The Review of International Organizations

, Volume 8, Issue 2, pp 163–191

Non-compliance by design: Moribund hard law in international institutions

Authors

  • Christopher Marcoux
    • Political ScienceDePauw University
    • Political ScienceColumbia University
Article

DOI: 10.1007/s11558-012-9157-6

Cite this article as:
Marcoux, C. & Urpelainen, J. Rev Int Organ (2013) 8: 163. doi:10.1007/s11558-012-9157-6

Abstract

States often create international institutions that impose legally binding rules on member states, and then do not even attempt to enforce these rules. Why? In this article, we present a game-theoretic model of moribund hard law in international institutions. We show that if some states face domestic pressure to negotiate a hard law treaty, their incentive to insist on hard law in the negotiations is maximized when less enthusiastic states expect that the hard law will probably not be enforced. Domestic proponents of hard law reward states for negotiating a hard law treaty, while states that oppose hard law can accept it because they expect no enforcement. As a form of informal governance, moribund hard law allows non-compliance by design.

Keywords

Informal governanceHard lawSoft lawTreaty designInternational bargainingGame theoryEnvironmental agreements

JEL Classification

F53F55

1 Introduction

According to much recent institutionalist theory, treaty provisions are designed rationally to promote cooperation (Abbott and Snidal 1998; Hawkins et al. 2006; Koremenos et al. 2001). However, this prediction quite often diverges from reality. States negotiate treaties with seemingly strict “hard law” provisions that are never used.1 Human rights provisions in trade treaties go unenforced (Hafner-Burton 2005), trade bans are ignored (Clapp 2001), and states’ failure to comply with environmental rules does not result in sanctions (Börzel 2000).

While occasional non-compliance may reflect imperfect enforcement, systematic failure to use existing enforcement mechanisms means that states have collectively chosen to disregard non-compliance. This presents an important puzzle: if states design enforcement provisions to promote cooperation, they should use them to deter non-compliance. Why would states design hard law if not to use it?

This seeming puzzle results from an overly narrow focus on solving cooperation problems, dating back to neoliberal institutionalism (Keohane 1984). While states do design international law to solve cooperation problems, states’ interests are rarely confined to this. States also negotiate international law in the shadow of domestic and international political pressures (Putnam 1988; Raustiala 1997). The design of specific legal mechanisms is driven by these pressures as much as by the need to overcome cooperation problems. To conclude that moribund hard law reflects enforcement failures misses the point; moribund hard law may be a deliberate choice.2

Moribund hard law is relevant to any systematic analysis of treaty formation and compliance. Without a clear understanding of when formal rules matter, we cannot understand how international institutions really work (Stone 2011). In this article, we contribute to the ongoing study of informal governance by developing a strategic model of treaty design which can be applied to a wide variety of agreements, and by generating a number of empirical propositions that help explain the phenomenon of “non-compliance by design.” In doing so, we pay particular attention to the role of domestic and international audiences. For example, a government that is not genuinely interested in strict environmental regulations might still propose them to appease domestic environmentalists.3

Our central finding is a paradox: strict treaty provisions are most likely when states are least likely to enforce them. When a state with high compliance costs expects that strict treaty provisions will be enforced, it prefers to reject a treaty incorporating hard law. Conversely, if this state expects that enforcement provisions will not be used, it may accept a hard law treaty. To the extent that a proposing state obtains audience benefits from proposing hard law, it can do so even absent any intention to actually use them. Sometimes, this expectation of failed enforcement is precisely what permits treaty formation.4

We examine the design of enforcement provisions and NGO participation during the negotiation of the various agreements in the International Regimes Database (Breitmeyer et al. 2006), finding preliminary evidence of “non-compliance by design”. We supplement this exercise by offering detailed illustrations of each of our main propositions, showing how international and domestic incentives combined to yield moribund hard law in the case of the Lomé IV Convention, soft law in the 1994 Convention on Biological Diversity, and negotiation failure in the case of the 2000 Conference of Parties to the Kyoto Protocol.

Our findings have particular importance for the study of “informal governance” in international politics. While states often complement formal rules with informal expectations and norms (Stone 2011), we show that informal governance also serves a wider range of purposes. Specifically, while informal expectations and norms may sometimes function as a rational complement to formal rules, and thus facilitate international cooperation, informal governance can also be a domestic smokescreen. If states expect few gains from cooperation but their domestic audiences demand hard law, the inclusion of moribund law offers a way out. Powerful countries can appease their domestic audiences through inclusion of hard law. Weaker countries may join the institution, betting on non-enforcement. Thus, moribund hard law is not irrational, and it need not reflect cooperation failure. Instead, it demonstrates the pivotal role that informal norms and expectations can play in multilateral negotiations.

Stone’s (2011) emphasis on the strategic importance and the distinction between “executive” and “judicial” delegation are also important in cases of non-compliance by design. When states that expect to lose from enforcement are strategically important to the state setting the negotiation agenda, the probability of moribund hard law increases because strategically important countries understand that their non-compliance likely will be overlooked.5 Our model thus highlights the dangers of judicial enforcement. If states that expect to lose from enforcement believe that formal rules are strictly enforced, as is often the case when a judicial body is authorized to enforce compliance, they have few reasons to participate. However, when executive discretion prevails, and major powers can override enforcement decisions, moribund hard law becomes possible. Thus, while executive discretion increases a hegemonic power’s interest in participation, it is also the case that executive discretion can increase participation among other states.

2 Soft and hard law in international institutions

International agreements vary with respect to the legal obligations that they impose (Abbott et al. 2000). Some can be characterized as hard law because they impose precise, binding, and enforceable legal obligations on signatories. Others, described as soft law, provide recommendations and guidelines that either cannot be interpreted as legally binding or cannot be enforced (Abbott and Snidal 2000; Shaffer and Pollack 2010). According to much contemporary institutionalist theory, the choice of hard or soft law in a specific setting is a rational response to concerns such as the transaction costs of formal ratification (Koremenos et al. 2001) and the perceived need for flexibility versus credibility (Lipson 1991).

In reality, treaties are negotiated in a broader strategic setting (Young 1989). The availability of joint gains from cooperation need not lead to their realization; states may fail to negotiate a potentially beneficial treaty due to bargaining problems. Moreover, states may negotiate treaty provisions for reasons other than the realization of joint gains. For example, consider the hazardous waste provisions in the 1989 Lomé IV Convention between the European Community and the ACP developing countries. That agreement not only contained an absolute export ban for members of the European Community, something that major European powers opposed, but also a provision preventing ACP countries from importing any hazardous waste (Clapp 2001). Despite widespread non-compliance, these provisions were never enforced, and were dropped from the 2000 Cotonou Agreement, the successor to Lomé IV.

Mexico’s experience with the North American Agreement on Environmental Cooperation was similar. Mexico accepted an environmental side agreement to secure U.S. ratification of the North American Free Trade Agreement (NAFTA) (Cameron 1997). Since then, Mexico has done little to upgrade its national environmental regulations, per treaty requirements (Bechtel and Tosun 2009), and yet the United States has shown little interest in enforcing these provisions.

The existing literature does not fully explain these patterns. Realists have long argued that treaties are mere “window dressing” (Mearsheimer 1994–1995). If this were the case, treaty provisions would be random and subject to historical fads. However, empirical evidence strongly suggests otherwise (Koremenos 2005). Moreover, empirical scholarship has documented treaty effects that are inconsistent with the simple window dressing interpretation (Dai 2005; Mitchell 1994; Simmons 2010).

Another explanation pertains to domestic audiences. Koremenos (2011, Open covenants, clandestinely arrived at, unpublished) and Stasavage (2004) argue that public negotiations sometimes produce flawed treaties because governments appease domestic interest groups with narrow interests that complicate cooperation. Indeed, activists have become increasingly visible in multilateral negotiations (Price 2003; Raustiala 1997). According to Wolinsky (1997), governments sometimes adopt tough bargaining positions in international environmental negotiations to signal their environmental commitment to voters. However, these explanations do not explain subsequent non-use of hard law.

Stone (2011) argues that states often engage in “informal governance,” ignoring formal rules when they are not expedient. Accordingly, a hegemonic state’s ability to override formal rules in exceptional circumstances is a key reason why that hegemonic state is willing to participate in the first place. While this argument helps to explain exceptional cases of states failing to enforce agreements, it does not explain the inclusion of provisions that were never intended to be implemented.

Finally, consider sociological explanations pertaining to the notion of “institutional isomorphism.” Perhaps states use hard law simply out of mimicry and emulation (DiMaggio and Powell 1983; Meyer et al. 1997). If this were the case, then one would expect treaty designs to become increasingly similar over time due to emulation. While there is some evidence of this (e.g., the UN Office of Legal Affairs now publishes a handbook to assist states in the negotiation of treaties) this approach cannot explain the phenomenon of moribund hard law.

We show that irrationality is not required to explain why states refrain from using the hard law provisions they design. Our model provides a detailed description of when states have incentives to incorporate hard law into formal treaties, so as to “posture” in front of an NGO audience.

3 Modelling non-compliance by design: Core assumptions

In building our model, we rely on two analytical scope conditions. First, we assume that at least one negotiating state is worried that hard law could carry a high cost (Lipson 1991). Without this assumption, states would have no reason to refrain from using hard law. The assumption is particularly plausible in negotiations between states with very different interests, such as North-South (Sell 1995) or East-West bargaining (Kydd 2000). Second, we assume that at least one negotiating state would reap reputational benefits from NGOs by presenting itself as a resolute supporter of hard law (Keck and Sikkink 1998; Raustiala 1997). Without this assumption, states would not have incentives to incorporate hard law into a treaty and then not enforce it.

The interpretation of “soft” and “hard” law depends on the context. For example, trade cooperation based on exact tariff reductions and a dispute settlement mechanism would be an example of hard law (McCall Smith 2000). In contrast, an “aspirational” trade treaty without binding obligations would exemplify soft law. In environmental cooperation, binding emissions reductions accompanied by the threat of trade sanctions would exemplify hard law (Steinberg 1997). Public commitments to sustainability without specific obligations would exemplify soft law.

We use the labels “North” and “South” for ease of exposition, but the model applies more broadly than to North-South interactions. In our model, North refers to a “leader” state that is interested in creating a new treaty; South refers to those states that need to join to make the treaty work. Thus, North proposes hard or soft law, and South accepts or rejects. This sequence of moves seems plausible given that more enthusiastic states generally play a key role in the design of international treaties (Benedick 1998; Oberthür and Ott 1999; Steinberg 2002).6 We also assume North’s choice of treaty design is only between soft and hard law. In reality, more complex treaties are possible. For example, North could offer substantive concessions to South in exchange for the latter’s accepting hard law. We ignore this possibility in the main analysis, but a model extension examines the effect of concessions on equilibrium behavior.

South prefers soft law to hard due to high compliance costs. If South preferred hard law, the model would produce a trivial prediction: hard law is used, and enforcement depends only on North’s type. Similarly, the assumption that South prefers soft law to the status quo is plausible. If South did not prefer even soft law to the status quo, then it would simply reject cooperation with North.

North’s preferences regarding soft and hard law are assumed to be probabilistic.7 With some probability, North is of a type that is “willing” to enforce the treaty; the other type of North is “unwilling.” A willing North expects net benefits from treaty enforcement, with or without NGO pressure. An unwilling North considers the costs too high. For example, a willing North might believe that it can enforce the treaty, thus pleasing green voters, without undermining its bilateral relationship with South. Conversely, an unwilling North might be less interested in green voters or be more worried about reduced cooperation with South in other issue areas.

We assume enforcement is only of potential interest to North. This asymmetric structure accords with Stone’s (2011) approach to informal governance, and thus facilitates comparisons between his and our models. The assumption is also plausible because small countries often cannot easily sanction major powers.

The uncertainty is also focused on one player, but allowing uncertainty over South’s preferences would not change any of our predictions. The focus on a single state is warranted because in many situations one of the players is potentially capable of enforcement while the other is not. This is the case with many actual North-South treaties given the power asymmetry that characterizes North-South interactions (Bechtel and Tosun 2009; Najam 2005).

4 The model

The game is played by three players. North and South are states bargaining over international treaty design, and NGO is an interested third party that prefers strict legal obligations.8 For example, North could be a representative European state while South could be a representative African state. If the treaty focuses on environmental cooperation, the NGO could be Greenpeace.

The sequence of moves is the following:
  1. 1.

    Nature draws North’s type, t ∈ {willing, unwilling}, and reveals it to North.

     
  2. 2.

    North offers a treaty provision, T ∈ {S, H}.

     
  3. 3.

    South accepts or rejects the provision, A(T) ∈ {0, 1}.

     
  4. 4.

    If the provision is hard, T* = H, and South accepts, A(H) = 1, North decides whether to enforce, E ∈ {0, 1}. In this case, nature sends a public signal q ∈ {0, 1} regarding enforcement E*.

     
  5. 5.

    The NGO selects a level of support for North, S ∈ [0, 1].

     
North has the initiative, and South must either accept or reject the offer. The sequence of moves is illustrated in Fig. 1.
https://static-content.springer.com/image/art%3A10.1007%2Fs11558-012-9157-6/MediaObjects/11558_2012_9157_Fig1_HTML.gif
Fig. 1

Sequence of moves. Given the complexity of the game, we do not include payoffs and moves by nature in this figure

The game has several possible outcomes. If South rejects the treaty, the status quo without a treaty prevails. If South accepts a soft provision, modest soft law cooperation prevails. If South accepts a hard provision, the outcome depends on whether North actually enforces the treaty, and on the signal q. This signal indicates whether or not North is really enforcing the treaty.

In addition to the probabilistic signal, the game has one variable that is initially subject to uncertainty: North’s type. North is either willing or unwilling to enforce, t ∈ {willing, unwilling}. A willing North actually prefers a strict and enforceable treaty, while an unwilling North prefers a weak treaty. Let p ∈ (0, 1) denote the prior probability that North is actually willing to enforce, and suppose nature secretly reveals this private information to North before the game begins. Thus, North’s type is private information.

In informal governance, a major power’s willingness to overlook treaty violations by other countries depends on their structural power (Stone 2004, 2008, 2011). Accordingly, it seems plausible to assume that North’s probability of being willing to enforce p, is negatively associated with South’s structural power. As we discuss our results, we return to this issue, indicating how power differences influence the probability of moribund hard law.

The NGO plays the role of an audience in the game, so it has a rather passive role. At the end of the game, it selects its level of support for North, and it does so in view of the posterior probability μ that it ascribes to North being willing. For simplicity, suppose the NGO selects the level of support S such that optimum is S* = μ. This simple assumption states that the NGO’s optimal support level increases with the probability that North is willing to enforce. For example, Greenpeace has stronger incentives to support governments that are probably willing to enforce environmental regulation. Notably, this support level should be interpreted as the NGO’s immediate reaction to the negotiation outcome. We assume the government is interested in appeasing the NGO at the present time and return to a discussion of the long term in the concluding section.

Consider now South. It obtains a zero payoff from the status quo. It obtains a bonus of 1 if the treaty is soft or not enforced. If a hard law treaty is formed and enforced, South obtains a payoff 1 − c, where c > 1. Thus, a stringent and enforced treaty is not something South prefers.

North’s payoff depends on its type. It obtains a payoff of wS from the status quo, and a payoff 1 + wS from a weak or non-enforced treaty. Here w > 0 indicates the value that North ascribes to NGO support for reputational reasons. From a stringent and enforced treaty, North obtains 1 + I + wS if it is willing, where I > 0, and 1 − D + wS, where D > 0, if it is unwilling. Simply put, the only difference between a willing and an unwilling North is the state’s payoff from enforcing the treaty. To maintain a sharp focus on this difference, we assume that D > w. This assumption implies that an unwilling North has a strong preference against enforcement, and so it will not enforce for reputational reasons.

The NGO’s influence, captured by parameter w, varies across issue areas. In some issue areas, such as environmental protection and human rights, NGOs play a major role in international negotiations (Clapp 1994a; Raustiala 1997; Keck and Sikkink 1998). NGOs also exert influence on trade negotiations, though their focus is often on ancillary issues, such as the relationship between trade liberalization and labor standards or environmental regulation (Bechtel and Tosun 2009).9 In other issues, such as international security, their role is usually less pronounced.10

Nature’s signal is q = 1 with probability one if North enforces. This assumption implies that if North enforces, it can provide evidence to domestic and international audiences regarding this act of enforcement. But if North does not enforce, the signal acquires a value q = 0 with some probability G ∈ (0, 1). These assumptions mean that enforcement is partially, but not fully observable. Moreover, this assumption implies that North sometimes “gets away” without enforcing hard law. This is plausible because effective enforcement mechanisms may deter state parties from violating treaties, and thus no visible act of enforcement is necessary (Urpelainen 2010). For example, if an NGO accuses North of failing to enforce a human rights treaty, North could respond by arguing that there is nothing to enforce because South complies. The effectiveness of this counterargument depends on the NGO’s expertise and resources (Dai 2002). If the NGO had the resources and expertise to directly observe South’s non-compliance, the value of G would be high.

The model captures one of many types of hard law: legally enforceable provisions based on “executive authority,” whereby powerful states decide on enforcement (Stone 2011, 117). Alternatively, enforcement could be non-discretionary, based on judicial delegation. In our model, it is clear that such judicial delegation does not allow cooperation. If South is certain that enforcement follows, then South rejects hard law because 1 − c < 0. Thus, our model offers an interesting insight for the research program on informal governance: while discretionary enforcement may benefit major powers by allowing them to override formal rules in emergencies (Stone 2011), it also enhances participation by relcalcitrant countries by casting doubt on the probability of enforcement.

5 Equilibria

The game has a number of equilibria. In each, the two types of North select their design offer optimally, and South updates its beliefs regarding North’s type before accepting or rejecting. North then decides on enforcement based on its type, and finally the NGO selects its level of political support for North. We then summarize the equilibrium in a series of analytical claims that are proven in the Appendix on this journal’s webpage..

To begin with, let us reject the possibility of a “separating equilibrium.”

Claim 1

(No separating equilibrium) No equilibrium exists wherein the two types of North play different pure strategies with respect to the offer of hard versus soft law.

The intuition behind this claim is straightforward. If the two types of North were to play different pure strategies, South could infer North’s type from these strategies. This is the very idea of separation in a signaling model. The willing type would propose hard law, and would have an incentive to actually enforce it, so South would reject to avoid the high cost of enforced hard law. From this, it follows that at least one type of North would have to deviate from the equilibrium strategy. In other words, a separating equilibrium cannot exist because it would allow states with a strong preference for soft law to simply remain outsiders.

In principle, the game may have exactly two pooling equilibria. In a “pooling up” equilibrium, both types of North offer hard law; in a “pooling down” equilibrium, both types of North offer soft law. Consider first the possibility of hard law.

Claim 2

(Pooling up) If South’s compliance cost c is so low that it accepts hard law based on its prior beliefs, p(1 − c) + (1 − p) > 0, the game has a unique equilibrium that meets the following criteria:
  1. 1.

    Both types of North offer the hard provision, T* = H;

     
  2. 2.

    South accepts the hard provision, T* = H;

     
  3. 3.

    Only the willing type of North enforces the hard provision, E* = 1 if and only if t = willing.

     
  4. 4.

    On the path of play, the NGO believes North to be willing with probability 0 if q = 0 and with probability \(\frac{p}{p+(1-p)(1-G)}\) if q = 1. The support levels are chosen accordingly.

     

This claim states that for hard law to be offered with certainty, South’s cost from hard law must be low enough. This is intuitive, as a very high cost for South would induce it to reject a hard law offer. Consequently, the unwilling type of North would offer soft law instead.

In this case, the NGO’s support depends on the enforcement outcome. If enforcement fails, q = 0, the NGO learns that North is unwilling and withdraws all support. If enforcement succeeds, q = 1, the NGO becomes increasingly convinced that North is willing and offers a relatively high level of support. However, support is not maximized because North could also be an unwilling type whose failure to enforce went unnoticed.

What about the possibility of both types always offering soft law?

Claim 3

(Pooling down) If South’s compliance cost c is so high that it rejects hard law based on prior beliefs, p(1 − c) + (1 − p) < 0, while the value of NGO support, w, is sufficiently low, the game has a non-unique equilibrium that meets the following criteria:
  1. 1.

    Both types of North offer the soft provision, T* = S;

     
  2. 2.

    South accepts the soft provision, T* = S, and rejects the hard provision, T* = H.

     
  3. 3.

    Only the willing type of North enforces the hard provision, \(E^{*}=1\Leftrightarrow t=willing\).

     
  4. 4.

    On the path of play, the NGO believes North to be willing with probability p. The support level is chosen accordingly.

     

In this equilibrium, the two types of North pool down. The reason why such an equilibrium may exist is that if the willing type of North were to deviate by suddenly offering hard law, South would realize that it will be enforced, and South would therefore reject the offer. If the value of reputation is low enough, even the willing type of North is unwilling to sacrifice the treaty for reputational benefit. But if the value of reputation is high enough, the willing type of North deviates and the “pooling down” equilibrium implodes.

Finally, an equilibrium in mixed strategies may also exist.

Claim 4

(Mixed strategies) If South’s compliance cost c is so high that it rejects a stringent treaty based on prior beliefs, p(1 − c) + (1 − p) < 0, the game has an equilibrium in mixed strategies that meets the following criteria:
  1. 1.

    A willing North offers the hard provision, T* = H, whereas an unwilling North plays hard and soft with positive probability;

     
  2. 2.

    South accepts the soft provision, T* = S, while accepting and rejecting the hard provision, T* = H, with positive probability;

     
  3. 3.

    Only the willing type of North enforces the hard provision, \(E^{*}=1\Leftrightarrow t=willing\).

     
  4. 4.

    The NGO believes North to be willing with probability 0 if soft law is offered; with probability 0 if hard law is accepted and q = 0; and with some positive probability in all other contingencies. The support levels are chosen accordingly.

     
This equilibrium is unique whenever the value of NGO support, w, is sufficiently high.

In this equilibrium, the willing type of North always offers hard law. The unwilling type, though, mixes between soft and hard law. Consequently, South is unambiguously willing to accept soft law but may sometimes reject hard law. Interestingly, this equilibrium may exist simultaneously with the “pooling down equilibrium,” as is illustrated below.

In the mixed strategy equilibrium, the NGO’s beliefs about North’s type are somewhat complex. Since the unwilling type plays a mixed strategy, the NGO cannot be sure about North’s type upon observing the treaty offer. It understands that a willing North always offers hard law while an unwilling North mixes, so it believes North is more likely to be willing than before the game begins. However, the NGO obtains additional information from the enforcement stage. If it sees proper enforcement, q = 1, it remains unclear what North’s type is, though the NGO becomes increasingly convinced that North is willing. If enforcement fails, q = 0, the NGO learns that North is unwilling, and thus withdraws its support.

These outcomes are summarized in Fig. 2. The game has a unique equilibrium except when South’s cost of compliance with hard law, c, is high while the value of reputation w for North is low. When South’s cost of compliance with hard law is low, the “pooling up” equilibrium is played, with North proposing hard law and South accepting it. In this case, enforcement remains probabilistic because North’s preferences are subject to uncertainty. Additionally, the NGO is unable to update its beliefs. When South’s cost of compliance with hard law is high and reputation is valuable, a “pooling down” equilibrium exists. In this equilibrium, hard law is never created. If South’s cost of compliance with hard law is high, this suffices for an equilibrium in mixed strategies to exist.
https://static-content.springer.com/image/art%3A10.1007%2Fs11558-012-9157-6/MediaObjects/11558_2012_9157_Fig2_HTML.gif
Fig. 2

Graphical illustration of equilibria. If South’s cost of compliance with hard law c is low, “pooling up” follows and North offers hard law with certainty. If South’s hard law cost c is high, either the equilibrium is in mixed strategies or “pooling down” follows with North offering soft law in all instances. The latter possibility requires that North’s value of reputation is not too high

6 Empirical implications

We now discuss the empirical implications. We rely on South’s compliance cost, c, and North’s interest in NGO support, w, to explain the probability of hard law, and enforcement thereof.

First, we characterize the situations in which hard law is used with certainty but enforced only occasionally.

Proposition 1

(Hard law) If South’s compliance cost c is low enough, hard law is used with certainty. The size of this region decreases as the probability that North is willing increases, but the conditional probability of enforcement increases as the probability that North is willing increases.

As North’s interest in strict provisions increases, the less probable they become. The reason is that South becomes increasingly worried about costly enforcement, and is therefore more willing to reject hard law. At the same time, the probability that they are used conditional on their existence increases, given North’s willingness to enforce.

Scholars working within the rational institutionalist tradition have argued that institutional design is a rational response to cooperation problems (Abbott and Snidal 1998; Koremenos et al. 2001). We have shown that as states become less willing to enforce hard law, the probability that they choose it actually increases. Therefore, the conjecture that states enact hard law to enforce commitments is problematic in situations characterized by distributional conflict.11

This proposition sheds important light on the relationship between moribund hard law and informal governance. The inclusion of hard law is rare when the prior probability that North is willing to enforce, p, is high. Above, we have argued that p is high when South has little power relative to North. As Stone (2011) has argued, informal governance occurs when major powers feel the need to override formal rules. In the International Monetary Fund, Stone (2011) argues, this occurs when major powers prefer to “bail out” influential and strategically important countries. When South is powerful, so that p is low, informal governance allows North-South cooperation despite South’s aversion to enforcement precisely because South believes that North will probably exercise informal governance by not enforcing the agreement.

It is important to recognize that an unwilling North’s gains from deceiving the NGO may well be short-lived. North continues to gain only so long as enforcement goes unnoticed, an event of probability G in our model. Over time, if enforcement continues to fail, the NGO will at some point call North’s bluff. However, North may expect gains from deceiving the NGO for some period of time. Given that governments change frequently in electoral democracies, it is plausible that an unwilling North may sometimes have relatively short time horizons.12

Consider next the possibility of soft law.

Proposition 2

(Soft law) If South’s compliance cost c is high enough, and the value of reputation q is low enough, an equilibrium exists wherein soft law is used with certainty. The size of this region increases with the probability that North is willing.

This proposition is the converse of Proposition 1. The probability of this outcome declines with the probability that North is willing (though the conditional probability of enforcement increases with it). Again, the logic is strategic: if South is sufficiently worried about hard law, then the only possible equilibrium treaty is one that is based on soft law. As North’s interest in enforcement grows, its ability to entice South to participate declines.

If North is almost certain to prefer hard law and has little interest in the NGO’s views, then soft law is used. This is somewhat paradoxical, as it implies that states with a keen interest in hard law often use soft law. The key is to recognize the importance of asymmetric interests: if a state becomes increasingly willing to enforce hard law, then states that do not prefer enforcement have stronger incentives to avoid hard law than previously.

Consider, finally, the possibility of mixed strategies. When may we expect negotiation failure due to an unacceptable hard law offer?

Proposition 3

(Mixed strategies) If South’s compliance cost, c, is high enough, an equilibrium exists wherein North offers hard law with some probability, and South rejects this hard law offer with some probability. The range of parameters that allows this equilibrium increases as North’s probability of being willing, p, increases.

In this equilibrium, the probability of a hard law proposal increases with North’s probability of being willing, p, and South’s compliance cost c.

The conditional probability of actual enforcement does not depend on North’s probability of being willing, p, but decreases as South’s compliance cost, c, increases.

The probability that South accepts the proposal decreases as North’s valuation of NGO support, w, increases.

While the probability of hard law increases with the probability that North is willing to enforce, the probability of enforcement, conditional on a hard law treaty being formed, decreases. South’s cost, surprisingly, has similar effects. As South’s cost increases, a hard law treaty becomes more probable. At the same time, though, the conditional probability that hard law is actually enforced—instead of remaining moribund—decreases.13

The probability of a hard law treaty depends on whether or not the unwilling type of North proposes it. The willing type always proposes hard law in this equilibrium, while the unwilling type plays a mixed strategy, randomizing between soft and hard law proposals. When South’s compliance cost increases, it must remain indifferent between accepting and rejecting hard law. In turn, this requires that the unwilling type proposes hard law more frequently. Since the unwilling type does not enforce, the equilibrium probability that a hard law treaty is enforced, conditional on it being formed, must decrease.

7 NGO participation and hard law in international institutions

According to our model, we should see systematic differences between the use of hard law mechanisms depending on North’s valuation of NGO support. As shown in Fig. 2 above, when South’s hard law cost c is low, we would observe pooling up in any event (Proposition 1). However, if South’s hard law cost is high, then the NGO’s support to North is more important: when the value of the NGO’s support is low, we expect to see pooling down to soft law (Proposition 2). As the NGO’s support becomes more important, we should begin to observe mixed strategies (Proposition 3). Ceteris paribus, we should therefore expect to see more frequent use of hard law mechanisms when the NGO’s support is valuable.

In this section, we illustrate these notions. We first examine the propositions derived above in light of evidence from the International Regimes Database (IRD) compiled by Breitmeyer et al. (2006). We then present qualitative case studies providing a more complete illustration of each proposition.

Does NGO participation play a key role in the inclusion of hard law in international institutions? The IRD aggregates a wealth of information originally identified in case studies of nearly all major international environmental regimes. As recently as 2000, much empirical work in the field used qualitative, often individual, case studies of environmental regimes in an attempt to generate theory. The IRD simultaneously seeks to capture detailed, regime specific knowledge from the wealth of existing case studies, while also facilitating comparative analysis. It is especially appropriate for our purposes because the database is not singularly focused on design characteristics. Crucially, the IRD also records information about the bargaining context within which states have negotiated and designed environmental agreements. To our knowledge, no other database provides detailed information concerning the negotiation setting. This information is central to our study because our primary independent variable is NGO participation.

Equally important, the regimes described in the IRD contain a broad mixture of hard and soft law, regional and global accords, as well as old and recent environmental regimes. Although the database breaks down regimes into a number of functionally and temporally defined “regime elements,” not all of these can be mapped to specific agreements. Following previous work (Marcoux 2009), we have chosen to focus on the roughly fifty regime elements that correspond to the negotiation and adoption of a specific international environmental agreement. In our reading, these regime elements capture most of the important environmental treaties negotiated from 1946–2000.

In illustrating our propositions, we focus on four variables in particular: whether or not NGO observers were present at negotiations, whether or not the resulting agreement provides for compliance monitoring, whether it makes an additional provision for compliance verification, and whether or not the agreement includes potentially costly enforcement measures to promote compliance, rather than a “managerial” approach emphasizing capacity building (Chayes and Chayes 1995).14 We provide a complete list of IRD agreements in the Supplementary Appendix, along with a more detailed discussion of the coding rules.

Since the IRD is based on qualitative coding by multiple authors, it is important to scrutinize carefully the quality of the data. To address potential problems of intercoder reliability among the multiple IRD authors, we randomly selected ten agreements for manual recoding. We checked IRD codes for compliance monitoring, verification, and enforcement against original treaty texts provided by another database of environmental treaties, the International Environmental Agreements dataset (Mitchell 2003). Based on this sample, we find no evidence of reliability problems in the coding.15

We interpret the presence of NGOs during negotiations as a proxy for North’s reputational value of NGO support, w. The participation of NGOs in the negotiation of an international environmental agreement is not required under international law. Rather, it reflects a conscious decision by states to allow their participation. Excluding NGOs from participation—even as mere observers—thus indicates that their reputational value in a given setting is low. Conversely, allowing NGOs to participate, when such participation is not required, signals that states do care about this audience.16

The other three variables—provision for compliance monitoring, compliance verification, and the use of sanctions in enforcement—allow us to distinguish between “hard law” and “soft law” agreements. Since there is not a universally agreed definition of what, exactly, constitutes hard law, we use three measures corresponding to different thresholds of hard law. Compliance monitoring reflects an extremely low threshold for identifying hard law. Verification reflects a somewhat stricter threshold for identifying hard law. Finally, enforcement sanctions reflect a stricter definition of hard law, corresponding most closely with our model. The Supplementary Appendix discusses these variables in greater detail.

Table 1 presents three frequency tables, allowing us to make an initial assessment of whether the value of NGO support and hard law are distributed independently. The first frequency table presents the distribution of NGO participation and the use of compliance monitoring. Among the 48 cases for which we have compliance monitoring data, there were 20 agreements negotiated with NGOs present. The 28 agreements negotiated in the absence of NGOs are evenly split on compliance monitoring. Fourteen agreements provide for compliance monitoring; fourteen do not. In contrast, we find that a majority of agreements negotiated in the presence of NGOs do provide for compliance monitoring. Although the evidence is suggestive, the χ2 test value for this crosstabulation is 1.92, with p = 0.17, preventing us from rejecting the null hypothesis that the two variables are distributed independently.
Table 1

Frequency tables for NGO presence and hard law provisions

  

Compliance monitoring

  

No

Yes

NGO participation

No

14 (50 %)

14 (50 %)

Yes

6 (30 %)

14 (70 %)

 

  

Compliance verification

  

No

Yes

NGO participation

No

18 (64 %)

10 (36 %)

Yes

9 (45 %)

11 (55 %)

 

  

Enforcement provisions

  

No

Yes

NGO participation

No

26 (93 %)

2 (7 %)

Yes

13 (65 %)

7 (35 %)

With respect to verification, we also find a disparity between agreements negotiated in the presence/absence of NGOs. Among agreements negotiated in the absence of NGOs, a clear majority, 18 of 28, do not provide for verification of compliance. In contrast, among agreements negotiated in the presence of NGOs, a slight majority, 11 of 20, do provide for verification. Again, we cannot reject the null hypothesis of no relationship: the χ2 test value for this crosstabulation is 1.76, with p = 0.18.

With respect to enforcement sanctions, however, we find clear evidence of pooling down when the value of NGO support is low. Of the 28 agreements negotiated with NGOs absent, 26 do not provide for enforcement. In contrast, more than one-third of agreements negotiated with NGOs present incorporate formal enforcement mechanisms. While this is not direct evidence of pooling up, it does reflect that hard law is much more common under NGO participation. Here, we can reject the null hypothesis that NGO participation and enforcement sanctions are distributed independently: the χ2 is 5.94, with p = 0.02.

We next examine whether or not this hard law is moribund. We examined all seven cases of NGO participation that resulted in the inclusion of sanctions, conducting a qualitative analysis of enforcement upon the entry into force of the relevant treaty. The results of this analysis are provided in Table 2. For each observation, we first examined whether there was clear evidence of such non-compliance that would significantly threaten the effectiveness of the treaty. If there was non-compliance, we examined whether the sanctions were used to punish the defectors. In cases of failure to use the sanctions, we describe the hard law treaty in focus as moribund.
Table 2

Moribund hard law in treaties formed under NGO participation

Treaty

Issue

Year

Non-compliance

Moribund

Lomé IV

Hazardous waste

1989

High

Yes

ITTA

Sustainable forestry

1994

High

Yes

Atlantic tuna

Fisheries

1966

High

No

Dolphins

Fisheries

1992

Low

Unclear

MARPOL

Sea oil pollution

1973, 1978

Low

No

London Amendment

Ozone depletion

1990

Low

No

Copenhagen Amendment

Ozone depletion

1992

Low

No

Consistent with our theoretical expectations, we found instances of both effective and moribund hard law. Probably the most effective hard law provisions were found in the London (1990) and Copenhagen (1992) Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer (1987). These amendments created a system that proscribes trade in the controlled substances. As such, they encourage outsiders to join the treaty and deter members from violating their commitment to reduce the use of ozone-depleting substances. As Barrett (2003, 318) puts it, “[t]he benefit that non-signatories derive from free-riding is overwhelmed by the loss they suffer in being unable to trade with the majority of other countries.” The fact that these trade sanctions have not been used does not imply, however, that they were ineffective. According to Barrett (2003, 320), “because no country will free ride, trade will not actually be restricted in equilibrium.” In these cases, therefore, the absence of sanctioning is not to be equated with moribund hard law.17 The sanctions were effective enough to induce global participation and non-compliance has been minimal.18

The MARPOL regime (1973, 1978) imposes equipment standards on ships. It solves the compliance problem of preventing oil discharges at the sea by requiring that oil tankers be equipped with systems that make illegal oil discharges unprofitable. While compliance with the equipment standards has generally been good, “many states inspected tankers for compliance with equipment requirements” and some have even detained foreign ships that did not comply with these requirements (Mitchell 1994, 452). Thus, hard law is not moribund.

The International Commission for the Conservation of Atlantic Tunas (1966) may not be a particularly successful environmental treaty, as tuna populations continue to decline due to overfishing. However, it is not moribund hard law. Desombre (1995, 56) examines the role of this convention in federal fisheries legislation of the United States. She notes that the 1975 Atlantic Tunas Convention Act “[a]uthorizes the Secretary of Commerce to prohibit imports of fish from a country” if such fishing would undermine the “recommendations by the International Commission for the Conservation of Atlantic Tunas.”

The remaining cases paint a different picture. The 1989 Lomé IV Agreement contains a stringent provision banning trade in hazardous waste between the European Community and its partners. Lomé IV can also enforce this provision by reducing trade concessions. But the state parties have blatantly violated the hazardous waste provision in Lomé IV (Clapp 2001), yet we found no evidence of enforcement attempts. Indeed, the hazardous waste provision disappeared from the 2000 Cotonou Agreement. This case is coded as moribund hard law.

The International Tropical Timber Agreement (1994) is a perfect illustration of moribund hard law. In principle, the treaty allows members to vote on the exclusion of any member from the treaty for undermining cooperation. This provision has never been used, even though “countries do not comply with [the treaty]—the guidelines or the criteria parties have adopted, reporting requirements, or even required payments” (Weiss 1998, 129).

The La Jolla Agreement for the Reduction of Dolphin Mortality in the Eastern Pacific Ocean (1992) is an ambiguous case. It is not a formal treaty, so its provisions are ultimately non-binding. Yet, the agreement requires that governments send observers on fishing vessels and prevent these vessels from fishing should they exceed their dolphin mortality limit (Joseph 1994, 11). Governments did send observers and recorded violations, but there was never a compliance problem: in 1993, allowed dolphin mortality was set at 19,500 but actual mortality was only 3,601; by 1996, when allowed dolphin mortality had reduced to 9,000, the actual mortality was only 2,547 (Parker 1999, 52). This gap shows that compliance must have been easy: countries achieved high levels of overcompliance. Thus, we conservatively code it as ambiguous.

In our reading, then, there is clear moribund hard law in two cases. In four cases, there is clear evidence of functioning hard law, and in one case the role of hard law is unclear. Under NGO participation, hard law provisions are often inserted in treaties, some of which become moribund. In the above analysis, we have of necessity limited our discussion of individual cases. We next provide three specific case studies to illustrate more thoroughly each of our main propositions. We illustrate Proposition 1 (moribund hard law) by discussing the inclusion of a hazardous waste export ban in the Lomé IV Convention. We then illustrate the choice of soft law using the Convention on Biological Diversity. Finally, to illustrate Proposition 3 (mixed strategies) we discuss the failed negotiations over compliance mechanisms during the 2000 Conference of Parties to the Kyoto Protocol.19

7.1 Moribund hard law: 1989 Lomé IV Convention

The inclusion of a ban on toxic waste exports in the Lomé IV Convention illustrates our first proposition. During the 1970s and 1980s, a number of high profile incidents (e.g., the “Love Canal” in Western New York) in Europe and North America spurred the adoption of increasingly strict domestic regulations concerning the disposal of toxic wastes, thereby increasing the costs of waste management. In the 1980s, these increasing costs, along with developing countries’ need for foreign exchange, drove the development of international trade in toxic wastes (Clapp 1994b). Standards for managing toxic wastes in recipient countries were weak to nonexistent, however, leading to a number of even more serious environmental disasters. Environmental NGOs such as the International Toxic Waste Action Network, were instrumental in focusing attention on toxic waste incidents in developing countries, placing the management of international trade in toxic wastes on the international agenda (Clapp 1994b).

The 1989 Basel Convention represented the first major effort to regulate trade in hazardous waste. The treaty established formal obligations in the form of a prior informed consent restriction. Thus, it was not a soft law arrangement. Nevertheless, the terms of the treaty were not strict enough to satisfy the NGO community, which had lobbied strenuously for an outright ban on international trade in hazardous wastes. In the aftermath of the Basel “failure,” environmental NGOs renewed their pressure for a ban, both within the Basel regime (pressing for a formal ban amendment) and outside of it. The next major opportunity to move the ban agenda forward occurred later in 1989, during the renegotiation of the Lomé convention between European and African, Caribbean, and Pacific (ACP) states.20

When negotiations began on the Lomé IV Convention, there remained a lack of consensus among EU members concerning a waste export ban, with Germany and the UK leading opposition (Clapp 2001).21 Due to the norm of consensus in international negotiations, we can therefore state with confidence that North’s (i.e., the EU’s) level of interest in incorporating a waste export ban into Lomé IV was low (p). At the same time, the level of NGO interest had only increased following the Basel “failure.” The extremely high value of NGO support (w) for EU members explains why those countries included a hard export ban in Lomé IV, despite low collective interest.

While the Lomé case thus far appears to illustrate our third proposition (mixed strategies), it is actually most consistent with Proposition 1. If South’s compliance costs are low enough, hard law is used with certainty. Elsewhere, we have argued that many developing countries were more interested in using international law to boost their sovereign control over trade in hazardous wastes than in banning the practice (Marcoux and Urpelainen 2012). Banning the waste trade could potentially impose serious sovereignty costs. If this were the extent of the story, NGO pressure would lead North to propose hard law, which South would then reject, leading to failed cooperation. In the Lomé negotiations, however, South had good reason to believe that the probability of North’s interest was low. South knew the outcome of Basel negotiations, and was aware of the political pressure that NGOs were applying to North. As we show in Fig. 2, the size of the region for “pooling up” varies inversely with p. The Lomé case illustrates this perfectly. North responded to NGO pressure by offering hard law. South accepts hard law, expecting that it will not be enforced, thereby receiving a modest reputational gain of its own without incurring sovereignty or opportunity costs. In fact, this is exactly what happened. Neither North nor South invoked the Lomé IV ban to restrict waste imports/exports, violations occurred with impunity, and the ban was later dropped when Lomé IV was renegotiated in 2000 (Clapp 2001), though not until North had received (temporary) relief from NGO pressure.

7.2 Choosing soft law: 1994 convention on biological diversity

Our second proposition is nicely illustrated by the Convention on Biological Diversity (CBD). Largely through NGO efforts, biological diversity rose to prominence on the international agenda in the 1980s and 1990s. Multilateral negotiations culminated with the adoption of the CBD in May 1992. Though this international agreement was formalized in a legal document, it nonetheless may be described as an example of soft law. The CBD did not set forth specific targets for biodiversity conservation, nor did it prescribe specific regulations for member governments to implement.

According to Proposition 2, if South’s compliance cost is high enough, and the North’s valuation of NGO support is low enough, an equilibrium exists wherein soft law is used with certainty. Our first step, then, is to assess South’s cost of compliance. In fact, these compliance costs were potentially quite large.

The most immediate costs to South were related to sovereignty. As Tolba (1998) explains, when the issue of biological diversity reached international prominence, it was understood as “common heritage of mankind.” Initially, attempts to preserve biodiversity centered on states’ responsibility to preserve this common heritage. However, biological diversity is not distributed equally throughout the international system. It is greatest in warm and tropical climates, and these are home primarily to developing countries. The developed states of the global North began with a relatively smaller endowment of biological diversity and, by the late twentieth century, they had lost a substantial amount of what they once had as a consequence of industrialization. As a practical consequence, the immediate policies required to conserve biological diversity would fall disproportionately on the global South (Sell 1995).

The South also expected substantial opportunity costs from biodiversity conservation. Biological diversity has both “productive” and “consumptive” value (Mitchell 1999; Tolba 1998). It is useful in a productive sense because genetic diversity is important for biotechnology. However, any enjoyment of the productive use of biodiversity comes directly at the expense of its consumption value. Therefore, even if South receives side payments that cover the immediate costs of preserving and administering forest resources, that side payment will have a net negative value if it requires South to forgo development projects that may provide immediate economic gains.

This leads directly to distributional costs surrounding the productive uses of biological diversity. Biotechnology firms in the North seek access to genetic resources in order to innovate. For investment in biological diversity to be profitable, firms sought assurance that any international treaty to preserve biodiversity would also safeguard intellectual property rights. This brought North and South into direct conflict. North was less interested in preserving biological diversity if it required private investors to share valuable intellectual property; throughout much of the CBD negotiations, biotech industry representatives urged that financial transfers be restricted to recipient states that would protect the patents of products developed using protected genetic resources. South was less interested in preserving biological diversity if it resulted in foregoing valuable opportunities for economic development.

The CBD ultimately left most of the disputes intact. Rather than establish a global regulatory regime governing biodiversity, it essentially created a forum for continued negotiation. Article 6 directs parties to take action to conserve biological diversity, but according to a nationally created plan of action. Regarding the controversial issue of intellectual property, the CBD directs firms to negotiate the terms of foreign investment with host countries on a case by case basis. While Article 15.2 directs contracting parties to “facilitate access to genetic resources for environmentally sound uses by other Contracting Parties,” Article 15.4 notes that “access, where granted, shall be on mutually agreed terms.” To ensure that access to genetic resources only occurs on mutually agreeable terms, the Article 15.5 requires investing firms to obtain prior informed consent from a host country before accessing genetic resources. In short, the CBD creates no costly obligations for South.

Why did North not gamble on a hard law arrangement? Proposition 2 states that such a gamble is not profitable if North’s interest in cooperation is large while the value of NGO support is relatively low. Given that the CBD was negotiated in a general multilateral summit on the global environment, a failure to reach agreement would have jeopardized the entire summit. Although NGOs were engaged in the process, their preferences were not unanimous. Environmental groups pressed for stronger measures to protect biodiversity. However, influential industry groups in the United States and elsewhere pressed for an agreement that respected international property rights (Sell 1996). The difference between the Lomé case and the biodiversity case is that, in the former, South had a reasonable expectation that North’s actual behavior would depart from formal treaty measures. In the biodiversity case, there was less potential for informal governance because South had no reason to believe that North would refrain from invoking potentially costly treaty measures to promote the sharing of genetic resources while also protecting intellectual property rights.

7.3 Mixed strategies: 1997 Kyoto Protocol

Proposition 3 is illustrated by the failure to reach agreement on a compliance system at the sixth Conference of Parties (COP) to the UN Framework Convention on Climate Change (UNFCCC), held in The Hague in November 2000. Three years earlier, parties to the UNFCCC had adopted the Kyoto Protocol, which introduced hard law provisions to the broader international regime on climate. Although the Kyoto Protocol is commonly credited with stipulating legally binding limits to greenhouse gas emissions, agreement at Kyoto was made possible, at least in part, by leaving a number of provisions only vaguely defined (McLean and Stone 2012). In the first few years after the adoption of the Kyoto Protocol, COP meetings focused mainly on the further development of flexibility mechanisms—e.g., emissions trading, joint implementation, and the Clean Development Mechanism—that negotiators had designed into the Kyoto Protocol. By 2000, however, many parties had turned their attention to the task of developing a formal compliance system for the Kyoto Protocol (ENB 2000).

In addition to bargaining over a formal compliance system, parties were also bargaining over carbon sinks: emissions offsets to be granted to specific parties based on their land use policies and carbon-absorbing potential. The issue of carbon sinks bears directly on compliance costs. For example, a lenient definition of carbon sinks reduces compliance costs for certain affected parties, but has the potential to increase relative compliance costs for other parties, which may be forced to adopt disproportionately large policy adjustments to meet their own emissions requirements (Oberthür and Ott 1999).

Our third proposition implies that the probability of a hard law proposal increases (i) with the probability that North is willing to enforce, and (ii) as South’s compliance costs increase. The probability that South accepts a hard law proposal decreases as NGO reputational value for North increases. To illustrate this proposition, consider the European Union as the proposing party (North). At the November 2000 conference, many EU members had great interest in reaching agreement on a hard law approach to compliance. These countries have historically experienced the greatest level of domestic political demand for a strong international regime on climate (ENB 2000). To that end, EU parties to the UNFCCC had campaigned for the participation of more reluctant parties by agreeing to the inclusion of a number of flexibility mechanisms that were attractive to the “umbrella” group, an important negotiating bloc consisting of, among others, the United States, Canada, Australia and New Zealand. In this case, South refers to the umbrella group—the bloc of countries responding to EU parties’ (i.e., North’s) proposal of a hard law compliance system.22

Though the flexibility mechanisms were in many ways expedient, they were also risky. The prevailing concern among EU parties at the November 2000 meeting was that these mechanisms should not become a de facto justification for non-compliance with Kyoto. To prevent this, a strong enforcement system would be needed (ENB 2000).

There is ample evidence that South (i.e., the Umbrella Group) faced high compliance costs. The issue of carbon sinks, which played a major role in discussions at The Hague in November 2000, was directly related to compliance costs for states with large areas of forest cover, such as Russia and the United States. There is also evidence that EU parties faced powerful reputational incentives to cater to environmental groups.23 Environmental NGOs have been present in international climate negotiations, campaigning for more ambitious targets and stringent enforcement (Gulbrandsen and Andresen 2004). At The Hague, the NGO presence was so strong that negotiators broke from tradition and barred NGOs from attending some meetings on key issues, such as compliance. The fact that at least one “closed door” meeting was disrupted by public protest is yet further evidence of the degree of engagement of civil society in climate negotiations (ENB 2000).

Following the logic described in Proposition 3, we expect the combination of high interest from North, high compliance costs for South, and civil society engagement to result in a hard law offer from North that will be rejected by South with some positive probability. Indeed, the Hague meeting in 2000 ended with delegates admitting failure, and pushing further discussion of a compliance system back to the next meeting. As in the biodiversity case, informal governance was precluded by the absence of any norm or expectation that South might be spared from potentially costly enforcement. Unlike in the biodiversity case, the NGO audience at The Hague was squarely on the side of strict enforcement. In the biodiversity case, disagreement between environmental and business NGOs permitted North to turn to soft law to secure agreement. Such a move was politically infeasible for North at The Hague. Accordingly, North proposed hard law, risking the sort of cooperation failure that ultimately resulted.

8 Conclusion

Why do states fail to enforce hard law provisions for which they vigorously bargained? We have advanced a theory of moribund hard law, as a rational form of informal governance. In sharp contrast to the conventional wisdom that commitment to enforcement is a prerequisite for successful cooperation, we have shown that the likelihood of regime breakdown and failure is increasing in the level of commitment to enforcement; states opposed to hard law will only accept hard law proposals when they believe that enforcement will be unlikely. The possibility of non-enforcement is precisely what makes many agreements possible.

The analysis highlights the importance of examining the full variety of strategic incentives that states face in designing international institutions. In addition to solving the collective action problems emphasized by classical cooperation theory, governments also use negotiations to respond to domestic and transnational pressure (Putnam 1988; Raustiala 1997). As shown here, such pressures may have dramatic effects on what constitutes a rational treaty design.

The results underscore the value of examining interactions between formal rules and informal expectations in international law, as proposed by Stone (2011) in his theory of “informal governance.” Yet, our approach deviates from conventional treatments of informal governance. According to Stone (2011), the possibility of informal governance helps to induce participation by leading states. In contrast, our model shows that informal governance can increase participation among weaker states. As described above, expectations of informal governance may be the reason why South is willing to engage in cooperation with North. Given North’s ability to exercise discretion by not enforcing the treaty, South’s expected payoff from cooperation increases in spite of the presence of formal sanctioning mechanisms.

It is important to remember the limits of moribund hard law, and informal governance more generally. Even if South counts on North’s failure to enforce, the presence of hard law may enable a future government to enforce the agreement, and this exacts a cost on South. While our model captures the possibility that hard law is moribund in the short run, there is no way for North to credibly commit to never enforcing the agreement. In this sense, our model may even understate the dangers of hard law for reluctant countries.

We have also focused on the government’s incentive to appease NGOs in the short run. Over time, NGOs obtain new information about North’s preferences. Indeed, successful or failed enforcement of hard law is itself an informative signal. But such new information arrives with delay. Thus, even a state that is not willing to enforce hard law may obtain temporary reputational benefits from disingenuously negotiating a hard law treaty. For example, environmentalists may increase their support to a government during elections due to a new multilateral environmental agreement, even if they later criticize that very government for implementation failure (as was the case in the U.S. with the environmental side agreement to NAFTA). Indeed, a government’s time horizons are often short if political competition is intense. In such cases, a government may solicit NGO support in the short term, even if the NGO may later accuse the government of dishonesty.

Finally, while the design of moribund treaty provisions may allow states to choose hard law in bargaining situations that are not conducive to it, “non-compliance by design” is no panacea for solving cooperation problems. Agreements that are made possible by an expectation of non-enforcement are likely to create frustration, especially among constituencies that supported “genuine” hard law. Because of this dynamic, moribund hard law may also help us theorize and understand treaty change. If hard law is moribund and the treaty acquires a notorious reputation for ineffectiveness, some states may later choose to revise the treaty to signal their interest in effective enforcement. A fruitful path for future research could be to assess the conditions under which dysfunctional hard law induces institutional change over time, amplifying some states’ demand for improved governance.

Footnotes
1

By hard law, we refer to treaty provisions that are legally binding and formally enforceable (Abbott and Snidal 2000). This narrow definition restricts the domain of hard law to legal rules that are accompanied by a sanctioning mechanism.

 
2

In this article, hard law is “moribund” if states choose not to enforce compliance with legally binding provisions despite the existence of a sanctioning mechanism. For examples, see the data analysis below.

 
3

While this strategy may not fool environmentalists in the long run, it does reduce political pressure on the government until the failure to enforce the treaty becomes apparent. We elaborate on this temporal dynamic below.

 
4

This is not to say all hard law goes unenforced. If this were the case, the domestic audience would immediately disregard the hard law as cheap talk. Instead, we expect it to become moribund with some probability.

 
5

This dynamic is similar to the enforcement of loan conditions in the International Monetary Fund (Stone 2011).

 
6

An extension shows that if South sets the negotiation agenda with some positive probability, the results are unchanged. South obviously has an incentive to propose soft law, but as long as North moves first with nonzero probability, the comparative statics remain intact.

 
7

In the model, uncertainty pertains to North’s willingness to enforce. In the rational design literature, “uncertainty about preferences” refers to some state parties’ willingness to cooperate being in doubt (Koremenos et al. 2001, 779).

 
8

In principle, the NGO could also be some other interested domestic constituency. For concreteness, we use the label NGO.

 
9

Our model can also be applied in these cases, though it is important to recognize that the choice between hard and soft law must apply to issues that are of NGO interest. For example, if labor unions are vocal, their preference for hard law probably pertains to labor standards instead of intellectual property rights.

 
10

For an exception, see Price (1998).

 
11

At the same time, the conjecture that South’s low compliance costs induce hard law is valid. This logic accords with the intuition that if treaty participation is voluntary, as opposed to mandatory, the need for enforcing compliance among members is limited (Aakre and Hovi 2010).

 
12

Again, the Clinton administration’s insistence on an environmental side agreement to NAFTA is instructive here. Although environmentalists eventually grew dissatisfied with environmental side agreement, including it served the short-term goal of dampening opposition, facilitating ratification and avoiding the alienation of key Democratic constituencies prior to Clinton’s re-election campaign in 1996.

 
13

Downs et al. (1996) and Von Stein (2005) argue that, generally, states only consent to treaties with which they are prepared to comply. Proposition 3 revises and extends this claim, noting that states are more likely to consent to costly treaties when the expectation of enforcement is relatively low.

 
14

Compliance verification falls somewhere between soft and hard law. Indeed, the findings are stronger for enforcement than for verification mechanisms.

 
15

We were only able to check coding of the compliance and enforcement variables. IRD data concerning NGO presence at negotiations is based on the primary research of dozens of scholars.

 
16

IRD codes expert groups such as epistemic communities separately from NGOs. We define NGOs narrowly to exclude these groups. This allows us to focus on reputational value, and to eliminate potential false positives, such as delegation to expert groups.

 
17

To be sure, the possibility remains that significant non-compliance remains hidden. However, after two decades there is little evidence to support this hypothesis.

 
18

This is not to suggest that compliance has been perfect. Benedick (1998) cites the existence of a black market for ozone-depleting substances (ODS) at a number of U.S. ports. However, the black market for ODS predates the Montreal Protocol. It developed following domestic U.S. regulations, and the imposition of high taxes on ODS. The spread of the international black market during the Montreal regime is actually a tribute to the success with which other industrialized countries complied with treaty obligations by adopting effective ODS regulations (DeSombre 2000).

 
19

In doing so, we also avoid one of the more common mistakes in the study of treaty politics, which is to ignore negotiations that fail (Dimitrov et al. 2007).

 
20

While Lomé IV addresses hazardous waste, the regime is much broader. The Lomé regime was established in 1975 to promote development, particularly among newly independent ACP states, by providing ACP states (1) preferential, non-reciprocal access to European markets, (2) financial support to mitigate hardships experienced by ACP states due to collapsing commodity prices, and (3) foreign aid for development (Mahler 1994).

 
21

Germany and the UK ultimately did support a ban on exports of hazardous wastes to non-OECD states, but this agreement was not reached until 1994 (Clapp 2001; O’Neill 2000).

 
22

It is also true that G-77 countries (the global South) faced potentially significant compliance costs. To secure the participation of those countries, the Kyoto Protocol famously exempted developing countries from mandatory emissions reductions in the treaty’s first compliance period.

 
23

While NGOs were concerned about the possibility of carbon sinks weakening cooperation, they were highly motivated to secure stronger compliance rules. They were also aware that the definition of carbon sinks might increase the probability of South’s (i.e., the U.S. and the umbrella group) acceptance of other hard law provisions. We thank a reviewer for bringing this to our attention.

 

Acknowledgements

We thank Randall Stone, Axel Dreher, the anonymous reviewers, Felicity Vabulas, Daniel Yew Mao Lim, Jan Schmitz, and participants of the 2012 Political Economy of International Organizations conference at Villanova University for useful comments on previous drafts.

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