domestic institutions as determinants of the choice between formal and informal law
F. Open questions: possible next steps
This is the first paper to empirically analyse the choice of informal interna-tional law. Based on all publicly available internainterna-tional agreements entered into by the US since 1981, the main findings are as follows: (1) Informal international lawmaking (defined here as the conclusion of ‘international agreements’ rather than more formal ‘treaties’ in the sense of the US Con-stitution) did increase dramatically until around 2006. Since then, its use has declined almost as dramatically. (2) Around two-thirds of all interna-tional agreements are concerned with only three policy areas: the military, science and technology, and aid. (3) More than 90% of all international agreements are conducted bilaterally. (4) More than 40% of all agreements are concluded by a non-traditional actor on the US side, i.e., an actor other than the President or the Secretary of State.
This chapter has answered some questions and given rise to others.
There are at least five issues waiting in the wings for their chance at centre stage. Some of the central characteristics of informal law could be de-scribed in more detail. Is informal law primarily created to order one-shot interactions, or is it created as the foundation for a multitude of single in-teractions in later periods? Does informal law contain sunset clauses? Does it contain rules on how to renegotiate if necessary? Does it contain explicit
55 See D. Minnich (2005).
sanctions in the event of non-compliance? Does it involve reliance on third parties for its enforcement? How frequently is it abolished?
What do we know about compliance with informal law? Are all agree-ments equally likely to be complied with or are there systematic differ-ences?
(1) Can we discern any systematic pattern in the development of infor-mal law over time? Under what circumstances does inforinfor-mal law constitute a first step toward formal law? Under what circumstances does it comple-ment hard law?
(2) Section E contains hypotheses that can be tested only on a cross-country basis, which will entail considerable effort in collecting and cod-ing data. Two levels can be distcod-inguished here: the first one deals with the kind and frequency of informal law being chosen under various institution-al constraints. The second one deinstitution-als with attempts to set up institutions to monitor informal law in a systematic fashion.
(3) In this chapter, choice of informal law has been described from a decision-theoretic angle. However, informal law is not chosen in isolation by any single government; at least two governments have to come to an agreement on the issue. Which government will prevail if their preferences on soft versus hard law conflict? (For example, in the case of Germany and France, who have such opposite views of informal law, which government will prevail?). What role do power differences play? If one wants to model this as a bargaining game, it might make sense to distinguish between two dimensions, namely, content and form. Is soft law a likely compromise if one government wants hard law whereas the other would prefer no agree-ment at all?
(4) Finally, it is well-known that IOs play an important role in the crea-tion of internacrea-tional law. (Shanks et al. estimate that IOs are involved in some way in two-thirds of all newly-created international law.56) It would be interesting to learn more about the ways that IOs are involved in the creation of informal law. For example, have IOs established monitoring mechanisms to alleviate their own principal-agent problems? Pari passu, the same questions could be asked with regard to (International) NGOs.
Both the analysis contained in this chapter and the proposed next steps have been primarily positive. Obviously, important normative issues need to be dealt with concerning informal law. These include both the legitima-cy of informal law, as well as the accountability of those who create it. The Case-Zablocki Act can be perceived as one way to increase accountability.
If a distinction is made between ex ante and ex post accountability, which one is more effective? Is ex post accountability sufficient or is there also a
56 See C. Shanks, H. Jacobson and J. Kaplan (1996).
need for ex ante accountability, according to which parliament would need to be informed before informal law is created?
These questions can be answered only after a number of other issues have been dealt with adequately. Among them are the costs and benefits of non-accountability, and the delineation of policy areas that should be sub-ject to a high degree of accountability and those for which a low degree is deemed sufficient. A very fundamental question is whether a combination of a high degree of accountability and informal law even makes sense:
Could it be that precisely that characteristic of informal law which makes it attractive is that its creators are somewhat less accountable?
There is much to be learned, much to be done. It is hoped that this chap-ter will provide the point of departure.
Bibliography
Abbott, K. and D. Snidal (1998); Why States Act Through Formal International Organi-zations, International Organization 42(1):3–32.
Abbott, K. and D. Snidal (2000); Hard and Soft Law in International Governance, Inter-national Organization 54(3):421–456.
Alesina, A. and G. Tabellini (1990); A Positive Theory of Fiscal Deficits and Govern-ment Debt, Review of Economic Studies 57(3):403–414.
Axelrod, R. (1984); The Evolution of Cooperation, New York: Basic Books.
Boudreaux, D. and A. C. Pritchard (1993); Rewriting the Constitution: An Economic Analysis of the Constitutional Amendment Process, Fordham Law Review, 62:111–
162.
Brummer, C. (2010); Why Soft Law Dominates International Finance – and Not Trade, Journal of International Economic Law, 13(3):623–643.
Bundesregierung (2009); Gemeinsame Geschäftsordnung der Bundesministerien, available at: http://www.bmi.bund.de/cae/servlet/contentblob/139852/publicationFile /55730/ggo.pdf.
Canada Treaty Information (2011); Policy on Tabling of Treaties in Parliament, available at: www.treaty-accord.gc.ca/procedure.asp.
Coase, R. (1937); The Nature of the Firm, Economica 4:386–405.
Dreher, A. (2006); Does Globalization Affect Growth? Evidence from a New Index of Globalization, Applied Economics, 38(10):1091–1110. Updated data available at:
http://globalization.kof.ethz.ch./.
Dreher, A. and S. Voigt (2011); Does Membership in International Organizations In-crease Governments’ Credibility?, Journal of Comparative Economics 39:326–348.
Foreign and Commonwealth Office (2004); Guidance on Practice and Procedures for Treaties and Memoranda of Understanding, available at: http://www.fco.gov.uk/en/
publications-and-documents/treaties/practice-procedures/glossary-treaty-terms.
Ginsburg, T. (2002); Economic Analysis and the Design of Constitutional Courts, Theo-retical Inquiries in Law 3(1):49–85.
Grant, R. and R. Keohane (2005); Accountability and Abuses of Power in World Politics, American Political Science Review 99(1):29–43.
Greif, A. (2006); Institutions and the Path to the Modern Economy – Lessons from Medi-eval Trade, Cambridge: CUP.
Guzman, A. (2008); How International Law Works – A Rational Choice Theory, Oxford:
OUP.
Hathaway, O. (2008); Treaties’ End: The Past, Present, and Future of International La w-making in the United States, Yale Law Journal 117:1237.
Johnson, L. and J. McCormick (1977); Foreign Policy by Executive Fiat, Foreign Policy 28:117–138.
Kiewiet, D. R. and M. McCubins (1991); The Logic of Delegation: Congressional Parties and the Appropriation Process, Chicago: University of Chicago Press.
Kiwit, D. and S. Voigt (1998); The Role of Evolution of Beliefs, Habits, Moral Norms, and Institutions. In: Giersch, H. (ed.): The Merits of Markets – Critical Issues of the Open Society, Berlin: Springer, 83–108.
Kronman, A. (1985); Contract Law and the State of Nature, Journal of Law, Economics, and Organization, 1(1):5–32.
Kuziemko, I. and E. Werker (2006); How Much is a Seat on the Security Council Worth?
Foreign Aid and Bribery at the United Nations; Journal of Political Economy 114(5):905–930.
Levy, B. and P. Spiller (1994); The Institutional Foundations of Regulatory Commitment:
A Comparative Analysis of Telecommunications Regulation, Journal of Law, Eco-nomics, and Organization, 10(2):201–246.
Lipson, C. (1991); Why Are Some International Agreements Informal? International Organization 45(4):495–538.
Milgrom, P., D. North, and B. Weingast (1990); The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs, Economics and Politics, 2(1):1–23.
Minnich, D. (2005); Veto Players, Electoral Incentives and International Commitments:
The Impact of Domestic Institutions on Intergovernmental Organization Membership, European Journal of Political Research 44(2):295–325.
Moe, T. (1990); Political Institutions: The Neglected Side of the Story, Journal of Law, Economics, and Organization, 6:213–253.
Papadopoulos, Y. (2007); Problems of Democratic Accountability in Network and Multi-level Governance, European Law Journal, 13(4):469–486.
Pauwelyn, J. (2012); Informal International Lawmaking: Framing the Concept and Re-search Questions. In: Pauwelyn, J., Wessel, R., and Wouters, J. (eds.), Informal Inter-national Lawmaking. Oxford. OUP, 13–34.
Persson, T. and L. Svensson (1989); Why a Stubborn Conservative Would Run a Deficit:
Policy with Time-Inconsistent Preferences, Quarterly Journal of Economics 104(2):325–345.
Ramseyer, M. (1994); The Puzzling (In)dependence of Courts: A Comparative Approach, Journal of Legal Studies, 23(2):721–747.
Schelling, T. (1960); The Strategy of Conflict, Cambridge, MA: Harvard University Press.
Shaffer, G. and M. Pollack (2010); Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance, Minnesota Law Review 94:706–799.
Shanks, C., H. Jacobson and J. Kaplan (1996). Inertia and change in the constellation of international governmental organizations, 1981–1992. International Organization 50:
593-627.
Tabellini, G. and A. Alesina (1990); Voting on the Budget Deficit, American Economic Review 80(1):37–49.
U.S. Department of State (2011); Guidance on Non-Binding Documents, available at:
www.state.gov/s/l/treaty/guidance/.
Williamson, O. E. (1985); The Economic Institutions of Capitalism, New York: Free Press.