Nonconsensual International Lawmaking

57 Pages Posted: 5 Oct 2007 Last revised: 26 Dec 2014

See all articles by Laurence Helfer

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Abstract

This article documents the rise of nonconsensual international lawmaking and analyzes its consequences for the treaty design, treaty participation, and treaty adherence decisions of nation states. Grounding treaties upon the formal consent of states has numerous advantages for a decentralized and largely anarchic international legal system that suffers from a pervasive "compliance deficit." But consent also has real costs, including the inability to ensure that all nations affected by transborder problems join treaties that seek to resolve those problems. This "participation deficit" helps explain why some international rules bind countries without their acceptance or approval. Such rules have wide applicability. But they can also increase sovereignty costs, exacerbating the compliance deficit.

Nonconsensual international lawmaking thus appears to create an insoluble tradeoff between increasing participation and decreasing compliance. This article explains that such a tradeoff is not inevitable. Drawing on recent examples from multilateral efforts to prevent transnational terrorism, preserve the global environment, and protect human rights, the article demonstrates that the game-theoretic structure of certain cooperation problems, together with their institutional and political context, create self-enforcing equilibria in which compliance is a dominant strategy. In these situations, nonconsensual lawmaking reduces both the participation and the compliance deficits. In other issue areas, by contrast, problem structure and context do not affect the tradeoff between the two deficits, and the incentive to defect remains unaltered. Analyzing the differences among these issue areas helps to identify the conditions under which nonconsensual lawmaking increases the welfare of all states.

Keywords: international lawmaking, nonconsensual lawmaking, consent, game theory, participation, compliance, UN Security Council, transnational terrorism, global environmental protection, human rights

JEL Classification: K33

Suggested Citation

Helfer, Laurence, Nonconsensual International Lawmaking. University of Illinois Law Review, p. 71, 2008; U. of St. Gallen Law & Economics Working Paper No. 26; Vanderbilt Law and Economics Research Paper No. 07-26; Vanderbilt Public Law Research Paper No. 07-18. Available at SSRN: https://ssrn.com/abstract=1019412

Laurence Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

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