When states face an international cooperation problem requiring enforcement, when do they decide to make that enforcement formal versus informal? I introduce a research design for investigating how informal mechanisms might be relevant to formal international agreements. I present an overall theory of punishment provisions and a set of hypotheses about whether any needed punishments will be formalized or not. This theory gives rise to a two-part empirical analysis conducted on a large-n dataset. First, the presence of enforcement mechanisms in agreements is predicted, and, second, those cases that are “misclassified”—ones in which the model predicts the presence of such mechanisms, but the agreements lack them—are analyzed. These misclassified agreements, candidates for informal enforcement, are characterized by regime heterogeneity and military asymmetries among parties. Case study evidence supports the results.
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See Koremenos (2013).
See also Kleine’s (2010) particularly rich analysis of the EU presidency.
See more on this point in the text below.
See Koremenos’ (2001) case study on the NPT where the substantive articles were set in the first drafts while the duration provision was still being negotiated in the sixth year of negotiation. Koremenos (book manuscript) discusses both this assumption and the potential for the inability to incorporate the correct design provisions to have a feedback effect on agreement substance or, more likely, ratification.
The precise conjecture is “Scope increases with the severity of the Enforcement Problem.”
This is a variant of the Rational Design conjecture, Centralization increases with Uncertainty about Behavior (Koremenos, Lipson, Snidal 2001:787) since punishment is a task that can be centralized.
The arguments above are consistent in spirit with two Rational Design conjectures: Flexibility increases with the Distribution problem and Flexibility increases with Uncertainty about the State of the World (Koremenos, Lipson, and Snidal 2001:793-4).
Two other variables could influence the choice of formal versus informal punishment: renegotiation-proofness, i.e., is the delivery of the punishment in the interest of all states other than the defector ex post, and the targetability of sanctions, i.e., many agreements are best enforced through punishments in other issue areas, what Downs and Jones (2002: 107) call a “coercive linkage penalty.” I thank an anonymous reviewer for pointing me to this second variable. Both are addressed in Koremenos (book manuscript).
Policies can then be tailored to the particularities of the subnational units.
The argument here is that heterogeneity among participants affects the design of punishment provisions; in contrast, heterogeneity is assumed not to affect the likelihood that punishment provisions are required. Consider the example of the Prisoners’ Dilemma: the two actors are as alike as they can be in a game-theoretic sense; yet this homogeneity does not rule out the existence of an enforcement problem and hence the usefulness of punishment provisions.
Cogan (2009) notes that informal law avoids explicitly acknowledging large differences in power and influence among participants to an agreement.
This agreement is the “Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons and on their destruction” (UNTS 14860).
As one anonymous reviewer noted, rewards should not necessarily be understood as irrelevant to agreement design just because we rarely see them incorporated formally as states sometimes negotiate stand-alone aid agreements that are closely associated with other agreements.
COIL oversamples economic agreements because their population dwarfs the population in every other issue area; thus, within issue area variation in economics in terms of cooperation problems is substantial.
The lack of significance on the variable Uncertainty about Behavior is consistent with Koremenos and Betz (2013) that this problem is best solved with information clarification, not punishment.
The marginal effects of all of the cooperation problems are weakest for environmental agreements.
If one compared the set of all misclassified agreements to the set of all other agreements, the results are slightly stronger than the results reported here.
All of the data was drawn from Norris (2009).
I thank an anonymous reviewer for this excellent point.
Importantly, detected noncompliance in the domestic law context does not always result in punishment. I have received only two speeding citations since I began driving but substantially more than two warnings. My spouse has a less fortunate ratio of warnings/citations, illustrating that heterogeneity in “regime type” matters in this context as well, with police officers using discretion regarding how and how often to punish depending on the individual characteristics of the offender.
The NPT is not in the COIL random sample and thus not on the list of misclassified agreements.
In the case of world sanctions against South Africa for its apartheid regime, it has been argued that the actual Convention against Apartheid had little to do with the outcome. (I thank an anonymous reviewer for this point.) Although counterfactuals are challenging to argue, in the Apartheid case, given that most powerful states (like the US and almost all of the Western European states) remain outside the Convention, it is clear the formal agreement is not playing a large role. Still, apartheid is prohibited in other international agreements that have been ratified by great powers like the US and the UK—e.g., the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). (And Article 3 of ICERD, which contains the prohibition, does not have reservations attached to it.)
Some might argue that North Korea is no longer a member of the NPT, but its status is open to interpretation given its unconventional (and most likely unlawful) withdrawal. In 2003, North Korea withdrew with only a one-day notice, citing that it had already fulfilled the balance of the official 3-month notice period when it gave notice of withdrawal in 1993, a withdrawal that it subsequently suspended. In any event, during the period when the rewards and sanctions discussed below were part of the picture, North Korea was most certainly a member of the NPT.
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The research for this article was funded by National Science Foundation Grant, “The Continent of International Law: Theoretical Development, Data Collection, and Empirical Analysis” (SES-0801581), and National Science Foundation CAREER Award, “Designing International Agreements: Theoretical Development, Data Collection, and Empirical Analysis” (SES-0094376). I thank Timm Betz for his superb research assistance, my coders, and Ewan Compton, Alexis Juncaj, Logan Trombley, and especially Jennifer Herstein for case study research. Finally, Jeff Smith provided very helpful comments.
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Koremenos, B. What’s left out and why? Informal provisions in formal international law. Rev Int Organ 8, 137–162 (2013). https://doi.org/10.1007/s11558-012-9159-4
- International law
- International agreements
- International cooperation
- Informal cooperation
- Enforcement provisions