Precommitment Theory Applied to International Law: Between Sovereignty and Triviality
Max Planck Institute for Comparative Public Law and International Law
University of Illinois Law Review, No. 1, 2008
U. of St. Gallen Law & Economics Working Paper No. 2007-08
International agreements have been reconstructed as precommitments in the sense of giving up future choices to guard against preference shifts. This paper criticizes precommitment theory.
First, the analogy between states and precommitments of individual persons is problematic. In reality, different governmental actors bind one another. Additionally, the flow of time brings about a change in the composition of the collective.
Second, viewing treaties as an "epitome" of sovereignty necessarily implies that the "will" of the states, especially their will to bind themselves, is not only the (factual) reason why states enter into agreements in the first place, but also the (normative) reason why states should observe them. So the precommitment-paradigm serves as a savior of sovereignty.
Third, legal obligations can not logically be explained as flowing from the unilateral choice to bind "oneself". If the "sovereign" decision matters, then it is hardly conceivable why the "sovereign" decision at time 1 is superior to the "sovereign" decision at time 2. International treaties can be more plausibly understood as commitments towards other actors. The bindingness of a legal instrument results from the promise given to the other party and the normative expectations created thereby in the other.
Fourth, the idea of precommitment appears to inflate something which is the normal function of international law, namely to place some types of action beyond the control of domestic actors. But if all treaties are precommitments, the meaning of precommitment is expanded to the point of uselessness.
Ultimately, international treaties should not be viewed as worthy of respect because they reflect actual and concrete (more or less rational) choices of the actors. Instead, public international law deserves respect because it is an indispensable functional device to uphold international relations.
Number of Pages in PDF File: 11
JEL Classification: K33
Date posted: July 10, 2007