analyzing international law as a unique institution. Yet over the same two decades international governance has become far more complex than the Institutionalist model of interstate interactions, especially through the increasing influence of non-state actors and a growing array of hard and soft norms, organizations and policies. IR has evolved accordingly, with theorists focusing on multiple actors and sources of behavior. This article continues an ongoing effort to enrich Institutionalist theory for explanation and prescription. The article is organized around important aspects of international law and governance: creating, ratifying and enforcing international rules; soft alternatives to international law; the interplay between international and domestic actors in international regimes; efforts by international institutions to enlist support from domestic publics and to strengthen the hands of supporters; and the growth of private norms for non-state actors. Drawing on relevant IR literatures and examples of innovative governance arrangements, the article suggests how scholars can incorporate into RC Institutionalism insights from Liberal IR theory, which emphasizes non-state actors and domestic politics, and, more tentatively, from Constructivist IR theory, which emphasizes social and subjective influences such as shared beliefs, norms, perceptions of legitimacy and identities.
Abstract: Risk management of nanotechnology is challenged by the enormous uncertainties about the risks, benefits, properties, and future direction of nanotechnology applications. Because of these uncertainties, traditional risk management principles such as acceptable risk, cost-benefit analysis, and feasibility are unworkable, as is the newest risk management principle, the precautionary principle. Yet, simply waiting for these uncertainties to be resolved before undertaking risk management efforts would not be prudent, in part because of the growing public concerns about nanotechnology driven by risk perception heuristics such as affect and availability. A more reflexive, incremental, and cooperative risk management approach is required, which not only will help manage emerging risks from nanotechnology applications, but will also create a new risk management model for managing future emerging technologies.
technology, heuristic, risk, regulation, uncertainty, braithwaite, model, emerging, psychology, precautionary
Abstract: Supporters of a liberal international economic system have long regarded regional organizations such as free trade areas and customs unions with ambivalence. On one hand, these organizations can have a stronger political base than multilateral institutions such as the WTO, and this can make trade liberalization and integration easier to achieve and maintain. On the other hand, regional organizations potentially could splinter the global economy, since their trade liberalization and economic integration effects are generally limited to bloc members. However, in recent years two new and very different forms of integration have arisen in Asia and the Pacific Basin. These approaches significantly depart from the traditional paradigm of discriminatory blocs. The first approach is a micro approach, in which small subregional groupings (often called growth triangles) have emerged. These are not preferential trade blocs per se, but rather are transnational areas that function primarily as diverse, unified bases for integrated investments and related activities by multinational firms. Growth triangles may be created by market forces or sponsored by governments, but even the latter generally are not formal governmental organizations. Interestingly, participants in the major growth triangles include not only states, but also provinces and other subnational areas. Each growth triangle offers the potential to economically integrate its transnational area, but if a triangle grows and becomes more formalized it also might present the same type of splinterization and discriminatory trade concerns as traditional free trade areas and customs unions. The second approach is a macro approach characterized by efforts aimed at super-regional economic integration. The Asia-Pacific Economic Cooperation forum (APEC), for example, includes members from Asia, Oceania, and North and South America. The non-governmental Pacific Economic Cooperation Conference (PECC)-which consists of a grouping of business leaders, scholars, and government officials from each member country - also spans those four continents. Neither PECC nor APEC is a treaty organization imposing binding obligations on its members; rather, each deals mainly in research, consultation, and coordination. In addition, neither organization has become an economic bloc in the traditional sense. Rather, both APEC and PECC have worked, in their respective ways, for open regionalism. This distinctive concept is at odds with the traditional preferential view of regional integration, and it holds the potential to both further liberalize trade among organization members and simultaneously extend the benefits of trade liberalization to non-members. These experimental forms of economic integration (and especially the macro approach of APEC and PECC) thus may have significant effects on the international economic system, including the promotion of global integration. In particular, the consensual nature of the macro approach encourages participation and dialogue, and this in turn facilitates cooperation and agreements in areas of common interest that (even when relatively mundane) can reduce transaction costs and encourage greater regional trade. These new forms of integration also might be useful in other areas of the world, such as Latin America, where repeated attempts at formation of a Free Trade Area of the Americas (FTAA) have been unsuccessful and where existing, traditional regional blocs have been marginally successful at best. In the years since this article was written, Asia and the Pacific Basin have undergone significant economic upheaval and slowed growth. Yet the regional economic integration efforts described in this article have continued and have worked (sometimes at a modest pace) to further regional economic integration. This article therefore continues to offer a useful conceptual discussion of these organizations and their radically different nature from more traditional regional trade organizations.
regional organizations, integration, international trade, WTO, World Trade Organization, free trade area, customs union, APEC, PECC, Asia Pacific
Abstract: As the GATT-MTN system develops, the institutions at its core become ever more complex. The Uruguay Round (Round) -- the broadest and most complex round of trade negotiations in GATT's history -- will heap unprecedented responsibilities on the system, requiring greater institutional development than ever before. Some of the necessary innovations may be agreed upon in the final stages of the Round itself. Many of them, however, will of necessity be dealt with in subsequent negotiations, or will simply evolve through practice, consistent with GATT tradition. This article presents a theoretical framework designed to structure and inform analysis of these broad institutional issues. It then reviews the major institutional contributions of the Round to date and offers suggestions for the future. Most discussions of GATT as an institution -- particularly those relating to rule-making, dispute settlement, enforcement and similar processes -- are organized around dichotomies, opposing conceptions of the process or the institution. Two dichotomies dominate the literature. The most common is legalism vs. pragmatism. The other is John Jackson's distinction between rule-oriented and power-oriented procedures and diplomacy. These dichotomies are roughly parallel in their views of GATT rule-making, dispute settlement, and enforcement. In this article I propose an additional dichotomy for thinking about GATT institutional issues, the dichotomy between institutions and procedures designed to serve the public interest and those designed to serve private interests. My major thesis is that GATT is, or is becoming, a public institution with public functions. This status has broad implications for a wide range of institutional issues.
International law, GATT, Trade
Abstract: Forthcoming in Regulation and Governance (2009). Although it is often argued that government oversight is needed to assure public opinion does not mistakenly view nanotechnology as dangerous or to restore public trust in government agencies, a question that we ask in this article, and one that implicates many of the themes raised in the other papers in this symposium, is whether governments can truly play this role. In short, as the world lurches toward regulation of NT we should ask: Why the rush? Can anticipatory regulation, perceived as the government doing something, fulfill the competing hopes to "restore trust," "pave-the-way," "increase awareness," or "satisfy democratic notions of accountability"? Or, is regulation more likely to increase existing divisions about nanotechnology's future?
Nanotechnology, Regulation, Technology, Genetics, Genetically modified, Governance, Risk, Cognitive, Psychology, Culture, Public Engagement
Abstract: In November 2005, President Bush attended the fourth Summit of the Americas in Argentina, where he sought support for liberalized pan-American trade and the formation of the long-stalled Free Trade Area of the Americas, or FTAA. Not surprisingly, he made little progress on the FTAA, which the United States has unsuccessfully sought to form for more than a decade. Venezuelan President Huge Chavez continued his vitriolic attacks on the United States (and President Bush in particular), and while leaders of other democratic Central and Latin American nations largely distanced themselves from Chavez they did not endorse formation of an FTAA anytime soon. On the other hand, these countries did at least agree to continue discussing the possibility and structure of an FTAA. It is all too clear, then, that while progress toward an FTAA is stalled, many Central and Latin American nations recognize the enormous potential benefits of a pan-American regional trade organization. Yet real progress toward an FTAA eludes both the United States and its western hemispheric trading partners. In fact, there have been multiple pan-American summits and ministerial meetings on the elusive FTAA since 1994, and yet an FTAA has yet to be formed. This is certainly a discouraging state of affairs, and it underscores the need for a new approach to regional integration in the Americas. In the attached article, which the author co-wrote several years ago with Professor Ken Abbott at Northwestern University School of Law, we recommended that an FTAA be formed not on the traditional regional trade agreement principles of exclusion and preferential treatment, but rather on the newer policy of open regionalism. Given the continued lack of FTAA progress over recent years, our article remains as pertinent today as when originally published. Open regionalism is different than traditional approaches to regional trade organizations in two critical ways. First, traditional regional trade agreements (such as customs unions and free trade areas) are generally discriminatory in nature, in that they favor members over non-members in terms of market access, trade barriers such as tariffs and quotas, and/or investment restrictions. An open regional agreement, in contrast, offers the potential for improved market access and reduced trade barriers but does not discriminate against outside parties. Stated differently, an open regional agreement is characterized by the key trait of non-exclusivity, which precludes bias against non-members. From the standpoint of the global trading system, then, open regional organizations are preferable to more traditional models, even if the latter are generally consistent with GATT. Second, and perhaps more important for purposes of the FTAA, open regionalism is characterized by consensual decision making. Agreements among member states are reached and progress is made only in areas in which states can reach consensus. While agreement by consensus necessarily slows progress on difficult matters, open regionalism's consensual approach can help encourage dialogue among western hemisphere nations that in the past (and even present) have been suspicious, antagonistic, and even hostile in their economic relations. While the ongoing efforts to form an FTAA serve this purpose to an extent, they have focused on establishing a more traditional regional trade organization, rather than on identifying areas of common interest for immediate cooperation. Progress in areas of common agreement thus would be more likely under an open regionalism approach. Matters of consensus could lead to greater cooperation in limited areas - which in turn could result in greater trade and integration, further economic development, and the reduction of economic disparity among member states. In this way, open regionalism could lead to a virtuous cycle for furthering such laudable goals as economic development, greater economic integration, improved living standards for the poor, and greater political cooperation - all without the hurdles facing formation or expansion of traditional trade agreements. To date, the primary example of open regionalism in action has been the Asia-Pacific Economic Cooperation Forum (APEC), which is a broad, consensually-driven organization comprised of over twenty countries across the Pacific rim who are positioned at different levels of economic development. APEC members currently include, for example, the United States, the People's Republic of China, Vietnam, and even Peru. By engaging in dialogue on a variety of common trade matters, APEC countries have helped foster closer economic ties and cooperation among disparate member states that need such dialogue but that would have been unlikely to form a successful regional trade organization along traditional lines, given their enormous economic structural differences. The open regionalism approach embodied by APEC has much to offer for Central and Latin America, in light of this region's different levels of national economic development and liberalization. A western hemispheric FTAA based on traditional tenets of exclusivity and (at least partially) non-consensual decision making is currently difficult at best - and impossible at worst - given the divergent needs and issues of the region's national economies. However, an FTAA based on the principle of open regionalism could overcome these difficulties and pave the way for further cooperation and dialogue. The consensual nature of open regionalism would mean that states could join the FTAA without fear of being railroaded into policies or positions against their will or self-interest. The establishment of a formal structure would ensure ongoing regional dialogue on matters of importance and could lead to agreement and cooperation in areas of consensual agreement. Even if areas of agreement are mundane at first, such agreement could help lead to greater levels of trade, a climate of cooperation, and reduced disparity among member economies, which would further regional economic integration. Furthermore, the benefits of the FTAA would be extended to non-members as well, which would benefit the world trading order. Progress in hemispheric cooperation and integration might be slow at first given the consensual nature of open regionalism, but slow advances would be preferable to the current lack of progress.
Economic integration, Latin America, NAFTA, APEC, FTAA, free trade
Abstract: We examine why international actors -- including states, firms, and activists -- create different types of legalized arrangements to solve political and substantive problems. We show how particular forms of legalization provide superior institutional solutions in different circumstances. We begin by examining the baseline advantages of "hard" legalization (that is, precise, legally binding obligations with appropriate third-party delegation). We emphasize, however, that actors often prefer softer forms of legalization (that is, various combinations of reduced precision, less stringent obligation, and weaker delegation). Soft legalization has a number of significant advantages: it is easier to achieve, provides strategies for dealing with uncertainty, infringes less on sovereignty, and facilitates compromise among differentiated actors. Although our approach is largely interest-based, we explicitly incorporate the normative elements that are central in law and in recent international relations theorizing. We also consider the important role of nonstate actors who, along with states, are central participants in contemporary international legalization. We illustrate the advantages of various forms of international legal arrangements with examples drawn from articles in this special issue and elsewhere.
International law, international relations, politics
Abstract: A new kind of international regulatory system is spontaneously arising out of the failure of international "Old Governance" (treaties and intergovernmental organizations) to adequately regulate international business. NGOs, business firms and other actors, singly and in novel combinations, are creating innovative institutions to apply transnational norms to business. These institutions are predominantly private, and operate through voluntary standards. We depict the diversity of these new regulatory institutions on the "Governance Triangle," according to the roles of different actors in their governance. To analyze this complex system, we adapt the domestic "New Governance" (NG) model of regulation to the international setting. "Transnational New Governance" (TNG) potentially provides many benefits of NG, and is particularly suitable for international regulation because it demands less of states and IGOs. However, TNG requires states and IGOs to act as orchestrators of the regulatory system, which currently suffers from a significant orchestration deficit. By expanding “directive” and "facilitative" orchestration, states and IGOs could strengthen high-quality private institutions, improve the international regulatory system and better achieve their own regulatory goals.
International regulatory system, NGO, transnational
Abstract: In this Chapter, we set out the pivotal questions relating to the United States approach to nanotechnology and other emerging technologies. We note how the experiences of biotechnology regulation are likely to continue to inform United States approaches. After setting out these principles, we discuss three regulatory experiences and approaches that we believe do and will inform United States regulatory policy going forward. We examine the Coordinated Framework for the regulation of biotechnology and, in so doing, look at the actions of three separate agencies: (1) EPA; (2) FDA; and (3) NIOSH. We conclude with a high-level discussion of the various issues that remain unresolved in the United States approach.
nanotechnology, regulation, technology, biotechnology, EPA, FDA, NIOSH, risk
Abstract: As policymakers struggle to develop regulatory oversight models for nanotechnologies, there are important lessons that can be drawn from previous attempts to govern other emerging technologies. Five such lessons are: (1) public confidence and trust in a technology and its regulatory oversight is probably the most important factor for the commercial success of a technology; (2) regulation should avoid discriminating against particular technologies unless there is a scientifically-based rationale for the disparate treatment; (3) regulatory systems need to be flexible and adaptive to rapidly changing technologies; (4) ethical and social concerns of the public about emerging technologies need to be expressly acknowledged and addressed in regulatory oversight; and (5) international harmonization of regulation may be beneficial in a rapidly globalizing world.
nanotechnology, regulation, international law, technology, international relations, soft law, biotechnology, genetics
Abstract: Profs. Kenneth Abbott, Gary Marchant, and Douglas Sylvester argue that regulation of nanotechnology should be flexible and adaptive; innovative; international; and official. In order to meet these requirements, the authors call for negotiation of an international framework convention on nanotechnology as soon as possible. In response, Lynn Bergeson appreciates the inherent logic and appeal of their proposal, but questions whether the timing is right for the necessary parties to undertake the concerted effort needed to create such a convention. Similarly, David Rejeski applauds the idea, but wonders whether competitive pressures and government inaction leave any room for negotiation of such a convention or whether dramatic developments will be necessary to prompt action. On the other hand, Brent Blackwelder believes that the risks posed by nanotechnology are so great that there is no time to negotiate a convention and that a moratorium on nanotechnology should precede any other regulatory efforts.
Abstract: International organizations (IOs) have been widely criticized as ineffective. Yet scholars and commentators assessing IO performance frequently look at the actions of those organizations in isolation and focus on traditional modes of governance such as treaties and inter-state dispute-resolution mechanisms. When commentators observe poor performance, moreover, they often call for strengthening those same activities. We call this reliance on traditional state-based mechanisms “International Old Governance” (IOG). A better way to understand and improve IO performance is to consider the full range of ways in which IOs can and do operate – including, increasingly, by reaching out to private actors and institutions, collaborating with them, and supporting and shaping their activities. Such actions are helping to develop an intricate global network of public, private and mixed institutions and norms, orchestrated by IOs (and states), that we call “Transnational New Governance” (TNG). With proper orchestration by “the state” (including IOs), TNG can ameliorate both “state failure” – the inadequacies of IOG – and “market failure” – the problems that result when the creation and evolution of norm-setting institutions is highly decentralized. Orchestration thus provides a significant way for IOs to improve their regulatory performance. Some IOs already engage actively with private actors and institutions – we provide a range of illustrations, highlighting the activities of the UN Environment Programme (UNEP). Yet there remains a significant “orchestration deficit” that provides real opportunities for IOs. We draw on the lessons of existing IO activities to suggest additional possibilities for improving IO performance.
international organizations, international governance, international regulation, public-private partnership, NGOs, new governance, soft law
Abstract: The public law of international trade acts to restrain national governments from interfering in private trade transactions. It is based upon treaties and other international agreements made, administered and enforced by the national governments to which it applies. Why do governments agree to limit their freedom of action by rules of law? This article presents a fresh explanation of the underlying functions of the international trade law regime, using a simple game theory framework to organize the analysis. This article argues that the law of international trade functions to help the governments of trading nations reach a satisfactory resolution of a complex dilemma. In the context of domestic decision-making, public officials deciding whether to grant protection to import-competing industries are faced with an unpleasant trade-off. There are short-run political gains for granting protection, with corresponding losses for refusing. However, granting protection may conflict with principles or values connected with the national interest or the interests of consumers. On the international level, trading nation governments find themselves in a situation akin to the two-player game theory scenario known as the Prisoners' Dilemma. When each player in the game follows his dominant strategy, the result is an "equilibrium" outcome in which each is worse off than if each had followed the alternative strategy. The law of international trade functions to inhibit national governments from following what appear to be rational short-run courses of action in the interest of achieving superior long-run outcomes for their nations and perhaps for themselves.
International law, Trade, Economics
Abstract: In less than a decade, nanotechnology has exploded from a relatively obscure and narrow technical field to a scientific, economic, and public phenomenon. The precipitous emergence of such a broad and significant technology has created an unprecedented opportunity to craft new regulatory or oversight approaches on a clean slate. Indeed, discussions of appropriate forms of regulatory oversight for nanotechnology have shadowed the exponential growth of the technology itself, with a rapid proliferation in calls and proposals for regulation. The actual adoption of nanotechnology regulations, however, has increasingly lagged both the technology and the academic and policy debate. Regulatory scholars, including ourselves, have raised the option of international harmonization since the outset of the discourse on nanotechnology regulation. Despite these initial calls for harmonization, however, very little has occurred and the time for progress in this area may be quickly dwindling. Ultimately, there are appealing arguments for harmonization, summarized in part I below. To be sure, for the reasons stated in part II, formal international regulation, as traditionally understood and applied, is unlikely to be feasible anytime soon. Yet less formal "governance" approaches may still hold promise for promoting the international coordination, if not harmonization, of nanotechnology regulation; we explore these approaches in Part III.
Nanotechnology, regulation, international law, technology, soft law, cognitive, harmonization, environmental
Abstract: Regulatory oversight of nanotechnology is necessary yet problematic. The necessity of regulation, now or later, is driven by two related concerns. First, some nanotechnologies, if left unregulated, are likely to pose very real if currently unknowable risks of significant health or environmental damage. Second, public confidence in new technologies and in the regulatory agencies that govern them may be permanently damaged if injurious nanomaterials are released without adequate, or at least the perception of adequate, oversight.
Of late, we have seen numerous proposals for “soft law” solutions, at least in the short term, as well as the implementation of some soft law mechanisms. None are based on the traditional command–and-control approach, under which government agencies enact detailed regulatory requirements enforced by the threat of penalty. Instead, all reflect a variety of voluntary, cooperative or partnership approaches. However, although these approaches have many advantages, none of the currently operational regimes has fully achieved two obvious and oft-cited goals of nanotechnology regulation: (1) broad industry participation, with sufficient data submission to aid regulators in risk assessments; and (2) reassurance of public stakeholders as to government’s role in regulating emerging technologies.
This article therefore proposes another soft law option that may better achieve these goals. We propose a voluntary certification scheme under which companies that produce nanotechnology products may obtain a government-supervised certification for specific products if the firms subject those products to specified safety testing, data disclosure and risk management measures. Given differing national regulatory approaches, our proposal is designed primarily for the United States. However, there is nothing in the proposal that could not be adapted for use in other jurisdictions, indeed, nothing to prevent creation of an equivalent international scheme.
Part II sets up the need for new approaches by explaining why regulation of nanotechnology is largely infeasible under traditional approaches. Part III summarizes the experience and promise of current soft law regimes, as well as some of their limitations. This Part also identifies some features of successful certification systems and discusses their relevance to a nanotechnology certification system. Part IV introduces our proposal for a voluntary safety testing certification scheme, and discusses the ways in which such a scheme might gain the trust of consumers and other relevant audiences. Part V considers the elements of the scheme in greater detail. The final section is a brief conclusion.
nanotechnology, trust, certification, soft law, voluntary reporting, fda, reach, regulation, cognitive, psychology, governance, risk
Abstract: Economic sanctions have become a prominent part of the American response to foreign state involvement in international terrorism. Since the early 1970s, a series of Congressional statutes has authorized or required the Executive to curtail a broad range of economic relationships with countries the Secretary of State has determined to be supporters of terrorism, a group that now includes Libya, Syria, South Yemen, Iran and Cuba and earlier included Iraq. Under these statutes, the United States has restricted all forms of foreign assistance, Eximbank and OPIC financing, arms sales, commercial exports and imports, trade preferences, air transportation and other transactions with one or more of the designated states. Understanding and evaluating antiterrorism sanctions is no easy task. Terrorism and state support for terrorism are complex, sometimes ambiguous phenomena. Economic sanctions can also be complex and subtle instruments. Sanctions against terrorism, then, involve complexity compounded by complexity. This article takes a step toward clarifying these matters by presenting a framework for the analysis of antiterrorism sanctions and using that framework to discuss several of the sanctions that the United States currently employs. The preliminary analysis in this article suggests that when one considers all of their functions, economic sanctions can play a valuable role, at least at the margin, in a national strategy against international terrorism. At the same time, their effects will frequently be small, especially in the short run, while their costs and risks are likely to be substantial.
Terrorism, International relations, Sanctions
Abstract: We develop an empirically based conception of international legalization to show how law and politics are intertwined across a wide range of institutional forms and to frame the analytic and empirical articles that follow in this volume. International legalization is a form of institutionalization characterized by three dimensions: obligation, precision, and delegation. Obligation means that states are legally bound by rules or commitments and therefore subject to the general rules and procedures of international law. Precision means that the rules are definite, unambiguously defining the conduct they require, authorize, or proscribe. Delegation grants authority to third parties for the implementation of rules, including their interpretation and application, dispute settlement, and (possibly) further rule making. These dimensions are conceptually independent, and each is a matter of degree and gradation. Their various combinations produce a remarkable variety of international legalization. We illustrate a continuum ranging from "hard" legalization (characteristically associated with domestic legal systems) through various forms of "soft" legalization to situations where law is largely absent. Most international legalization lies between the extremes, where actors combine and invoke varying degrees of obligation, precision, and delegation to create subtle blends of politics and law.
International law, International relations, Legalization
Abstract: This paper - written for an edited volume addressing how law and policy can keep pace with highly dynamic scientific and technological innovation - proposes an international framework to coordinate and facilitate national responses to innovations that may create significant risks or pose social, cultural or ethical challenges, and to steer national regulatory responses toward greater effectiveness, efficiency, legitimacy and public-interest orientation. The paper suggests an international framework convention on innovation and regulation, which could be supplemented by specific protocols in particular areas, such as nanotechnology or synthetic biology, or on particular cross-cutting issues. It also suggests a set of institutions and procedures to encourage the production, sharing and assessment of early-stage information, steer national systems for science policy-making and regulation, and coordinate concrete regulatory responses. Of necessity, these institutions would operate at all three levels of global governance: inter-state, trans-governmental and transnational.
science, technology, innovation, regulation, risk, international, transnational, framework convention
Abstract: States use formal international organizations (IOs) to manage both their everyday interactions and more dramatic episodes, including international conflicts. Yet contemporary international relations theory does not explain the existence or form of IOs. This article addresses the question of why states use formal organizations by investigating the functions IOs perform and the properties that enable them to perform those functions. Starting with a rational-institutionalist perspective that sees IOs as enabling states to achieve their ends, the authors also examine power and distributive questions and the role of IOs in creating norms and understandings. We identify centralization and independence as the key properties of formal organizations, and illustrate their importance with a wide array of examples.
International relations, international organizations, politics
Abstract: During the 1990s, the OECD and numerous other international organizations adopted conventions and other instruments designed to control bribery and corruption in international business. The WTO, however, took no such action, and a related initiative on transparency in government procurement has not yet produced any results. This article examines what one can learn about rule-making in the WTO from its failure to act in this case. Much of the explanation for the inaction lay outside the organization, in the political incentives facing major actors. Yet structural characteristics of the WTO, its approach to legalization, and its negotiating processes also played significant roles. These factors should be addressed if the organization is to deal effectively with the controversial issues now on its agenda.
World Trade Organization, international organizations, international business
Abstract: The legalization of international relations is a highly variable phenomenon. “Legalization” includes a wide range of normative and institutional arrangements, from “hard” international legal rules enforceable in judicial or quasi-judicial fora, through “soft law” of various types, to arrangements that share some characteristics of law, but are not legally binding. This essay summarizes research -- undertaken jointly with Duncan Snidal of the University of Chicago -- that is part of an interdisciplinary project joining political scientists specializing in international relations with several legal scholars. The project is designed to identify and analyze the causes and effects of the “legalization” of international politics, with an emphasis on the effects of legalization within domestic political systems. We posit that legalization is a form of institutionalization defined along three dimensions: obligation, precision and delegation. In our theory, each of these three attributes is a matter of degree and gradation, and each can vary independently. We illustrate a multidimensional continuum, ranging from the complete absence of law, where none of the attributes exist, through various forms of “quasi” and “soft” legalization to “hard law” where all three properties are maximized. The central puzzle in analyzing legalization is why different types of legalization are utilized in different circumstances. Our first steps toward an answer are organized in three broad functional categories: levels of legalization as rational responses to the contracting environment, soft legalization as a way to limit “sovereignty costs” of states, and types of legalization analyzed from the perspective of non-state actors.
international law, international relations, legalization
Abstract: The growing role of civil society in global health governance reflects profound and well known changes in the overall system of global governance. In many respects, however, health governance is actually leading those changes. This paper uses the lens of Liberal international relations theory to explore innovations in global health governance that are not only interesting and significant in their own right, but are also of broader importance for global governance. These include (1) the role of civil society organizations (CSOs) as 'proponents' or advocates of policy and the advocacy partnerships formed by CSOs and public organizations; (2) the changing nature of inter-state regimes, such as the WHO/international health regime, due to the growing participation of domestic, non-state actors; (3) the strategies of organizations like the Global Fund to Fight HIV/AIDS, TB and Malaria to engage with and empower domestic CSOs in dealings with their own governments; and (4) the emerging role of CSOs, private sector firms and other non-state actors as 'protagonists' or direct participants in international governance, independently or in collaboration with states and international organizations. The paper uses the Governance Triangle to map and analyze the forms and patterns of private and private-public governance arrangements.
international relations, health law, civil society organizations
Abstract: During the late 1970s, the executive branch imposed an unprecedented variety of restrictions on private commercial exports in efforts to further particular goals of United States foreign policy. The principal source of executive power during this period was the Export Administration Act of 1969 (EAA '69), which delegated to the President the authority to prohibit or curtail exports for the purposes set forth in the Act. In 1974 and 1977, two provisions incorporating recently established foreign policy goals were added to the Act: the first approved the use of export controls to combat restrictions imposed by other nations on access to raw materials and other supplies; the second authorized the use of controls to discourage other nations from assisting international terrorists. At the same time, the United States was coping with a large trade deficit, leading many to question the growing reliance on foreign policy export controls. The Export Administration Act of 1979 (EAA '79) attempts to restrict presidential authority to institute political export controls. As the 1980s began, however, foreign policy controls continued to flourish. This article describes the United States export control system as it operated under EAA '69 and, in most respects, as it operates today. The article analyzes the rationales for the use of export controls to further foreign policy and suggests that controls are appropriate in relatively few situations. The foreign policy provisions of EAA '79 are also considered. The article concludes with recommendations for further limiting the use of foreign policy export controls.
International relations, economics, export controls
Abstract: Over the last ten years, international relations (IR) theory, a branch of political science, has animated some of the most exciting scholarship in international law. If a true joint discipline has not yet emerged, scholars in both fields have clearly established the value of interdisciplinary cross-fertilization. Yet IR -- like international law -- comprises several distinct theoretical approaches or “methods.” This complexity makes interactions between the disciplines especially rich. This essay summarizes the four principal schools of IR theory -- conventionally identified as “realist,” “institutionalist,” “liberal” and “constructivist” -- and applies them to the norms and institutions governing serious violations of human dignity during internal conflicts (the “atrocities regime”). The essay explores how these theories might explain three central features of the atrocities regime: the distinction between international and internal armed conflicts, the emergence of norms governing certain abuses outside of armed conflict, and the increasing reliance on criminal responsibility and criminal tribunals. In addition to their analytical insights, the visions of international relations and international law presented here have significant implications for the future of the atrocities regime. This essay summarizes the engines of change identified by each school of theory, and considers the special role of legal institutions in the evolution of the regime.
international law, international relations, human rights
Abstract: The European Economic Community (EEC) requested that the Council of the General Agreement on Tariffs and Trade (GATT) establish a panel under GATT Article XXIII(2) to consider the application of section 337 of the United States Tariff Act of 1930 (19 U.S.C. § 1337 (1982 & Supp. V 1988)). The Community sought a finding that the procedures applied under section 337 in patent-based cases were inconsistent with the GATT obligation to accord national treatment to imported goods and thus constituted prima facie nullification or impairment of benefits accruing to the Community under the GATT. The panel established under the authority of the Council found: (1) that certain aspects of section 337 procedure accord less favorable treatment to imported goods than is accorded to goods of domestic origin by the comparable procedures of patent litigation in the federal district courts, and are therefore inconsistent with the national treatment obligation of GATT Article III(4); and (2) that these instances of less favorable treatment cannot in many respects be justified as “necessary” under the exception for enforcement measures in GATT Article XX(d). The panel recommended that the GATT contracting parties ask the United States to bring its procedures into conformity with the General Agreement. This article reviews and analyzes the panel’s decision.
International law, GATT, intellectual property
Abstract: John Henry Wigmore was a preeminent scholar in the law of his own land, but he also thought about the law and legal problems on a global scale. This article discusses Wigmore’s research in Japanese law, his work in comparative law generally and his interest in international law and institutions. In 1889, Wigmore was asked to serve for three years as a professor of law at a Japanese university. He took this as an opportunity to compare the process of legal development in the West with that in Tokugawa-era Japan. His research unearthed a goldmine of information regarding Japanese legal history and he began a large translation and editing project which was not completed until after his death. His early Japanese connection certainly contributed to the formation of his view of the law and legal problems on a global scale. Although comparative law was never the focus of Wigmore’s scholarship, his interest in comparative and historical studies stayed with him all his life. As this article discusses, Wigmore made important contributions to comparative law and showed others the fascination and utility of the study of other legal systems. He supported international institutions and sought to promote interchange and cooperation among lawyers from around the world. He taught a generation of students about the emerging international order. In all of these things, Wigmore's vision was far ahead of its time.
comparative law, international law, international institutions
Abstract: This article analyzes the Uruguay Round of multilateral trade negotiations (the “Round”) in the area of dispute resolution as the Round is entering what many hope to be its “final sprint.” A package of “improvements” relating to dispute resolution were put into effect “on a trial basis” following the December 1988 - April 1989 Midterm Review. Negotiators appended to the Draft Final Act a lengthy draft Understanding on dispute resolution. If the major substantive issues in the Round can be successfully resolved, GATT is poised to implement a substantial reform of its dispute resolution procedures. This article utilizes the public/private theoretical framework in its analysis of the Round negotiations on dispute settlement. The public/private framework is the dichotomy between institutions and procedures designed to serve private interests and those designed to serve the public interest. In the international trade context, “public” refers to the community of trading nations, represented by GATT; “private” refers to the individual members of that community, the states that are the contracting parties of GATT. GATT is structured primarily along the lines of a private interests community. However, it can be argued that GATT actually possesses the central characteristic of a public interest community. This article suggests that the Understanding would institute a dispute resolution process consistent with the model of an affirmative, active private interests community. However, it would also prepare the way for the procedures and institutions that will be needed if GATT continues to evolve into a public interest community.
International law, GATT, dispute resolution
Abstract: In this article, the authors address the widespread Western belief that the Japanese economy is unfairly closed to foreign trade and investment. The authors identify several levels of barriers to penetration of the Japanese market. They find that considerable progress has been made in reducing direct official restraints and official non-tariff barriers. Further progress in resolving the closed market issue, the authors predict, will be more difficult. Some of the remaining problems are rooted in Japanese society and culture; others in Western attitudes toward Japan. All reflect the historical pattern of Japan's relations with the West. The authors conclude with recommendations for Japanese and American policy aimed at resolving the closed market issue while maintaining amicable relations.
International relations, economics, trade
Abstract: Since the United States began systematically to restrict exports in peacetime for national security and foreign policy purposes, foreign opposition to the extraterritorial reach of American export controls has been rife. The Reagan Administration's efforts to delay completion of the Soviet Union's natural gas pipeline to Western Europe raised foreign concern over American claims of extraterritorial jurisdiction to new heights. The jurisdictional reach of the pipeline sanctions was in several respects unprecedented. The foreign response was similarly unprecedented: both the British and French governments acted to block the application of the American controls, while other European governments openly urged that the controls be defied. Given the underlying realities of the international economy and the "dynamic of escalation" that some observers have discerned, there is every reason to fear that similar confrontations will be played out in the future. This article argues that the current period of relative calm in trans-Atlantic political relations provides an unusual opportunity to seek at least partial resolution of a jurisdictional controversy that has split the United States and its major trading partners for over thirty years. The article does not attempt to analyze the principles and precedents of international law on the reach of national jurisdiction. Rather, it argues for a practical solution to the dispute, centering on international negotiations. In particular, the article suggests that Congress could be an effective catalyst of such a dispute resolution process and outlines a course of action that Congress might follow to perform this function.
International relations, Extraterritoriality, Economics
Abstract: International law (IL) and international relations (IR) scholarship have long proceeded on separate tracks. Realism, the dominant IR theory for over two thousand years, has had little to say to students of international law, although some postwar Realists have sought a better understanding of international rules and institutions. One particularly important body of IR theory, emerging only in the 1980s, focuses on normative orders called “international regimes.” The development of regime theory and related theories of international cooperation – modern IR theory – offers a long-overdue opportunity to reintegrate IL and IR.
This article introduces the major elements of modern IR theory and the work of its leading contributors, and suggests their relevance to the study of international law. It emphasizes two analytical approaches. First, the article explores basic game theory models that epitomize common forms of state interaction in which benefits can be enhanced through cooperation in the form of international rules and institutions. Second,it explores analogies between international relations and the operations of markets, including common forms of "political market failure."
The article emphasizes what Robert Keohane has dubbed the "demand side" of modern IR theory - why states rationally demand international regimes - because this aspect provides immediate insight into the functions of legal norms and institutions. The article also discusses elements of the "supply side" - how international cooperation to create norms and institutions is achieved.
International relations, International law, International cooperation
Abstract: In 1981-82, the United States imposed a set of far-reaching extraterritorial restraints on sales of oil and gas transmission equipment and technology to the Soviet Union in an effort to prevent or delay completion of the Yamal natural gas pipeline. This touched off the most violent dispute over extraterritoriality in the history of American trade controls. Numerous law review articles, a few legal briefs, and even a judicial opinion have discussed this incident. Most of these writings deal with the extraterritoriality issue by testing the validity of the American controls against what are presented as the accepted rules of international law regarding national prescriptive jurisdiction. Some writings discuss the "reasonableness" principle set forth in section 403 of the Restatement (Revised) of Foreign Relations Law as a limit on extraterritorial controls. The predominant approach, however, is to focus on the "minimum bases of jurisdiction to prescribe law" set out in section 402 of the Restatement (Revised), as the principles of law by which the validity of the pipeline regulations should and can be judged. This article considers the extraterritoriality issue more broadly. The perspective of the article is based in part on modern international relations theory. Using this approach, the article identifies two general problems in international politics that are important in understanding the positions of the two sides in the extraterritoriality controversy, their emotional commitment to these positions, and even their legal arguments. The article also discusses the inadequacies of international legal doctrines currently available for dealing with these problems.
Extraterritoriality, international law, international relations
Abstract: This article utilizes rationalist international relations (IR) theory to examine an important class of provisions in international agreements, those governing the production of information. In situations of interdependence, IR theory suggests, states tend to design their international agreements and institutions to address the particular strategic situations in which they find themselves -- the “rational design hypothesis”. Many rationalist analyses have disregarded the role of information in strategic interactions among states, which ignores a central reality of international politics: its “pervasive uncertainty.” Recent IR scholarship has devoted increasing attention to problems of information. This article joins the rational design hypothesis with the new emphasis on information by examining the informational arrangements that states make when they enter into agreements in conditions of interdependence. The article analyzes the provisions governing the production of information in a set of actual international agreements: the major arms control treaties of the past 30 years. Problems of information have been at the heart of arms control policy since the beginning. There are two basic strategies by which information is produced: verification and assurance. Verification involves each party's use of its own efforts and resources to seek out the information it requires from others. Assurance involves the use by each party of its own efforts and resources to gather and provide information about itself and its activities to others. The concepts of verification and assurance, and the rational design approach, can provide rich insights into the strategic relationships among states and the functioning of international agreements.
International relations, international law, politics
Abstract: The author’s 1989 law review article, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int’l L. 335 (1989), is included in the Yale Journal of International Law Twenty-Fifth Anniversary Commemoration collection of commentaries on its most-cited articles, as the most-frequently cited article (tie). This commentary by the author discusses the stage in the evolution of international relations theory at the time of the Prospectus and the continuing debate over greater interdisciplinary engagement between international relations and international law scholarship.
International relations, international law, international cooperation
Abstract: As peacekeepers land in Liberia and the U.S. considers its level of involvement there, the issue of humanitarian intervention seems as pressing as ever. Similarly, recent debates over the need for UN Security Council authorization for military action in Iraq (taken partly for humanitarian reasons) and the UN role in pacifying and rebuilding that country pose fundamental questions about national sovereignty, legitimate authority and collective responsibility. To explore these matters, Northwestern University’s Center for International and Comparative Studies convened a conference of experts on humanitarian intervention in May 2003, as part of the Cantigny Conference Series sponsored by the McCormick Tribune Foundation. The forty participants included academic specialists, former diplomats and military officers, and leaders of humanitarian NGOs. This article summarizes the deliberations of these experts on the major issues posed by humanitarian intervention.
humanitarian intervention, human rights, international law
Abstract: The term "international economic law" is coming into wider use. This essay suggests that the rise of "international economic law" is less a result of external changes in rules and institutions than of internal changes in perception, especially about scholarship. The growing use of "international economic law" reflects a new set of intellectual boundaries among interested scholars. One of these boundary shifts is a new line of demarcation that sets off international economic law from the larger discipline of international law, reflecting the sheer importance of the subject. The other boundary changes, however, eliminate barriers between areas of scholarship previously considered separate. International economic law brings together the rules and institutions (predominantly national, or even private) that directly affect international business transactions with those (predominantly international or transnational) that shape the economic relationships among nations and other public actors. This essay considers why "international economic law" is winning acceptance, and what its adoption implies for scholarship.
International law, Economics, Business
Abstract: A symposium on "Trade Sanctions and International Relations" raises the fundamental question: What are the functions that economic sanctions perform for states? How we answer this question will determine our evaluations of past experience with sanctions and our policy recommendations for the future. This is essentially a political and economic question, not a question of law. We must turn to disciplines such as political science, economics, and international relations to answer the question and to clarify the analytical frameworks within which our thinking takes place. This article discusses two recent works on economic sanctions from non-legal disciplines: Economic Sanctions Reconsidered, by Gary Hufbauer and Jeffrey Schott, and Economic Statecraft, by David Baldwin. Both works are in the Realist tradition of international relations scholarship. Hufbauer and Schott and Baldwin both challenge the conventional wisdom that economic sanctions do not work very well. The two works are significantly different, however, in the way in which their authors think about sanctions, especially the fundamental question of function or purpose. Hufbauer and Schott focus on the use of sanctions to force the immediate target state to act as the sanctioning state wishes it to act: the "coercion" in the title of this article. While Baldwin also addresses the direct, coercive use of sanctions, he focuses primarily on their symbolic use, referred to in the title of this article as "communication." The contrast between these two approaches should help to clarify the frameworks within which we make our own analyses.
International relations, Economics, Sanctions
Abstract: John McGinnis has framed the issues in the symposium of which this article is a part, with a provocative paper on the “regime of international federalism.” The structures of federalism have an important place in international governance. Yet the pure model of international federalism endorsed by McGinnis depends on the existence of sharp intellectual boundaries, between the market and other social and political activity and between civil society, on one hand, and national governments and international regimes, on the other. These distinctions are difficult to sustain at the close of the twentieth century. McGinnis's libertarian ideology also leads him to oversimplify his description of economic and political structures and to ignore competing normative conceptions. This article outlines several developments that show the world to be more complex than McGinnis’s model suggests: the two sets of boundaries on which the model depends are in fact fluid, indistinct and constantly evolving. In particular, the "market" has not been a truly autonomous category, separate from other social and political structures, values, and activities, for most of the twentieth century. In addition, individuals, firms, interest groups, and other associations now pursue their political and social interests transnationallyh as well as within their own countries, empowered by new conceptions of "international civil society."
International law, Politics, Economics
Abstract: International relations theory (IR) is widely recognized as a valuable tool for lawyers and legal scholars, especially in their social role as international policy-makers. The frameworks of IR help lawyers to analyze social problems in theoretically informed ways and develop ameliorative responses. Yet IR is famously divided among contending theoretical paradigms. Approaches such as Realism, Institutionalism, Liberalism and Constructivism direct attention to different actors (e.g., states, international organizations, domestic government agencies and officials, individual citizens and civil society groups) and to different causal factors and processes (e.g., power, interests and incentives, values, norms and identities, persuasion and socialization). IR has tended to treat these approaches as mutually exclusive and in competition. But that theoretical stance is increasingly problematic, given the rise of multi-faceted norm complexes such as sustainable development and collective security as reconceived by the Secretary-General's High-Level Panel, and of complex multi-stakeholder institutions like the Global Fund to Fight AIDS, TB and Malaria. In both respects, international public policy manifestly involves actors, causal factors and processes that cut across theoretical lines; the same can be said of international law generally. The problem is especially serious for Institutionalist theory: logically, Institutionalism should provide a natural framework for lawyers and other policy-makers seeking innovative responses to global problems, but its relevance has been reduced by its identification with a relatively narrow state-centric, rationalist approach. What is needed is a richer Institutionalism, one that brings to bear significant insights from other IR approaches. For international law and policy, Institutionalist theory should incorporate Liberal insights into the role of non-state actors, government agencies and domestic politics; Constructivist insights into the role of values, norms, identities and processes such as shaming and persuasion; and Realist (and other) insights into the role of power. To be sure, there are significant ontological and epistemological differences among IR approaches that foreclose wholesale blending. Yet recent scholarship suggests that these problems are manageable in many instances. Without purporting to develop fully an enriched Institutionalism, this article identifies a number of insights that analysts could incorporate at three crucial stages of analysis: the social context in which problems arise and solutions are sought, the strategies followed by the actors interested in those problems, and the design and operations of international regimes.
international law, international relations theory, international institutions
Abstract: When states cooperate, they are often unwilling or unable to move directly to substantively deep and highly legalized multilateral agreements due to collective action problems arising from several forms of uncertainty. We identify three strategies by which states can nevertheless move gradually from lower to higher levels of cooperation along dynamic "pathways" that address different types of uncertainty. First, the Framework Convention Pathway, exemplified by the Vienna ozone convention-Montreal Protocol regime, allows states to adopt legalized multilateral agreements despite technological uncertainty about the state of the world. States manage the risk of such agreements by beginning with fairly shallow substantive commitments and deepening those commitments as they learn more about the problem, potential solutions and the benefits of cooperation. Second, the Plurilateral Pathway, exemplified by the gradual expansion of the European Union, allows states to deal with uncertainty about whether and which other states are committed to and capable of effective cooperation. Here states manage the risks of free riding by beginning with strong, legalized agreements limited to core groups of members demonstrably committed to and capable of cooperation, then gradually adding members who can demonstrate similar levels of commitment and capability. Third, the Soft Law Pathway, exemplified by substantively detailed but non-binding instruments ranging from the Universal Declaration of Human Rights to the FAO-UNEP guidelines on trade in pesticides and chemicals, allows states to address political uncertainty regarding how international agreements will be received domestically. The nonbinding nature of these undertakings allows states to introduce them on a tentative basis while preserving the ability to back away if strong domestic opposition emerges. Advocates of cooperative agreements will prefer different pathways according to the relative influence each approach offers them. States maintain the greatest control over the formal (and often closed) treaty-making processes of the Plurilateral Pathway, for example, whereas nongovernmental organizations are relatively advantaged in the Soft Law Pathway. Different institutions are also better suited to particular pathways, leading advocates to shop for effective forums. The WTO is a poor site for Soft Law approaches, for example, while APEC and the G-8 are poor hosts for highly legalized Plurilateral and Framework Convention processes. Finally, the three pathways are ideal types; in practice they are blended and sequenced to deal with specific problems over time.
International
Abstract: Standard rational choice analysis explains many but not all aspects of the highly political process of international legalization. Because law engages and affects not only the interests of actors but also their normative values, the development and operation of legal regimes can only be understood by considering both motivations together. We develop a simple model of the interaction of value and interest actors that shows how their different logics of behavior and distinctive strategies drive the politics of legalization - both in particular episodes and through deeper interrelationships over time. To demonstrate our argument empirically, we analyze how various turning points in the development of the 1997 OECD Anti-Bribery Convention can only be fully understood as resulting from the interplay of values and interests. Our analysis thus blends rational choice with normative or constructivist approaches to provide a richer account of international legalization.
© 2009 Social Science Electronic Publishing, Inc. All Rights Reserved. FAQ Terms of Use Privacy Policy Copyright This page was served by apollo6 in 0.391 seconds.
