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Compliance Institutions in Treaties

Brett M. Frischmann

Yeshiva University - Benjamin N. Cardozo School of Law

James C. Hartigan

University of Oklahoma

June 8, 2007

Due to the costs of negotiating treaties, signatories may defer the resolution of uncertainty to the future rather than include all possible states of nature in a treaty. This particularly will be the case when addressing uncertainty increases negotiating costs. In such a context, the existence and form of compliance institutions is of particular importance. We develop a formal model to consider the relationship among treaty negotiation, compliance institutions, and uncertainty over future states of nature. In our model, states of nature determine the costs of compliance with a treaty. We explain that when resolving uncertainty is deferred to the future and compliance costs are unobservable, an escape clause facilitates viability of a treaty. When escape is considered de jure compliance, and signatories are incompletely informed about one another's costs of compliance, an incentive for opportunistic breach arises. In such a context, we demonstrate that a dispute resolution mechanism that discloses compliance costs of a signatory invoking escape can deter spurious use of the clause. We incorporate uncertainty through the specification of a discrete time, continuous state stochastic compliance function. Because many policies for which treaties are negotiated exhibit persistence in their costs of compliance, we contrast compliance costs processes with and without persistence. We disclose that persistence may undermine the effectiveness of an escape clause (with a dispute resolution mechanism) in promoting compliance. Persistence increases the cost of treaty negotiation by increasing expected costs of compliance. These increased negotiating costs may result in fewer commitments, further rendering the treaty less viable. To mitigate, compliance institutions can be designed to respond dynamically to evolving conditions. When an escape clause fails to preserve compliance under persistence, dynamic adjustment may be more likely, as renegotiation requires a stronger commitment to the agreement. When dynamic adjustment entails periodic scheduled reconvening of signatories, compliance is undermined and disputes are more frequent.

Number of Pages in PDF File: 17

Keywords: treaty, compliance, international law, institutions, uncertainty, evolving games, game theory

JEL Classification: C7, C73, F00, K33

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Date posted: June 11, 2007 ; Last revised: August 23, 2010

Suggested Citation

Frischmann , Brett M. and Hartigan, James C., Compliance Institutions in Treaties (June 8, 2007). Available at SSRN: https://ssrn.com/abstract=992462 or http://dx.doi.org/10.2139/ssrn.992462

Contact Information

Brett M. Frischmann (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States

James C. Hartigan
University of Oklahoma ( email )
307 W Brooks
Norman, OK 73019
United States
405-325-5501 (Phone)
405-325-5842 (Fax)
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