Pathways to International Cooperation
THE IMPACT OF INTERNATIONAL LAW ON INTERNATIONAL COOPERATION: THEORETICAL PERSPECTIVES, Eyal Benvenisti & Moshe Hirsch, eds., Copyright Cambridge University Press 2004
35 Pages Posted: 31 May 2005 Last revised: 3 Jun 2010
Date Written: 2004
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.
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