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International Law,International Relations

and Compliance


Commitments are a persistent feature of international compliance is gauged Explanations of why and
affairs. Disagreement over the effect of international when states comply with international law can help
commitments and the causes of compliance with account for the turn to law as a positive phenomenon,
them is equally persistent. Yet in the last decade the but they also provide critical policy guidance for the
long-standing divide between those who believed design of new institutions and agreements.
that international rules per se shaped state behavior This chapter surveys the study of compliance in
and those who saw such rules as epiphenomena1 or both the international relations (IR) and interna-
insignificant has given way to a more nuanced and tional law (IL)literature.' In many ways, the com-
complex debate. Regime theory, originally focused pliance literature is a microcosm of developments
on the creation and persistence of regimes, increas- in both fields, and particularly of the rapproche-
ingly emphasizes variations in regimes and in their ment between them (Abbott, 1989; Koh, 1997;
impact on behavior. The legal quality of regime rules Slaughter Burley, 1993; Slaughter et al., 1998b).
is one important source of regime variation. At the For IR scholars interested in reviving the study of
same time the proliferation and evolution of intema- international law in their discipline, it was a natural
tional legal agreements, organizations and judicial step to focus first on questions of whether, when
bodies in the wake of the Cold War has provided the and how law 'mattered' to state behavior. For inter-
empirical predicate and a policy imperative for national lawyers eager to use IR theory to address a
heightened attention to the role of international law. host of theoretical and practical legal problems, the
Across many issue-areas, the use of law to struc- mechanisms of compliance were an equally natural
ture world politics seems to be increasing. This starting point. Indeed, it is a rare conference or col-
phenomenon of legalization raises several questions. laborative project between scholars £tom both dis-
What factors explain the choice to create and use ciplines in which compliance is not the focus of at
international law? If law is a tool or method to orga- least one paper. Future studies on compliance are
nize interaction, how does it work? Does the use of also likely to prove an important empirical testing
international law make a difference to how states or ground for the value of theoretically sophisticated
domestic actors behave? These questions are increas- interdisciplinary work. Our overview of theories of
ingly of interest to IR theorists axid policy-makers compliance is thus in many ways a review of the
alike. The core issue is the impact of law and legal- burgeoning body of 'IR-IL' scholarship.
ization on state behavior, often understood in terms The first part of this chapter defines the concept
of compliance. While the distinction should not be of compliance, distinguishing it from the related but
overstated, legal rules and institutions presume com- distinct concepts of implementation and effective-
pliance in a way that non-legal rules and institutions ness. We also focus primarily on compliance with
do not. Law and compliance are conceptually linked treaties, rather than with the broader categories of
because law explicitly aims to produce compliance rules that international lawyers tenn 'customary
with its rules: legal rules set the standard by which international law'. The second part reviews the


major theories advanced by IR and L scholars is the process of putting international commitments
through the 1990s, setting forth a chronological into practice: the passage of legislation, creation of
account. Part three situates these theories in the institutions (both domestic and international) and
context of a typology of six different sets of vari- enforcement of rules. Implementation is typically a
ables that scholars from both disciplines have iden- critical step toward compliance,but compliance can
tified as influencing the existence and degree of occur without implementation; that is, without any
compliance. Part four reviews a range of more effort or action by a government or regulated entity.
recent empirical studies of compliance, as well as If an international commitment matches current
the results of cognate analyses of regime design, practice, for instance, implementation is unneces-
legalization and the choice of hard law versus soft sary and compliance is automatic. Compliance can
law. The chapter concludes by identifying a number also occur for reasons entirely exogenous to the
of open questions. agqement: economic collapse in the former Soviet
Union, for example, has produced perfect, but coin-
cidental, compliance with many environmental
agreements. Or implementation may be thorough
but be overwhelmed by exogenous, uncontrollable
factors. Thus implementation is conceptually nei-
ther a necessary nor a sufficient condition for com-
pliance, but in practice is frequently critical.
We define compliance as a state of conformity or
Effectiveness is a concept defined in varying
identity between an actor's behavior and a specified
ways: for example, as the degree to which a rule
rule (Fisher, 1981: 20; Mitchell, 1994: 30). Some
induces changes in behavior that further the rule's
analysts distinguish 'compliance', in the sense of
goals; improves the state of the underlying
conformity for instrumental reasons such as avoid-
problem; or achieves its policy objective (Keohane
ance of punishment, from 'obedience', defined as
et al., 1993: 7; Young, 1994: 140-62). The con-
behavior resulting from the internalization of norms
nection between compliance and effectiveness is
(Koh, 1997; Kratochwil, 1989). For present pur-
also neither necessary nor sufficient. Rules or
poses, however, we do not gauge compliance by ref-
regimes can be effective in any of these senses
erence to motivations. Compliance as a concept, in
even if compliance is low. And while high levels of
our definition, is agnostic about causality.
compliance can indicate high levels of effective-
Compliance is also not uniquely applicable to legal
ness, they can also indicate low, readily met and
rules, though that is our focus here. Nor is the
ineffective standards. Many international agree-
impact of legal rules limited to compliance - as we
ments reflect a lowest common denominator
discuss below, legal rules may change state behav-
dynamic that makes compliance easy but results in
ior even when states fail to comply. The important
a negligible influence on behavior. Here is the
point to underscore is that most theories of compli-
source of the vexing question of the significance
ance with international law are at bottom theories of
of high observed levels of compliance. From an
the behavioral influence of legal rules. Indeed, in
effectiveness perspective more compliance is better,
practice the line between theories of compliance and
ceteris paribus. But regimes with significant
theories of the 'effectiveness7or impact of rules can
non-compliance can still be effective if they induce
blur. We return to this issue below.
changes in behavior. The key point is that the sheer
Political scientists have traditionally not distin-
existence (or lack) of compliance may indicate
guished legal from non-legal rules or norms, or
little about international law's impact on behavior;
have treated the difference as causally insignificant.
consequently, studies of compliance must be trans-
By cograst, most IL scholarship treats compliance
lated into normative prescriptions about institu-
with treaties and compliance with non-legally
tional design with great care.
binding commitments as driven by quite different
processes. Law qua law, in this view, carries partic-
ular obligations and implicates special norms of
behavior and decision processes. However, IR
scholars are increasingly interested in distinguish-
ing legal from non-legal rules, and IL scholars are
increasingly interested in 'soft law' or non-legal
rules. Despite this convergence, an interdisciplinary A review of the IR and IL,literatures on compliance
assessment of compliance theory must be sensitive can be organized into many different narratives: the
to these disciplinary differences in conceptualizing progression of each discipline separately; the con-
the dependent variable. junction of the G o disciplines as captured by cross-
Compliance is distinct from, but closely related cutting analytical categories; the ways in which
to, two concepts that are increasingly important in each discipline responds to the other. We tell the
contemporary regime theory: implementation and story chronologically, noting important work in
effectiveness (Victor et al., 1998). Implementation each discipline as it arises. The story is a bit longer,

. 1999). all developed accounts of international law ered international law under the banner of regime in which rules and institutions both reflect and t h e ~ r y The . coupled to a wide-ranging but largely to deny or downplay the relevance of a layman'? unweighted analysis of relevant factors. Increasingly. . 2000. however. noting politics and many others . clear theory of why arid when states do and do not tional law mattered' (Falk. Yet on the question immediately posed by tivist perspective. In fact. but in shaping or facilitating i t and systematized many of the insights generated by Looking back. trum? But he also claimed that a suite of factors - LR and IL scholars are working collaboratively.bounds linkage hrther below.its congenial to many IL scholars. many contemporary scholars have the international lawyers. Kratochwil. in the late 1960s. which the inter. For much of the This list of factors influencing compliance is Cold War. his work set the standard of the period and Enforcement requires an enforcer. to yield a the larger project of demonstrating that 'interna. tive power of rules and the importance of shared ing cases of compliance . The American Society of lates many of the functionalist and constructivist International Law sponsored a series of monographs insights advanced by IL scholars in the 1960s and on important international crises in which scholars 1970s. compliance is less a matter of political scientists .We skim the literature through the 1980s. States would however. anisms to prevent short-term defection at the expense of other states. knowledge and discourse in shaping identity and rism that 'it is probably the case that almost all interests (Keohane. At state behavior and systematically encourages states times the two disciplines interact dialectically. even likely. From a construc- original).' On the other hand.weighs in favor of only the most visible features of the landscape. assumed that compliance with international com- tional law in a primarily facilitative mode. and constructivist approaches to compliance was Henkin sugested that norms of respect for law shape already emerging. can and does perform many functions other than constraint. None the domestic vision of law as something to be enforced. Advan. to give IR scholarship its traced the 'role of international law'. such as McDougal. much of the scholarship during this period only establish regimes when it was in their long- laid the foundation for the compliance theories that term interest to cooperate. Nevertheless. as Henkin first published his celebrated book. He invoked legal process internalized identities and norms of appropriate arguments to show how the need for plausible justi. 1968). they are starting to the time' (Henkin. Regime theory was genu- been inclined to see writers in this period as making inely a theory. due. After Hegemony and its progeny formalized mining the outcome. rational calculation or imposed constraints than of Henkin is less clear. [I9681 1979: 47. Law. was more on regime formation than largely in compliance with international law. Replacing Law with Regimes The leading legal scholars of the Cold War era. The initial focus. nations observe almost all principles of international While constructivists in IR have not generally law and almost all of their obligations almost all of tackled compliance per se. law on behavior. It a virtue of necessity: the Cold War froze interna. reciprocity. But once assured that other states were cooperating and complying. This produces through the 1990s. issues as well as economic problems and expanded gests. embracing politics the repertoire of causal mechanisms through which and policy and explicitly focusing on the impact of regimes facilitate cooperation. not in deter. How scholars demonstrated its applicability to security Nations Behave. 1988. It is a line of theory that is particulal~ fication and armwent in interhational law. less. however. Schachter and In the 1980s American political scientists rediscov- Falk. Henkin offered instead an argument of move. They thusneeded mech- have dominated the debate in recent years. a divide between rationalist cing an argument common among IL scholars. reputation. national system manifestly does not have. he ranges well beyond law. Early constructivist scholars selection bias that causes critics to focus on the rare emphasized mechanisms that drew on the norma- cases of non-compliance rather than the overwhelrn. As his title sug. remains a touchstone for compliance scholars. at to move closer to the compliance end of the spec- other times they speak past each other. one that would become much decisions in myriad ways that often escape attention more apparent in the focus on regime compliance because they are quiet and routine. Chayes. discursive qualities . ~ famous 'Regimes' volume recapitu- advance state interests. IL scholarship on compliance was part of remarkably rich. each should How Nations Behave perceive its own interest in following suit.why do nations comply? . er~phasisin (Checkel. was compliance.hence his famous apho. Risse et al. although it took many different guises. 540 WUDBOOK OF INTERNATIONAL RELATIONS but ultimately more interesting and enlightening. behavior. review the 1990s in greater detail. He argued that nations behave however. domestic . we discuss this necessary procedural. mitments was possible.2 The standard comply. but compliance in almost every case. nonn observation. Regime theory flourished through the . impact. Henkin. or rather a collection of theories. 1989). It is too rich.1980s.

the not simplicityper se. compliance is secured .to Appellate Body and new dispute settlement rules to whatever degree it is . Franck invokes theories of both rational expectation on the part of state actors . Political scientists such rule. the rule must be able to accompanying hoopla refocused attention on clearly 'communicate its intent' in specific situa. Textual determinacy refers to the clarity In Europe. the defensive of the Cold War years. pull. he provides a way to engage complex political issues presented the theory as a general theory of compli. While Franck did not direct political interference. 1981. por- (or cycle) of causation between right process and trayed the ECJ as the relatively docile creature of state behavior. Speaking for the international legal profession. 1999). 1989. The legitimacy of rules exerts a 'compliance judicial bodies also saw their role and power grow pull' on governments that explains the high in the 1980s and 1990s. strategic interaction. drew on the legal literature in developing theory faced criticism fi-om IR scholars: &om a (or reviving) a neofunctionalist account of compli- rationalist-instrumentalist perspective. created pliance is its focus on rule-making processes. 'supranational' courts and tribunals proliferated cal era' (1992). coupled with the fall of the Berlin Wall and the promise of a new era Compliance with International of global cooperation. but compliance pull is also the measure of Slaughter7 and Mattli. 1997: 493). a key player in this process. rather than compli. This global turn to judicial bodies ance itself. in turn determines the compliance pull of a Stein. in erful accounts of how the ECJ had gradually secured Hart's influential schema (Hart. Legitimacy Rules legal process and obligation. They ment is essentially circular (Keohane. implicit in these ception of a rule as legitimate by those to whom it moves to create new judicial institutions was a is addressed' (1988: 706). The result was that explicitly engage the then-emerging constructivist European governments could not ignore or reject literature. With the end of the Cold War both international and Franck proclaimed that 'we are in a post-ontologi. IL scholars were finally off under anarchy. with many analysis. Garrett countered with further evidence of or bureaucratic politics.6 Members of the tional law as law. rather. elements. The recurring image is of international society rather thm cooperation By the end of the 1980s. and Politics Symposium. Legitimacy determines compliance state interests (Garrett and Weingast. Weiler and Mancini offered detailed and pow- rules about rule-making. the World Trade Organization. ance with supranational judicial decisions. much less the relevance. and spillover of various kinds. between supra. Community had ever envisaged (Mancini. the argu. less overtly power-laden. argued that the ECJ had adroitly built bridges What distinguishes the legitimacy theory of com. Ultimately. Legal scholars and judges such as degree a rule fits within the normative hierarchy of Stein. theory is non-instrumental: rather than game theory 1993). One of the most significant observed levels of compliance of international law. Franck's scientist. While influential in IL circles. in a more neutral. The and thus opening themselves to charges of flouting theory of state behavior embedded in legitimacy the rule of law domestically (Burley and Mattli. This is single market in the European Community. 1991). of interna. Some existing factor. created an opening for a new Court Decisions scholarly focus on the particular properties of law. 1990). Symbolic validation is the communication of tion. macy. he set forth a bold argument about international community created war crimes tri- compliance and legitimacy (Franck. Together. and ance in which legitimacy is the crucial causal perhaps more predictable manner. his argument is quite consistent with ECJ decisions without countering their own courts many constructivist assumptions and insights.and sub-national actors. on the other hand. by creating the perception of legiti. bunals for Rwanda and Yugoslavia. 1992 marked the completion of the and transparency of the commitment itself. of Justice (ECJ). 1994). Despite this prefatory belief that legal decisions are distinctive. ~-FVVATIONALLAW. that law hedging of dependent and independent variables. A decade of obsession with 'regimes'. the process and mechanisms of European integra- tions. compliance with its judgments and created a far these four characteristics determine 'right process'. Franck defined legitimacy in terms of four implications for compliance theory. The ECJ. Freed from the need to demonstrate (New York University Journal of International Law the least in part by the per. Adherence means the the single market. credited by some with having 'constitutionalized' Coherence refers to consistency in application and the Treaty of Rome and laid the legal foundation for in context with other rules. 1993). and interesting examples was the European Court This notion of compliance-pull. and exploited its nomi- the qualities of rules themselves. Weiler. rather than on nally apolitical character to insulate itself fi-om rational. IR AND COMPLIANCE 541 . negotiated an Franck's centra! thesis was that 'in a community international criminal court and added a standing organized around rules. was authority through ritual or regularized practice. more powehl role for itself than the founders of the Right process. is actually the dependent variable of the spawned a wide-ranging literature. the theory claims a chain as Garrett and Weingast. a lawyer and a political legitimacy. or secondary rules.

They may both be the product of a design such as judicial independence. 1995. larities and differences. Whether the WTO has struck the appropriate the resulting debate extended for several years balance and achieved 'optimal legalization' is now (Garrett.. pliance research is to sort out some of these simi- 2001. but challenges the view that further legali. 542 HANDBOOK OF INTERNATIONAL RELATIONS and apparent acquiescence on the part of the ECJ. A number of legal scholars begun to fight!). and the creation of In 1993 Chayes and Chayes published a general the WTO substantially legalized the GATT dispute theory of compliance in International Organization process. perspective. directed to comply. among different types and levels of courts in one Many readers are likely to draw an immediate country (Slaughter et al. arguably the most widely studied and influential is that of the GATT/WTO system. whether At the same time. 1997. The key issue in this debate was the extent to the impact of legalization on compliance. Stone Sweet. cross-national variation. Mattli and Slaughter. First. explicit calculation of costs and . that legalization of the dispute process altered com. 1993). decisional pliance. given to other tribunals. 1998a. 1994): the decisions of international tribunals. the two more general theories of effective supranational types of compliance are clearly deeply related in adjudication highlight features of institutional many ways. 1998). In 1997 Helfer and cific parties in a specific dispute. As many which the ECJ had engineered greater compliance have noted. and variation of the current research below. 2001. This propen- automatically binding. such as the Inter-American Court that compliance with domestic law is often mea- of Human Rights and the NAFTA Commission on sured in the first instance by a willingness to com- Environmental Cooperation (Knox. non-compliance with WTO rulings is with its decisions relating to the Treaty of Rome and likely to remain a problem so long as the system subsidiary Community legislation than the member permits long delays between bringing suit and a states either expected or desired. This approach tied way among IR scholars. Scholdrs the WTO .tribunal decisions are targeted toward spe- trade and the environment. such as a more general predisposi- private litigants. Jackson (and many others) together many themes in the IL literature with insist that the steady shift to more formal rules and insights from IR theory. because intema- with those decisions and hence the effectiveness of tional legal rules are largely endogenous. The theory was 'man- Hudec. compliance is efficient from an internal.2000). Hudec. Managerialism begins with processes in GATT dispute resolution. 2001). an not only the dispute resolution process but the trade assumption of rational behavior predicts that states regime as a whole. when and how the ECJ and domestic litigants and courts. and instinctive distinction between compliance with Weiler. 1999. The number of dis. culminating the premise that states have a propensity to comply with the WTO provision that panel decisions be with their international commitments. has enhanced compliance sity stems from three factors. or they may reinforce domestic and transnational society. On the other hand. et al. 1998.produces such as Weiler.. Why. Two leading trade law figures. Proponents of this final ruling and so long as the compensation that view emphasized domestic linkages as the key causal may be authorized is limited to plaintiffs 'damages' mechanism in fostering compliance . 2001). compliance with rulings remain critical questions tinctive variants of this basic explanation. Differences certainly beyond Europe to issue-areas such as human rights. exist .. Part of that equation is . the degree of 'embeddedness' in tion to uphold the rule of law. we discuss some linkages. Goldstein and Martin.and the GATT before it . Once a complex bureaucracy is zation will have any impact (Hudec. 1999). 1997). on the other hand. prefig. forms of enforcement in favor of collective man- uring the broader studies of legalization now under agement of (non)performance. Garrett debated by IR and J L scholars alike (Barfield. Stone Sweet and Alter developed dis. 1998. have long debated the impact of legalization agerial' in that it rejected sanctions and other 'hard' on compliance with GATTTWTO decisions. and compliance with more supranational court decisions has extended well general international rules.9 Second. Schneider.links between rather than defendant's gains. Mattli and Slaughter. TheorizingAcross the IR-IL Divide putes before GATTTWTO panels has increased dra- matically since the late 1970s. the decisions may or may not have have applied the 'checklist' developed in this article wider precedential value. 1995. Jackson and (Chayes and Chayes. Volcansek. agrees have an interest in compliance with rules. Other ply with the decisions of domestic courts. and the reliance one another. the background Slaughter distilled the experience of the ECJ and conditions that ultimately gave rise to some kind of the European Court of Human Rights in terms of adjudication may suggest that the parties either are three sets of factors that appear to have contributed particularly likely or particularly unlikely to comply to the effectiveness of those two tribunals (Helfer (they may be exhausted or they may have just and Slaughter. One of the challenrres for future com- w on progressively linked caselaw (Keohane et al. the study of compliance with courts or arbitral panels. Among international courts other than the ECJ. access by deeper variable. exploring that have been taken up by many scholars interested the motives of domestic courts for engaging in such in compliance and the-role of law.

forward-looking determine the level of enforcement and hence the and facilitative in nature. This theory emphasizes the strategic tively flat and formal conception of law. it can be to one another. Extensive review of performance overall cooperative system while permitting some can create assurance among the parties. ment theorists is important and ongoing. tacit process. and monitoring treaty obligations' (Chayes Thus enforcement theory suggests that much of and Chayes. rather than the defector's gains." But managerialism pro. Yet they argue deductively through more specific rules (though specificity may that these weak sanctions make sense when the come at the price of increased bargaining costs). Downs and Prescriptively. its policy inferences a& dangerously of compliance. Chayes and Chayes's theory of Rocke argue. Following Henkin.helps should be non-confrontational. At the same time. ating. particularly the 'time and harsher punishments to deter non-compliance and ' energy . this provision 'guarantees that compliance suggests several ways to improve com.. [that states devote] to preparing. The and the nature of regime commitments .specifically. the central role of when contrasted with the complexity and range of enforcement. While instances of non-compliance 379-80). If 'no-fault' theory of compliance. negoti. the domestic interests affected and the are generally inadvertent. I R AND COMPLIANCE benefits for every decision is itself costly.. INTERNATIONAL LAW. managerialists argue. they argue. Law can be when IR and IL theorists were increasingly talking understood as rules and as process. Downs et al. the evidence of high compliance with international Chayes and Chayes conceive of compliance as a law is merely indicative of the 'shallowness' of continuum with the appropriate or tolerable level of inany international agreements and should not be compliance set through an interactive. for Rocke and Barsoom put it. moderate sanctions Dreserve the Mitchell. and institutions (Downs. The ing that the commitment itself is ambiguous. political scientists are often less con- Of central importance to the political economy strained than lawyers in challenging those under- approach is the relationship between enforcement standings and demanding empirical evidence. 1998). 1999. sustain cooperation. 1998. The Anti-Ballistic Missile regime. protection) is taken into account. power of informational uncertainty about domestic Agreements can promote compliance by incorpo. Assistance. the gains from cooper- norms induce a sense of obligation in states to ation grow. the empirical findings of example. 1996). used the most extensive enforcement systems. This sense of cally . As regimes deepen. The overall focus domestic demands for non-compliance . called the political economy or enforcement theory Political scientists all too often assume a rela- of compliance. If domestic parency referring to the adequacy. demanding greater with a vested interest in compliance. In a trenchant critique.. demands for non-compliance (in this context. non-compliance. is empirically self. Yet incentives to behave opportunisti- comply with legal undertakings. yet were not fully challenged by the contaminated by selection problems' (1996: United States. if not crossed. availability of information about policies and they' could be incorporated into the agreement actions of other states (Fine1 and Lord. between commitment and performance. embraced and enforced: it is both an instnunent of Rocke and Barsoom advanced what is sometimes its makers and an autonomous entity. As . l4 " vides a synthesizing theory that justifies and draws The debate between managerialists and enforce- them together into a coherent whole. As Chayes and Chayes observed levels of compliance. extant changes from the status quo. Third.'' Instead. Downs. [GATT sanctions] will not function as an effective pliance. the deepest regimes have in fact interpretively contestable treaty provisions. trade rating a transparent information system.uncertainty about compliant states back on track. many of their prescriptions are already com. politically necessary acts of non-compliance. the margin tant but .'O enforcement is the key to compliance. itself. more demanding cooperative clearly occur. 1993: 1867). in this case. however. accuracy and demands for protection were fully known ex ante. As Downs. ambiguity can be reduced deterrent' (1995: 134).-. agreements as a result require correspondingly evident in state behavior. For example. with trans. from and. and the endogenous quality of rules lawyers' understandings of law. the key managerial claim is that they violate the agreement .also grow. tolerated several installations by the the managerial school 'are interesting and impor- Soviet Union that skirted. agreement may also create a domestic bureaucracy their 'depth'. at least dimensions of cooperation. can help put non. or precise level of enforcement can be understood from unavoidable or unanticipated time lags based on state incentives. incapacity or serious resource constraints. optimal regime.. In deeper. is one with some mon diplomatic practice. The politically note. It has deep 'On Compliance' and later The New Sovereignty roots: at its heart it reflects a fundamental division launched an important and heated debate about the about the nature of law that permeates domestic as sources and significance of compliance at a time well as international jurisprudence. In the GATT. mean. Thus a domestic attribute . For these sanctions for non-compliance correspond to the vic- reasons the managerial model has been dubbed the tim's losses.13 either technical or financial. as noted. Deeper obligation. sometimes generalized to more demanding cases. They result from state costs and benefits involved are more significant.

They may not test adoption of elements of the Law of the Sea the theories they generate. interpretation and internalization. such as compliance is driven by the efficacy of domestic Bull (1977). are internalized. theorists are looking to IL schol&ship for data. Koh's definition of obedience hypotheses and empirical insights. A core implication of Koh's argument is that lar the work of the English School scholars. the theories themselves Convention. 'obedience' and internalization. instances of internalization. Even managerial theory domestic attributes of the state in question. This transnational debates and plenty of propositions for empirical legal process has three sequential components: testing. Our broadly chronological review of the literature Incorporation in turn stems fiom what he terms through the 1990s reveals a number of vigorous 'transnational legal process'. tailed with work by legal scholars long interested in This argument closely resembles the 'spiral model' the normative basis of compliance (Checkel. it taps into the Obedience is rule-induced behavior caused when a widespread belief that compliance with legal rules party has 'internalized [a] norm and incorporated. it may be tempting to dis- variables . States disciplines. As forward by IL scholars on the'grounds that they are a result. HANDBOOK OF rNTERN~ATIONALRELATIONS the management-enforcement debate demonstrates. 1999). Once such a community construes a norm and finds a state in violation. more precisely. 1998). doing so downplays a social context within which non-compliance is potentially major explanatory variable (Keohane. begin with they generate new ideas. of human rights norms developed by Risse. Ultimately. transnational process and non-compliance comparatively. IR produces obedience rather than simply compliance. rather than explaining why and when states insuff~cientlyrigorous or methodologically flawed. 1998. These trans- different policy implications: it also invites onlook. In some cases internalization involves slow IL scholars are often more creative and insightful acquiescence to an emerging standard governing a in conceptualizing what they experience both as coordination problem. 1997. zations that an interpretive community develops. iterated. 1990). perhaps because. as was the case with US scholars and as working lawyers. whereby international legal norms seep into. this analysis seemingly puts domestic politics and structivist theory. legislatures and international orgazi- further research. institutions in a central position. norm entrepreneurs and issue-networks (Keck and the clash of different understandings can yield very Sikkink. and become embedded in domestic ' In the 1990s the rise of constructivist theory dove. erature on the grounds that it is impenetrable and a pathway to norm incorporation into domestic largely irrelevant to the pressing practical problems law .or. however. Currently. with its focus on Koh's theory of 'obedience' with intemational law. anticipation of enforcement but via the incorpora- tion of rules and norms into domestic legal systems. Koh instead describes an Lawyers similarly often dismiss much of the IR lit- empirical pathway to obedience .it is qualitatively different than compliance with other into its own value system' (Koh. a small but increasing number comply with or obey rules because of variations in of legal scholars are drawing on IR paradigms to this process of internalization. From the per- conflates the theory's independent and dependent spective of LR theory. sorts of rules or standards and cannot be captured Thus obedience is compliance motivated not by through rational choice or strategic analysis. Franck's legitimacy theory sug.and details the ways in which transnational lawyers observe. 'And it yields a very rich agenda for these courts. what creates compliance with an international Kratochwil (1989) and Ruggie (1975). Ropp Both strands of research built on or reflected earlier and Sikkink (1 999).And because he does not look at compliance ment in a legitimate. Koh cannot say of legal production and interpretation cabins state when non-compliance should occw or what the behavior vis-li-vis international law. follow intemational rules. 'a complex process occurs. Nadelmann. Much IL rule is its transformation into a domestic rule. addressed.and it is in which model. forthcoming). in particu. not on specifically legitimacy. While scholarship echoes the flavor and ontology of con. and early constructivists such as law. Yet his analysis has A more recent exemplar of this approach is been influential.internalization defines obedience but also count many of the arguments and analyses put explains it . 1998: 628).limiting the power of the argument. It also reveals growing links between the interaction. optimal response should be. Nevertheless. As other stresses the key role of norms of behavior and the commentators have noted. In these norm-oriented theories enrnesh. But both sides risk losing the actors and practices influence this process. treatments of the role of norms and law. legal and political processes' (Koh. Koh argues that the gested that state behavior is determined not by effectiveness of internalization depends primarily rational calculation but by normative processes and on the characteristics of the rule in question. new hypotheses and sharp . 1996: 205). national actors require stages upon which to interact- ers to determine which empirical situations best fit what Koh terms 'law-declaring foray . Full internalization refine their analyses (Slaughter. forest for the trees. The most theoretically interesting may also be insufficiently specified.

mix multiple types of vari. they simply disagree on the impact relative importance of diffkrent variables. Issues such as trade. For also provide an overview of the breadth of possible example. conduct rules can be more or less specific.a evant behaviors are more transparent than others. chmge may lower aggregate compliance costs com- lying substantive problem. the disadvantage eration that must be achieved. particularly but not exclusively those From an enforcement perspective. different understandings of what compliance ter how they interrelate (Finnemore and S~klunk. and determination to exam. Compliance with the other hand. closely related to problem struc- structure. cise causal relationships. Yet their agreements. domestic-international interactions and complex social learning. solution structure.and deliberately allowing them to be more easily monitored. They would thus design very different 1998: 909-15. The advantage of these zipproaches is their nature of the problem: the type and degree of coop- potential for multicausal synthesis. 1997). The activity that is chosen as the primary focus of regulation can be more or less transparent and hence more or less monitorable (Mitchell. the employment of are not mutually exclusive. notwithstanding their many differences. incentives to comply in coordination games differ thereby promoting compliance. requires. Although these categories of the primary rules of behavior. the The contemporary study of compliance is becoming regulation of diffuse. Some theories of and nascent international regimes (Raustiala. The Problem Structure choice of rules can raise the costs of compliance or lower them. IR scholars. Disaggre. The debate over compliance with ECJ decisions problems that involve small numbers of states may illustrates the intersection of problem structure and dampen the public goods nature of enforcement solution structure variables. problem of deep cooperation . not necessarily to exclude or disprove the opposition. compliance. They programs. private actors. which require pervasive and costly ingrained skepticism. 1998). out models thah grappling with pressing policy whlch requires little action by most states. or the use of capacity-building to help situate and compare different theories. norms. the demands imposed and the resulting domestic cal testing. institutions to address these problems. non-transferable pollution targets. Managerialists share is the difficulty of disentangling and weighmg the this emphasis. the ECJ was an ideal solution . often seem more focused on working International Whaling Convention. 1997: 541-7). should questions . pared to discrete. influences on compliance as a whole. IR AND COMPLIANCE 545 anaiyses of what they observe. of the problem structure. comprises the specific institutional design illustrate them with examples drawn from the choices of agreement. To clarify the causal basis of many of the theories we have reiiewed. on the observed compliance. domestic regulation action. These design elements range widely. share a common focus on explicit treaty commit- ments in regulatory arenas marked by collaboration kames. They reason that failures gating compliance theories into their component to comply are not due to the depth and severity of parts should help sharpen and refine them for empiri. both managerial and enforcement ine as wide a range of cases as possible to avoid approaches emphasize variables of problem struc- generalizing from a very particular set of particulars. The granted power to the ECJ as a pre-commitment regulatory scope and complexity of the underlying mechanism to help them overcome predictable problem can also influence the capacity to comply obstacles to achieving their long-term goals. they provide a template punitive measures. and the inter- more self-consciously theoretical and careful as it section of pre-existing domestic regulatory regimes becomes more interdisciplinary. Similarly. Given and hence the likelihood. from those in collaboration games.con. of the problem structure. We describe these categories briefly and ture. but rather to the capacity to comply and impact of particular variables but to understand bet. insistence on specifying pre. necessary enforcement institution flows from the ables. for example. the choice of tradable The category of problem structure encompasses pollution permits in the Kyoto Protocol on climate strategic interaction and the nature of the under. Garrett and his co- efforts and thus enjoy higher levels of compliance authors argue that states faced the problem of how than comparable multilateral agreements. arms control and environmental protection are marked by the complex nature of the underlying problems. the nature of the developed by lawyers. domestic linkages. for example. ceteris paribus. we cluster explanatory variables under six broad conceptual categories: Solution Structure problem structure. to deepen integration among themselves .o v q the short or long term . be higher than compliance with many narcotics fronting states in the intemational system. To illustrate. INTERNATIONAL LAW. At the most basic level. They challenge IL scholars in productive ways. such as the nature and content theories reviewed above. Some rel. solution process. Moravcsik. ture. and intemational Solution structure.

Mainstream legal analy- Theories employing process variables of this type ses argue that the status of a commitment as law are largely found in the legal literature. Stone Sweet. argument. 'right process' .'~ norm or rule at stake. more likely to trigger justifications the qualities of the processes by which the institu. Slaughter. 'to demonstrate that they ECJ. drawing on his variables relate to the process by which the legal legitimacy theory. accounts and hence there is substantial overlap with These authors argue that compliance with EU rules is the previous category of solution process. Non-compliance with interest in resolving problems of compliance legal norms usually entails particular forms of justifi- (Chayes and Chayes. the role of ECJ to function more like an international court. changes that As discussed above. ness rather than one of consequences (Finnernore cal impact of legal discourse. and be internalized. and Sikkink. they are more likely to which the cooperative solution is developed. Solution Process results fiom long-term participation in a norm- governed process. This 'construction' of cation. solution depends primarily on the characteristics of the process ~ariables. One can point to seemingly effective state behavior. but the formal or infor- on transnational rather than international legal mal nature of international agreements may have dif- process. socialization looms large in many norm-based without direct means of enforcing its judgments. More recent work in IR theory focused Similarly. to the posits that the effectiveness of internalization degree it engages with compliance issues. Franck argues.that tion has 'an inherent pull power that is indepen- compliance stems from the legitimacy derived from dent of the circumstances in which it is exerted. attack means that the USA is more likely deveioped within an international institution estab. and Sikkink. much more a function of solution structure. such as the Helsinki Final drawing on constructivist LR literature and focusing Act. Because norms are collective. that can gradually contribute toward a common 1993: 5... 1995). suggesting that of legal production and legal interpretation. to challenge these claims. It also 'right thing' in a particular or general context. compliance-inducing properties vary even among Legitimacy theory is similar: many of Franck's key legal rules. or not. against . Franck and Koh take norm- occur due to enmeshment in a transnational process based analysis a step further. in turn. But states also operate in let the ECJ build an independent power base through part by figuring out. and his overarching claim . thereby harnessing the symbolic and practi. Thus.the problem. . 1998: 888. but would point out that some states adoption or inculcation of new norms within states were prepared to conmiit themselves more whole. 1998: 903). The inclusiveness. Creating thQ with norms instrumentally. but in Constructivists acknowledge that states may comply ways unanticipated by member states. identity and heartedly than others and that they all expected the behavior. and specific rules allowing national courts to have adapted to the social environment' (Finnemore send cases involving EU law to the ECJ for decision. but these implicates norms of obligation flowing fiom the spe- theories often draw upon a societal conception of cial role of law as an ordering principle within soci- international relations well developed by the eties. may lead to changes in state interests. emphasis in original). For a norm-based theory the answer must lie in the ceived legitimacy of the process of creating properties of norms themselves: both in their sub- collective rules may influence the degree that states stantive character and in whether they are legalized or other actors accept and internalize those rules. Alter. the links to domestic courts and constituencies. W i D B O O K OF INTERNATIONAL RELATIONS due to the tradition of judicial independence and to Nonns the likelihood that national courts would enforce ECJ judgments.'' Emblematic is the statement in a leading legal English Scho01. or being socialized toward. 1998).'~ their perceived interests over time. socialization. that each legal rule or obliga- rule is developed. fairness and per. Koh makes this argument explicitly.. States come to obey through changes in ferent causes and consequences for c~mpliance. This justificatory discourse can bound the common interests through repeated interaction is range of possibilities and alter the costs of non- the causal mechanism for how legal process affects compliance. in the event of deviation. March and Olsen. Koh's transnational legal process theory on deliberation and argument also reflects.'~ treatise that 'the fact that the USA has promised by IL scholars have long emphasized the ways in treaty to defend the European members of NATO which the legal discourse created by a treaty and .17 Socialization is the causal mechanism or pathway through which norms operate. and to what degree. they may follow a logic of appropriate disputes.' Mattli. In served to transform many political disputes into legal other words. Why? tion operates. The . Under this broad rubric are variables focused on the Weiler and others generally agree on the diagnosis of strength and quality of international norms. non-binding agreements. to honor its promise than it would have been in the lishes a common language and shared assumptions absence of a legally binding promise . But some norms apparently have Solution process encompasses the methods by more influence than fundamentally a solution process and that varies from rule to rule' (1988: 712).' (Akehurst.

noting further that at rience of the EU. not necessarily lead automatically or quickly to can in turn shift the compliance preferences of improved compliance' (1998b: 533). in question respects institutional channels for medi- tant factor in explaining relative compliance levels ating domestic conflict and protecting property between the ECJ and other supranational tribunals rights than with a participatory or competitive polit- is the ability of the ECJ to hook into domestic rule ical system' (2000b: 599400).20 This linkage can Slaughter. Mattli and Slaughter argued that an impor. fol- incentive to promote enforcement. Such opportunities simply do not arise with Yet a further distinction should be drawn supranational tribunals exercising jurisdiction over between the propensity of liberal states to comply states without a strong domestic rule of law tradi. shifts in the preferences always hold. whatever the proximate cause. arguing porate an ECJ ruling without risking the subversion that the data indicate that democracies -are in fact of the entire domestic legal system (Alter. there is more reason to asso- tic factors: political. cratic governments . measuring democracy seek remedies in supranational tribunals and moni. Slaughter. argues that 'the structure of domestic insti- this willingness. In short. to the rule of law generate the types of cases that are size structural links between international institu. 2000). and democratization does of societal actors. for which liberal democracy is a . property rights. IR AND COMPLIANCE 547 Domestic Linkages least in the human rights context. Helfer and Slaughter generalize these claims sions of supranational tribunals. legal.tions are designed to be enforced through the provi. Simmons. means of dispute resolution and by key institutions. On the contrary. national and £tom thence domestic legal processes. More generally. operation of the agreement or regime may itself argued that legal relations among liberal states are alter the preferences or power of domestic actors. defined 'by tor the results. however. 1998). Busch and of law traditions. liberal states appear more likely than themselves as theories of compliance but provide illiberal states to create and ~ . likely to be different than relations among non- promoting or inhibiting compliance.2001). in his study lower courts' willingness to interact with the ECJ. Based on a governments. Koh's entire theory the willingness of their citizens to employ peaceful of transnational legal process depends on the incor. but relies equally on the impor. states' as states with some form of representative nisms and making them work to the political and democracy... separately fkom 'rule of law systems'. Many scholars also point to (2000: 34). following tures for regularized monitoring and implementa- Weiler. Second. 134). Helen Milner's work on protec. tions. such as a strong court system' (Kahler. relationship between domestic-regimetype or insti- sion of access to domestic actors who have an tutions and propensity to comply. 1998. as do analyses of and Victor suggest that. economic. of compliance with European social and legal Alter has subsequently challenged the uniformity of norms. An even further step is to posit a more general . with their associated effects. 1995). 1997). operate in at least three distinct ways. study of the international monetary regime. 1998: less likely to comply (Busch and Reinhardt. and constitutional protections of Several of the theories reviewed above rely civil and political rights (1995: 509). and Doyle. the lowing Keohane and Nye. Mattli and Slaughter. INTERNATIONAL LAW. Here the results get more compli- Closing the loop. Other research has disaggregated the the desire and capacity of individual litigants to concept of a 'liberal state'. possi. 1988. cated. Henkin. 2001). Third. well-suited for supranational tribunals (Helfer and tions and domestic actors. influence on the rule of law in international rela- ble? Here theorists must look to a range of domes. states with strong domestic legal systems premised on a cornrnitnient A growing number of compliance theories empha. European governments cannot Reinhardt similarly cast doubt on the propensity of flout the judgments of domestic courts that incor. Yet under what conditions are such linkages to Simmons doubts 'that democracy itself is a positive domestic actors.21She defined 'liberal and link the likelihood of establishing such mecha. Some institu. Checkel. This generalization does not Moravcsik. some fibera1 states or between liberal states and non-lib- theories look beyond individual domestic actors era1 states (Slaughter. tutions seems to be key in explaining variance in tance of domestic actors to overall compliance lev.& c i ~ a tin e the-struc- relevant insights. 200 1: 674. 1997: 3334). democracies to comply with GATT rulings. emphasize both the ability of the ECJ to tion review that often enhance compliance develop links with national courts and the European (Raustiala and Victor. social and ciate compliance with the extent to which the polity cultural. poration of international obligations into trans. Brown Weiss and Jacobson conclude: tionism in advanced industrial states suggests that 'democratic governments are more likely to do a international regimes may create changes in the better job of implementing and complying with preferences of domestic actors that lead to greater international environmental accords than nondemo- incentives for compliance (Milner. the mechanisms through which compliance occurs' els (Alter. at least in environmental different issues in world politics that do not present cooperation." Raustiala strongly on domestic linkages. a market economy based on private legal systems of participating states. with international rules generally versus the deci- tion. Although the expe- to all supranational tribunals.

far less tangible benefits. liberal states with sion of security communities (Adler and Barnett. 1995: 27). Compliance is consequently rising in defined boundaries. the relationship ness. International Structure 2000). least in the feeling' that Karl Deutsch identified as a key dimen- context of h k a n rights regimes. of compliance by embedding states in regularized processes of cooperation that are mutually reinforc- ing (Ikenberry. closer to the sense of 'we- for instance. In their international affairs. Interdependence. empir- compliance? This 'connection to the rest of the ical case studies help refine theoretical hypotheses world and the political ability to be an actor in it are and determine the conditions tinder whch particu- more important than any tangible benefits in lar claims are valid or invalid. however. 27). the key variable explaining . Yet compliance instead that fundamental changes in the sbicture of remains a relatively young field. The United States has shown only h variables discussed above. Brown Weiss and Jacobson ence but as 'status'. which in turn depends critically have attempted such a venture.from a largely unregu. similarly. which highlights mutual cern. Europe and their willingness to bear remarkable Overall. of regimes addressing a wide array of issues raised organizations. increased compliance is a structural shift. Many core con- the international system .states with deci. . systemic or the desire to participate in international institutions. the relationship between liberal democracy burdens in the hope of becoming a member of and compliance is more complex and less predictable NATO and the EU identify both rational calcula- than often assumed. international structural variables may also alter as well as to enter into specific agreements. Highly vary along all sorts of historic. has demonstrated that at. How do these structural transformations affect 1998a). Nevertheless. These debates will have to be resolved empirically. cepts are debated and empirical testing of compli- lated place to a landscape criss-crossed by repla. powefil when combined with the domestic-level 2000: 220). The lack of systematic. will compliance levels and compliance choices. Yet notwithstanding their difficulty. national institutions than others. Overall. tions about security and economic benefits and con- structivist yearnings for political validation of a particular social and historic identity (Checkel. Bipolarity may increase compliance with rules within alliances while multi- polarity may decrease it by inducing shifting bal- ances and creating credible threats of exit. 548 HANDBOOK OF INTERNATIONAL RELATIONS prerequisite to admission.may in fact be inverse in many cases. Studies of newly ance by liberal andlor democratic. autonomy and bodies. 1995:. Hegemonic systems may permit a single state to The theories of compliance discussed above have coerce compliance or use its market power to proliferated against a backdrop of the rising induce compliance. ance theories is limited. Also noteworthy is the remarkable and largely dependence and vulnerability but which still contemporaneous increase in international judicial assumes a baseline of separation. Some states are more limited willingness to abide by rulings of the likely to seek status through standing in inter- International Court of Justice. The complexity of these regimes and their internal economics and politics' (Chayes and the powefil political and economic interests influ- Chayes. This transformation goes enced by them have made compliance a central con- beyond interdependence. compli. and institutions that shape [states'] by the deepening economic and social ties among relations with each other and penetrate deeply into many states." ficulty of the task (Brown Weiss and Jacobson. Sovereignty is now nature of the claims and prescriptions that compii- best conceptualized not as freedom fiom interfer. the international system itself has become a thick among the OECD states. 199819). ment mechanisms likely to change domestic law This structural explanation is likely to be more (Helfer and Slaughter. 1997: 332-3. appears to offer strong explaining compliance with international regulatory evidence of covariance between compliance 'with agreements' (Chayes and Chayes. logic here is a constructivist logic of appropriate- ply with supranational decisions. democratizing countries in Eastern and Central sions of the WTO Appellate Body has been mixed. Chayes and Chayes argue importance as a field of inquiry. Chayes and Chayes advance a salience of compliance issues in contemporary more unconventional structural variable. 1995: 26). it seems likely that By generally influencing state behavior. Moravcsik. political and even institutionalized systems may create positive spirals ethnic lines. strong and stable domestic legal systems may be 1998). with results that on participation in international regimes (Chayes require further testing and that demonstrate the dif- and Chayes.have changed the multi-cue comparative studies has restricted the very meaning of sovereignty. The domestic judicial decisions and willingness to com. particularly view. Moravcslk. rejecting cost-benefit calculations in favor of . has led to a panoply 'tightly woven fabric of international agreements. tory agreements and institutions . ance theorists can offer. less likely to enter into regimes with strong enforce.

and the light of new information (Victor et al. focus on compliance can obscure other important and the importance of finding objective ways to aspects of the role of legal rules. enforcement structures in promoting compliance 2000a). a Non-Compliance Procedure. the GEF was providing funds for the incre- ing compliance with panel decisions were economic. often using statistical analyses Protocol highlights the ways in which actual of GATTWTO disputes. 2000. democracies were comparatively less likely to plans. depletion. As Raustiala and Victor argue. By choice between 'hard' and 'soft' law. indicate that (GEF). In terms Protocol's Non-Compliance Procedure.. cede the issuance of a ruling (Busch and Reinhardt. regime design. creating an ongoing process of performance review. indicates a more mixed regimes often combine enforcement with manager- story about the influence of GATT enforcement that ial elements . 1998). INTERNATIONAL LAW. While the role of measure intersubjective understandings (Simmons. Ziim. compliance with the complex regulatory require- work. Protocol . gories are cutting edge areas for IRIIL scholarship. European and international levels ronmental treaties contain implementation and (Joerges.'~ Consistent with the prescriptions of enforcement These review institutions. scholars Multilateral Fund for developing country parties working in these areas could usefully examine their and various expert 'assessment panels' . 2001a). Busch and Reinhardt's findings for careful validation of claims. In addition. an organization formally external to the the GATT dispute process was ineffective. 2001). and proces- literature in four interrelated categories: the role of ses for the adjustment of regime commitments in enforcement. IR AND COMPLIANCE 549 More is needed.wents made by others. However. These necessarily focus on compliance. The key variables explain. has received extensive panel rulings approached 30 per cent. so research initiative comparing levels of compliance is the role of compliance management. contrary to many intuitions about democracy and The GEF played no formal role in the content of the law. Simmons emphasizes the need Ultimately. with their largely non- theory. the reform of the GATT dispute resolution confrontational and forward-looking approach. In the first cases of non-compliance. reviews of performance. 2000). Joerges and Ziirn are undertaking a major appears more nuanced than previously thought. engage in the collective supervision and facilitation ened the enforcement powers of the WTO and the of performance that lies at the heart of managerial retaliatory powers of member states in tandem with theory. the identification of. Rather. Committee. All four cate. 2000).which include an Implementation ing together. this . show that total non-compliance with GATT mends a compliance plan. Such an effort would be a valuable step ments. Each contains a number of the compo. building on Hudec's pioneering compli&t parties in closed sessions and recom- work. review systems: the UN Human Rights Committee considers its function to 'assist State parties in ful- filling their obligations under the btemational The Role and Importance of Covenant on Civil and Political Rights]. legalization. for example. echoing ar. part of the power of the per cent of rulings failed to elicit full compliance Committee to address non-compliance has stemmed (Busch. The substantially alters and extends the debate.sometimes in informal ways. Russia. however. process as part of the creation of the WTO strength. empirical compliance review institutions that broadly follow work is proliferating in various areas that do not managerial precepts (Raustiala. were approved by the Implementation Committee.often self-reported by pliance debates. 2000. losing 1998). Reinhardt. that a baselines against which to measure compliance. the institutions of the Montreal increasingly conducted by IR and IL scholars work. The GEF decided to withhold additional defendant was on the plaintiffs export market. Many envi- at the national. the more highly dependent a. but nevertheless review institutions generally include regularized generate important evidence and insights for com. the Committee. to make Enforcement available to them the experience the Committee has acquired in its examination of other reports and to A number of recent studies have produced evidence d i s k s with them various issues relating to the germane to the managerial-enforcement debate. and almost 60 attention. for example. This low from a decision by the Global Environment Facility level of compliance does not. Human rights accords employ similar toward more cumulative knowledge. enjoyment of rights enshrined' in the Covena~t. Protocol which funds projects related to ozone the major effect of the dispute process seemed topre. In practice.manage results in light of this broader overarching frame. mental costs of implementing the Protocol (Victor. suggest. cbllection of relevant data . recent Yet empirical research into the Montreal work by IR scholars. This section reviews the current governments. Busch and Reinhardt. Busch the Implementation Committee meets with non- and Reinhardt. practice predicated on a positive 'report card' from 2000). an increase in depth of cooperation. More interestingly. the funds for those states until their compliance plans more likely was compliance. a nents of compliance identified above. but continued disbursement of funds was in comply with GATT rulings (Busch and Reinhardt. in which of compliance with GATT dispute decisions. involving several Eastern European states and 2000.

mechanisms. 2001). extended period of time' (Abbott and Snidal.. Kahler. This latter research is part of a larger colla.. resources but also in terms of relative access . The existence of assistance tied standing of compliance and its connection to dis- to a discursive process fits with the cooperative.allows an practice has been critical to the success of the pro. Why do 'rules. which in structure. Mitchell first analyzed regime design in terms of 1997: 205. institutions over other forms of institutions. Farer. norms. assessment of the relative effectiveness of different cedure. 2001: 279). 2000).. compliance. Mitchell has explored the sources significance and impact of law and courts in the of regime transparency.27For other analysts the that actors who had the incentives to comply with question involves the 'judicialization' of inter- and enforce the treaty had the ability and legal national affairs as much as 'legalizati~n'.16 A growing number compliance with the intentional oil pollution of IR theorists are seeking to understand how legal regime. the project The studies in the I0 volume y'ield some interest- advances hypotheses about the relationship between ing preliminary results relevant to questions of distribution problems and enforcement problems. one based on ship equipment non of international 'legalization'. Mitchell attributed this variation to the relative precision and the delegation of its interpre- structure of the treaty provisions. which governs routine pollution resulting rules affect behavior differently from non-legal from tanker operations (1994). membership metries among states establishing a new regime. focusing particularly on situ. or others . and others on what scholars need to be told that international law is dif- appear to be little more than exhortation?' (1999: 1). number of definitions. however. First is the importance of power asym- on the one hand. and regime scope. strategies. credible under precise agreements of high obligation. while and controlling for key variables . many inter- design. and Mitchell and Keilbach analyze state responses to a what are the consequences of legalization? Kahler typology of problems. 2001). They distinguish between rules and a third-party mechanism to interpret and problks involving externalities imposed on strong apply them: 'Government commitments are more victims versus weak victims. principles and decision-making some regimes appear to rely on tough sanctions. Positive Theories of Regime Design Legalization i For many political scientists. arguing that transparency is international system. Legalization may coercion (linking noc-compliant behavior to be particularly important in providing an institu- sanctions) or exchange (linking compliaot behavior tional solution to commitments fulfilled over an to rewards). Koremenos. The phenome- sub-regimes existed. 1991: 196). tions lead states to choose among three mechanisms delegated authority to interpret those commitments to deter non-compliance: issue-specific reciprocity. with power defined not only in terms of material on the other (Mitchell and Keilbach. These different situa. may also strengthen compliance. but also to the rule's regime. As Mitchell flames the issue: 'Why do national lawyers questioned the value of lumping states design regimes the way they do? . distills a number of the 'functionalist' reasons typi- ations of asymmetric externalities (Mitchell cally advanced to explain the choice of legalized and Keilbach. Analyzing multiple cases . has a standards and one on discharge standards at sea. Two distinct rules. Lipson and Snidal. solution structure. 1998: 114-15). more broadly. ferent from the other factors they study' ( ~ ~ e r s . In one formulation. as compared to less formal influenced both by features of an issue area and by and binding prescriptions and dispute resolution the regime information system (Mitchell. capacity-building thrust of managerialism. the con- borative project on regime design. crete institutional choices. From this perspective. and centralization of enforcement mechanisms. Directed by sequences are the cause. 2001. it refers Compliance with the ship equipment regime has not only to the obligatory status of a rule as part of been far higher than with the discharge standard the system of international law.~~ Defini- authority to do so (Mitchell." This kind of research either managerial or enforcement theory (Raustiala may play an important role in advancing under- and Victor. from norms. In a similar vein. procedures' together. 550 HANDBOOK OF INTERNATIONAL RELATIONS aid conditionality can be interpreted as supporting Koremenos et al. 'effectiveness-oriented systems' impose A recent special issue of International Organi- transparency requirements that are usually easier to zation devoted to legalization poses two general satisfy than 'compliance-oriented systems' questions: why do governments choose legalized (Mitchell. the core issue of interest is the More recently. 2000. specifically the tation and application to a third-party tribunal way in which the equipment sub-regime ensured (Abbott and Snidal. 1994: 327). Specifically. 1998). 1998). is consistent with enforcement theory. or. tions aside.whether problem the link between compliance and funding. Some insisted that '[IR] others on financial incentives. compliance issues are As political scientists discovered and embraced becoming a sub-set of the larger domain of regime regime theory in the 1980s and 1990s.

This argument is ratio- of scholars argue that legal constraints may prove nalist and fmctional in nature. 2000: 149. Kratochwil. In addition. 200 1. such as compliance. city. judges and members of national legal institutions associated with it. A second finding supports the importance flipside is that social legitimacy is likely to be of domestic and traosnational actors in enhancing limited to those actors with the capacity to partici- compliance. for instance. it provides needed flexibility under regimes and hence diminish compliance. and automatically binding under the WTO agreement between means (process) and ends (substance)' (Barfield. and scholars have begun to before a third-party tribunal. 2000: system has resulted in a greater ability for resistant 97). Moravcsik. Toope undesirably tight. Hudec. it. national pliance research could usefully incorporate a politicians may favor legalized agreements to tie distributional analysis of precisely who is ernpow- their hands in dealing with domestic interest groups ered and disempowered by the growing expansion whose demands they seek to resist or to bind their of law and legal discourse. impli- harnessed as a matter of regime design to enhance cations for national sovereignty. In a tions in different ways. particularly through resist the expansion of law. In contrast. which is too framed in legal terms and brought before a third. as Stone Sweet and Koh would argue. 1989: 18 1-21 1). the For example. often 'deliberately choose softer forms of legaliza- cursive practices of explanation. uncertainty. 1999. 1997: 225-9). 1996. are likely to resent and pliance with legalized regimes. bpposition to 'globalization' and many of the inter- These can include lawyers. extensive to chronicle either addresses the party tribunal (Stone Sweet. 1991. 200 1. Abbott and Snidal claim that states process of engaging domestic actors in ongoing dis. 2001: discourse (Stone Sweet. justification and tion as superior institutional arrangements' (2000: persuasion framed by both the existence of legal 423). IR AND COMPLIANCE 55 1 to legal resources (Kahler. For Toope.665-6). Stone Sweet concludes that within APEC largely due to the far greater legal European constitutional courts enjoy social legiti- resources available to the United States. the more compliance constituency? Is it the material benefits interesting question concerns the causality of the to be gained by actors whose interests are advanced observed variation. Those who lack such capa- detail the role of domestic actors in enhancing com. successors to policies they favor (Goldstein. 1998. stresses the role of the individuals and doctrinal fi-amework to determine whether soft law groups that are constituencies for compliance. 1996: 556-7. Nanda. and Goldstein and offers a constructivist analysis of soft law. the of hard and soft law and the ways these advantages resulting creation and expansion of law. and its significance for behavioral through a particular international agreement? Or is outcomes of interest. Yet what exactly motivates the formation of a 1983). the incentive of judges explore the relative advantages and disadvantages to maintain and maximize their legitimacy. including transaction costs. A number conditions of uncertainty. Goldstein and Martin. is law at all (Dupuy. using Martin. At a time of rumbling the formation of 'compliance constituencies'. they argue rules and a tribunal to interpret them? Are these two that different factors condition states' choice of soft sets of variables interrelated? How can they best be law. Asian national courts to block compliance with EU law governments. Hudec. however. More constructivist treatments of legalization Soft Law versus Hard Law emphasize the significance. Soft law is the incentives of individuals to bring disputes seemingly proliferating. 1999). public and private'. for bureaucrats. Alter describes ways in the rhetoric of law shapes politics and leads to the which the progressive construction of the EU legal emergence of 'common meanings' (Toope. into normative legal rather than diplomatic terms (Kahler. com- the business community. have resisted legalization (Alter. While soft law is less credible legalization to trigger resistance to international than hard law. common values can . From common meanings. INTERNATIONAL LAW. IL scholars have long noted separate study of the growing role of courts in the existence of 'soft law': instruments or rules that France. as Kahler points out. like that of many others in the legaliza. which give macy due to their ability to draw 'ao ever-widening it a. (2000: 97. states legalize agreements or institu- discourse and framing disputes as legal issues. But the . This question whether soft law will ultimately undermine argument. 2000: 423). the entire international legal system or tries within a tion debate. Mmy of the authors in the I 0 volume pate in legal discourse. the EU and the WTO.substaotial advantage in disputes h m e d in range of actors. Much of the resulting likelihood that still more disputes will be debate over soft law among IL scholars. litigants and politicians. Stone Sweet develops have some indicia of international law but lack a theory of judicialized governance that depends on explicit and agreed legal bindingness. divergence of pre- compliance? ferences and power differentials (Abbott and Another core issue concerns the capacity of Snidal. 2001). 152). Similarly. of engaging in legal In practice. From an IR perspective.30Echoing a number of IL scholars. 200 1: 665-6). 2000). and the may explain the choices of states. Weil. have made this claim regarding the GATT Kratochwil's conception of law as the result of 'a governments' decision to render panel decisions continuing dialogue between norm and fact.

they share the claim that soft law approaches at the theoretical level. soft law. trade these three dimensions off one rules of international law' (Toope. Raustiala argues that com. anisms within domestic jurisdictions. 2000: 98). Consequently. 200 lb). An ex ante process substance of the agreement. On the contrary. Non-compliance with intellectual property law - pliance is very high (Brown Weiss.552 HANDBOOK OF INTERNATIONAL RELATIONS coalesce that can in turn underpin 'more far-reaching regimes. can reflect selection bias societies) the outcome was the permanent preven- andtor indicate a shallow rather than a successful tion of non-compliance by ship operator^. In other words. Similarly. in which states in turn may alter their concep. Most compliance strategies are whether hard or soft should distinguish three expost strategies. substance or structure can confound efforts to tion. they argue that uncertainty does not always lead Debates about compliance often revolve around states to choose soft law. relying on the delivery or threat of separate dimensions: the form of the agreement.'it trates how tankers built with equipment standards raises many of the same methodological and theo.We conclude costs and outcomes is high . Instead often account for the choice of hard or soft law Monsanto developed what is popularly dubbed 'the (Raustiala. creating agreements that are readily complied with but largely ineffective as Reconceptualizing the Means prods to behavioral change (Raustiala and Victor. and the processes or preventing non-compliance. states opt alternative means for the production of compliance. States. a failure to control for Soft law creates a crucial framework for conversa.. 1989). Research on compliance with international law is While these two analyses of soft law differ gradually coalescing around several basic dramatically. 'the professional instinct of lawyers . control strategies have been explored in domestic cial dispute tribunal or simple self-reporting politics. 2001b). contra Abbott and Snidal. terminator gene': a gene that causes the next Other studies have looked explicitly at soft law generation of seed to be sterile (Mann. . whether judi. superior institutional choice. suggest. understood following promotes compliance by changing internal decision Downs et al. turning to more agreements are not just failed treaties but can be a systematic empirical research to test hypotheses. the processes that influence state behavior and to prevent the saving and planting of effectively prevented. Monsanto initially tic level variables into the hard-soft question: chose not to rely upon fanners' compliance with domestic political preferences and governmental intellectual prope&laws or on enforcement mech- responses. In some cases. they could be usefully extended to studies of (Raustiala. to negotiate seemingly "binding" agreements as soon as possi- ble' (Toope. copying . While this observation has been taken to Mitchell's study of the oil pollution regime illus- demonstrate the utility of soft law agreements. Prevention thus cietined is part of a broader class prehensive analysis of international agreements . patented bio-engineered seeds. Relatively less explored have been pre- normatively preferable.and similarly can confound tion of their interests and even identity. as with hard law. (1996) as deep or shallow. for legally binding but substantively weak accords Assistance and deterrence . often together. because they avoid vention and ex ante controls. with many scholars claiming that com. Raustiala and Victor and engaging an increasing number of IR and IL link this argument directly to compliance. compliance systematically leads states to negotiate lower standards. of Production of Compliance 1998). of ex ante strategies. This analysis also introduces is often the case by presenting a few of the more central and inter- with complex environmental treaties . 1999)?' compliance. scholars. What another. Since each dimension is an endogenous does such a conception of law mean for soft law? eiement of regime design.concern with esting open questions.carrots and sticks - instead. 1997. Ultimately efforts to understand the choice between hard and agreement on harder rules becomes possible. effectiveness. Shelton. Prevention refers to the detrimental impact of compliance concerns the construction of barriers to non-co'mpliance as a on the relevant legal standards but energize many of part of a regime's solution structure. rather than purely functional concerns. or example. Understanding this continuum is useful to counter . the a sanction in the event of breach. Ex ante structure for review of performance. 2000: 98). 2000). High c~mpliancewith the behavior of other actors (such as classification soft law. Toope argues. were rendered incapable of illegally discharging oil. the 'pre-legal or "contextual" regime miy actually be more effective in guiding the relations of international actors' (2000: 98). as the architects of international compliance (McCubbins et al. retical concerns about compliance analysis that While the ship-building process was contingent on legally binding treaties do.'^ regime. In this context soft law agreements may be dominate. It is also generating ques- ing that when uncertainty about implementation tions as fast as it is answering hem. assess compliance .

legal process matters much less.and ance and effectiveness. 1975. 1977). Slaughter Burley. IR AND COMPLIANCE 553 Primary Rules and Solution Process has attempted to understand how compliance and versus Secondaly Rules and Problem effectiveness interact. 'political' accords. the oil pollution case. an oversimplification. national law and international relations from 1945 for- ward can be found in Kennedy. This argument highlights ture largely in terms of secondary rules . Rather they focusing on primary rules (solution structure) and acted as 'a normative register. 2001). Koh. 1994. as a result. Similarly. Franck and Koh. Notes This divide is testable. tapped into existing industry practices and avoided If compliance with international rules is ephemeral.such as ance literature: Kingsbury. in particular for environmental regimes. The distinction between compliance and effective. who were already Most studies of effectiveness employ a behavioral writing about regimes in the 1970s. Scholars research. meaning accords relating to core security issues. 1997. Other research 5 See Slaughter Burley. Most IR scholars instead stress solution struc- marking and persuasion. INTERNATIONAL LAW. Koh. rule-making processes and to a re-evaluation of interests. IR and IL scholars have (Keohane et al. such as John Ruggie and Oran Young. a concept that rarely Much of the contemporary debate over compli- appears in IL treatments. ignored compliance in pillar of international order (Bull. For example. Scott. 1999. . but strable. Failure to com- mary rules (solution structure) and the solution ply with these normative benchmarks led to process as central determinants of compliance vari- 'increased domestic and international pressure and ation. Compliance versus Eflectiveness 3 Henkin recognized that for certain. if compliance is empirically demon- in terms of the process that produces the rules. favor of a focus on effectiveness. In the end. The rules governing dispute a joint agenda in compliance research. What is required is a 1 One of the byproducts of the increased focus on com- research design and careful selection of case studies pliance has been a proliferation of reviews of the compli- to highlight variation in primary rules . 1993. Some relevant tinued to emphasize the study of international law as a research has. it is the mapping of problem the study of compliance goes beyond these ques- structure onto solution structure that is important: tions. When the quality of pri- ance revolves around the causes of compliance mary rules is identified as causally relevant. countries had accepted such a standard as a guide to national policy' (Levy. and implicitly examines the foundations of the way in which the shift to equipment standards international institutions and of international order. 1997. And problem but rather to behavioral changes that are 'English School' scholars such as Hedley Bull had con- causally linked to the regime.. then the case for the role creates incentives for litigants and national courts to of intemational law and institutions in achieving promote the enforcement of treaty provisions global order is strong. relatively legitimate rules versus less legitimate Simmons. Young. 1994). Legitimacy. for instance. but would central threads in their arguments about compli- not have induced this process of normative bench- ance. rules so much as in their responsiveness to a problem structure in which states-are disinclined to sue one another and domestic constituencies able to stalemate each other in the domestic political process. 1998. had never lost sight of definition. rules -versus variation in secondary rules and their 2 Various intellectual histories of the evolution of inter- relationship to problem structure. (Henkin. emphasize problem structure. 1998. of course. each insist on the quality of pri. looking not to actual changes in a given international law (Ruggie. in his study of the European acid rain regime. theoretically understandable and pres- rather the design of a dispute resolution process that criptively manageable. Weaker standards coherence within the structure of existing rules are might have produced higher compliance.rules the complexity of the interaction between compli- about non-compliance and enforcement . [1968] 1979). 1979). national tribunals emphasizes solution structure not Conversely. much of the coercion. an issue resolution fall within the category of secondary that now lies at the heart of international rules. their power lies not in their pedigree as legal relations theory. the ability of intemational law and institu- literature on compliance with the decisions of inter- tions to order world politics is greatly limited. The early-acid rain treaties were not designed to establish binding rules. indicating both what solution process and those that emphasize behavior was considered legitimate and which secondary rules and problem structure. 1993: 77). Levy argues that Structure non-compliance can be part of a successful regula- O& review reveals a clear divide between theories tory strategy. 1993: 220. ness has been central to much recent regime 4 This is. the monitoring problems associated with discharge or results purely from the exercise of power and standards (Mitchell. as in and issues of regime design. however.

Emanuel and Barnett. 1983a. formalization. Human Rights Committee. 1998a). Abbott. 13 One might term this 'the Goldilocks theory' of com. UN GAOR. Henkin suggests that this issues in a wider context (Slaughter et al. Cambridge: Cambridge Univer- tic government institutions. The essence of the n-person own image and interest (1 979: 3). Marie Slaughter (eds). ject and the hypotheses advanced by the editors and tested pliance' (2000: 32). within contract theory that breach is efficient .the sanctions are not too strong or too weak. in the sense of obligation which it implies' Abbott. Miles Kahler. of individuals and groups in domestic and transnational Adler. the 9 This is. 1995). 1999. Shelton.2000). a sub-set 'distin- rather 'just right' under the circumstances. a concept and binding authority' (Stone Sweet. 1977. 1992. 2000. 2000. 1998. 2000: 11). created it in their of the strategic environment. prisoners' dilemma is that actors have an interest in col-'\ 22 See also Keohane and Nye. 24 Work of the Human Rights Committee Under 11 For example. Kenneth W. 1977. and has instead sought to use 'a new. ing here on the pioneering work of Charles Lipson. 32 See also Lessig. because law is obligatory. Kenneth W. in Judith L.if the costs of performance to the 'judicialization' of politics. areas (Downs and Rocke.Raustiala.~ o & i n eand Jurisprudence includes country theories can point to the importance of embedding inter- studies by European scho!ars applying a common template national institutions in domestic society without focusing on to explore issues of compliance with ECJ decisions. the conception was that truth and trust were simply the way to do business. Checkel. Goldstein. for example. across countries and in the international realm (Stone theory permit compensation to the aggrieved party yet still Sweet. even over time: tor technology. for example. Duncan (200 1) 'Hard and 19 Analyses of variation in form include Abbott and Soft Law in International Governance'. Bernstein quotes a dealer stating that 'when I first entered the business. 27 Compare Alec Stone Sweet's definition of legal pliance . may be so because the liberal democracies of the West.Schachter. Europe is very reluctant to impose sanctions on non. Robert 0. Yale Journal of International Law. as a set of cross-cutting analyses placing these compliance 21 See also Doyle. Dupuy. 1999. 14 (2): 18 'There is an influence for law observance in the very 335-41 1.. Keohane and Anne- 200 1b. Cassese and Weiler. 25 For an explication of the overall design of the pro- but persuade recalcimt members to move toward com. of consequences ( F i e m o r e and Sikkink. Bull. Checkel notes that the Council of Article 40 of the Covenant on Civil and Political Rights. both within specific coun- the breaching party are so large that the breach would in tries. but norms as a 'sub-set of social norms'. a way to make a profit' (Bernstein. 15 See. emphasizing the conditions necessary for some 7 Formerly Anne-Marie Burley. sity Press. HANDBOOK OF INTERNATIONAL RELATIONS 6 Supranational refers to tribunals that hear cases from like all Liberal theories. Securify Communities. 1998). Kenneth W. guished by their higher degree of clarity. 1991. Legalization and World Politics. phrase in the title. 1988. Institutionalist -Courts . Although many transactions are still c o n k m a t e d on the basis of trust and truthhlness. 1991. and nobody decent would Bibliography consider doing it differently. (1993). [1968] 1979: 60). MA: MIT Press. 1984. 1991). Duncan (2000) 'Hard and (Henkin. (1989) 'Modem International this is done because these qualities are viewed as good for Relations Theory: A Prospectus for International business. 1977. 12 Downs and Rocke suggest this explains the excep. Of come. 200 1. they are build- 16 See. 20 Liberal theories focus on variation in the preferences Cambridge. Michael (eds) (1998) society as well as variation in their representation by domes. are more likely to start from the individuals as well as states. 2000. this statement can Soft Law in International Governance'. as well variation in the relative ease or likelihood of embeddedness. by the various authors. states to be more likely to comply than others or some insti- 8 The volume The European Court and National tutions to be more embedded than others. pp. 30 As Abbott and Snidal acknowledge. and Snidal. 23 Sovereignty as status is old as well as new. 54 (3): 421-56. following a logic decade (Lipson. quality of law. and Snidal. performance rule. International be seen as merely restating the issue: law is followed Organization. Lawyers'. 2000. 1995. see Koremenos et al. 26 In addition to the various political scientists and tional treatment of agriculture. Liberal theories of compliance. 37-72. groiid up. in her study of contractual norms in the diamond industry. 'rationalists' envision states engaging in Lipson's work presaged the current debate by almost a careful calculations of costs and benefits. of course. . leave the breaching party better off than under an enforced 29 See. textiles and other sensitive international lawyers engaged in the legislation debate. non-public monitoring procedure designed not to sanction. Hillgenberg. Snidal. see Arend. (1996) used this Gong. highly dependent on the structure creators of most extant international law.. Norms of 3 1 Monsanto has since withdrawn the planned termina- conduct may influence actors in both ways. 28 Stone Sweet is the most prominent scholar studying fore should be permitted . Risse.and there. lective rules that diverges from their individual incentives. Abbott. 1992: 157). for example. see 10 An early version of Downs et al. 17 By contrast. 14 This echoes the theory of efficient breach. Lipson. UN Doc A/48/40 compliant states.

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