Published online by Cambridge University Press: 22 May 2009
A new dialogue is beginning between students of international law and international relations scholars concerning compliance with international agreements. This article advances some basic propositions to frame that dialogue. First, it proposes that the level of compliance with international agreements in general is inherently unverifiable by empirical procedures. That nations generally comply with their international agreements, on the one hand, or that they violate them whenever it is in their interest to do so, on the other, are not statements of fact or even hypotheses to be tested. Instead, they are competing heuristic assumptions. Some reasons why the background assumption of a propensity to comply is plausible and useful are given. Second, compliance problems very often do not reflect a deliberate decision to violate an international undertaking on the basis of a calculation of advantage. The article proposes a variety of other reasons why states may deviate from treaty obligations and why in many circumstances those reasons are properly accepted by others as justifying apparent departures from treaty norms. Third, the treaty regime as a whole need not and should not be held to a standard of strict compliance but to a level of overall compliance that is "acceptable" in the light of the interests and concerns the treaty is designed to safeguard. How the acceptable level is determined and adjusted is considered.
This is an introductory chapter to a more extended study of compliance with international treaty obligations. The research has been supported by grants from the Pew Charitable Trust and the Carnegie Corporation of New York, for which we wish to express our gratitude. Earlier versions of this article were presented at seminars at the Kennedy School of Government, Harvard University, and at the University of Chicago Law School. Robert Keohane has been particularly helpful in commenting on the earlier efforts. Our thanks are also due to our many student research assistants and especially to Sean Cote, Fred Jacobs, and Jan Martinez, who labored on the references.
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2 Treaty law, based on nineteenth-century practice, adopts, implicitly or explicitly, a contractual model of bilateral relationships (or, at most, agreements among a few parties), and a good deal of contemporary work in international relations reflects this same framework. Although nineteenth century legal thought was hospitable to conceptions based on contract, they do not fit comfortably with regulatory lawmaking.
3 We are mindful of the distinction between treaty compliance and regime effectiveness. See Young, Oran, The Effectiveness of International Institutions: Hard Cases and Critical Variables, in Rosenau, James N. and Czempiel, Ernst-Otto, eds., Governance Without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992), pp. 160–92CrossRefGoogle Scholar; and Ausubel, Jesse and Victor, David, “Verification of International Environmental Agreements,” Annual Review of Energy and Environment, vol. 17, 1992, pp. 1–43CrossRefGoogle Scholar. The parties to the International Whaling Convention, for example, complied fully with the quotas set by its commission, but the, whale population crashed because the quotas were too high. Nevertheless, we think the observance (or not) of treaty commitments by the parties is a subject worth studying in its own right. Moreover, treaties are ordinarily intended to induce behavior that is expected to ameliorate the problem to which they are directed, so that, if Young's warning is kept in mind, compliance may be a fair first approximation surrogate for effectiveness.
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15 Benedick, Richard Elliot, Ozone Diplomacy: New Directions in Safeguarding the Planet (Cambridge, Mass: Harvard University Press, 1991), pp. 51–53Google Scholar. The Domestic Policy Council, which established a special senior-level working group to ride herd on the process, consists of nine Cabinet secretaries, the director for the OMB, and the USTR. At the time of the ozone negotiations, the council was chaired by Attorney General Edwin Meese. Other states, at least in advanced industrialized societies, exhibit similar, if perhaps not quite as baroque, internal practices in preparation for negotiations. Developing countries, with small resources to commit to bureaucratic coordination, may rely more on the judgment and inspiration of representatives on the scene.
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23 The Intergovernmental Panel of Climate Change was set up by the UNEP and WMO after the passage of UN General Assembly Resolution 43/53, A/RES/43/53, 27 January 1989, “Resolution on the Protection of the Global Climate.”
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25 Systems in which compliance can only be achieved through extensive use of coercion are rightly regarded as authoritarian and unjust. See Barkun, Michael, Law Without Sanctions: Order in Primitive Societies and the World Community (New Haven, Conn.: Yale University Press, 1968), p. 62Google Scholar.
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29 The Vienna Convention on the Law of Treaties, signed 23 May 1969 (entered into force on 27 January 1980), Article 2(l)(a), states that“‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” See UN Doc. A/CONF. 39/27.
30 According to Young, “‘obligation’ encompasses incentives to comply with behavioral prescriptions which stem from a general sense of duty and which do not rest on explicit calculations of costs and benefits.… Feelings of obligation often play a significant role in compliance choices.” Moreover, “rules constitute an essential feature of bureaucracies and… routinized compliance with rules is a deeply ingrained norm among bureaucrats.” See Young, , Compliance and Public Authority, pp. 23 and 39Google Scholar. See also Fallon, R. H., “Reflections on Dworkin and the Two Faces of Law,” Notre Dame Law Review, vol. 67, no. 3, 1992, pp. 553–85Google Scholar, summarizing H. L. A. Hart's concept of a law as a social rule: “From an internal point of view-that of an unalienated participant of the social life of the community-a social rule is a standard that is accepted as a guide to conduct and a basis for criticism, including self-criticism” (p. 556); Rheinstein, , Max Weber on Law in Economy and Society, pp. 349–56Google Scholar; and Kratochwil, Friedrich V., Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), pp. 15 and 95–129CrossRefGoogle Scholar.
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32 The Vienna Convention on the Law of Treaties, Article 26, specifies that “every treaty in force is binding upon the parties to it and must be performed in good faith.” See also chap. 30 of McNair, Arnold Duncan, The Law of Treaties (Oxford: Clarendon Press, 1961), pp. 493–505Google Scholar.
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38 See, for example, the testimony of General David C. Jones, chairman of the Joint Chiefs of Staff, before the U.S. Senate Committee on Foreign Relations on the Strategic Arms Limitation Talks (SALT) II treaty, Congressional Information Service, S381–24 79, 9 July 1979.
39 It is not clear, however, that democracies are more law-abiding. See Diggs v. Shultz, 470 F. 2d 461 (D.C. Cir. 1972): “Under our constitutional scheme, Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of the government can do about it. We consider that is precisely what Congress has done in this case” (pp. 466–67).
40 International law recognizes a limited scope for abrogation of an agreement in such a case. See the Vienna Convention on the Law of Treaties, Article 62. Generally, however, the possibility of change is accommodated by provisions for amendment, authoritative interpretation, or even withdrawal from the agreement. See, for example, the withdrawal provision of the ABM Treaty, Article 25(2), or the Limited Test Ban Treaty, Article 4. None of these actions poses an issue of violation of legal obligations, though they may weaken the regime of which the treaty is a part.
41 Keohane surveyed two hundred years of U.S. foreign relations history and identified only forty “theoretically interesting” cases of “inconvenient” commitments in which there was a serious issue of whether or not to comply. See the chapter entitled “Commitments and Compromise,” in Keohane, Robert O., “The Impact of Commitments on American Foreign Policy,” manuscript, 1993, pp. 1–49Google Scholar.
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52 Unilateral assertion is a traditional way of vindicating claimed “rights” in international law. In the spring of 1986, U.S. forces engaged in two such exercises, one off the Soviet Black Sea coast in the “exercise of the right of innocent passage” (The New York Times, 19 03 1986, p. A1Google Scholar) and the other in the airspace over the Gulf of Sidra, which Libya considers its territorial waters and the United States does not. The Black Sea maneuver was concluded with nothing more than some bumping between U.S. and Soviet ships, but in the Gulf of Sidra, U.S. aircraft sank two Libyan patrol vessels that had fired antiaircraft missiles. See Chicago Tribune, 19 March 1986, sec. 1, p. 10; Los Angeles Times, 26 March 1986, p. II; and Los Angeles Times, 27 March 1986, p. II.
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79 Countries that have not ratified the NPT include Argentina, Brazil, China, France, India, Israel, and Pakistan. See Spector, Nuclear Ambitions, p. 430.
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81 The 1977 Congress enacted a requirement for “adequate verification” of arms control agreements. This was described by Carter administration officials as a “practical standard” under which the United States would be able to identify significant attempted evasions in time to respond effectively. See Chayes, and Chayes, , “From Law Enforcement to Dispute Settlement,” pp. 147–48Google Scholar. It should be noted that when the Soviet Union in 1987 finally agreed to substantially unlimited on-site inspection, the United States drew back from its earlier insistence on that requirement, as it has in chemical warfare negotiations.
82 Withdrawal from all U.S.-Soviet arms control agreements is permitted on short notice if “extraordinary events related to the subject matter of the treaty jeopardize the supreme interests” of the withdrawing party. See, for example, Treaty Between the United States and the Soviet Union on the Limitation of Antiballistic Missile Systems, 26 May 1972, Article 15(2), 23 U.S.T. 3435 (1972). The law of treaties also permits the suspension of a treaty in whole or in part if the other party has committed a material breach. See the Vienna Convention on the Law of Treaties, Article 60(1) (2).
83 The closest approach to such an initiative was the mildly comic bureaucratic squabble in the closing years of the Reagan administration about whether the Krasnoyarsk radar should be denominated a material breach of the ABM treaty. See Lewis, Paul, “Soviets Warn U.S. Against Abandoning ABM Pact,” The New York Times, 2 09 1988, p. A9Google Scholar; and Gordon, Michael R., “Minor Violations of Arms Pact Seen,” The New York Times, 3 12 1988, p. 5Google Scholar.
84 U.S. General Accounting Office, International Environment: International Agreements Are Not Well-Monitored, GAO, RCED-92–43, spring 1992Google Scholar.
85 See Report of the Secretariat on the Reporting of Data by the Parties in Accordance with Article 7 of the Montreal Protocol, UNEP/OzL.Pro.3/5, 23 May 1991, pp. 6–12 and 22–24; and Addendum, UNEP/OzL.Pro.3/5/Add.l, 19 June 1991.
86 For a report of Japan's announcement of its intention not to enter a reservation on the last day of the conference, see United Press International, “Tokyo Agrees to Join Ivory Import Ban,” Boston Globe, 21 10 1989, p. 6Google Scholar. Japan stated that it was “respecting the overwhelming sentiment of the international community.” As to Hong Kong, see Perlez, Jane, “Ivory Ban Said to Force Factories Shut,” The New York Times, 22 05 1990, p. A14Google Scholar. The Hong Kong reservation was not renewed after the initial six-month period. Five African producer states with effective management programs did enter reservations but agreed not to engage in trade until at least the next conference of the parties. See Glennon, Michael J., “Has International Law Failed the Elephant,” American Journal of International Law 84 (01 1990), pp. 1–43CrossRefGoogle Scholar, especially p. 17. At the 1992 meeting they ended their opposition. See “Five African Nations Abandon Effort to Resume Elephant Trade in CITES Talks,” Bureau of National Affairs Environment Daily, electronic news service, 12 03 1992Google Scholar.
87 United Press International, “Tokyo Agrees to Join Ivory Import Ban,” Boston Globe, 21 10 1989Google Scholar.
88 Olson, Mancur, The Logic of Collective Action (Cambridge, Mass.: Harvard University Press, 1971), pp. 33–36Google Scholar.
89 For a discussion of critical-mass behavior models, see Schelling, Thomas, Micromotives and Macro behavior (New York: Norton, 1978), pp. 91–110Google Scholar.
90 See Becker, Gary, “Crime and Punishment: An Economic Approach,” Journal of Political Economy 76 (03/04 1968), pp. 169–217CrossRefGoogle Scholar; and Stigler, , “The Optimum Enforcement of Laws,” p. 526Google Scholar. Also see Young, , Compliance and Public Authority, pp. 7–8 and 111–27Google Scholar.
91 Lindblom, Charles E., Politics and Markets (New York: Basic Books, 1977), pp. 254–55Google Scholar. At the domestic level, the decision whether to intensify enforcement of the treaty implicates a similar political process, as the continuous debates in the United States over GATT enforcement testify. Our work-in-progress includes a consideration of second-level enforcement.
92 Mitchell, Ronald, “Intentional Oil Pollution of the Oceans: Crises, Public Pressure, and Equipment Standards,” in Haas, Peter M., Keohane, Robert O., and Levy, Mark A., eds., Institutions for the Earth: Sources of Effective International Environmental Protection (Cambridge, Mass.: MIT Press, forthcoming)Google Scholar.
93 United States Code, Title 19, Section 2411. Section 301, however, has been widely criticized as itself a violation of GATT. See Sykes, A. O., “Constructive Unilateral Threats in International Commercial Relations: The Limited Case for Section 301,” Law and Policy in International Business 23(Spring 1992), pp. 263–330Google Scholar; and Bayard, Thomas O. and Elliott, Kimberly A., “Aggressive Unilateralism and Section 301: Market Opening or Market Closing,” The World Economy 15 (11 1992), pp. 685–706Google Scholar.
94 GATT, Articles 22 and 23, 30 October 1947, as amended. See “GATT Basic Instruments and Selected Documents,” in UNTS, vol. 55, no. 814, 1950, p. 194Google Scholar.
95 See Andresen, Steinar, “Science and Politics in the International Management of Whales,” Marine Policy, vol. 13, no. 2, 1989, p. 99CrossRefGoogle Scholar; and Birnie, Patricia, International Regulation of Whaling (New York: Oceana, 1985)Google Scholar.
96 See Peter M. Haas, “Protecting the Baltic and North Seas,” in Haas, Keohane, and Levy, Institutions for the Earth.
97 For an account of the Iraqi response, see Sean Cote, A Narrative of the Implementation of Section C of UN Security Council Resolution 687.