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Part I Evolution—UN Treaty-Making in Practice and in Theory, Ch.2 Treaty-Making in International Organizations: international relations theory

Shirley V. Scott

From: The Oxford Handbook of United Nations Treaties

Simon Chesterman, David M. Malone, Santiago Villalpando

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 26 October 2021

(p. 39) Chapter 2  Treaty-Making in International Organizations

international relations theory

The United Nations is inextricably intertwined with the contemporary system of international law. As a result, the reawakening of interest in international law within the field of international relations (IR) over the last two decades has generated a considerable body of IR literature of some relevance to understanding UN treaty-making. The UN’s role in facilitating treaty-making has consolidated a shift from bilateral to multilateral treaties and the increased use of multilateral treaties as policy tools, with a vastly thickened, and broadened, web of international law as a consequence. This chapter engages with some key bodies of IR scholarship that offer insights regarding UN treaty-making. It is noteworthy that only some of this literature has the multilateral treaty as its object of analysis. Far more common is for the IR discipline to devise its own units of analysis, without necessarily linking those units explicitly to legal categories.

The first body of literature with which the chapter engages is that on norm dynamics. Here the unit of analysis is at a sub-treaty level; within this scholarship, the conclusion of a multilateral treaty is a success point in the global acceptance and dissemination of a norm as a standard of behavior. Second, we will move to the supra-treaty level and the literature that views treaties in the context of international institutions and organizations. Here the unit of analysis has for several decades been the regime, of which a multilateral treaty or treaties are generally a component. More recently attention has been directed to “regime complexes.” A third section considers the relevance for understanding UN treaty-making of more recent IR literature on the decline of the liberal international order.

(p. 40) UN Treaties as the Institutionalization of Norms

In political terms, the conclusion of a multilateral treaty serves to institutionalize a previously emergent norm. Norms have been the subject of a considerable body of IR scholarship over the last two decades. A norm has typically been defined as “a standard of appropriate behaviour for actors with a given identity”;1 the term “norm” has been used to encompass a wide variety of types of ideas

of varying degrees of abstraction and specification with respect to fundamental values, organizing principles or standardized procedures that resonate across many states and global actors, having gained support in multiple forums including official policies, laws, treaties or agreements.2

What is in this literature referred to as a norm is likely to be embedded in a multilateral treaty as one of the substantive provisions, albeit that as a treaty provision it will probably be more precisely and narrowly defined than might be the norm. Thus, the norm of no first-use of force is embedded in Article 2(4) of the UN Charter, and the norm against child soldiers in articles 1–4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

The particular contribution of the norm literature to our understanding of UN treaty-making is its directing our attention to the non-legal as well as legal pathways by which ideas emerge and carry political weight, and to how those norms are diffused, by whom, and with what effect. Researching the genesis of global norms helpfully directs our attention to the prehistory of a treaty, and to the complex interplay between legal and other forms of norms. This is valuable insofar as the success or effectiveness of a treaty is dependent to a considerable extent on how well the treaty meets the shared goals to which it had been a response. The study of norms has also enabled us to better understand the political functioning of treaties once in place. A norm may continue to meet with resistance even after it has been embedded in a treaty; it may nevertheless spread, evolve, or merge with other norms.

The first wave of literature on norm dynamics focused on the “life cycle” of norms. The seminal study by Finnemore and Sikkink introduced the term “norm entrepreneur” to refer to those who set out to alter the normative status quo and hence—from the perspective of our interest here—who exert influence during treaty pre-negotiations and (p. 41) formal negotiations.3 The early norm entrepreneur literature tended to assume that it was the West that introduced new and progressive norms and that then sought to convince the rest of the world of the appropriateness of those norms and to disseminate those norms around the globe. The general assumption was that new norms were always liberal and an improvement on what had existed previously. Finnemore and Sikkink explained that once key leaders had accepted the new norm, a process of cascade ensued.4

More recently, norm theorists have questioned several aspects of the early norm literature, including the idea of norms “trickling” down from a treaty to the local level, the static view of norm content, and just whose norms we are investigating. Krook and True proposed that norms be conceived of as processes,5 and there has been a turn to highlight the agency of the South.6 According to Acharya, key concepts of postwar governance—including human development, responsible sovereignty, and sustainable development—have been deeply influenced by ideas from the postcolonial world.7 This resonates with the revisionist literature on human rights. Steven Jensen’s book on The Making of International Human Rights establishes the importance of the Global South in the global human rights phenomenon.8 Whereas most historians have emphasized the 1940s and 1970s, when Western activists and states had most influence, Jensen illuminated the role of Jamaica, Liberia, Ghana, and the Philippines in the 1960s postcolonial moment in putting forward a human rights agenda, which he regards as having transformed the norms of the international community.9

According to Stuenkel, the assumption that the West is the source of progressive norms has led to the unhelpful equation of the Responsibility to Protect (R2P) norm with the West (or North) and an anti-R2P position with the Global South, which in turn suggests that Brazil’s leadership of discussion on strengthening R2P was obstructionist.10 The influence of non-Western states on global norms and UN treaty-making is set to increase with the shifting distribution of power, as captured in the concept of an “idea-shift.”11 In the language of norm theorists, BRICs states in particular are no longer simply “norm takers” but norm shapers, shakers, contesters, and defenders.12

Much of the very considerable norms literature has a rather unsophisticated understanding of international law per se, if it has a view at all, tending toward perceiving (p. 42) multilateral treaties as simple norm repositories and implicitly assuming a norm to have been accepted by the international community once it has been successfully placed into such a repository. To the extent that norms tend to be embedded in the early substantive provisions of a treaty and may be integral to its object and purpose, this may be a valid assumption. Yet most international lawyers would likely assume that the degree to which a norm has “arrived” depends on a variety of factors other than the conclusion of a multilateral treaty. These factors might include rates of ratification, entry into force, reservations, relationship with other treaties, dissemination via domestic legal systems, and so on.

Whaling affords a useful example. Although many regard the anti-whaling norm as the dominant (political) norm, it has never been universally accepted or embedded in international law. The International Convention for the Regulation of Whaling was designed to regulate the whaling industry, conserving whale stocks to the extent necessary to preserve the industry as opposed to protecting whales as an end in itself. Those now promoting a norm of sustainable whaling may be regarded as norm entrepreneurs. While this places those who oppose the concept of sustainable whaling as promoted by Japan as “antipreneurs,” that is unlikely to be how they self-identify.13 The ongoing assumption that it is the West that generates and disseminates norms means that those opposed to any lethal whaling do not see themselves as opponents of a new, or at least reworked, norm designed to reconcile the institutionalized norms in the Whaling Convention with the norms of environmentalism. Rather, they perceive themselves as working to strengthen and fully universalize a progressive, anti-whaling norm, against long-standing opposition. Despite the terms of the Convention, the decision in the Whaling Case14 could be read as serving to reinforce the prevailing (political) norm against commercial whaling,15 illuminating the political significance of the work of the International Law Commission on subsequent agreements and subsequent practice in relation to interpretation of treaties.16

Norm theorists have contributed some counterintuitive findings to our understanding of the dynamics at play, both prior to, and following the conclusion of, a multilateral treaty. Risse, Ropp, and Sikkink demonstrated, for example, that even though a state might have ratified a treaty without fully embracing its embedded norms, human rights NGOs and others may then engage in advocacy work with the state concerned, using the treaty obligations as a normative benchmark, to bring about change over time.17 (p. 43) This raises the further question as to the potential impact of a norm embedded in a multilateral treaty on nonstate parties. For example, given that no Nuclear Weapon State is likely to ratify the 2017 Treaty on the Prohibition of Nuclear Weapons, its potential efficacy would, from a legal perspective, at first glance appear low. In strict legal terms, the treaty imposes no obligations on nonparties. Viewed through the lens shared by many norm theorists and civil society campaigners, however, a norm embedded in a treaty may over time influence states not yet party to the treaty; over the mid- to longer-term, the norm may impact the choices even of nonparty nuclear weapons states. Norms may spread, for example, through the “socialization” of policymakers interacting in international organizations.18

This reinforces the insight that multilateral treaties do not serve to disseminate norms simply through a process of treaty ratification and implementation via domestic legal systems. There may also be a bottom-up transfer, such that analytical attention is validly directed to the local. Norm theorists are taking increasing interest in the interpretation of norms both to suit local needs and as a sophisticated form of resistance. Acharya has demonstrated that local actors create rules with a view to preserving their autonomy from domination by more powerful central actors, which he refers to as norm subsidiarity.19 Variation in acceptance of two Association of Southeast Asian Nations (ASEAN) norms can best be explained in terms of local agents reconstructing the foreign norms to ensure a better fit with prior local norms.20 Such research reveals both a multidirectional spread of norms and multi-agent complexity.

If the object of analysis is the norm as opposed to a treaty per se, it becomes apparent that norms may often spread transnationally—for example through city network interactions—with no treaty involved in the process.21 Of the three types of norms described by Antje Wiener in her theory of norm contestation, only fundamental norms at the macro level, such as “human rights” or “democracy,” notable for their wide moral and ethical reach, are likely to be negotiated by representatives of government at the macro level of governance and stipulated by treaties.22 Despite the claims by IR constructivists that, in contradistinction to their disciplinary forebears, they take ideas seriously, it is arguably only with recent norm scholarship and exploration of how non-Western, non-rising, states are influencing ideas, that IR is truly embracing norms and ideas as forms of power and influence in their own right. The assumption that ideas, (p. 44) rules, and norms are mere reflections and extensions of material forms of power exercised by dominant states underpinned IR’s previous long-standing neglect of multilateral treaties on the basis that they were unlikely to be of any independent moment in world politics.

UN Treaties as the Creation of Regimes

A second body of IR scholarship with implications for our understanding of UN treaty-making, which predates that on norms, has “regimes” as its object of analysis. The term “regime” has been used in IR since the 1980s in a manner complementary to that in law; whereas lawyers typically use the term “regime” to refer to the body of law addressing the subject matter at hand, IR scholars use the term more broadly to refer to a process of international cooperation of which norms, principles, and processes are integral. In the classic book on international regimes, Stephen Krasner defined a regime as the “principles, norms, rules and decision-making processes around which actor expectations converge in a given issue area.”23 One or more multilateral treaties are typically integral to this process of cooperation, even though the term “treaty” featured rarely in the literature for at least the first decade. During that period, regime theory investigated several interrelated questions including why and how international regimes come into existence, the extent to which they are independent of the exogenous forces that form them, their impact on state behavior, and their long-term effects on national and international politics.24 There is now some overlap between the norms and regime literature, including in their research questions.

The question of the necessity of hegemonic leadership in the creation of regimes and of the independence of regimes if the distribution of power subsequently changes, has been an enduring concern of regime theorists.25 As our engagement with the norm literature above would suggest, such baldly crafted research questions may obscure the subtleties of practice. In any literal sense, it is now clear that the international community has been able to create a number of significant multilateral treaties absent US support, even if concluding a new multilateral treaty is unlikely to be an end in itself. In fact, research suggests that states that are powerful and independent from the United States are more likely to ratify a treaty when the United States does not lead.26

(p. 45) US ratification of multilateral treaties is a fraught issue. The United States does not idly ratify a treaty if it does not intend to comply with the provisions of the treaty, and treaty ratification requires the consent of two-thirds of the Senate. Hegemonic United States therefore found itself in the double bind of being criticized for non-ratification of, for example, the UN Convention on the Law of the Sea, while at the same time acknowledging that it was bound by the vast majority of the treaty’s provisions through customary international law. This is not a case of non-respect for international law but of taking international law seriously even to the extent of suffering reputational damage as a consequence.

Considerable speculation as to whether China would take a proactive role in the further development of the system of international law is gradually being rendered superfluous through China’s own actions, including its lead in negotiating the Articles of Agreement for the Asian Infrastructure Investment Bank and its enthusiasm to negotiate a treaty to prevent the weaponization of space.27 On the other hand, the growing influence of China and other BRICS states means that the Global South is far less likely than in the past to adopt a common position in multilateral treaty negotiations. Stokes, Giang, and Selin found that divergence in the positions of China and India during negotiation of the Minamata Convention on Mercury was due to domestic resources and regulatory politics, development constraints, and domestic scientific and technological capacity.28

Compliance has been a perennial subject of enquiry within the regime literature, in part so as to demonstrate international law’s effects on state behavior.29 Why, for example, do states join treaty regimes, particularly those from which they obtain few obvious direct benefits while accepting significant constraints on their behavior? In the case of human rights, Hathaway concluded that states with a robust domestic rule of law might be more likely than states with weaker domestic institutions but similar rights records to shy away from committing to international treaties precisely because commitment will be consequential.30 In fact, the United States has a record of not agreeing to any human rights treaty provisions not already provided for by US law. According to Kenneth Roth, Justice Department lawyers “comb through [every human rights treaty] looking for any requirement that in their view might be more protective of US citizens’ rights than pre-existing US law.”31 Where any such provision is found, “a reservation, declaration, (p. 46) or understanding is drafted to negate the additional rights protection. These qualifications are then submitted to the Senate as part of the ratification package.”32

Perhaps the most significant contribution of regime theory to our understanding of treaty-making by international organizations has been its search for the ingredients of regime “effectiveness,” generally understood as the degree to which the regime achieves its goals—preventing dangerous anthropogenic climate change, for example. Enhancing compliance is a useful first step; in his study of the international regime controlling international oil pollution, Mitchell found that compliance was higher when integrated compliance systems increased transparency, provided for potent and credible sanctions, reduced implementation costs for governments by building on existing infrastructures, and prevented, rather than merely deterred, violations.33

This is a research field in which scholars have turned to quantitative methods in an effort to generate precise findings. They have nevertheless encountered “evidentiary hurdles” and “highly contested” methodological issues in seeking to establish that any changes in behavior are due to the independent influence of the treaty as opposed to merely reflecting state preferences.34 Multiple large-scale quantitative studies of regime effectiveness have yielded the rather underwhelming conclusion that “regimes do matter.”35 One is reminded of Koskenniemi’s warning of the dangers of reductionism and scientism associated with empiricism; “since expert systems are no less indeterminate than law, this move only institutionalizes an anti-political, technical mindset.”36

Compliance is an inadequate conceptual tool for studying the political functioning of multilateral treaties, not only in respect of state behavior but in understanding effectiveness, most fundamentally because if a regime has been badly designed in the first place it may not achieve its objectives even if all states are fully compliant.37 Beyond compliance, specific factors likely to contribute to the effectiveness of environmental regimes have been identified as including a sense of fairness regarding the major provisions and the availability of resources to build capacity if and as required by states parties.38 (p. 47) There are some parallels here to those factors to which a “negotiation practitioner” attributed the success of the Ozone Depletion regime. These included: that the science was very clear, that it had the support of industry, that the United States had effectively trialed the regime at a domestic level, that key individuals were fully committed to achieving the treaty, that it included special provisions for developing countries, and that the regime once established held regular meetings and made adjustments to the Montreal Protocol as the issue evolved.39 And yet, after being at the forefront of research on regime effectiveness for many years, Oran Young cautioned that the success of environmental regimes is highly sensitive to contextual factors such that an “arrangement that works perfectly well in one setting may fall flat in another setting.”40

More recently, and using a large data set and game theoretic framework, Koremenos has asked related but slightly different questions about institutional design. She has demonstrated the manner in which the nature of the cooperation problems at the negotiating table correlate with specific design features of multilateral treaties, including rules governing duration, monitoring, punishments, disputes, and withdrawal.41 To take but two examples: “under conditions of high uncertainty about the consequences of international cooperation” any international agreement that enters into force will be of finite duration; furthermore, the extent to which one side lacks confidence that the other side will comply determines whether monitoring is delegated to a third party or the treaty provides only for self-reporting.42

Meanwhile the tradition of qualitative regime analysis, in particular that which focuses on interaction amongst regimes,43 continues through research on regime complexes. A regime complex is a network of distinct regimes.44 To view the climate regime, for example, solely in terms of a set of nested regimes is, from this perspective, inadequate; the structural and interest diversity inherent in the contemporary world has given rise to a more fragmented array of regulatory regimes.45 Climate governance should not be seen solely in terms of inter-state arrangements but necessitates consideration of “transnational institutions, standards, financing arrangements, and programs.”46 The diagrammatic portrayal of the climate change complex as presented by Keohane and Victor includes “UN legal regimes” as but one of 13 components.47 (p. 48) Notably, it is relegated to the far-left corner rather than appearing center stage, portrayed as of no more importance to the regime complex overall than bilateral initiatives or subnational action.

Viewing climate governance through the prism of the regime complex offers the opportunity to recognize the importance of transnational institutions, standards, financing arrangements, and programs. Responsibility for creating rules is now shared amongst multiple organizations with diverse memberships operating at different scales; it is also decentralized, with most organizations having been created from the bottom up with little central coordination.48 According to Lesage and Van de Graaf, international organizations seem to be particularly adept at managing regime complexes, although this has not always been true of the United Nations.49

Betts has utilized the regime complex concept in order to demonstrate that it is no longer adequate to speak of a stand-alone refugee regime. According to Betts there are, rather, many institutions with implications for refugee protection, whether they reinforce, contradict, or even undermine the core refugee treaties.50 Here there are synergies with the international law concern with fragmentation. Scholars of regime complexes have identified dynamics different to those at play in stand-alone legal regimes; “the lack of legal consistency that flows from differing and overlapping rules pushes states to seek resolutions and to negotiate broad rules. At times, states also create strategic inconsistency as they seek to jolt rules in one or another direction.”51 Laura Gómez-Mera referred to the “spaghetti bowl” of regional trade, economic, environmental, energy, and security agreements in the Americas, finding that the resulting fragmentation and rule ambiguity exacerbated implementation and compliance problems, facilitated more powerful states exploiting self-seeking cross-institutional strategies, and undermined regional cohesion and solidarity.52

UN Treaties and the Decline of the Liberal Order?

Seven decades after the creation of the United Nations, states that had hitherto been peripheral to the postwar order are seeking to renegotiate their role within that order. Key global treaty regimes have been blocked or, through the passage of time and (p. 49) changing configurations of power, fallen out of step with the structures of world politics. The United States is marginal to important recent multilateral treaties; even where new multilateral treaties are established on a global scale, they do not necessarily serve to mediate interests but, as in the case of the Paris Agreement, leave this to subsequent processes. In the case of the Iran nuclear agreement, what was of sufficient political moment to be labeled a treaty was instead referred to as a “deal.”

The literature on this “crisis of multilateralism”53 takes as its object of enquiry not the norm, or the governance system, but the sum of multilateral treaties and associated governance systems with the United Nations at its heart—sometimes referred to as the liberal international order. Here, the perennial IR question as to whether an international institution has agency independent of the power configuration within which it was derived, has become the focus of study. Can, or will, the liberal international order, with the United Nations at its core, survive the relative decline of the United States and rise of other states that do not share a rule-of-law heritage?

G. John Ikenberry has been a long-term champion of the affirmative, and for a number of years it was certainly the case that even if the Republican-dominated Senate blocked many treaty ratifications, US officials were able to develop strategies by which to continue to act multilaterally in an approach David Kaye referred to as “stealth multilateralism.”54 As recently as 2014, Ikenberry wrote of the “enduring power of the liberal order.”55 Under the administration of President Trump, even Ikenberry has become less sanguine and his language increasingly forthright. According to Ikenberry in 2017, the greatest threat to the liberal international order is not from rising states but from the United States itself; the United States has begun to “sabotage” the order it created. “Across ancient and modern eras, orders built by great powers have come and gone—but they have usually ended in murder, not suicide.”56

Conclusion

It is over a decade since international lawyer Jan Klabbers noted that whenever he “wish[ed] to learn something about the world around [him], no matter how international the topic, [he] rarely grasp[ed] for international relations scholarship.”57 (p. 50) IR research has since then become more relevant for international lawyers, even if it often requires some translation. From a legal perspective, the early norms literature was rather simplistic; norms were taken at face value, international history was assumed to consist of never-ending progress, and the “other” was the passive recipient of Western progressivism. Its promise seemed no greater than that of regime theory, with its disappointingly nebulous internal debates and rather inconsequential findings. Koremenos’s identification of links between the nature of the cooperation challenges faced by treaty negotiators and the final clauses of the ensuing treaties was a notable methodological achievement. Nevertheless, the fact that negotiators had not needed that knowledge in order to bring about the treaties in the first place somewhat limited the “real world” significance of the scholarly breakthrough.

Norm theorists are increasingly building into their analysis the sophistication required to do justice to the complexity of the multilateral treaty-making phenomenon. They are also being forced to adapt to a more complicated “multiplex” world, the characteristics of which include “a proliferation of transnational challenges and a diffusion of ideas, actors, and processes of global governance.”58 Perhaps surprisingly, this growing sophistication in the analysis of ideas has revealed that taking international law as a starting point for global intellectual history would be less valid than it might previously have seemed. The Responsibility to Protect (R2P), for example, has been an enduring subject of norm analysis, despite its arguably weak importance in establishing new legal obligations. Understanding the politics of international law, and multilateral treaties in particular, can only be enriched by an even greater maturity and sophistication of IR scholarship, inclusive of the literature on norms.

Many lawyers might assume that the proliferation of multilateral treaties under UN auspices has been ineluctably positive. One of the challenges posed by norms scholarship is that the UN system, and by extension the treaties it has generated, “functions paradoxically as a symbol of both global solidarity and global injustice.”59 We may be experiencing a decisive moment in the evolution of the great UN experiment and its associated multilateral treaty-making project. While liberal institutionalist scholars might lament the apparent demise of the US-led order to which the complex web of UN treaties has been so integral, their sentiment may not be universally shared.

Footnotes:

*  I would like to acknowledge the valuable research assistance of Roberta C Andrade.

1  Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change” (1998) 52 Intl Org 887, 891.

2  Mona Lena Krook and Jacqui True, “Rethinking the Life Cycles of International Norms: The United Nations and the Global Promotion of Gender Equality” (2010) 18 Eur J Intl Rel 103, 103–04. See also Antje Wiener, “Enacting Meaning-in-Use: Qualitative Research on Norms and International Relations” (2009) 35 Rev Intl Stud 175, 183ff.

3  Finnemore and Sikkink (n 1).

4  ibid.

5  Krook and True (n 2).

6  Eric Helleiner, “Southern Pioneers of International Development” (2014) 20 Global Gov 375.

7  Amitav Acharya, “ ‘Idea-Shift’: How Ideas from the Rest Are Reshaping Global Order” (2016) 37 Third World Q 1156.

8  Steven LB Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (CUP 2016).

9  Jensen (n 8). See also Kathryn Sikkink, “Latin American Countries as Norm Protagonists of the Idea of International Human Rights” (2014) 20 Global Gov 389.

10  Oliver Stuenkel, “Brazil and R2P: A Case of Agency and Norm Entrepreneurship in the Global South” (2016) 30 Intl Rel 375.

11  Acharya, “ ‘Idea-Shift’ ” (n 7).

12  Sikina Jinnah, “Makers, Takers, Shakers, Shapers: Emerging Economies and Normative Engagement in Climate Governance” (2017) 23 Global Gov 285.

13  Shirley V Scott and Lucia Oriana, “Resisting Japan’s Promotion of a Norm of Sustainable Whaling” in Alan Bloomfield and Shirley V Scott (eds), Norm Antipreneurs and the Politics of Resistance to Global Normative Change (Routledge 2016).

14  Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep (31 March 2014).

15  Shirley V Scott and Lucia Oriana, “Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Judgment of 31 March 2014: A Decisive Victory—but for Whom?” (2014) 29 IJMCL 547, 557.

16  International Law Commission, “Summaries of the Work of the International Law Commission” (16 February 2017) <http://legal.un.org/ilc/summaries/1_11.shtml> accessed March 8, 2018.

17  Thomas Risse, Stephen C Ropp, and Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Change (CUP 1999).

18  Adam Bower, Norms without the Great Powers: International Law and Changing Social Standards in World Politics (OUP 2017). See also Robert L Brown, “The Causes and Effects of International Treaties” (2016) 131 PSQ 597, 619: “While the negotiation of treaties results in increasing dissimilarity and worsening conflicts of interest, socialization occurs after treaties enter into force.”

19  Amitav Acharya, “Norm Subsidiarity and Regional Orders: Sovereignty, Regionalism, and Rule-Making in the Third World” (2011) 55 Intl Stud Q 95.

20  Amitav Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionallism” (2004) 58 Intl Org 239.

21  Laura Reidel, “Beyond a State-Centric Perspective on Norm Change: A Multilevel Governance Analysis of the Retreat from Multiculturalism” (2015) 21 Global Gov 317.

22  Antje Wiener, “A Theory of Contestation—A Concise Summary of Its Argument and Concepts” (2017) 49 Polity 109.

23  Stephen D Krasner (ed), International Regimes (Cornell University Press 1983), 1.

24  Marc A Levy, Oran R Young, and Michael Zürn, “The Study of International Regimes” (1995) 1 Eur J Intl Rel 267, 268–69.

25  Michael C Webb and Stephen D Krasner, “Hegemonic Stability Theory: An Empirical Assessment” (1989) 15 Rev Intl Stud 183. This theme continues in the norms literature: see Bower (n 18).

26  Karolina M Milewicz and Duncan Snidal, “Cooperation by Treaty: The Role of Multilateral Powers” (2016) 70 Intl Org 823.

27  The United States has taken the attitude that such a treaty is unnecessary. See Jeffrey Lantis, “To Boldly Go Where No Country Has Gone Before: US Norm Antipreneurism and the Weaponization of Outer Space” in Alan Bloomfield and Shirley V Scott (eds), Norm Antipreneurs and the Politics of Resistance to Global Normative Change (Routlege 2016).

28  Leah C Stokes, Amanda Giang, and Noelle E Selin, “Splitting the South: China and India’s Divergence in International Environmental Negotiations” (2016) 16 Global Envtl Pol 12.

29  Beth A Simmons, “Treaty Compliance and Violation” (2010) 13 Ann Rev Pol Sci 273.

30  Oona A Hathaway, “Why Do Countries Commit to Human Rights Treaties?” (2007) 51 J Conflict Res 588. And more recently, see Wayne Sandholtz, “Domestic Law and Human Rights Treaty Commitments: The Convention against Torture” (2017) 16 JHR 25.

31  Kenneth Roth, “The Charade of US Ratification of International Human Rights Treaties” (2000) 1 Chic JIL 347, 347.

32  ibid.

33  Ronald B Mitchell, “Regime Design Matters: Intentional Oil Pollution and Treaty Compliance” (1994) 48 Intl Org 425.

34  Beth A Simmons and Daniel J Hopkins, “The Constraining Power of International Treaties: Theory and Methods” (2005) 99 Am Pol Sci Rev 623.

35  See, for example, Helmut Breitmeier, Arild Underdal, and Oran R Young, “The Effectiveness of International Environmental Regimes: Comparing and Contrasting Findings from Quantitative Research” (2011) 13 Intl Stud Rev 579.

36  Martti Koskenniemi, “Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and International Relations” (2007) 8 Theo Inq L 9, 30.

37  George W Downs, David M Rocke, and Peter N Barsoom, “Is the Good News about Compliance Good News about Cooperation?” (1996) 50 Intl Org 379.

38  Oran R Young, “The Effectiveness of International Environmental Regimes: What Do We Know; What Do We Need to Know; How Can We Find Out?” [2010] Unpublished Manuscript 1, 7. <https://groups.nceas.ucsb.edu/sustainability-science/2010%20weekly-sessions/session-92013-11.08.2010-institutions-for-managing-human-environment-systems/supplemental-readings-from-moderator-discussant-william-clark-harvard-univ/Young%202010%20Environmental%20Governance.pdf accessed March 8, 2018.

39  Elliot Benedick, “Perspectives of a Negotiation Practitioner” in Gunnar Sjöstedt (ed), International Environmental Negotiation (Sage 1993), 234.

40  Oran R Young, “Effectiveness of International Environmental Regimes: Existing Knowledge, Cutting-Edge Themes, and Research Strategies” (2011) 108 PNAS 19853, 19855.

41  Barbara Koremenos, The Continent of International Law: Explaining Agreement Design (CUP 2016).

42  ibid 16–17.

43  See, eg, Arild Underdal and Oran R Young (eds), Regime Consequences: Methodological Challenges and Research Strategies (Springer 2004).

44  Young, “Effectiveness” (n 41) 19856.

45  Robert O Keohane and David G Victor, “The Regime Complex for Climate Change” (2011) 9 Perspectives on Politics 7.

46  Kenneth W Abbot, “The Transnational Regime Complex for Climate Change” (2012) 30 Envt & Plan C: Govt & Policy 571.

47  Keohane and Victor (n 45) 10.

48  Abbot (n 46) 571.

49  Dries Lesage and Thijs Van de Graaf, “Thriving in Complexity? The OECD System’s Role in Energy and Taxation” (2013) 19 Global Gov 83.

50  Alexander Betts, “The Refugee Regime Complex” (2012) 29 Refugee Surv Q 12.

51  Kal Raustiala and David G Victor, “The Regime Complex for Plant Genetic Resources” (2004) 58 Intl Org 277, 306.

52  Laura Gómez-Mera, “International Regime Complexity and Regional Governance: Evidence from the Americas” (2015) 21 Global Gov 19.

53  G John Ikenberry, “The Future of Multilateralism: Governing the World in a Post-hegemonic Era” (2015) 16 Jap J Pol Sci 399. See also Edward Newman, A Crisis of Global Institutions? Multilateralism and International Security (Routledge 2007).

54  David Kaye, “Stealth Multilateralism: U.S. Foreign Policy without Treaties – or the Senate” (2013) 92 Foreign Affairs 113, 115.

55  G John Ikenberry, “The Illusion of Geopolitics: The Enduring Power of the Liberal Order” (2014) 93 Foreign Affairs 80.

56  G John Ikenberry, “The Plot against American Foreign Policy: Can the Liberal Order Survive?” (2017) 96 Foreign Affairs 2.

57  Jan Klabbers, “The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity” (2004) 1 JILIR 35, 43.

58  Amitav Acharya, “The Future of Global Governance: Fragmentation May Be Inevitable and Creative” (2016) 22 Global Gov 453, 454.

59  Acharya, “ ‘Idea-Shift’ ” (n 7) 1157.