Form and Substance in International Agreements
68 Pages Posted: 23 Feb 2004
Date Written: February 2004
This article presents a conceptual framework for analyzing the design of international agreements. This inquiry is guided by a simple fact: international agreements are rarely crafted to maximize cooperation. They frequently lack provisions, such as monitoring systems, that even the most rudimentary analysis suggests are necessary if agreements are to meet their goals. Using the concepts of form and substance I examine three features of international agreements, two related to form and one to substance. Legality refers to the choice between legally-binding and non-legally binding rules; structure to an agreement's provisions for monitoring and sanctioning non-compliance; and substance to the degree of deviation from the status quo ante that an agreement generally demands. Each of these terms represents a distinct design element, yet there are systematic tradeoffs among these elements. Only by understanding these tradeoffs - and the domestic political factors that often determine them - can we understand why agreements are constructed in the manner that they are. I make four core claims. First, the dichotomy of "hard" and "soft" law is not coherent and obscures more than illuminates. I reject the notion that soft law is an analytically useful category. Legality, I argue, is a binary variable. Second, I provide an account of the choice of legal form. I argue that states choose between legal and nonlegal agreements - what I term contracts and pledges - based on a combination of functional concerns, such as uncertainty and credibility; the configuration of power in a given issue-area; and, most significantly, the demands of domestic interest groups and the implications of domestic institutions. These factors roughly correspond to the three prevailing traditions in IR theory: institutionalism; realism; and liberalism. Third, I analyze the relationships between the legality, structure and substance of international agreements. I argue that the differing domestic politics of different issues - such as trade liberalization or environmental protection - help explain when contracts are substantively deep and demanding and when they are shallow and weak. I also examine how the structure of compliance review influences the substance of agreements. Fourth, I conclude with some normative claims about the design of agreements. The systematic preference for contracts in international cooperation often weakens the substance and structure of agreements when states are uncertain about their ability to comply. Consequently, although pledges are often viewed as second-best alternatives, they can, under some circumstances, be first-best.
Keywords: International law, compliance, cooperation
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