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The Oxford Handbook of International Environmental Law edited by Bodansky, Daniel; Brunnée, Jutta; Hey, Ellen (7th August 2008)

Part II Analytical Tools and Perspectives, Ch.10 International Relations Theory

Kyle W. Danish

From: The Oxford Handbook of International Environmental Law

Edited By: Daniel Bodansky, Jutta Brunnée, Ellen Hey

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 15 November 2019

Subject(s):
Sustainable development — Pollution

(p. 205) Chapter 10  International Relations Theory

(p. 206) Introduction

Since the early 1990s, international rules and institutions related to international environmental law (IEL) have multiplied at an exponential rate. International environmental agreements have increased in number and rates of participation. Yet, there is little evidence that this escalation of law-making activity has had a proportional impact on the behaviour of states and other international actors. Environmental problems continue to grow more acute, and the challenge of establishing effective international responses to issues such as biodiversity and global climate change seem more difficult than ever. Environmental agreements appear to vary substantially in their rates of participation, compliance, and overall effectiveness. (see Chapter 39 ‘Compliance Theory’). In addition, certain environmental issues with enormous impacts, such as clean water, do not seem to make it on the law-making agenda at all.

For these reasons, in addition to analysing doctrine and practice in particular issue areas, legal scholars and practitioners now increasingly struggle to get to the bottom of broader theoretical questions about IEL, including: (1) why states and other key international actors adopt certain forms of cooperation under international law; (2) how different forms of international cooperation affect the behaviour of key actors; and (3) how international environmental laws can be made more effective in shaping actor behaviour.

To gain new perspectives and insights into these and other questions, many in the IEL community have joined other international law (IL) scholars and practitioners in turning to international relations (IR) theory. This exchange with IR theorists is one example of the broader interest among legal scholars in drawing upon the knowledge and techniques of the social sciences. This interest has spawned a set of ‘law and’ sub-disciplines. It also has spawned scepticism, including critiques from legal scholars who assert that something distinctive about legal norms and practices is lost when viewed through the prism of IR, economics, philosophy, or other disciplines (see Chapter 43 ‘Compliance Procedures’).

Accordingly, the IL-IR interdisciplinary project has drawn both adherents and sceptics. For some IL scholars, the disciplines of IL and IR are complementary in that IL scholarship traditionally focuses on questions of doctrine (what is the law that governs this issue area?) and prescription (what should the law be?), while IR scholars focus on questions of explanation (why has law emerged in this area and what kind of law will work?). Seen in this light, collaboration holds the promise of designing more effective and durable international environmental laws and institutions. However, other scholars see distinct hazards in the interdisciplinary project, warning that IR theories tend to undermine the validity of international rules or even promote American hegemonic dominance.

Notwithstanding these criticisms, there is a distinct trend towards greater use of IR theory within IL scholarship generally and particularly within IEL. Conversely, (p. 207) among IR scholars studying environmental issues, there is rising interest in understanding the particular forms and impacts of ‘legalization’ in world politics. Cross-disciplinary exchanges are increasing, and there have been a number of notable collaborations between IR and IEL scholars in recent years. This chapter reviews the major IR theories and their relevance to, and impact upon, IEL. It also identifies key emerging issues in the inter-disciplinary agenda of IR and IEL scholars and practitioners. Finally, it reviews sources of scepticism about this agenda.

Realism and Neo-Realism: IR’s Period of Hostility to IL

While there would seem to be a natural affinity between scholars studying international law and international relations theory, there was for several decades a gulf, even a chasm, separating the two disciplines. This chasm opened up with the onset of the Cold War, when there arose an American-dominated view of international relations, which is referred to as ‘Realism’ and which was explicitly hostile to international law. Animating this view was a deep rejection of what were perceived to be the ‘legalist-moralist’ views of Woodrow Wilson and proponents of the League of Nations during the inter-war years. For influential Realists such as George Kennan and Hans Morgenthau, states were not—and should not be—bound by law in the international sphere.1

As first formulated by Kennan and others, Realism was more a stance or diplomatic strategy than a fully specified theory of international relations. Then, Kenneth Waltz re-conceptualized Realism as Neo-Realism (sometimes referred to as Structural Realism), thereby establishing an analytically rigorous theory of international relations. Neo-Realism all but occupied the field between the early 1950s and the early 1980s and remains influential today. Neo-Realists posit that the key actors in the international system are states—not international organizations, domestic interests, non-governmental organizations (NGOs), or others. Neo-Realism further asserts that the international system is anarchic—not in the sense of being in constant violent conflict, but rather in the sense that there is no set of authoritative institutions that constrain states in the pursuit of their interests. And, in this anarchic system, each state’s interests are related to material ends, specifically, the accumulation of power and wealth relative to other states.2

(p. 208) Under this theory, outcomes in the international system are determined by the number of states and the distribution of power among these states. Accordingly, in the Neo-Realist system, legal norms and law-based institutions do not have any independent causal effect but, rather, are epiphenomenal. States sometimes cooperate through treaties, but only at the behest of the most powerful states, and when the distribution of power changes, cooperation changes its form or ends.

So how do Realists account for the proliferation of international environmental law treaties in the past few decades? Some Neo-Realists assert that the ‘low politics’of international environmental issues place these issues outside the domain of Neo- Realist analysis. In other words, because state survival ordinarily is not immediately at stake with respect to such issues, states can afford to pursue absolute gains through cooperation.3 Alternatively, Neo-Realists argue that state activity on international environmental issues is consistent with their theory because the vast majority of international environmental treaties have not been associated with any changes in state behaviour beyond what the states would have done in the absence of the treaties, and the few regimes that have been associated with changed state behaviour have also had the active backing of a powerful (‘hegemonic’) state. They cite, for example, the moratorium on commercial whaling, which seems to have changed the behaviour of whaling states such as Japan, not because of the legal effect of the moratorium itself but rather because of pressure from the United States.4

Accordingly, with the rise of Neo-Realism to a position of prominence, several generations of IR scholars were taught that IL was a mere shadow play in the fundamentally anarchic system of state interaction, and that the study of IL was the province of idealists and utopians. During the period between the 1950s and the late 1980s, IR scholars generally were not interested in any cross-disciplinary entreaties from scholars of IL. In the 1970s, in particular, ‘international law virtually disappeared from the study of international relations.’5

Rise of Neo-Liberal Institutionalism and Regime Theory

3.1  Neo-Liberal Institutionalism as a Response to Realism

During the period of its ascendancy within IR, the Neo-Realist school withstood a variety of liberal attacks, including critiques that Neo-Realism could not explain the (p. 209) growing number of treaties, the increasing technological and economic interdependence of states, and the rising prominence within the international system of a wide spectrum of non-state actors in international relations. However, it took an attack from within to ease the grip of Neo-Realism on IR scholarship.

The starting point for this critique was the inability of Neo-Realism to explain the persistence, and continued influence, of certain international institutions, such as the General Agreement on Tariffs and Trade, even with the relative decline of US power. The insight of Robert Keohane and others in what has come to be known as the Neo-Liberal Institutionalist School was that states establish and maintain such cooperative arrangements out of their self-interest.6 The Institutionalists adopted nearly all of the premises of Realism, including the notion that the international system is anarchic, that the key actors in this system are states, that more powerful states typically will dominate the international realm, and that states are rational and autonomous. Their twist was to apply a micro-economic analysis to the study of international relations, reasoning that self-interested states (even the most powerful ones) will sometimes sacrifice some of their autonomy in order to establish multistate ‘institutions’ or ‘regimes’—defined as ‘persistent and connected sets of rules (formal and informal) that prescribe behavioural roles, constrain activity, and shape expectations’7—where the gains from cooperation exceed the gains from unilateral action.

In other words, regimes provide a tool that states can use to address market failures caused by barriers to collective action. In particular, regimes can offer a compelling solution to situations in which a state has ‘mixed motives’. For example, states that have some interest in reducing trade in endangered species have reasons to prefer a multilateral regime—such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)—to an approach in which each state has the autonomy to regulate such trading. However, the analysis does not stop there. To the extent that CITES becomes more and more effective, the value of contraband specimens will become higher and higher, meaning that the financial rewards available to a state that is willing to open its borders to trade—that is, to ‘free-ride’—also increases. Given this ‘mixed motives’ outcome, Institutionalists argue that cooperation through CITES can become increasingly ‘deep’ only if the regime has increasingly powerful incentives to prevent free-riding—not only by parties to the regime but also, and perhaps even more importantly, by states that have opted to stay outside the regime.

For Institutionalists, state sovereignty implies that regimes can improve upon the unilateralist status quo only if they are self-enforcing (see Chapter 11 ‘Economic Theory of International Environmental Law’). And Institutionalists generally agree (p. 210) that a regime can be self-enforcing only if it is individually rational (in the sense that no party to the regime can gain by withdrawing and no state that is outside the regime could gain by joining it) and collectively rational (in the sense that no party can gain collectively by changing the treaty).8 Under this view, a regime can be effective only if it changes the incentive structure of the key states.

Regimes offer a number of instruments to achieve this end, thereby allowing states to exploit the clout of reciprocity at a lower transactional cost than through ad hoc cooperation or unilateral actions. Regimes allow states to pool their resources to develop information and monitor one another’s performance. In addition, through conferences of the parties and other official meetings, they provide arenas for repeated iterations of negotiation and interaction. Such repeated iterations lengthen the shadow of the future—the knowledge that they will encounter each other repeatedly over time can reduce the likelihood that states will renege on their obligations.9 Regimes thus leverage each state’s concern for its reputation as a reliable bargaining partner. Regimes also provide a set of terms to clarify the scope of expected performance and, in some instances, a place for resolving disputes.

Finally, regimes provide a mechanism for organizing collective punishments or rewards. For example, parties to the ozone regime used the Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol) to establish rules under which they could ban imports of ozone-depleting substances (ODS) from non-parties and non-complying parties, thereby inducing both participation and compliance. In addition, the parties worked through the regime to pool their capacity- building resources in a Multilateral Fund. Managed by the World Bank, the fund directs resources to developing country parties to offset their incremental costs of phasing out ODS.

Institutionalism has been the theory that launched a thousand research agendas, in no small part because its researchers could make use of non-cooperative game theory—a particularly potent analytical tool that has become the tool of choice of economics, which is the discipline currently in ascendancy among the social sciences.10 Thus, Arild Underdal,11 Michael Zürn,12 and other IR scholars have analysed how different kinds of ‘game’ structures for international environmental problems lead to (p. 211) different types of regime solutions. Each of these games describes a set of circumstances in which the players obtain certain hypothetical ‘payoffs’ from certain actions. Game theory captures the interdependence of international relations. In most games, a player’s payoff is affected by the actions taken by other players and also by the number of times that the game will be played.

The game that provides the most difficult obstacles to cooperation is the famous ‘Prisoner’s Dilemma’ which represents, for Institutionalists, the exemplary problem of international relations. In the context of an environmental issue, the classic Prisoner’s Dilemma describes a situation in which there are two players, X and Y. Each can choose either to ‘pollute’ or to ‘abate’. The game is played once, meaning that, without the benefit of actual experience, each player must guess how the other will play. Each player confronts the same payoff structure. The highest possible payoff occurs if both players play ‘abate’. For either player, the worst possible payoff occurs if it plays ‘abate’ and the other player opts for ‘pollute’. Without the ability to coordinate, therefore, each player’s ‘dominant strategy’ is to play ‘pollute’ for it provides, across the spectrum of possible plays, the highest payoff opportunities given the possible strategies employed by the other player. Thus, the Prisoner’s Dilemma results in an inefficient equilibrium.

Other types of collective action problems can be represented by other types of games. For example, the ‘coordination’ game is more benign than the Prisoner’s Dilemma. The coordination game describes a situation in which there are two cooperation strategies that will provide the players with a high payoff. Accordingly, if the game is played sequentially—for example, if X acts first and then Y acts—the high payoff strategy can be a self-enforcing outcome. An example of a coordination game is provided by the aviation standards set by the United Nations International Civil Aviation Organization (ICAO), which include a set of standards that addresses pollutant emissions. Scott Barrett has explained that even though ICAO standards are voluntary, compliance is nearly universal because of the commercial incentives for manufacturers to have uniform technology requirements. Thus, once a certain number of members adopt a particular technology, all members have interests in adopting the same technology.13 The ICAO provides a lesson in IEL regime strategy. Were the ICAO to attempt to set an overall emissions cap and allocate responsibility for meeting the cap, the game would be similar to a Prisoner’s Dilemma, with all of its attendant compliance and enforcement difficulties. In contrast, the technology standard approach, while perhaps less cost-effective, nevertheless, has the advantage of establishing a self-enforcing coordination game.

Institutionalists have used other games—including such vividly named games as ‘chicken’, ‘stag-hunt’, and ‘battle of the sexes’—to represent a range of different types of collective international problems.14 Institutionalists explain that, to improve upon (p. 212) unilateralism, states and other international actors have to manipulate regime design strategies to change payoffs. In these analyses, Institutionalists generally emphasize that there are almost always strong incentives for states to remain outside an agreement and ‘free-ride’, implying that most self-enforcing agreements are either characterized by a small number of parties or a low level of obligation or both. Indeed, Institutionalist analysis is characterized by a degree of scepticism about the potential for collective action to address the most difficult, global-scale environmental issues, such as global climate change. For Institutionalists, the greater the number of states that are needed to address a problem, and the greater the behavioural change required, the less likely that international environmental treaties can improve on the unilateral status quo.

3.2  Regime Theory and IL Scholarship

The rise of Institutionalism opened up new vistas of cross-disciplinary dialogue between scholars of international relations and scholars of international law. This is in no small part because, by the time Keohane and other international relations scholars launched Institutionalism, international legal scholars such as Louis Henkin, the adherents of the New Haven School, and others had already spent the previous three decades developing functionalist/rationalist accounts of international law. Indeed, according to IL scholar Anne-Marie Slaughter, the insight that regimes facilitate cooperation rather than mandate a utopian world government was ‘an insight new only to political scientists.’15 Like Moliere’s Monsieur Jordan, these legal scholars may have been surprised to learn that they had been speaking regime theory the entire time. Even so, the Institutionalists brought to the discussion a more fully specified, more empirically rigorous analytical framework to support the functionalist explanation of treaty-based cooperation. Regime theory has provided new tools and analytical concepts for understanding why regimes develop and how they operate to change state behaviour.

And, as Slaughter, Andrew Tulumello, and Stepan Wood have observed, Institutionalists have offered another vital insight to international cooperation, namely that ‘institutions that provide collective goods may be collective goods themselves, subject to the same difficulties of supply and maintenance as the underlying substantive benefits they are designed to provide.’16 Thus, Institutionalists not only have identified a rationale for why cooperative regimes and institutions emerge, they also have identified the factors that can make such cooperation difficult to sustain.

The rich theoretical dimensions offered by Institutionalism have led to a variety of new research agendas for scholars of international environmental law. For (p. 213) example, scholars have examined the dynamic evolution of treaty regimes from framework conventions to more detailed regulatory protocols (see Chapter 20 ‘Treaty Making and Treaty Evolution’); the role of iteration in treaty law in overcoming Prisoner’s Dilemma problems;17 the reasons why states negotiate hard or soft norms and the comparative effectiveness of the two approaches;18 and the factors that contribute to the effectiveness of international environmental regimes (see Chapter 39 ‘Compliance Theory’).

Alternatives to Institutionalist Regime Theory: Liberalism and Constructivism

Even as the density of interaction between legal scholars and political scientists has increased in the past ten to 15 years, discontent with Institutionalism has emerged in both disciplines. For its critics, Institutionalism provides an incomplete account of the evolution and impact of cooperative regimes.

4.1  Liberalism

One of the central criticisms of Institutionalism has been its focus on states as the primary actors in the international system. Among Institutionalists, there is a self-awareness that treating states as the key component in international interaction is a simplification, yet they assert that it is a useful simplification. In the great majority of cases, Institutionalists argue, a model that aggregates and abstracts the varied interests and actors under the state banner is analytically powerful. They assert that it explains most of what plays out on the international stage.19

Yet, there is a fine line between parsimony and reductionism and, for Institutionalism’s critics, the Institutionalist account omits too much, particularly in explaining a world that is increasingly interdependent and teeming with a whole variety of new actors. Slaughter, for example, has argued for a liberal theory of international law. Her liberal account disaggregates the state, arguing that interactions in the international system are determined in great measure by the type of government (p. 214) of the interacting states—democracies act differently than other government types on the international stage.20 A second point extensively explored by Slaughter and others is the process by which regimes lead to realignments of interests within the domestic realm of participating states, mobilizing some interests and giving them access to, and power within, new institutions. Finally, Slaughter has argued that international policies increasingly result not from state-to-state interaction but rather from interactions between international networks of sub-state actors, such as judges, law enforcement officials, and even private actors. Slaughter identifies the emergence of an increasingly active transnational society, which is neglected in classic Institutionalist accounts.

Harold Hongju Koh also has developed a transnational theory of international relations through law, but the primary focus of this theory is on the vertical, rather than the horizontal, level of interaction. Koh’s ‘transnational legal process’ model posits that state compliance with international rules is determined not solely by the extent to which such rules provide functional benefits but also by the extent to which such rules are internalized within states through domestic legal systems.21 In Koh’s model, the key actors in this internalization process are domestic interest groups. The activities of these ‘norm entrepreneurs’ facilitate the interpretation and internalization of the rules within domestic law, determining in many cases whether and how states will comply with their international obligations.

With some exceptions, the implications of liberal theory for IEL have been less explored than other areas of international law. One area of potential further inquiry is whether the form of government affects rates of participation and compliance in IEL regimes. The available evidence presents a mixed picture. On the issue of participation in IEL regimes, it is not clear that a liberal democratic form of government necessarily guarantees more cosmopolitan preferences with regard to international environmental treaties.22 For example, while President George W. Bush has come in for widespread scorn for his seemingly imperious refusal to take steps to ratify the Kyoto Protocol, President Bush’s decision arguably reflects the preferences of the US polity as expressed through its representative institutions. Four years prior to the Bush announcement, the US Senate, the key domestic institution in the US treaty ratification process, unanimously passed a resolution expressing its opposition to the United States joining any treaty that did not extend greenhouse gas emission reduction obligations to developing countries.23

On the issue of compliance, however, at least one study suggests that liberal democracies are more likely to follow through on their IEL commitments. Edith Brown Weiss, an IEL scholar, and Harold Jacobson, an IR scholar, studied the (p. 215) compliance rates of eight states in connection with five treaties. One of their findings was that democracies performed their obligations much more faithfully than non-democracies.24

One way of reconciling these different findings on participation and compliance would be to conclude that, even if it is not the case that liberal states are not inherently more environmentally minded than other states, it might be that any kind of international commitment made by a liberal state—environmental or otherwise—is more deeply ‘internalized’ than the same kind of commitment made by another kind of state. Such deeper internalization could be the result of a more intense deliberative process and/or the incorporation of the commitment in the domestic legal system of a polity that, by its nature, is more dedicated to the rule of law.

4.2  Constructivism

Another line of criticism against Institutionalism has focused on its reliance on interest-based explanations for what causes institutions to emerge and how they operate to change behaviour. Traditional Institutionalist analyses assume that material interests (that is, security and wealth) predominate for states, that states enter regimes with their interests fully formed, and that regimes do not alter interests. Institutionalists assert that regimes change state behaviour not by changing state preferences but rather by lowering or raising the payoffs associated with acting on those preferences in particular ways. In a micro-economic sense, each state’s demand for a particular collective good is given—the institution merely changes the supply.

Under the traditional form of Institutionalist theory, states encountering informal rules will make the same set of rational calculations that they make with formal rules and institutions—they will comply only if the benefits of compliance exceed the costs. Since Institutionalists do not believe that a state’s preferences are readily reconstructed, they view the significance of legal norms as primarily contractual rather than constitutive. Traditional Institutionalist theory is interested in legal rules and institutions only in so far as such rules establish clear terms for what constitutes performance, and specify the circumstances under which the parties to an institution will provide rewards or mete out punishments. According to conventional Institutionalism, legal norms themselves do not shape state preferences. Thus, Institutionalism might ascribe causal significance to the phase-out schedule for ozone-depleting chemicals in so far as it precisely establishes the terms of agreement under the ozone regime, and makes clear what kind of actions will incur sanctions or incentives. On the other hand, it means little under traditional Institutionalist theory that the ozone regime reflects the ‘precautionary (p. 216) principle’ or that compliance with the phase-out schedule is formally compelled by the norm of pacta sunt servanda.

For critics of Institutionalism, this account significantly discounts the role of institutions in altering state interests and, in particular, fails to capture the distinctive influence of law-based institutions and norms as distinguished from informal institutions and norms in shaping state identities. Keohane, author of some of the seminal Insitutionalist works and a keen observer of IR scholarship, has characterized the work of Institutionalism’s critics as an effort to supplement Institutionalism’s ‘instrumentalist optic’ with a ‘normative optic’, which explains the role of the institution in transforming state identities and preferences through a range of social processes.25

Constructivism is a broad label that describes a number of different theories and perspectives that share an emphasis on the social/normative aspects of state cooperation through institutions. Where Constructivists differ from Institutionalists is in their view of how states interact within the anarchic international system. Constructivists emphasize that the international system must be understood as a social structure. The international system, in their view, comprises more than just a distribution of material capabilities—it also comprises social relationships (see Chapter 3 ‘Paradigms and Discourses’).

For example, Alexander Wendt, one of the leading Constructivists among IR scholars, describes the international system as a social structure encompassing three elements: ‘shared knowledge, material resources, and practices.’26 The first element reflects the worldview of the decision-making elites among states, including their view of which other states are their allies. This shared knowledge determines what meaning they will give to their assessment of their relative control over the second element, material resources. Thus, Wendt reasons that ‘500 British nuclear weapons are less threatening to the United States than 5 North Korean nuclear weapons because the British are friends of the United States and the North Koreans are not, and amity or enmity is a function of shared understandings.’27 Finally, the third element of Wendt’s Constructivism emphasizes that shared understandings emerge through state behaviour. ‘Social structures exist,’ Wendt explains, ‘not in actors’ heads nor in material capabilities, but in practices. Social structure exists only in process.’28

Whereas Institutionalists generally presume that states enter the international system with fully formed preferences, Constructivists emphasize that states acquire identities and interests through their participation in the international system’s social structures. In other words, there is a ‘mutually constitutive’ relationship between states and structures in that states act on the system based on their beliefs and, through this participation, find their identities and beliefs changed—even without utilitarian calculations.

(p. 217) Regimes play key roles under Constructivism, but not just as mechanisms for the diffusion of information and monitoring and for the organization of rewards and punishments. Regimes also are powerful social structures—arenas that are highly effective in generating norms and shared understandings. They both constrain actors—by creating stable patterns of behaviour—and enable them—by providing an environment for increased and focused discourse on what behaviour should be considered legitimate or illegitimate in certain issue areas.29 Norms generated through interaction within regimes have strong effects on the behaviour and identity of actors, regardless of whether those norms are backed by coercive measures.

Threads of Constructivism can be found in much of the literature on international environmental regimes. For example, political scientists Oran Young and Marc Levy have edited a volume in which they asked researchers to analyze the impacts of different environmental regimes not only with respect to their utilitarian impacts on states (that is, regimes as ‘utility modifiers’ and ‘enhancers of cooperation’), but also based on their social and constitutive impacts (that is, regimes as ‘bestowers of authority’, ‘learning facilitators’, and ‘role definers’).30 In another book, Young has developed a typology of ‘institutional tasks’ performed by regimes.31 The first three tasks—regulatory, procedural, and programmatic—are the familiar elements of any functionalist or process-related regime analysis. The last task, on the other hand, is described as ‘generative’ and describes the distinctively Constructivist concept of the regime as generating new social practices. Similarly, in their account of the evolution of the Nile River Basin regime, Jutta Brunnée and Stephen Toope emphasize the process by which continued interaction and discourse of the key actors around certain legal norms lead to shared understandings and a convergence of views.32

By emphasizing the social and discursive aspects of world politics generally and of institutions specifically, Constructivists have prompted a range of IR and IL scholars to look more closely at the impacts of non-state actors and a variety of social forces on international environmental cooperation. Thus, political scientist Peter Haas has analysed the impact of epistemic communities, groups of advocate- scientists, and other experts on international environmental cooperation (see Chapter 34 ‘Epistemic Communities’).33 Similarly, IR scholars Steinar Andresen34 (p. 218) and Thomas Princen35 have emphasized the roles played by NGOs in promoting the formation of, and compliance with, international environmental regimes.

A number of international legal scholars and political scientists assert that regime effectiveness rarely occurs without the emergence of a leader who can be a particular individual or a particular state(s). Weiss and Jacobson assert that ‘[w]hat might be termed a leader is crucial to the negotiation of environmental accords and to the promotion of compliance with them.’36

Constructivism and Liberalism have many overlapping interests, as do Constructivism and the thinking of the Transnational Legal Process School, which examines how state behaviour is altered when it is mediated through the particular structures of international rules and processes. All three schools assert that international cooperation is a function not merely of state preferences and bargaining but rather a range of other factors. However, Constructivists tend to cast a broader analytical net. Scholars such as Koh, who are working in the Liberal or Legal Process mode, generally confine themselves to analyzing how domestic interests or institutional/ legal structures frame outcomes in the international system. Constructivists focus on these factors too, but they also probe more broadly into the sociological foundations for the internalization of legal norms. In asking why one legal norm takes root in a society while another does not, for instance, Constructivists examine such factors as the extent to which the norm corresponds to other deeply ingrained norms and the ability of ‘norm entrepreneurs’ to make themselves heard and begin a ‘norm cascade’ of internalization.37

Constructivist, norm-based concepts have made inroads even among the strictest Neo-Liberal Institutionalists. Though Barrett is sceptical about a variety of constructivist claims regarding international cooperation, he nevertheless agrees that to be self-enforcing an international environmental accord must not only meet criteria for rationality but also must be considered ‘fair’.38 Barrett also sees an important role for customary international law in shaping state behaviour. In many circumstances, he asserts, custom is not strictly determinative of state action, but Barrett reasons that custom often establishes a normative framework that can ‘set the terms of debate’ and guide negotiations in the direction of more specific rules.39

In the fiftieth anniversary issue of the venerable IR journal International Organization, IR scholars Peter Katzenstein, Keohane, and Stephen Krasner posit that the (p. 219) main axis of debate in the field of IR in the coming years is likely to be Rationalism/Institutionalism versus Constructivism.40 Indeed, Institutionalists have developed a variety of criticisms of Constructivism. While they acknowledge that social forces frequently play some role in state behaviour, Institutionalists nevertheless argue that social norms usually will not trump political-economic influences on state behaviour.41 Constructivism, they assert, presents a passable theory for interpersonal relations, but a weak explanation for most international relations. Institutionalists also criticize Constructivism on empirical grounds. As a practical matter, it is difficult to parse out social from material causes for behaviour. Institutionalists argue that Constructivists sometimes offer evidence of apparent effectiveness of social forces without taking the measure of other co-existing variables that might account for success, such as the presence of powerful states, the number of actors involved, and the economic incentives for action.42 Understanding the contexts in which a norm-based discourse has an independent effect on state identity and interests remains a significant methodological challenge for Constructivists in both the IL and IR communities.

Legalization and IR Theories

In 2000, a special issue of International Organization brought together 13 of the leading lights of IR and IL scholarship to examine the subject of legalization and world politics.43 The contributors to the volume agreed on a conceptualization of legalization as a ‘particular form of institutionalization characterized by three components: obligation, precision, and delegation.’44 As postulated by the contributors, each of these characteristics is a matter of degree and each can vary independently. Thus, the concept of legalization embraces a ‘multidimensional continuum’, ranging from ‘hard’ legalization (in which all three components are maximized) to ‘soft’ legalization (in which each is minimized) with variations in between.45 By way of illustration, the ‘hard’ end of the spectrum likely would include CITES, the Montreal Protocol, and the Kyoto Protocol to the United Framework Convention on Climate Change. Each has well-specified obligations, fully staffed secretariats, and relatively strong enforcement mechanisms. On the ‘soft’ end of the spectrum would be, for example, the Non-Binding Statement of Forest Principles, which outlines a relatively (p. 220) short set of non-binding and broadly drawn principles, and does not establish any kind of institutional mechanism for monitoring adherence to those principles. An example of a regime that might fall in the middle of this continuum is the whaling regime, which imposes a high degree of formal obligation and precise rules, but does not establish a third-party mechanism for monitoring and enforcement.46

This conceptualization rejects a strict dichotomy between ‘legalized’ and ‘informal’ regimes (see Chapter 6 ‘Formality and Informality’) and, in particular, avoids the positivist presumption that only those rules enforced by a sovereign can be considered law. Having constructed this typology of legalization, the contributors use it to explore a variety of theories about why international actors opt for different forms of legalization, and the consequences of legalization in a range of settings. Kenneth Abbott and Duncan Snidal, for example, elaborate a functionalist account of legalization, reasoning that the decision as to whether to develop a legalized regime reflects a cost-benefit analysis that balances the transaction costs of negotiation and the sovereignty costs of obligation against the potential benefits of collective action.47 Other contributors, including Ellen Lutz, Kathryn Sikkink, and Miles Kahler, examine Constructivist or cultural perspectives on legalization.48

For Brunnée and Toope, who have worked to extend Constructivism within IL scholarship, the bulk of the International Organization volume sustains outdated positivist and hierarchical notions of international law. As an alternative, they have developed an ‘interactional legal theory’ that aims to explain both the distinctive impact of legal norms and also how such norms can change over time.49 Drawing on the writings of Lon Fuller, Brunnée and Toope assert that law and legal institutions emerge from the broader spectrum of social practice because law reflects both an ‘internal morality’ and an ‘external morality’. By ‘internal morality’, Brunnée and Toope mean the internal processes of law-based discourse—that is, ‘reasoned argument, reference to past practice and contemporary social aspirations, and the deployment of analogy.’50 They further explain:

The conditions of internal morality ensure that rules are compatible with one another, that they ask reasonable things of the people to whom they are directed, that they are transparent and relatively predictable, and that officials treat known rules as shaping their exercise of discretion. When these conditions are met, when this particular rationality is evident, law will tend to attract its own adherence. It will be viewed as legitimate, possessing the capacity to generate moral commitment.51

(p. 221) Fuller’s concept of ‘external morality’, as adopted by Brunnée and Toope, posits that one can expect greater adherence to, and impact from, legal norms to the extent that such norms are perceived to be fair or just.52 It is these characteristics of legal norms, which resemble in some ways Thomas Franck’s theories of legitimacy and ‘compliance pull’,53 which determine the ‘bindingness’ of legal norms, and give them special influence on world politics. The greater the extent to which these characteristics are present, the greater the level of adherence that can be expected.

The Common IEL and IR Agenda

Given the significant areas of mutual interest between IR and IEL scholars, it is now becoming possible to map out a common, if not necessarily collaborative, agenda. In some ways, the agenda of IR scholars working on environmental issues is quite broad, encompassing a variety of non-legal, or perhaps pre-legal, issues. Ronald Mitchell explains that IR scholars working in this area are pursuing the following matters: (1) determining the political, economic, and social forces that cause international environmental problems; (2) determining why some of these problems make it on to the international agenda while others do not; (3) explaining why solutions are devised for some problems but not for others; (4) analysing why some mitigation policies are effective and others are not; and (5) identifying the factors determining global society’s success at evaluating and improving its attempts to protect the global environment.54

From the international law perspective, Slaughter, Tulumello, and Wood have proposed a more general collaborative IL-IR agenda that overlaps in significant ways with the IR environmental agenda described by Mitchell. Slaughter, Tulumello, and Wood describe an agenda that: (1) identifies best practices in regime design for different types of problems; (2) identifies effective structures for negotiating new international legal instruments and institutions; (3) examines the precise processes by which actors and social structures are mutually constituted by social practices; (4) analyses the role of power and ‘proof ’ in the discursive production of identities and shared meanings; and (5) analyses how the fundamental structures of the system of sovereign states emerged and how these structures are sustained.55

Rather than summarize the IEL and IR research underway in all of the areas described earlier in this chapter (many of which are explored in other chapters of this (p. 222) Handbook in greater detail), the discussion that follows focuses on regime design, which has been perhaps the most prominent area of common interest and collaboration. There has been substantial effort in this area, particularly in light of the complicated, large-scale issues that have come onto the IEL/IR agenda, including climate change and biodiversity.

Focusing on regime design research not only allows us to review an area in which much work is underway, it also allows us to hone in on some of the lines of debate between Institutionalist and Constructivist views of IEL/IR. Much IEL scholarship on regime design reflects at least an implicit orientation towards Constructivism—that is, an emphasis on the regime as a structure for discourse and norm generation. This orientation has led many IEL and IR scholars, even those who are not self-consciously Constructivists, to favour regime designs aimed at promoting more extensive discourse and norm generation to the exclusion of other types of design options. George Downs, Kyle Danish, and Peter Barsoom have described these Constructivist prescriptions as a ‘Transformational’ model of regime design—the prescriptions also correspond significantly with the ‘framework-convention’ approach widely lauded in much of the IEL literature.56 In a number of areas, Institutionalist strategies for regime design and Transformationalist prescriptions vary strikingly, suggesting a broad agenda for further research. The discussion that follows very briefly summarizes research that has been done in three areas of regime design—(1) regime participation; (2) form of commitment; and (3) compliance—and highlights the different approaches implied by the Institutionalist and Constructivist/Transformational models.

6.1  Participation

A critical element of international environmental regime design is obtaining the optimal level of participation by states with a stake in the environmental problem or issue. Inducing key states to join the regime and deterring their withdrawal is in many ways more challenging than managing or enforcing performance by states that are parties. Non-participation or withdrawal, after all, are both legal under international law and, therefore, outside the reach of compliance norms or enforcement mechanisms. And, as Barrett observes, non-participation ‘involves a deviation from cooperation at least as large as any act of non-compliance.’57 Participation also has a dynamic aspect. From a regime design standpoint, the issue of participation involves an evaluation of whether the aim should be to launch the regime with all of the key states as parties from the beginning or to start from a base of committed states and bring in others over time.

(p. 223) Advocates of the Transformational model of regime design favour the former approach. They recommend a strategy of lowering the price of admission in order to maximize inclusion. They argue that regimes should be broadly participatory from the outset—even if this means establishing relatively weak initial commitments—in order to expose all of the key states to the socializing influences of the regime. Highly participatory regimes, they argue, are more likely to evolve into deeper levels of cooperation.58

Marc Levy asserts that the experience with the Convention on Long Range Transboundary Air Pollution (LRTAP Convention) provides evidence of the effectiveness of a regime design strategy of attracting participation through the establishment of initially weak (albeit binding) commitments (see Chapter 14 ‘Atmosphere and Outer Space’). He argues that the LRTAP Convention’s purposefully weak rules ‘permitted strong consensus-building powers, whereas strong rules would have generated hostility on the part of governments.’59 In Levy’s account, weak rules lured states into the LRTAP Convention, and then scientific working groups resolved the uncertainties in favour of taking action.

Advocates of maximum inclusion offer a variety of rationales for this prescription. In some senses, it reflects high confidence of the ability of regimes to reconstruct state preferences. Thus, even states with the lowest preferences for addressing the problem should be brought within the social structure of the regime as soon as possible. Second, advocates of the Transformational model emphasize that highly participatory regimes have more powerful constitutive agents. In other words, the socialization process so central to the Constructivist view of regimes works better as the membership of the regime more closely approximates the full membership of the international community, rather than being merely a ‘user’s club’. Evidence for the wide-spread adherence to this prescription among IEL practitioners can be found in the 1992 Earth Summit, which attempted to enmesh nearly every state in the international system in a series of environmental accords.

Institutionalists, by contrast, argue that the record provides little evidence that highly-participatory regimes successfully improve upon a unilateralist status quo or become ‘deeper’ over time.60 Moreover, constructing inclusive regimes from the beginning may mean having to accommodate the least willing actors, who can use their membership status to stymie commitment. International cooperation often follows the ‘law of the least ambitious program.’61 In addition, regimes with large numbers of members increase all of the collective action challenges of regime (p. 224) management, including monitoring and enforcement. Because Institutionalists are sceptical about the ability of regime-based discourse to change the interests of the laggards, they see little reason to endure the significant liabilities of a design strategy of maximum inclusion. Thus, Downs, Danish, and Barsoom, for example, question the IEL emphasis on ‘framework-convention’ approaches, and suggest that policy-makers consider regime design strategies in which the regime would start with a small number of committed members and draw in others over time through incentives.62 Daniel Bodansky sees merit in this strategy in the context of the international climate change regime; he has suggested that the regime might evolve in the direction of deeper cooperation if policy-makers first pursued an accord among the relatively few highest-emitting states.63

6.2  Form of Commitment

There is a noticeable trend in IEL, along with some other areas of IL, toward the development of ‘soft law’—in the sense of legally non-binding regimes. Increasingly, commentators perceive such regimes to be something other than merely a better-than- nothing substitute for a hard law regime, but rather a form of commitment with some inherent virtues. In recent years, soft law has inspired substantial amounts of scholarship and brought together IR and IEL scholars in collaborative ventures.64 Efforts to date have exposed significant differences in views within both disciplines, suggesting that further research is merited.

For advocates of the Transformational model of regime design, the establishment of soft law can be part of an affirmative strategy to provide more open texture for collaborative discourse and socialization. Thus, Brunnée and Toope argue that the ‘pre-legal or ‘contextual’ regime may actually be more effective in guiding the relations of international actors.’65 Handl similarly argues that ‘abundant and well-known evidence’ exists that soft law declarations such as the Stockholm Declaration and the World Charter for Nature are effective ‘catalysts’ leading to more ambitious commitments.66

In their review of international environmental regimes, David Victor and Kal Raustiala offer a more rationalist account of soft law, which they link to state concerns about compliance. Specifically, they suggest that where uncertainty about (p. 225) implementation costs is high—a condition that often holds for complex environmental regimes—states sometimes establish soft, but very precise commitments, as an alternative to binding, but substantively weak commitments, thereby establishing regimes that fall somewhere in the middle of Abbott and Snidal’s ‘legalization’ spectrum. Thus, Victor and Raustiala argue that soft law can provide a mechanism that promotes more change in state behavior than would occur if states felt compelled to negotiate, and comply with, hard commitments.67

Downs, Danish, and Barsoom find little evidence to support the hypothesis that regimes initially designed with soft law commitments foster deeper cooperation over time than hard law regimes.68 In addition, to the extent that some soft law regimes appear to be effective, Institutionalists would caution that their effectiveness may be attributable to factors other than the normative structures themselves. For example, where the number of members of a regime is small enough, such as the shared resource regimes analysed by Brunnée and Toope, reciprocity alone may be able to sustain cooperation—even without the specification of precise, legal obligations. Institutionalists also call attention to enforcement mechanisms that may be outside the regime, and therefore not formally specified, but nevertheless very real in their impact on the behaviour of the parties.

6.3  Compliance

Issues related to compliance with international legal obligations have been a lively arena for interaction between IL and IR scholars (see Chapter 39 ‘Compliance Theory’). Furthermore, existing scholarship on compliance throws the differences between Transformationalist and Institutionalist analyses of regimes into particularly sharp relief.69

A starting point for Transformationalists is that states are predisposed to comply with their treaty obligations, even without resort to the threat of punishment. In their landmark work on compliance, Abram Chayes and Antonia Handler Chayes cite a variety of reasons for this ‘propensity to comply’.70 Some of their insights map onto Liberal and Legal Process theories. For example, Chayes and Handler Chayes observe that states typically do not ratify a treaty until after an extensive domestic (p. 226) vetting process, thereby ensuring that the treaty reflects the interests of a variety of domestic actors.71

Chayes and Handler Chayes also argue, consistent with the Constructivist theory, that states comply with their treaty obligations not merely in return for the functional benefits of the particular treaty, but also because participation in regimes now has become central to state identity and sovereignty. Chayes and Handler Chayes assert that globalization and other factors have led to increasing interdependence among states.72 They also point to the rise of ‘third wave’ issues—including environmental degradation—that ‘do not yield so readily to the calculus of power and interest.’73 Under these new circumstances, Chayes and Handler Chayes argue, states are concerned about their standing in a web of regimes. They refer to this as the ‘condition of the New Sovereignty’, in which ‘the only way most states can realize and express their sovereignty is through participation in the various regimes that regulate and order the international system.’74 As a result of the New Sovereignty, Chayes and Handler Chayes reason that, when non-compliance does occur, it is rarely a product of wilful disobedience but instead a result of the manageable deficiencies within the treaty regime or the lack of capacity of the non-complying state.75

Consistent with this understanding of adherence to obligations, Chayes and Handler Chayes prescribe a ‘Managerial’ strategy for promoting regime compliance as opposed to a sanctions-driven ‘Enforcement’ strategy. Their Managerial strategy is ‘verbal, interactive and consensual.’76 A key element of this strategy is an ongoing discourse about the requirements of the regime, using the treaty as the foundational normative framework. This discourse is complemented by such ‘active instruments of management’ as reporting requirements, verification processes, and mechanisms that provide technical and financial assistance.

In particular, Chayes and Handler Chayes and other Transformationalists argue against hard-edge enforcement tools such as sanctions and adjudication-style dispute mechanisms. They note that sanctions and dispute settlement mechanisms are rarely used. Brunnée and Toope similarly assert that such mechanisms are usually too adversarial, backward-looking, and coercive.77 For Transformationalists, hard-edge enforcement mechanisms present an obstacle to the kind of dialogue needed for transformation, consensus-building, and identity convergence.

Institutionalists generally acknowledge that compliance with international environmental agreements is high, even though treaties rarely incorporate enforcement mechanisms.78 They differ with Transformationalists, however, as to whether one should therefore conclude that such mechanisms are unnecessary or harmful to cooperation. George Downs, David Rocke, and Peter Barsoom argue that compliance appears high because most international regimes require states to do little (p. 227) more than they would do in the absence of the regime.79 For those few regimes that require ‘deep cooperation’, Downs, Rocke, and Barsoom find: (1) that non-compliance has been a problem; (2) that much of this non-compliance has been wilful rather than inadvertent; and (3) that significant efforts have been made to develop enforcement strategies.

For these reasons, Barrett ‘cautions against the view that countries can solve the enforcement problem simply by appealing to a state’s responsibilities, by exhortation, by naming and shaming, and by offering assistance.’80 He further explains:

These measures may be helpful; and diplomatically, they may be necessary; but they will not suffice for remedying the hardest cooperation failures. To address these, countries must be able to make credible threats both to deter free-riding and to enforce compliance.81

Barrett argues that two notably successful international environmental regimes—the Interim Convention on Conservation of North Pacific Fur Seals and the Montreal Protocol—would not have been effective if their significant obligations had not been complemented by vigorous compliance mechanisms. He further cautions that international efforts to address global climate change will not be effective without careful consideration of how to address free-riding and wilful non-compliance.

Conclusions and Cautions

The previous sections have mapped out, in summary fashion, a potentially rich collaborative IL-IEL research agenda. Yet, this chapter ends on a cautionary note. Many IL commentators have identified a variety of hazards to embracing IR theories and the IR ‘toolkit’ of analytical instruments. To be sure, the long-standing resistance of IR theorists to any dialogue with IL scholars and the enduring positivism evident in many IR analyses of international rules have been sources of frustration. Another sceptical view of IR theories is that they are nothing new under the sun. To the extent that each major IR theory has an analogue in IL, one could ask whether these theories add anything other than a superfluous new layer of impenetrable social science terminology and techniques.

IR theorists themselves express scepticism about how far IR-IL collaboration can go. Political scientist Stephen Krasner, while observing that Neo-Liberal Institutionalism and Constructivism have ‘created a substantive space’ that can be shared by IL and IR scholars, nevertheless suggests that ‘the methodological divide (p. 228) that separates political science and international law is not likely to be bridged, and that, perhaps, is not such a bad thing.’82 He explains:

The task of political scientists is primarily to explain what is and thereby to hint at what might be. The task of lawyers is more often to elucidate not what is, but what might be. If the normative project that is central to international public law were more closely linked with the empirical project of international relations scholars, both enterprises might be enriched.83

The empiricism of IR, particularly in its Institutionalist forms, has been off-putting for many IL scholars. Not just the number-crunching but also the abstraction can be troubling. For example, when Barrett builds a model for analysing international environmental treaties in which states are the only actors, he is making a useful simplification in his view. Yet for many international legal scholars he is taking sides in a vigorously fought doctrinal debate about the meaning of sovereignty.84 Abstraction also is troubling in that it threatens to omit too much of the rich context behind the evolution of law and cooperation in certain areas. Thus, when Downs, Danish, and Barsoom assign 40 different international environmental agreements scores from one to five on the basis of their ‘depth of cooperation’, does their analysis obscure too much of the rich complexity of individual accords?

David Bederman has suggested that the ‘price that international law pays to be taken “seriously” by IR theorists is greater empiricism, positivism, and skepticism.’85 Many IL scholars might not be willing to pay such a price. Seeing themselves as problem solvers, some IL scholars and practitioners find it difficult to embrace the scepticism at the heart of much of the IR literature and resist reducing hard-fought international rules either to a set of ‘payoffs’ or mere ‘shared meanings’. Martti Koskenniemi strenuously warns against IL-IR collaboration. In his view, the growing currency of IR theories threatens to erode the formal underpinnings of international law, thereby making it easier for the more dominant states such as the United States to escape their obligations.86 IR conceptualizations of the law, he asserts, encourage state actors to bypass IL’s formal processes of interpretation and contestation because, to the extent that laws merely reflect interests, changed interests provide (p. 229) justification enough for deviation. Such a state of affairs distinctly favours powerful states, which have more resources to calculate and pursue their interests. ‘[T]he instrumentalist mindset,’ he argues, ‘creates a consistent bias in favor of dominant actors with many policy alternatives from which to choose and sufficient revenues to carry out their objectives.’ Looking at the academic calls for IL and IR collaboration—and the proportion of IR scholars who are at US universities and think tanks—Koskenniemi concludes: ‘There is no doubt: this is an American crusade.’87

Wood has observed that a hazard of this, or of any other interdisciplinary project, is that it can ‘reinforce rather than expose or question the blind spots, silences and normative projects of the participating disciplines.’88 He has questioned whether IR theories, by focusing solely on explaining the status quo conditions of world politics, risk reinforcing the worst tendencies of IL to legitimize and dignify existing power structures. Accordingly, Wood asserts the inter-disciplinary project is worthwhile only if it is ‘counter-disciplinary’ by which he means that it should be ‘concerned more with destabilizing disciplinary common sense than it is with identifying common ground on which different disciplines can collaborate comfortably or multiplying the analytical tools available to be brought to bear on existing research problems.’89

Whatever the hazards, this is an interdisciplinary dialogue that is now fully joined. Moreover, IEL scholars and practitioners are playing a significant role in its evolution. Given that the dialogue is underway, the cautionary advice of many commentators is well taken. IEL scholars and practitioners should approach IR theory not simply to find common ground but also with a critical mind and a spirit of inquiry and invention.

Recommended Reading

  • S. Barrett, Environment and Statecraft: The Strategy of Environmental Treaty-Making (Oxford: Oxford University Press, 2003).
  • J. Brunnée and S. Toope, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’ (2002) 39 Colum. J. Transnat’l L. 19.
  • A. Chayes and A. Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995).
  • (p. 230) G.W. Downs, K.W. Danish, and P.N. Barsoom, ‘The Transformational Model of International Regime Design: Triumph of Hope or Experience?’ (2000) 38 Colum. J. Transnat’l L. 466.
  • J.L. Goldsmith and E.A. Posner, The Limits of International Law (Oxford: Oxford University Press, 2005).
  • J. Goldstein et al., eds., ‘Legalization and World Politics’ (2000) 54 Int’l Org. (Special Issue).
  • M. Koskenniemi, ‘Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations,’ in Michael Byers, ed., The Role of Law in International Politics: Essays in International Relations and International Law (New York: Oxford University Press, 2000) 17.
  • R.B. Mitchell, ‘International Environment,’ in W. Carlsnaes et al., eds., Handbook of International Relations (London: Sage, 2002) 500.
  • K. Raustiala and A.-M. Slaughter, ‘International Law, International Relations, and Compliance,’ in W. Carlsnaes et al., eds., Handbook of International Relations (London: Sage, 2002) 538.
  • A.-M. Slaughter, A.S. Tulumello, and S. Wood, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’ (1998) 92 A.J.I.L. 367.

Footnotes:

See, e.g., G. Kennan, American Diplomacy, 1900–1950 (Chicago: University of Chicago Press, 1951); and H.J. Morgenthau, Politics among Nations: The Struggle for Power and Peace, 4th edition (New York: Alfred Knopf, 1967).

See, e.g., J.J. Mearsheimer, ‘The False Promise of International Institutions’ (1994–5) 19 Int’l Security 5; and J.M. Grieco, ‘Anarchy and the Limits of Cooperation: A Realist Critique of the Newest Liberal Institutionalism’ (1988) 42 Int’l Org. 485.

For further discussion of the view of Neo-Realist theorists regarding international environmental politics, see R.B. Mitchell, ‘International Environment,’ in W. Carlsnaes, T. Risse, and B. Simmons, eds., Handbook of International Relations (London: Sage, 2002) 500 at 504.

Ibid.

S. Krasner,‘What’s Wrong with International Law Scholarship? International Law and International Relations: Together, Apart, Together?’ (2000) 1 Chi. J. Int’l L. 93 at 95.

See R.O. Keohane, After Hegemony: Cooperation and Discord in the World Economy (Princeton: Princeton University Press, 1984).

R.O. Keohane, International Institutions and State Power (Boulder, CO: Westview, 1989) at 3. An older definition of regimes can be found in S.D. Krasner, ed., International Regimes (Ithaca, NY: Cornell University Press, 1983) at 1 (defining regimes as ‘principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue-area.’). The terms ‘regime’ and ‘institution’ are sometimes used interchangeably, but for some scholars regimes are distinguishable by their greater level of formality.

S. Barrett, Environment and Statecraft: The Strategy of Environmental Treaty-Making (Oxford: Oxford University Press, 2003) at xiii.

See R. Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984) at 124.

10  Krasner, see note 5 above at 96.

11  See, e.g., A. Underdal, ‘One Question, Two Answers,’ in E.L. Miles, A. Underdal, S. Andresen, J. Wettestad, J.B. Skjærseth, and E. M. Carlin,, eds., Explaining Environmental Regime Effectiveness: Confronting Theory with Evidence (Cambridge: MIT Press, 2001) 3; and A. Underdal, ed., The Politics of International Environmental Management (Dordrecht: Kluwer Academic Publishers, 1998).

12  See, e.g., M. Zürn, ‘The Rise of International Environmental Politics: A Review of Current Research’ (1998) 50 World Pol. 617.

13  Barrett, see note 8 above at 94.

14  For a detailed exploration of game theory in the context of international environmental agreements, see Barrett, note 8 above.

15  A.-M.Slaughter Burley,‘International Relations Theory: A Dual Agenda’ (1993) 87 A.J.I.L. 205 at 220.

16  A.-M. Slaughter, A.S. Tulumello, and S. Wood, ‘International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship’ (1998) 92 A.J.I.L. 367 at 375.

17  See, e.g., J. Setear, ‘Ozone, Iteration, and International Law (1999) 40 Va. J. Int’l L. 193; and ‘An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law’ (1996) 37 Harv. Int’l L.J. 139.

18  See, e.g., K. Raustiala, ‘Form and Substance in International Agreements’ (2005) 99 A.J.I.L. 581; D. Shelton, ed., Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford: Oxford University Press, 2003); and J. Goldstein et al., eds., ‘Legalization and World Politics’ (2000) 54 Int’l Org. (Special Issue).

19  See, e.g., Barrett, note 8 above at 5–6.

20  A.-M. Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004).

21  H.H. Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale L.J. 2599; and H.H. Koh, ‘Transnational Legal Process’ (1996) 75 Neb. L. Rev. 181.

22  J.L. Goldsmith and E.A. Posner, The Limits of International Law (Oxford: Oxford University Press, 2005) at 215–17.

23  Byrd-Hagel Resolution, 1997, S. Res. 1998, 105th Cong.

24  E. Brown Weiss and H. Jacobson, Engaging Countries: Strengthening Compliance with International Accords (Cambridge, MA: MIT Press, 1998) at 511.

25  R.O. Keohane, ‘International Relations and International Law: Two Optics’ (1997) 38 Harv. Int’l L.J. 487.

26  A. Wendt, ‘Constructing International Politics’ (1995/1996) 20 Int’l Security 71 at 73.

27  Ibid.

28  Ibid.

29  J. Brunnée and J. Toope, ‘International Law and Constructivism: Elements of an Interactional Theory of International Law’ (2000) 39 Colum. J. Transnat’l L. 19.

30  O.R. Young and M.A. Levy, ‘The Effectiveness of International Environmental Regimes,’ in O.R. Young, ed., The Effectiveness of International Environmental Regimes: Causal Connections and Behavioural Mechanisms (Cambridge, MA: MIT Press, 1999) 1.

31  O.R. Young, Governance in World Affairs (Ithaca, NY: Cornell University Press, 1999) at 25.

32  Brunnée and Toope, see note 29 above.

33  P. Haas, ‘Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’ (1989) 43 Int’l Org. 377.

34  See, e.g., S. Andresen and L. Gulbransen, ‘The Role of Green NGOs in Promoting Climate Compliance,’ in O. Stokke et al., eds., Implementing the Climate Regime: International Compliance (London: Earthscan, 2005) 169.

35  See, e.g., T. Princen and M. Finger, Environmental NGOs in World Politics: Linking the Local and the Global (New York: Routledge, 1994).

36  Ibid. at 537. See also O. Young, International Governance: Protecting the Environment in a Stateless Society (Ithaca, NY: Cornell University Press, 1994) at 114.

37  See, e.g., M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 Int’l Org. 887; and R. Goodman and D. Jinks, ‘How to Influence States: Socialization and International Human Rights Law’ (2004) 54 Duke L.J. 621.

38  Barrett, see note 8 above at xiii.

39  Ibid. at 124 (quoting D. Bodansky, ‘Customary (and Not So Customary) International Environmental Law’ (1995) 3 Ind. J. Global Legal Stud. 105 at 119).

40  P.J. Katzenstein, R.O. Keohane, and S.D. Krasner, ‘International Organization and the Study of World Politics’ (1999) 52 Int’l Org. 645 at 649.

41  See generally G.W. Downs, ‘Constructing Effective International Environmental Regimes’ (2000) 3 Ann. Rev. Pol. Sci. 25.

42  Ibid. at 34.

43  Goldstein et al., see note 18 above.

44  K.W. Abbott et al., eds., ‘The Concept of Legalization’ (2000) Int’1 Org. 401.

45  Ibid.

46  J.K. Setear, ‘Can Legalization Last? Whaling and the Durability of National (Executive) Discretion’ (2004) 44 Va. J. Int’l L. 711.

47  K.W. Abbott and D. Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54 Int’l Org. 421.

48  M. Kahler, ‘Legalization as Strategy: The Asia-Pacific Case’ (2000) 54 Int’l Org. 549; and E.L. Lutz and K. Sikkink, ‘International Human Rights Law and Practice in South America’ (2000) 54 Int’l Org. 644.

49  Brunnée and Toope, see note 29 above.

50  Ibid. at 56.

51  Ibid. [citations omitted].

52  Ibid. at 52 [citations omitted].

53  T. Franck, The Power of Legitimacy among Nations (New York: Oxford University Press, 1990).

54  R.B. Mitchell, ‘International Environment,’ in Carlsnaes, Risse, and Simmons, see note 3 above, 500.

55  A.-M. Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004) at 385–94.

56  G.W. Downs, K.W. Danish, and P.N. Barsoom, ‘The Transformational Model of International Regime Design: Triumph of Hope or Experience?’ (2000) 38 Colum. J. Transnat’l L. 466.

57  Barrett, see note 8 above at 271.

58  See, e.g., L.A. Kimball, ‘Towards Global Environmental Management: The Institutional Setting’ (1992) 3 Y.B. Int’l Envt’l L. 18 at 30.

59  M.A. Levy, ‘European Acid Rain: The Power of Tote-Board Diplomacy,’ in P.M. Haas et al., eds., Institutions for the Earth: Sources of Effective International Environmental Protection (Cambridge, MA: MIT Press, 1993) 75.

60  Barrett, see note 8 above at 209.

61  A. Underdal, The Politics of International Fisheries Management: The Case of the Northeast Atlantic (Oslo: Universitetsforlaget, 1980) at 16 and 36.

62  Downs, Danish, and Barsoom, see note 56 above; see also G.W. Downs, D.M. Rocke, P.N. Barsoom, ‘Managing the Evolution of Multilateralism’ (1998) 52 Int’l Org. 397.

63  D. Bodansky, ‘Bonn Voyage: Kyoto’s Uncertain Revival’ (2001) Nat’l Interest 45.

64  See, e.g., Shelton, note 18 above; and E. Brown Weiss, ed., International Compliance with Nonbinding Accords (Washington, DC: American Society of International Law, 1997).

65  J. Brunnée and S.J. Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’ (1997) 91 A.J.I.L. 28.

66  G. Handl, ‘Environmental Security and Global Change: The Challenge to International Law’(1990) 1 Y.B. Int’l Envt’l L. 3 at 8.

67  K. Raustiala and D.G. Victor, ‘Conclusions,’ in D.G. Victor, K. Raustiala, and E. Skolnikoff, eds., The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge, MA: MIT Press, 1998) 659 at 684–9.

68  Downs, Danish, and Barsoom, see note 56 above.

69  For a more detailed analysis of the encounter of IR and IL theories regarding compliance, see K. Raustiala and A.-M. Slaughter, ‘International Law, International Relations, and Compliance,’ in Carlsnaes, Risse, and Simmons, note 3 above.

70  A. Chayes and A. Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1995).

71  Ibid. at 5.

72  Ibid. at 123.

73  Ibid.

74  Ibid. at 27.

75  Ibid. at 10.

76  Ibid. at 109.

77  Brunnée and Toope, see note 65 above at 46.

78  Barrett, see note 8 above at 270.

79  G.W. Downs, D.M. Rocke, and P.N. Barsoom, ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50 Int’l Org. 379.

80  Barrett, see note 8 above at 359.

81  Ibid.

82  Krasner, see note 5 above at 98–9.

83  Ibid. at 99.

84  See, e.g., J.L. Dunoff, ‘Book Review: Environment and Statecraft: Strategies of Environmental Treaty-Making, by Scott Barrett’ (2004) 98 A.J.I.L. 224 (noting that Barrett’s ‘use of a particular understanding of “sovereignty” as a foundational grundnorm; the presupposition of the freedom that states have to sign, not sign, accede, or withdraw from treaties; the assumptions about the limited coercive mechanisms available to promote compliance; and even the separation of the problems of ozone and climate change (rather than a regime on “atmosphere”)—all reflect theoretical assumptions as to which aspects of the international order can be taken as “given” for the analysis of international environmental diplomacy’).

85  D.J. Bederman, ‘Review Essay: Constructivism, Positivism, and Empiricism in International Law: Legal Rules and International Society’ (2001) 89 Geo. L.J. 469 at 471 (reviewing A. Clark Arend, Legal Rules and International Society).

86  M. Koskenniemi, ‘What Is International Law For?’ in M. Evans, ed., International Law (Oxford: Oxford University Press, 2003) 89 at 102.

87  M. Koskenniemi, ‘Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations,’ in M. Byers, ed., The Role of Law in International Politics: Essays in International Relations and International Law (Oxford: Oxford University Press, 2000) 17 at 29.

88  S. Wood, ‘Commentary: Toward a Counterdisciplinary Agenda for Research in International Law and International Relations,’ in The Measure of International Law: Effectiveness, Fairness, and Validity: Proceedings of the Canadian Council on International Law, 31st Annual Conference, 2002 (The Hague: Kluwer Law International, 2004) 260 at 260–1 [citations omitted].

89  Ibid. at 264–5.