On Compliance Author(s): and Source: International Organization, Vol. 47, No. 2 (Spring, 1993), pp. 175-205 Published by: The MIT Press Stable URL: http://www.jstor.org/stable/2706888 Accessed: 26-02-2015 15:35 UTC

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This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance AbramChayes and AntoniaHandler Chayes

In an increasinglycomplex and interdependentworld, negotiation, adoption, and implementationof internationalagreements is a major componentof the foreignpolicy activityof everystate.1 Internationalagreements come in a varietyof shapes and sizes-formal and informal,bilateral and multiparty, universal and regional. Our concern is with contemporaryagreements of relativelyhigh political salience in fields such as security,economics, and environment,where the treatyis a central structuralelement in a broader internationalregulatory regime.2 Some of these agreementsare littlemore

This is an introductorychapter to a moreextended study of compliancewith international treaty obligations.The researchhas been supportedby grantsfrom the Pew CharitableTrust and the CarnegieCorporation of New York,for which we wishto expressour gratitude.Earlier versions of thisarticle were presentedat seminarsat the KennedySchool of Government,Harvard University, and at the Universityof Chicago Law School. Robert Keohane has been particularlyhelpful in commentingon the earlierefforts. Our thanksare also due to our manystudent research assistants and especiallyto Sean Cote, Fred Jacobs,and JanMartinez, who labored on the references. 1. BarryE. Carterand PhillipR. Trimble,Intemational Law (: Little,Brown, 1991), pp. 133-252,cite a statisticalstudy showing that of 10,189U.S. treatiesand internationalagreements made between 1789 and 1979, 8,955 were concluded between 1933 and 1979 (see p. 169). In the U.S. lexicon,the term"treaty" is reservedfor international agreements ratified with the advice and consentof the Senate in accordancewith Article 2, cl. 2 of the Constitution.Other international agreementsare concludedby the President,in thegreat majority of cases withthe authorizationof Congressand less frequentlyon his or her own responsibility.All of these are "treaties"according to internationalusage, whichdefines a treatyas "an internationalagreement, concluded between statesin writtenform and governedby internationallaw." See Vienna Conventionon the Law of Treaties (entered into forceon 27 January1980) Article2(1)(a), in IntemationalLegal Materials, vol. 8 (Washington,D.C.: The AmericanSociety of InternationalLaw, July1969), pp. 679-735 (hereaftercited as Vienna Conventionon the Law of Treaties). The quotationis foundon p. 701. The computerbank of the (UN) TreatyOffice shows treatygrowth, including multilateraland bilateral treatiesand amendments,as follows:373 treatieswere entered into duringthe ten-yearperiod endingin 1955; 498 in the period endingin 1965; 808 in the period endingin 1975; 461 in the period endingin 1985; and 915 in the periodending in 1991. 2. Treatylaw, based on nineteenth-centurypractice, adopts, implicitlyor explicitly,a contrac- tual modelof bilateralrelationships (or, at most,agreements among a fewparties), and a good deal ofcontemporary work in internationalrelations reflects this same framework.Although nineteenth- centurylegal thoughtwas hospitableto conceptionsbased on contract,they do not fitcomfortably withregulatory lawmaking.

InternationalOrganization 47, 2, Spring1993 ?3 1993 bythe WorldPeace Foundationand the MassachusettsInstitute of Technology

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions 176 InternationalOrganization than statementsof general principle,while otherscontain detailed prescrip- tionsfor a definedfield of interaction.Still others may be umbrellaagreements forconsensus building in preparationfor more specific regulation. Most of the agreementsof concern are multilateral,except in the field of nuclear arms control,in whichthe cold war generateda series of bilateralnegotiations and agreementsbetween the and the SovietUnion. We believe thatwhen nationsenter into an internationalagreement of this kind,they alter their behavior, their relationships, and theirexpectations of one anotherover time in accordancewith its terms. That is, theywill to some extent complywith the undertakingsthey have made.3 How or why this should be so is the subject of a burgeoningliterature and debate in which,for the firsttime in half a century,the possibilityof fruitfuldialogue between internationallawyers and studentsof internationalrelations has emerged. This article explores some basic propositionswe think should frame this discussion. First,the generallevel of compliancewith international agreements cannot be empiricallyverified. That nationsgenerally comply with their international agreements,on theone hand,and thatthey violate them whenever it is "in their intereststo do so" are not statementsof factor even hypothesesto be tested, but assumptions.We give some reasons why we think the background assumptionof a propensityto complyis plausibleand useful. Second, complianceproblems often do not reflecta deliberatedecision to violate an internationalundertaking on the basis of a calculationof interests. We propose a varietyof other(and in our viewmore usual) reasonswhy states maydeviate from treaty obligations and why,in particularcircumstances, these reasonsare acceptedby the partiesas justifyingsuch departures. Third,the treatyregime as a whole need not and should not be held to a standard of strictcompliance but to a level of overall compliance that is "acceptable" in the lightof the interestsand concernsthe treatyis designed to safeguard.We consider how the "acceptable level" is determinedand adjusted.

3. We are mindfulof the distinctionbetween treaty compliance and regimeeffectiveness. See Oran Young, "The Effectivenessof InternationalInstitutions: Hard Cases and CriticalVariables," in JamesN. Rosenau and Ernst-OttoCzempiel, eds., GovemanceWithout Government: Order and Changein WorldPolitics (Cambridge: Cambridge University Press, 1992), pp. 160-92; and Jesse Ausubel and David Victor,"Verification of InternationalEnvironmental Agreements," Annual Reviewof Energy and Environment,vol. 17, 1992,pp. 1-43. The partiesto the InternationalWhaling Convention,for example, complied fullywith the quotas set by its commission,but the whale populationcrashed because the quotas were too high.Nevertheless, we thinkthe observance(or not) of treatycommitments by the partiesis a subjectworth studying in its own right.Moreover, treatiesare ordinarilyintended to induce behaviorthat is expectedto amelioratethe problemto whichthey are directed,so that,if Young's warningis keptin mind,compliance may be a fairfirst approximationsurrogate for effectiveness.

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Backgroundassumption

Accordingto Louis Henkin,"almost all nationsobserve almost all principlesof internationallaw and almostall of theirobligations almost all of thetime."4 The observation is frequentlyrepeated without anyone, so far as we know, supplyingany empiricalevidence to supportit. A moment'sreflection shows that it would not be easy to devise a statisticalprotocol that would generate such evidence. For example, how would Iraq's unbroken respect for the bordersof Turkey, Jordan, and Saudi Arabia countin the reckoningagainst the invasionsof Iran and Kuwait? Equally, and for much the same reasons, there is no way to validate empiricallythe position of mainstreamrealist internationalrelations theory goingback to Machiavelli,that "a prudentruler cannot keep his word, nor should he, where such fidelitywould damage him,and when the reasons that made himpromise are no longerrelevant."5 Contemporary realists accept that theinterest in reciprocalobservation of treatynorms by other parties or a more general interestin the state's reputationas a reliable contractualpartner shouldbe countedin the trade-offof costs and benefitson whicha decisionis based (an extensionthat detracts considerably from the powerand elegance of therealist formula).6 No calculus,however, will supply a rigorous,nontautolog- ical answer to the question whether a state observed a particulartreaty obligation,much less its treatyobligations generally, only when it was in its interestto do so. Anecdotal evidenceabounds forboth the normativeand the realistpropositions, but neitherof them,in theirgeneral form,is subject to statisticalor empiricalproof. The differencebetween the twoschools is notone of factbut of the backgroundassumption that informstheir approach to the subject. A criticalquestion for any studyof compliance,then, is whichbackground assumptionto adopt, and that question is to be resolvednot on the basis of whetherthe assumptionis "true" or "false" butwhether or not it is helpfulfor the particularinquiry. Thus, forgame-theoretic approaches thatfocus on the abstractstructure of the relationship between states, the realist assumption of a unitaryrational actor optimizing utilities distributed along smoothpreference curvesmay have value. As Thomas Schellingsaid at thebeginning of his classic

4. See Louis Henkin,How NationsBehave, 2d ed. (New York: ColumbiaUniversity Press, 1979), p. 47; and p. 69 of Louis Henkin, "InternationalLaw: Politics,Values, and Functions:General Course on Public InternationalLaw," Recueil Des Cours, vol. 216, 1989, pp. 1-416, emphasis original. 5. Niccol6 Machiavelli, The Prince, eds. Quentin Skinner and Russell Price (Cambridge: CambridgeUniversity Press, 1988), pp. 61-62. For a moderninstance, see Hans J. Morgenthau, PoliticsAmong Nations: The Strugglefor Power and Peace, 5th ed. (New York: AlfredA. Knopf, 1978), p. 560: "In myexperience [states] will keep theirbargains as long as it is in theirinterest." 6. See, forexample, James A. Caporaso, "InternationalRelations Theory and Multilateralism: The Search forFoundations," Intemational Organization 46 (Summer1992), pp. 599-632.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions 178 InternationalOrganization work,"The premiseof 'rationalbehavior' is a potentone forthe productionof theory.Whether the resultingtheory provides good or poor insightinto actual behavioris ... a matterfor subsequent judgment."7 Our interestin thiswork is in improvingthe prospectsfor compliance with treaties,both at the draftingstage and later as the parties live and operate underthem. From this perspective, the realist analysis, focusing on a narrowset of externallydefined "interests"-primarily,in the classical version, the maintenanceor enhancementof state militaryand economic power-is not veryhelpful. Improving compliance becomes a matterof the manipulationof burdensand benefitsdefined in termsof those interests,which translates into the applicationof militaryor economic sanctions.Because these are costly, difficultto mobilize,and of doubtfulefficacy, they are infrequentlyused in practice. Meanwhile, analytic attentionis divertedfrom a wide range of institutionaland political mechanismsthat in practice bear the burden of effortsto enhancetreaty compliance. For a studyof the methods by which compliance can be improved,the backgroundassumption of a general propensityof states to complywith internationalobligations, which is the basis on whichmost practitioners carry out theirwork, seems more illuminating.8We note here some of the chief considerationsthat lend plausibilityto such an assumption.We do not suggest that these factors,singly or in combination,will lead to compliancein every case or even in any particular instance. Our claim is only that these considerationssupport the backgroundassumption of a generalpropensity for statesto complywith their treaty obligations.

Efficiency Decisions are not a free good. Governmentalresources for policy analysis and decision makingare costlyand in shortsupply. Individuals and organiza- tions seek to conserve those resources for the most urgent and pressing matters.9In these circumstances,standard economic analysisargues against the continuousrecalculation of costs and benefitsin the absence of convincing evidence that circumstanceshave changed since the originaldecision. Effi- ciencydictates considerable policy continuity. In areas of activitycovered by

7. Thomas C. Schelling,The Strategyof Conflict(Cambridge, Mass.: HarvardUniversity Press, 1980), p. 4. 8. Oran R. Young, Complianceand PublicAuthority: A Theorywith Intemational Applications (,Md.: JohnsHopkins University Press, 1979), pp. 31-34. 9. See George Stigler,"The Economicsof Information,"Joumal of Political Economy 69 (June 1961), pp. 213-25; G. J. Stiglerand G. S. Becker,"De Gustibusnon Est Disputandum"(There is no disputingtaste), in Karen S. Cook and MargaretLevi, eds., The Limitsof Rationality (Chicago: Universityof Chicago Press, 1990), pp. 191-216; Charles E. Lindblom,The PolicyMaking Process (Englewood Cliffs,N.J.: Prentice-Hall, 1968), p. 14; and Young, Complianceand PublicAuthority, pp. 16-17.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 179 treatyobligations, the alternativeto recalculationis to followthe established rule. Organizationtheory would reach the same resultas economicanalysis, but by a differentroute. In place of the continuouslycalculating, maximizing rationalactor, it substitutesa "satisficing"model of bounded rationalitythat reactsto problemsas theyarise and searchesfor solutions within a familiarand accustomedrepertoire.10 In thisanalysis, bureaucratic organizations are viewed as functioningaccording to routinesand standardoperating procedures, often specifiedby authoritativerules and regulations.For Max Weber, thiswas the definingcharacteristic of bureaucracy.1"The adoption of a treaty,like the enactmentof any otherlaw, establishesan authoritativerule system.Compli- ance is the normalorganizational presumption. The bureaucracyis not monolithic,of course, and it will likely contain opponents of the treatyregime as well as supporters.When there is an applicable rule in a treatyor otherwise,opposition ordinarily surfaces in the courseof ruleimplementation and takesthe formof argumentover interpreta- tion of language and definitionof the exact contentof the obligation.Such controversiesare settledin accordancewith normal bureaucratic procedures in which,again, the presumptionis in favorof "following"the rule. Casuistryis admissible,though sometimes suspect. An advocate of outrightviolation bears a heavyburden of persuasion.

Interests The assertionthat states carry out treatycommitments only when it is in their interestto do so seems to implythat commitments are somehowunrelated to interests.In fact,the oppositeis true.The mostbasic principleof is thatstates cannot be legallybound exceptwith their own consent.So, in thefirst instance, the stateneed not enterinto a treatythat does notconform to itsinterests.12

10. Herbert Simon, Models of Man: Social and Rational-MathematicalEssays on Rational Human Behaviorin a Social Setting(New York: JohnWiley & Sons, 1957), pp. 200-204. See also JamesG. March and HerbertA. Simon,Organizations (New York: JohnWiley & Sons, 1958), p. 169. For an example of this model of organizationalbehavior applied to the analysis of internationalaffairs, see GrahamT. Allison,The Essenceof Decision:Explaining the (Glenview, Ill.: Scott,Foresman, 1971), chaps. 3 and 4. 11. M. Rheinstein,ed., Max Weberon Law in Economyand Society(New York: Simon and Schuster,1954), p. 350: "For modernbureaucracy, the elementof 'calculabilityof its rules' has reallybeen of decisivesignificance." 12. Even in the case of peace treaties,the victor seems to attachimportance to the signatureof the vanquished on the document.After the Persian Gulf War, for example, the UN Security Council insistedthat Iraq accept the termsof Resolution687 establishinga cease-fire.See Sean Cote, A Narrativeof the Implementationof Section C of UN SecurityCouncil Resolution687, Occasional Paper, Center forScience and InternationalAffairs, Harvard University, Cambridge, Mass., forthcoming;and Morgenthau,PoliticsAmong Nations, p. 282.

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More important,a treatydoes not presentthe state with a simple binary alternative,to signor not to sign.Treaties, like otherlegal arrangements,are artifactsof politicalchoice and social existence.The processby which they are formulatedand concluded is designed to ensure that the final result will represent,to some degree,an accommodationof the interestsof the negotiat- ing states. Of course, if state interestsare taken to be fixedand given,the assertionthat states do not conclude treaties except as they embodythose interestswould add littleto the realistposition. But moderntreaty making, like legislationin a democraticpolity, can be seen as a creativeenterprise through whichthe partiesnot onlyweigh the benefitsand burdensof commitmentbut explore,redefine, and sometimesdiscover their interests. It is at its best a learningprocess in whichnot onlynational positionsbut also conceptionsof nationalinterest evolve. This processgoes on bothwithin each stateand at the internationallevel. In a statewith a well-developedbureaucracy, the elaborationof nationalpositions in preparationfor treatynegotiations requires extensiveinteragency vetting. Differentofficials with different responsibilities and objectivesengage in what amountsto a sustainedinternal negotiation. Phillip Trimble's list of the U.S. groups normallyinvolved in arms controlnegotiations includes the national securitystaff, the Departmentsof State and Defense, the Arms Controland Disarmament Agency, the Joint Chiefs of Staff,the Central Intelligence Agency,and sometimesthe Department of Energyor theNational Aeronautics and Space Administration(NASA).13 These organizationsthemselves are not unitaryactors. Numerous subordinateunits of the major departmentshave quasi-independentpositions at the table. Much of the extensiveliterature on U.S.-Soviet arms control negotiationsis devoted to analysis of the almost byzantinecomplexity of theseinternal interactions.14 The process is not confinedto armscontrol but can be seen in everymajor U.S. internationalnegotiation. For example,at the end of what Ambassador RichardBenedick calls "the interagencyminuet" in preparationfor the Vienna Conventionfor the Protectionof the Ozone Layer,the finalU.S. position"was draftedby the State Departmentand was formallycleared bythe Departments of Commerce and Energy,The Council on EnvironmentalQuality, EPA

13. PhillipR. Trimble,"Arms Controland InternationalNegotiation Theory," Stanford Joumal ofIntemational Law 25 (Spring1989), pp. 543-74, especiallyp. 549. 14. See John Newhouse, Cold Dawn: The Storyof SALT (New York: Holt, Rinehart and Winston,1973); Gerard C. Smith,Doubletalk: The Storyof SALTI (Lanham, Md.: UniversityPress of America,1985); Strobe Talbott,Endgame: The Inside Storyof SALT II (New York: Harper & Row, 1979); Strobe Talbott,Deadly Gambits: The Reagan Administrationand the Stalematein NuclearArmsControl (New York: Knopf,1984); RaymondL. Garthoff,Detente and Confrontation: American-SovietRelations from Nixon to Reagan (Washington,D.C.: BrookingsInstitution, 1985); and J. McNeill, "U.S.-U.S.S.R. Arms Negotiations:The Process and the ,"American Joumalof IntemationalLaw 79 (January1985), pp. 52-67. Althoughknowledge of the process in the formerSoviet Union is less detailed, the sources cited above, among others,suggest that (makingallowances for a more compartmentalizedbureaucratic structure) the process was not fundamentallydissimilar.

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[EnvironmentalProtection Agency], NASA, NOAA [NationalOceanographic and AtmosphericAdministration], OMB [Officeof Managementand Budget], USTR [U.S. Trade Representative],and the Domestic PolicyCouncil (repre- senting all other interested agencies)."'15In addition to this formidable alphabet soup, White House units,like the Officeof Science and Technology Policy, the Office of Policy Development, and the Council of Economic Advisers,also got into the act. Accordingto Trimble,"each agency has a distinctiveperspective from which it views the processand whichinfluences the positionit advocates.... All these interestsmust be accommodated,compro- mised or overridenby the Presidentbefore a positioncan even be put on the table."16 In the United States in recentyears, increasing involvement of Congress- and withit nongovernmentalorganizations (NGOs) and the broaderpublic- has introduceda new rangeof intereststhat must ultimately be reflectedin the national position.17Similar developmentsseem to be occurringin other democraticcountries. In contrastto day-to-dayforeign policy decision makingthat is oriented toward currentpolitical exigenciesand imminentdeadlines and is focused heavilyon short-termcosts and benefits,the moredeliberate process employed in treatymaking may serve to identifyand reinforcelonger range interests and values. Officialsengaged in developingthe negotiatingposition often have an additionalreason to take a long-rangeview, since theymay have operational responsibilityunder any agreementthat is reached.18What theysay and how theyconduct themselvesat the negotiatingtable may returnto haunt them

15. Richard Elliot Benedick, Ozone Diplomacy: New Directionsin Safeguardingthe Planet (Cambridge,Mass: Harvard UniversityPress, 1991), pp. 51-53. The Domestic Policy Council, whichestablished a special senior-levelworking group to ride herdon the process,consists of nine Cabinet secretaries,the director for the OMB, and the USTR. At the time of the ozone negotiations,the councilwas chairedby AttorneyGeneral Edwin Meese. Other states,at least in advancedindustrialized societies, exhibit similar, if perhaps not quite as baroque,internal practices in preparation for negotiations.Developing countries,with small resources to commit to bureaucraticcoordination, may relymore on the judgmentand inspirationof representativeson the scene. 16. Trimble,"Arms Control and InternationalNegotiation Theory," p. 550. 17. See Benedick, Ozone Diplomacy,p. 57, for a descriptionof the emphasis on Congress, industry,and environmentalgroups in the developmentof the U.S. strategyto buildsupport for the Protocol on Substances that Deplete the Ozone Layer. For a discussionof how governments "organizethemselves to cope withthe flow of business generated by international organizations" in an internationalpolitical systemof "complex interdependence,"see Robert 0. Keohane and JosephS. Nye,Power and Interdependence,2d ed. (Glenview,Ill.: Scott,Foresman, 1989), p. 35. 18. Hudec uses the examplesof the General Agreementon Tariffsand Trade (GATT) and the InternationalTrade Organization(ITO): "For the betterpart of the firstdecade, GATT meetings resembleda reunionof the GATT/ITO draftsmenthemselves. Failure of the code would have meanta personalfailure to manyof these officials,and violationof rules theyhad helped to write could not help being personallyembarrassing." See p. 1365 of Robert E. Hudec, "GATT or GABB? The FutureDesign of the General Agreementof Tariffsand Trade," Yale Law Joumal80 (June 1971), pp. 1299-386. See also Robert E. Hudec, The GATT Legal Systemand WorldTrade Diplomacy,2d ed. (Salem, N. H.: ButterworthLegal Publishers,1990), p. 54.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions 182 InternationalOrganization once the treatyhas gone into effect.19Moreover, they are likelyto attach considerable importanceto the developmentof governingnorms that will operate predictablywhen applied to the behaviorof the partiesover time.All these convergentelements tend to influencenational positions in the direction ofbroad-based conceptions of thenational interest that, if adequately reflected in the treaty,will help to induce compliance. The internalanalysis, negotiation, and calculationof the benefits,burdens, and impacts are repeated, for contemporaryregulatory treaties, at the internationallevel.20 In anticipationof negotiations,the issues are reviewedin internationalforums long before formalnegotiation begins. The negotiating processitself characteristically involves intergovernmental debate oftenlasting yearsand involvingnot onlyother national governments but also international bureaucraciesand NGOs. The mostnotable case is the UN Conferenceon the Law of the Sea, in whichthat process lasted formore than ten years,spawning innumerablecommittees, subcommittees, and workinggroups, only to be torpedoed in the end by the United States, which had sponsored the negotiationsin thefirst place.21 Bilateral arms control negotiations between the UnitedStates and the SovietUnion were similarlyextended, and althoughonly the twosuperpowers were directlyinvolved, each felta measureof responsibil- ity to bring along the members of its alliance. Current environmental negotiationson ozone and on global warmingfollow very much the Law of the Sea pattern.The firstconference on stratosphericozone was convokedby the UN EnvironmentProgram (UNEP) in 1977,eight years before the adoptionof the Vienna Conventionon the Protectionof the Ozone Layer.22The formal beginningof theclimate change negotiations in February1991 was precededby two years of work by the IntergovernmentalPanel on Climate Change, convened by the World Meteorological Organization and the UNEP to considerscientific, technological, and policyresponse questions.23

19. The Vienna Conventionon the Law of Treaties permitslimited recourse to the negotiating historywhen the treatytext is ambiguous,though the emphasisgiven to such historydiffers in varioustribunals and nationalcourts. See Vienna Conventionon theLaw ofTreaties, Article 32. In the United States, resortto the negotiatinghistory is much freer.See UnitedStates v. Stuart,489 U.S. 353-377 (1989); and Detlev F. Vagts "Senate Materials and Treaty Interpretation:Some Research Hintsfor the SupremeCourt," American Joumal of Intemational Law 83 (July1989), pp. 546-50. 20. Robert D. Putnam,"Diplomacy and Domestic Politics:The Logic of Two-Level Games," IntemationalOrganization 42 (Summer1988), pp. 427-60. 21. See James K. Sebenius, Negotiatingthe Law of the Sea (Cambridge, Mass.: Harvard UniversityPress, 1984); and WilliamWertenbaker, "The Law of the Sea," parts1 and 2, The New Yorker,1 August1983, pp. 38-65, and 8 August1983, pp. 56-83, respectively. 22. As earlyas 1975,the UNEP fundeda WorldMeteorological Organization (WMO) technical conferenceon implicationsof U.S. ozone layer research. But the immediateprecursor of the negotiatingconference in Vienna came in March 1977, when the UNEP sponsored a policy meetingof governmentsand internationalagencies in Washington,D.C., that drafteda "World Plan ofAction on the Ozone Layer." See Benedick,Ozone Diplomacy,p. 40. 23. The IntergovernmentalPanel of Climate Change was set up bythe UNEP and WMO after the passage of UN General Assembly Resolution 43/53, A/RES/43/53, 27 January 1989, "Resolutionon the Protectionof the Global Climate."

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Much of this negotiatingactivity is open to some formof public scrutiny, triggeringrepeated rounds of national bureaucraticand politicalreview and revisionof tentativeaccommodations among affectedinterests. The treatyas finallysigned and presentedfor ratification is thereforelikely to be based on considered and well-developed conceptions of national interestthat have themselvesbeen shaped to some extentby the preparatoryand negotiating process. Treatymaking is not purelyconsensual, of course. Negotiationsare heavily affectedby the structureof the internationalsystem, in whichsome statesare muchmore powerfulthan others. As noted,the Conventionof the Law of the Sea, the product of more than a decade of internationalnegotiations, was ultimatelyderailed when a new U.S. administrationfound it unacceptable. On the otherhand, a multilateralnegotiating forum provides opportunities forweaker states to formcoalitions and exploitblocking positions. In the same UN Conferenceon the Law of the Sea, the caucus of what were knownas "land-lockedand geographicallydisadvantaged states," which included such unlikelycolleagues as Hungary,Switzerland, Austria, Uganda, Nepal, and Bolivia,had a crucialstrategic position. The Associationof Small Island States, chaired by Vanuatu, played a similarrole in the global climatenegotiations. Like domestic legislation,the internationaltreaty-making process leaves a good deal of roomfor accommodating divergent interests. In sucha setting,not even the strongeststate will be able to achieve all of its objectives,and some participantsmay have to settle for much less. The treatyis necessarilya compromise,"a bargainthat [has] been made."24From the pointof view of the particularinterests of anystate, the outcomemay fall short of the ideal. But if theagreement is well-designed-sensible,comprehensible, and witha practical eye to probable patternsof conduct and interaction-complianceproblems and enforcementissues are likelyto be manageable.If issuesof noncompliance and enforcementare endemic,the real problemis likelyto be thatthe original bargaindid not adequately reflectthe interestsof those thatwould be living underit, rather than mere disobedience.25 It is true that a state's incentivesat the treaty-negotiatingstage may be differentfrom those it faceswhen the timefor compliance rolls around. Parties on the givingend of the compromise,especially, might have reason to seek to escape the obligationsthey have undertaken.Nevertheless, the very act of makingcommitments embodied in an internationalagreement changes the

24. Susan Strange,"Cave! Hic Dragones: A Critique of Regime Analysis," in Stephen D. Krasner,ed., InternationalRegimes (Ithaca, N.Y.: CornellUniversity Press, 1983), pp. 337-54; the quotationis on p. 353. 25. Systemsin whichcompliance can onlybe achieved throughextensive use of coercion are rightlyregarded as authoritarianand unjust.See Michael Barkun,Law WithoutSanctions: Order in PrimitiveSocieties and the WorldCommunity (New Haven, Conn.: Yale UniversityPress, 1968), p. 62.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions 184 InternationalOrganization calculus at the compliancestage, if onlybecause it generatesexpectations of compliancein othersthat must enter into the equation. Moreover,although states may know theycan violate theirtreaty commit- mentsin a crunch,they do notnegotiate agreements with the idea thatthey can do so in routinesituations. Thus, the shape of the substantivebargain will itself be affectedby the parties' estimates of the costs and risks of their own complianceand expectationsabout the complianceof others.Essential parties maybe unwillingto accept or impose stringentregulations if the prospectsfor complianceare doubtful.The negotiationwill not necessarilycollapse on that account,however. The resultmay be a looser,more general engagement. Such an outcome is oftendeprecated as a lowest-common-denominatoroutcome, withwhat is reallyimportant left on the cuttingroom floor.But it maybe the beginningof increasinglyserious and concertedattention to the problem. Finally, the treaty that comes into force does not remain static and unchanging.Treaties that last mustbe able to adapt to inevitablechanges in the economic,technological, social, and politicalsetting. Treaties may be formally amended, of course, or modifiedby the addition of a protocol,but these methods are slow and cumbersome. Since they are subject to the same ratificationprocess as the originaltreaty, they can be blocked or avoided by a dissatisfiedparty. As a result,treaty have deviseda numberof waysto deal withthe problemof adaptationwithout seeking formal amendment. The simplestis thedevice of vesting the power to "interpret"the agreement in some organ establishedby the treaty.The U.S. Constitution,after all, has kept up with the times not primarilyby the amendingprocess but by the Supreme Court's interpretationof its broad clauses. The InternationalMonetary Fund (IMF) Agreementgives such power to the GoverningBoard, and numerouskey questions-includingthe crucial issue of "conditionality,"whether drawings againstthe fund'sresources may be conditionedon the economicperformance of the drawingmember-have been resolvedby this means.26 A numberof treatiesestablish authority to make regulationson technical mattersby vote of the parties (usuallyby a special majority),which are then bindingon all, thoughoften with the rightto opt out. The InternationalCivil Aeronautics Organizationhas such power with respect to operational and safetymatters in internationalair transport.27In many regulatorytreaties, "technical"matters may be relegatedto an annexthat can be alteredby vote of the parties.28In sum, treatiescharacteristically contain self-adjusting mecha-

26. Articlesof Agreementof the IMF, 27 December 1945, as amended, Article8, sec. 5, in UnitedNations Treaty Series (UNTS), vol. 2, Treatyno. 20 (New York: United Nations,1947), p. 39. For theconditionality decision, see decisionno. 102-(52/11)13 February1952, "Selected Decisions of the ExecutiveDirectors and Selected Documents,"p. 16. 27. Conventionon InternationalCivil Aviation, 7 December 1944,Article 90, in UNTS, vol. 15, Treatyno. 102, 1948,p. 295. 28. Montreal Protocol on Substances that Deplete the Ozone Layer, in InternationalLegal Materials,vol. 26, 1987,p. 1541,Article 2(9) (signed 16 September1987 and enteredinto force 1 January1989; hereaftercited as Montreal Protocol) as amended, London Adjustmentand

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 185 nisms by which, over a significantrange, they can be and in practice are commonlyadapted to respondto shiftinginterests of the parties.

Norms Treaties are acknowledgedto be legallybinding on the states that ratify them.29In commonexperience, people, whetheras a resultof socializationor otherwise,accept thatthey are obligatedto obeythe law.30 So it is withstates. It is oftensaid that the fundamentalnorm31 of internationallaw is pacta sunt servanda(treaties are to be obeyed).32In the United States and manyother countries,they become a part of the law of the land. Thus, a provision containedin an agreementto whicha statehas formallyassented entails a legal obligationto obey and is presumptivelya guide to action. It seems almostsuperfluous to adduce evidenceor authorityfor a proposi- tion that is so deeply ingrained in common understandingand so often reflectedin the speech of national leaders. Yet the realist argumentthat nationalactions are governedentirely by calculation of interests(including the interestin stabilityand predictabilityserved by a systemof rules) is essentiallya denial of the operationof normativeobligation in internationalaffairs. This positionhas held the fieldfor some timein mainstreaminternational relations theory(as have closely related postulates in other positivistsocial science

Amendmentsto the Montreal Protocol on Substances that Deplete the Ozone Layer, in InternationalLegal Materials,vol. 30, 1991, p. 537 (signed 29 June 1990 and enteredinto force7 March 1991; hereaftercited as London Amendments). 29. The Vienna Conventionon the Law of Treaties,signed 23 May 1969 (enteredinto force on 27 January 1980), Article 2(1)(a), states that "'treaty' means an internationalagreement concludedbetween States in writtenform and governedby international law, whether embodied in a singleinstrument or in twoor morerelated instruments and whateverits particular designation." See UN Doc. A/CONF. 39/27. 30. According to Young, "'obligation' encompasses incentivesto comply with behavioral prescriptionswhich stem from a generalsense of dutyand whichdo notrest on explicitcalculations of costsand benefits.... Feelingsof obligationoften play a significantrole in compliancechoices." Moreover,"rules constitutean essentialfeature of bureaucraciesand ... routinizedcompliance withrules is a deeply ingrainednorm among bureaucrats."See Young, Complianceand Public Authority,pp. 23 and 39. See also R. H. Fallon, "Reflectionson Dworkinand the Two Faces of Law," NotreDame Law Review,vol. 67, no. 3, 1992, pp. 553-85, summarizingH. L. A. Hart's concept of a law as a social rule: "From an internalpoint of view-that of an unalienated participantof thesocial lifeof the community-a social ruleis a standardthat is acceptedas a guide to conductand a basis forcriticism, including self-criticism" (p. 556); Rheinstein,Max Weberon Law inEconomy and Society,pp. 349-56; and FriedrichV. Kratochwil,Rules, Norms, and Decisions: On theConditions of Practicaland Legal Reasoningin InternationalRelations and DomesticAffairs (Cambridge:Cambridge University Press, 1989), pp. 15 and 95-129. 31. We use "norm" as a genericterm including principles, precepts, standards, rules, and the like. For presentpurposes, it is adequate to thinkof legal normsas normsgenerated by processes recognizedas authoritativeby a legal system.Compare H. L. A. Hart,The Conceptof Law (Oxford: OxfordUniversity Press, 1961). 32. The Vienna Conventionon the Law of Treaties,Article 26, specifiesthat "everytreaty in forceis bindingupon the partiesto it and mustbe performedin good faith."See also chap. 30 of ArnoldDuncan McNair,The Law of Treaties(Oxford: Clarendon Press, 1961), pp. 493-505.

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disciplines).33But it is increasinglybeing challenged by a growingbody of empiricalstudy and academic analysis. Such scholarsas Elinor Ostromand Robert Ellickson show how relatively smallcommunities in containedcircumstances generate and securecompliance withnorms, even withoutthe interventionof a superveningsovereign authori- ty.34Others, like FrederickSchauer and FriedrichKratochwil, analyze how normsoperate in decision-makingprocesses, whether as "reasons foraction" or in definingthe methodsand termsof discourse.35Jon Elster, often regarded as one of the mostpowerful scholars of the "rationalactor" school,says in his most recent book, "I have come to believe that social norms provide an importantkind of motivationfor action that is irreducibleto rationalityor indeed to anyother form of optimizingmechanism."36 As applied to treatyobligations, this proposition seems almostself-evident. For example: in the absence of the antiballisticmissile (ABM) treaty,the Soviet Union would have been legally free to build an ABM system.The exerciseof thisfreedom would surelyhave posed seriousmilitary and political issues forU.S. analysts,diplomats, and intelligenceofficers. In due course,the United Stateswould have responded,with either its own ABM systemor some othersuitable military or politicalmove. The same act, the constructionof an ABM system,would be qualitativelydifferent, however, if it were done in violationof the specificstipulations of theABM treaty.Transgression of such a fundamentalengagement would triggernot a limitedresponse, but a hostile reactionacross the board,jeopardizing the possibilityof cooperativerelations betweenthe partiesfor a long time to come. Outrage when solemn commit- mentsare treatedas "scraps of paper" is rootedin U.S. history.37It is unlikely thatthis kind of reactionis unique to the United States. The strongestcircumstantial evidence for the sense of an obligationto complywith treaties is the care thatstates take in negotiatingand enteringinto them. It is not conceivable that foreignministries and governmentleaders could devote time and energyon the scale they do to preparing,drafting,

33. WilliamEskridge, Jr., and G. Peller, "The New Public Law: Moderationas a Postmodern CulturalForm," Michigan Law Review89 (February1991), pp. 707-91. 34. See ElinorOstrom, Governing the Commons: The Evolution of Institutions for CollectiveAction (Cambridge:Cambridge University Press, 1990); and RobertC. Ellickson,Order Without Law: How NeighborsSettle Disputes (Cambridge, Mass.: HarvardUniversity Press, 1991). 35. See FrederickF. Schauer,Playing by theRules: A PhilosophicalExamination of Rule-based Decision-makingin Law and Life (Oxford:Clarendon Press, 1991); Kratochwil,Rules, Norms and Decisions;and SallyFalk Moore,Law as Process(London: Routledge& Kegan Paul, 1978). 36. JonElster, The Cement of Society: A Studyof Social Order(Cambridge: Cambridge University Press, 1989), p. 15. See also MargaretLevi, Karen S. Cook, Jodi A. O'Brien, and Howard Fay, "Introduction:The Limitsof Rationality,"in Cook and Levi, TheLimits of Rationality, pp. 1-16. 37. The quotationis fromGerman Chancellor Theobald von Bethman-Hollweg'sremark to the Britishambassador about the treatyguaranteeing Belgian neutralitywhen Germanyinvaded in 1914. See EncyclopediaBritannica, 14th ed., s.v. Bethman-Hollweg,Theobald von. For an example of the U.S. response, see the letter of ex-PresidentTheodore Roosevelt to British Foreign SecretarySir Edward Greydated 22 January1915, quoted in Hans J. Morgenthau,Politics Among Nations:The Struggle for Power and Peace, 4thed. (New York: Knopf,1967).

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 187 negotiating,and monitoringtreaty obligations unless there is an assumption thatentering into a treatycommitment ought to and does constrainthe state's own freedom of action and an expectationthat the other parties to the agreementwill feel similarlyconstrained. The care devoted to fashioninga treatyprovision no doubt reflectsthe desire to limitthe state's own commit- mentas much as to make evasion by othersmore difficult.In eithercase, the enterprisemakes sense onlyon the assumptionthat, as a general rule, states acknowledgean obligationto complywith agreements they have signed. These attitudesare not confinedto foreignoffices. U.S. Departmentof Defense testimonyduring the cold war repeatedlysounded the theme that arms controltreaties with the Soviet Union were importantin providingthe stabilityof expectationsand predictabilitythe Pentagon needed for sound strategicplanning.38 In the United States and other Westerncountries, the principlethat the exerciseof governmentalpower in general is subjectto law lends additionalforce to an ethos of national compliancewith international undertakings.39And, of course, appeals to legal obligationsare a staple of foreignpolicy debate and of the continuouscritique and defense of foreign policy actions that account for so much of diplomatic interchangeand internationalpolitical commentary. All thisargues that states, like othersubjects of legal rules,operate undera sense of obligationto conformtheir conduct to governingnorms.

Varietiesof noncomplying behavior

If the state's decisionwhether or not to complywith a treatyis the resultof a calculationof costs and benefits,as the realistsassert, the implicationis that noncompliance is the premeditatedand deliberate violation of a treaty obligation.Our backgroundassumption does not exclude thatsuch decisions mayoccur from time to time,especially when the circumstancesunderlying the originalbargain have changedsignificantly.40 Or, as in the area of international human rights,it may happen that a state will enter into an international agreementto appease a domesticor internationalconstituency but have little

38. See, forexample, the testimonyof General David C. Jones,chairman of the JointChiefs of Staff,before the U.S. Senate Committeeon ForeignRelations on the StrategicArms Limitation Talks (SALT) II treaty,Congressional Information Service, S381-24 79, 9 July1979. 39. It is notclear, however, that democracies are morelaw-abiding. See Diggsv. Shultz,470 F. 2d 461 (D.C. Cir. 1972): "Under our constitutionalscheme, Congress can denounce treatiesif it sees fitto do so, and thereis nothingthe other branches of thegovernment can do about it.We consider thatis preciselywhat Congress has done in thiscase" (pp. 466-67). 40. Internationallaw recognizesa limitedscope forabrogation of an agreementin such a case. See the Vienna Conventionon the Law of Treaties,Article 62. Generally,however, the possibility of change is accommodatedby provisionsfor amendment,authoritative interpretation, or even withdrawalfrom the agreement.See, forexample, the withdrawalprovision of the ABM Treaty, Article25(2), or the LimitedTest Ban Treaty,Article 4. None of these actionsposes an issue of violationof legal obligations,though they may weaken the regimeof which the treaty is a part.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions 188 InternationalOrganization intentionof carryingit out. A passingfamiliarity with foreign affairs, however, suggeststhat only infrequently does a treatyviolation fall into the categoryof a willfulflouting of legal obligation.4' At the same time,general observation as well as detailedstudies often reveal whatappear or are alleged to be significantdepartures from established treaty norms.If these are not deliberateviolations, what explainsthis behavior? We discussthree circumstances, infrequently recognized in discussionsof compli- ance, thatin our view oftenlie at the root of behaviorthat may seem prima facie to violatetreaty requirements: (1) ambiguityand indeterminacyof treaty language,(2) limitationson the capacityof partiesto carryout theirundertak- ings, and (3) the temporal dimensionof the social and economic changes contemplatedby regulatory treaties. These factorsmight be considered"causes" of noncompliance.But froma lawyer'sperspective, it is illuminatingto thinkof themas "defenses"-matters put forthto excuse or justifyor extenuate a prima facie case of breach. A defense, like all other issues of compliance, is subject to the overriding obligationof good faithin the performanceof treatyobligations.42 If theplea is accepted, the conduct is not a violation,strictly speaking. Of course, in the internationalsphere, these charges and defenses are rarelymade or deter- minedin a judicial tribunal.However, diplomatic practice in otherforums can be understoodin termsof the same basic structure,reflecting, perhaps, the pervasivenessof the underlyinglegal framework.

Ambiguity Treaties, like other canonical statementsof legal rules, frequentlydo not providedeterminate answers to specificdisputed questions.43 Language often is unable to capture meaningwith precision. Treaty drafters do not foresee manyof the possible applications-let alone theircontextual settings. Issues thatare foreseenoften cannot be resolvedat the timeof treatynegotiation and are sweptunder the rugwith a formulathat can mean whateach partywants it

41. Keohane surveyedtwo hundredyears of U.S. foreignrelations history and identifiedonly forty"theoretically interesting" cases of "inconvenient"commitments in whichthere was a serious issue of whetheror not to comply.See the chapterentitled "Commitments and Compromise,"in Robert 0. Keohane, "The Impact of Commitmentson American Foreign Policy," manuscript, 1993,pp. 1-49. 42. See Vienna Conventionon the Law of Treaties,Article 26; Lassa Oppenheim,International Law: A Treatise,8th ed., ed. H. Lauterpacht(London: Longmans,1955), p. 956; and McNair, The Law of Treaties,p. 465. 43. See Abram Chayes and Antonia Handler Chayes, "Living Under a Treaty Regime: Compliance,Interpretation, and Adaptation,"in Antonia Handler Chayes and Paul Doty, eds., DefendingDeterrence: Managing the ABM TreatyRegime into the 21st Century(Washington, D.C.: Pergamon-Brassey'sInternational Defense Publishers,1989), chap. 11. See also Young, Compli- ance and PublicAuthority, pp. 106-8, which discusses issues of interpretationin the contextof deliberate attemptsat "evasion" of obligation.We argue that alternativeinterpretations are frequentlyinvoked in good faith.No doubt in practicethere is oftensome of both.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 189 to mean. Economic,technological, scientific, and even politicalcircumstances change. All these inescapable incidentsof the effortto formulaterules to governfuture conduct frequently produce a zone of ambiguitywithin which it is difficultto saywith precision what is permittedand whatis forbidden. Of course, treatylanguage, like other legal language, comes in varying degreesof specificity.44The broaderand moregeneral the language,the wider the ambitof permissibleinterpretations to whichit gives rise. Yet there are frequentlyreasons forchoosing a more generalformulation of the obligation: the political consensus may not supportmore precision,or, as with certain provisionsof the U.S. Constitution,it may be wiser to define a general direction,to tryto informa process,rather than seek to foreseein detail the circumstancesin which the words will be broughtto bear. If there is some confidencein thosewho are to applythe rules,a broaderstandard defining the generalpolicy behind the law maybe moreeffective in realizingit thana series of detailed regulations.The North Atlantic Treaty has proved remarkably durable,though its language is remarkablygeneral: "In ordermore effectively to achieve the objectivesof thisTreaty, the Parties,separately and jointly,by means of continuousand effectiveself-help and mutualaid, will maintainand developtheir individual and collectivecapacity to resistarmed attack."45 In the arms control field, the United States has opted for increasingly detailed agreementson the groundthat theyreduce interpretativeleeways. The 1963 Limited Test Ban Treaty (LTBT), the firstbilateral arms control agreementbetween the United States and the Soviet Union, consistedof five articlescovering two or three pages. The StrategicArms Reduction Treaty (START) signedin 1989 is the size of a telephonebook. Detail also has itsdifficulties. It is vulnerableto the maximexpressio unius est exclusioalterius (to expressone thingis to exclude the other). As in the U.S. Internal Revenue Code, precision generates loopholes, necessitatingsome procedurefor continuous revision and authoritativeinterpretation. The corpus of the law maybecome so complexand unwieldyas to be understandable(and manipulable)by onlya small coterieof experts.The complexitiesof the rule systemmay give rise to shortcutsthat reduce inefficiencieswhen thingsare goingwell but maylead to frictionwhen the political atmosphere darkens. In short,more often than not therewill be a considerablerange within which parties may reasonablyadopt differingpositions as to the meaning of the obligation.In domesticlegal systems,courts or otherauthoritative institutions are empoweredto resolvesuch disputesabout meaningas betweenparties in a

44. See Duncan Kennedy,"Form and Substance in PrivateLaw Adjudication,"Harvard Law Review 89 (June 1976), pp. 1685-788; Ronald Dworkin,"The Model of Rules," Universityof Chicago Law Review35 (Autumn 1967), pp. 14-16; Louis Kaplow, Rules VersusStandards: An Economic Analysis,Discussion Paper no. 108, Programin Law and Economics, ,April 1992. 45. NorthAtlantic Treaty, Article 3, 63 stat.2241 (signed4 April 1949 and enteredinto force 24 August1949), in UNTS, vol. 34, no. 541, 1949,p. 243.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions 190 InternationalOrganization particularcase. The internationallegal systemcan providetribunals to settle such questionsif the partiesconsent. But compulsorymeans of authoritative disputeresolution-by adjudicationor otherwise-are not generallyavailable at the internationallevel.46 Moreover, the issue of interpretationmay not arise in the contextof an adversarialtwo-party dispute. In such cases, it remains open to a state,in the absence of bad faith,to maintainits positionand tryto convincethe others. In manysuch disputes,a consensusmay exist or emergeamong knowledge- able professionalsabout thelegal rightsand wrongs.47In manyothers, however, the issue willremain contestable. Although one partymay charge another with violationand deploylegions of internationallawyers in its support,a detached observer often cannot readily conclude that there is indeed a case of noncompliance,at least in the absence of "bad faith."The numerousalleged violationsof arms controltreaties with which the Soviet Union was annually charged were, with the exception of the radar at Krasnoyarskin Siberia, contestable in that sense.48In fact, it can be argued that if there is no authoritativearbiter (and even sometimeswhen there is), discourseamong the parties,often in the hearingof a widerpublic audience,is an importantway of clarifyingthe meaning of the rules. In theface of treatynorms that are indeterminateover a considerablerange, even conscientiouslegal advice may not avoid issues of compliance.At the extreme,a statemay consciously seek to discoverthe limitsof its obligationby testingits treaty partners' responses. There was speculationthat the patternof Soviet deploymentof Pechora-typeradars prior to the constructionof the phased arrayradar at Krasnoyarskwas an attemptto testthe limitsof the radar deploymentprovision of the ABM treaty.The Pechora siteswere located as far as fourhundred kilometers from the border,arguably "on the peripheryof the national territory,"as required by the treaty-but also arguablynot.49 The failureof the United States to reactwas thoughtby some to have contributedto the decisionto site Krasnoyarskeven furtherfrom the nearestborder-some sevenhundred kilometers.

46. Abram Chayes and Antonia Handler Chayes, "Compliance WithoutEnforcement: State BehaviorUnder RegulatoryTreaties," Negotiation Journal 7 (July1991), pp. 311-31. See also Louis B. Sohn,"Peaceful Settlementof Disputes in Ocean Conflicts:Does UN Clause 3 Pointthe Way?" Law and ContemporaryProblems 46 (Spring 1983), pp. 195-200. Our work-in-progressexamines signsof a recenttrend toward more formal dispute resolution procedures in suchareas as trade,the law of the sea, and others. The currentemphasis in the United States on alternativedispute resolutionsuggests that international judicial settlementmay not be an entirelyunmixed blessing, however. 47. Oscar Schachter,"The InvisibleCollege of InternationalLawyers," Northwestern University Law Review,vol. 72, no. 2, 1977,pp. 217-26. 48. Gloria Duffy,Compliance and theFuture ofArms Control: Report of a ProjectSponsored by the CenterforInternational Security and ArmsControl (Cambridge, Mass: Ballinger,1988), pp. 31-60. 49. See Antonia Handler Chayes and Abram Chayes, "From Law Enforcementto Dispute Settlement:A New Approach to Arms Control Verificationand Compliance," International Security14 (Spring1990), pp. 147-64; and Duffy,Compliance and theFuture ofArms Control, p. 107.

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JusticeOliver Wendell Holmes said, "The verymeaning of a line in thelaw is thatyou intentionallymay come as close to it as you can ifyou do notpass it."50 Nevertheless,deliberate testing of the kinddescribed above mightin ordinary circumstancesbe thoughtto be inconsistentwith good faithobservation of the treatyobligation. On the other hand, in the early years of the Interim Agreementon Limitationof StrategicArms (SALT I) the UnitedStates played a similargame by erectingopaque environmentalshelters over missile silos duringmodification work, despite the treatyundertaking "not to use deliberate concealmentmeasures which impede verification by national technical means."'51 In the contextof the long cold war confrontationbetween the United States and the Soviet Union, a certainamount of such probingseems to have been withinthe expectationsof the parties.52 Perhaps a moreusual wayof operatingin the zone of ambiguityis to design the activityto complywith the letterof the obligation,leaving others to argue about the spirit.The General Agreementon Tarrifsand Trade (GATT) prohibitsa partyfrom imposing quotas on imports.When Japaneseexports of steel to the United States generatedpressures from U.S. domesticproducers that the Nixon administrationcould no longer contain, U.S. trade lawyers inventedthe "voluntaryrestraint agreement," under whichprivate Japanese producersagreed to limittheir U.S. sales.53The United States imposed no officialquota, althoughthe Japanese producersmight well have anticipated some such action had theynot "volunteered."Did the arrangementviolate GATT obligations? Questionsof compliance with treaty obligations ordinarily arise as an adjunct to activitydesigned to achieve an objectivethat the actor regardsas impor- tant.54Lawyers may be consultedor may intervene.Decisions about how the desiredprogram is to be carriedout emergefrom a complexinteraction of legal and policyanalysis that generates its own subrulesand precedents.The process is reminiscentof thatin a classic U.S. bureaucracyor corporation.

50. SuperiorOil Co. v. Mississippi,280 U.S. 390 (1920), p. 395. 51. InterimAgreement of Limitationof StrategicArms (SALT I), Article 5(3). See also Compliancewith SALT I Agreements,Special Report no. 55, Bureau of Public Affairs,U.S. Departmentof State,July 1979, p. 4. The issue was finallyresolved by Article 15(3) of the SALT II treaty,prohibiting the use over intercontinentalballistic missile silo launchersof sheltersthat impedeverification by national technical means. 52. Unilateralassertion is a traditionalway of vindicating claimed "rights" in internationallaw. In the springof 1986,U.S. forcesengaged in twosuch exercises,one offthe SovietBlack Sea coast in the "exerciseof the rightof innocentpassage" (The New YorkTimes, 19 March 1986,p. Al) and theother in the airspaceover the Gulfof Sidra,which Libya considers its territorial waters and the United States does not. The Black Sea maneuverwas concluded withnothing more than some bumpingbetween U.S. and Soviet ships,but in the Gulf of Sidra, U.S. aircraftsank two Libyan patrolvessels that had firedantiaircraft missiles. See ChicagoTribune, 19 March 1986,sec. 1, p. 10; LosAngelesTimes, 26 March 1986,p. I1; and LosAngelesTimes, 27 March 1986,p. I1. 53. ConsumersUnion v. Kissinger,506 F2d 136 (D.C. Cir. 1974). 54. Chayesand Chayes,"Living Under a TreatyRegime," pp. 197 and 200.

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For example,the Reagan administrationwas bent on developinga space- based ABM system.Congress insisted that research and testingshould conform to the "traditional"interpretation of the ABM treaty,which prohibited the testing of ABM "components," rather than the administration's"broad interpretation,"which would have permittedfull development and testingof a space-based ABM system.To ensure that it remained within the treaty constraint,the administrationestablished a special legal unit in the Defense Department,nominally independent of the StrategicDefense Initiative(SDI) organization,to revieweach proposed test againstan intricateset of internal rules.The unitsatisfied itself that the itemsas testedwould not be capable of performingas ABM "components,"usually because of power limitationsor otherdesign characteristics known to the testersbut notnecessarily observable by outsiders.These ruleswere conscientiouslyapplied to the testingprogram, and on thatbasis the administrationmaintained that it had stayedwithin the bounds of the traditionalinterpretation of the treaty.55No Soviet lawyerhad seen or approvedthe rules,however (indeed, theywere classified),and it is not likelythat the United States would have accepted Soviet testsas compliantif the limitingdesign elements were not externallyobservable. Even in thestark, high politics of the Cuban MissileCrisis, State Department lawyersargued that the United States could not lawfullyreact unilaterally, sincethe Sovietemplacement of missilesin Cuba did not amountto an "armed attack" sufficientto triggerthe rightof self-defensein Article51 of the UN Charter. Use of force in response to the missiles would only be lawful if approvedby the Organizationof AmericanStates (OAS). Thoughit would be foolishto contendthat the legal positiondetermined President John Kennedy's decision, there is little doubt that the asserted need for advance OAS authorizationfor any use of forcecontributed to the mosaic of argumentation thatled to the decisionto respondinitially by means of the quarantinerather than an air strike. Robert Kennedy said later, "It was the vote of the Organizationof AmericanStates thatgave a legal basis forthe quarantine... and changed our position from that of an outlaw acting in violation of internationallaw into a countryacting in accordancewith twenty allies legally protectingtheir position."56 This was the advicehe had heard fromhis lawyers, and it was a thoroughlydefensible position. Nevertheless, many international lawyersin the UnitedStates and elsewheredisagreed because theythought the actionwas inconsistentwith the UN Charter.57

55. For example,the so-called Foster box rules serve to distinguishbetween strategicmissile reentryvehicles, which are prohibitedby the ABM treaty,and tacticalmissile reentry vehicles, whichare not,on the basis of performancecharacteristics such as velocityand reentryangle not mentionedanywhere in the ABM treaty.See AshtonB. Carter,"Limitations and Allowancesfor Space Based Weapons," in Chayesand Doty,Defending Deterrence, pp. 132-37. 56. RobertKennedy, Thirteen Days (New York: W. M. Norton,1971), p. 99. 57. See, for example,Quincy Wright, "The Cuban Quarantine,"American Joumal of Intema- tionalLaw 57 (July1963), pp. 546-65; JamesS. Campbell,"The Cuban Crisisand the UN Charter: An Analysisof the United States Position"Stanford Law Review16 (December 1963), pp. 160-76;

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Capability Accordingto classical internationallaw, legal rightsand obligationsrun betweenstates. A treatyis an agreementamong states58 and is an undertaking bythem as to theirfuture conduct. The objectof the agreementis to affectstate behavior.This simple relationshipbetween agreementand relevantbehavior continuesto existfor many treaties. The LTBT is such a treaty.It prohibits nucleartesting in the atmosphere,in outer space, or underwater.Only states conduct nuclear weapons tests, so only state behavior is implicatedin the undertaking.The state,by governing its own actions,without more, determines whetherit will comply with the undertaking or not.Moreover, there is no doubt about the state'scapacity to do whatit has undertaken.Every state, no matter howprimitive its structure or limitedits resources, can refrainfrom conducting atmosphericnuclear tests. Even when only state behavioris at stake, the issue of capacitymay arise when the treatyinvolves an affirmativeobligation. In the 1980s it may have been a fairassumption that the SovietUnion had the capabilityto carryout its undertakingto destroycertain nuclear weapons as required by the START agreement.In the 1990s,that assumption was threatenedby the emergenceof a congeriesof successorstates in place of the SovietUnion, manyof whichmay not have the necessarytechnical knowledge or materialresources to do the job.59 The problemis pervasivein contemporaryregulatory treaties. Much of the workof the InternationalLabor Organization(ILO) fromthe beginninghas been devoted to improvingits members' domestic labor legislation and enforcement.The current spate of environmentalagreements poses the difficultyin acute form.Such treaties formallyare among states, and the obligationsare cast as stateobligations-for example, to reduce sulfurdioxide (SO2) emissionsby 30 percentagainst a certainbaseline. Here, however,the real object of the treatyis not to affectstate behaviorbut to regulate the behavior of nonstate actors carryingout activities that produce SO2- generatingpower, driving automobiles, and the like. The ultimateimpact on the relevantprivate behavior depends on a complex series of intermediate steps. It will normallyrequire an implementingdecree or legislationfollowed by detailed administrativeregulations. In essence, the state will have to establish and enforcea full-blowndomestic regime designed to secure the necessaryreduction in emissions.

and WilliamL. Standard,"The UnitedStates Quarantineof Cuba and the Rule of Law," American BarAssociationJoumal 49 (August1963), pp. 744-48. 58. Vienna Conventionon the Law of Treaties,Article 2(1)(a). 59. Kurt M. Campbell, Ashton B. Carter, Steven E. Miller, and Charles A. Zraket, Soviet NuclearFission: Controlof theNuclear Arsenal in a DisintegratingSoviet Union, CSIA Studies in InternationalSecurity, no. 1, HarvardUniversity, Cambridge, Mass., November1991, pp. 24, 25, and 108.

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The state may be "in compliance"when it has taken the formallegislative and administrativesteps, and, despite the vagariesof legislativeand domestic politics,it is perhaps appropriateto hold it accountable forfailure to do so. Quite apart frompolitical will, however,the constructionof an effective domesticregulatory apparatus is not a simple or mechanicaltask. It entails choices and requiresscientific and technicaljudgment, bureaucratic capability, and fiscalresources. Even developed Westernstates have not been able to constructsuch systemswith confidencethat they will achieve the desired objective.60 The deficitin domesticregulatory capacity is not limitedto environmental agreements.The nonproliferationtreaty (NPT) is supported by a side- agreementamong nuclear-capable states not to exportsensitive technology to nonweaponsstates.61 The agreementis implementedby national export control regulations.The UN-InternationalAtomic EnergyAgency (IAEA) inspec- tions in Iraq, however,revealed that the Iraqi nuclearweapons programwas able to draw on suppliersin the United States and West Germany,among others, where governmentalwill and ability to control such exports are presumablyat theirhighest. Although there are surely differencesamong developing countries,the characteristicsituation is a severe dearthof the requisitescientific, technical, bureaucratic,and financialwherewithal to build effectivedomestic enforce- mentsystems. Four years afterthe MontrealProtocol was signed,only about halfthe memberstates had compliedfully with the requirementof the treaty thatthey report annual chlorofluorocarbon(CFC) consumption.62The Confer- ence of the Parties promptlyestablished an Ad Hoc Group of Experts on Reporting,which recognized that the greatmajority of the nonreportingstates were developingcountries that for the mostpart were simplyunable to comply withouttechnical assistance from the treatyorganization.63 The MontrealProtocol is the firsttreaty under which the partiesundertake to provide significantfinancial assistance to defraythe incrementalcosts of compliancefor developing countries. The same issue figuredon a muchlarger

60. KennethHanf, "Domesticating International Commitments: Linking National and Interna- tional Decision-making,"prepared for a meetingentitled Managing Foreign Policy Issues Under Conditionsof Change,Helsinki, July 1992. 61. Treatyon the Non-proliferationof Nuclear Weapons, 21 U.S.T. 483 (1970) (signed 1 July 1968 and enteredinto force 5 March 1970), in IntemationalLegal Materials,vol. 7, 1968,p. 809. 62. See Report of the Secretariaton the Reportingof Data by the Partiesin Accordancewith Article7 of the MontrealProtocol, UNEP/OzL.Pro.3/5, 23 May 1991, pp. 6-12 and 22-24; and Addendum,UNEP/OzL.Pro3/5/Add.1, 19 June1991. 63. For the establishmentof theAd Hoc Group of Experts,see Reportof theSecond Meetingof the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, UNEP/ OzL.Pro.2/3,Decision 2/9,29 June1990, p. 15. At itsfirst meeting in December 1990,the Ad Hoc Group of Expertsconcluded thatcountries "lack knowledgeand technicalexpertise necessary to provideor collect"the relevant data and made a detailedseries of recommendations for addressing the problem.See Reportof the FirstMeeting of theAd Hoc Group of Expertson the Reportingof Data, UNEP/OzL.Pro/WG.2/1/4,7 December 1990.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 195 scale in the negotiationsfor a global climatechange convention and in the UN Conferenceon Environmentand Development,held in Brazil in June 1992. The last word has surelynot been spoken in these forums,and the problemis notconfined to environmentalagreements.

The temporal dimension The regulatorytreaties that are our major concern are, characteristically, legal instrumentsof a regimefor managing a majorinternational problem area over time.64Significant changes in social or economic systemsmandated by regulatorytreaties take time to accomplish. Thus, a cross section at any particularmoment in time may give a misleadingpicture of the state of compliance.Wise treatydrafters recognize at the negotiatingstage thatthere willbe a considerabletime lag afterthe treatyis concludedbefore some or all of the parties can bringthemselves into compliance.Thus modern treaties, fromthe IMF Agreementin 1945 to the Montreal Protocol in 1987, have provided for transitionalarrangements and made allowances for special circumstances.65Nevertheless, whether or not the treatyprovides for it, a periodof transitionwill be necessary. Similarly,if the regime is to persist over time, adaptation to changing conditionsand underlyingcircumstances will requirea shiftingmix of regula- toryinstruments to whichstate and individualbehavior cannot instantaneously respond. Often the originaltreaty is only the firstin a series of agreements addressed to the issue-area. Even the START agreementto reduce nuclear arsenalscontemplates a processextending over seven years, by which time it is expectedthat new and furtherreductions will have been mandated.66 Activistsin all fields lament that the treatyprocess tends to settle on a least-common-denominatorbasis. But the drivefor universality (or universal membershipin the particularregion of concern)may necessitate accommoda- tionto theresponse capability of states with large deficits in financial,technical, or bureaucraticresources. A commonsolution is to startwith a low obligational ante and increasethe level of regulationas experiencewith the regimegrows.

64. The now-classicaldefinition of an internationalregime appears in Krasner,"Structural Causes and Regime Consequences," p. 2: "Regimes are sets of implicitor explicitprinciples, norms,rules, and decision-makingprocedures around which actors' expectationsconverge in a given area of internationalrelations." Regime theoristsfind it hard to say the "L-word" but "principles,norms, rules, and decision-makingprocedures" are whatinternational law is all about, and it is apparentfrom their work that formal legal norms,most often embodied in treaties,are an importantstructural element in mostof the phenomenaof interestto them. 65. See Articlesof Agreementof the InternationalMonetary Fund, Article 14, in UNTS, vol. 2, 1945,p. 1501; and MontrealProtocol, Article 5. 66. Under START, the agreed reductionsin strategicnuclear weapons are to take place over a seven-yearperiod divided into three phases of three,two, and two years. See U.S. Congress, Senate, TreatyBetween the United States and theUnion of Soviet Socialist Republics on theReduction and Limitationof Strategic OffensiveArms, 102d Cong., 1stsess., 1991,S. TreatyDoc. 102-20,Article 2.

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The convention-protocolstrategy adopted in a number of contemporary environmentalregimes exemplifies this conception. The Vienna Conventionon the Protectionof the Ozone Layer, signed in 1985, containedno substantiveobligations but requiredonly that the parties "in accordance with the means at their disposal and their capabilities" cooperate in researchand informationexchange and in harmonizingdomestic policies on activitieslikely to have an adverseeffect on the ozone layer.67Two yearslater, as scientificconsensus jelled on the destructiveeffect of CFCs on the ozone layer,the Montreal Protocol was negotiated,providing for a 50 percentreduction from 1986 levelsof CFC consumptionby the year2000.68 By June1990, the partiesagreed to a completephaseout by the above date and to regulatea numberof otherozone-destroying chemical compounds.69 A similarsequence marksthe Conventionon Long-Range Transboundary Air Pollution (LRTAP).70 It began with a general agreementto cooperate signedin 1979,was followedby a protocolimposing limits on SO2 emissionsin 1985,71and then by another imposinglimits on nitrogenoxides, whichwas signedat Sofia in October 1988.72The patternhas a long pedigree,extending back to the ILO, the firstof the modern internationalregulatory agencies, whose membersagreed in 1921 onlyto "bringthe recommendation[s]or draft

67. Vienna Conventionfor the Protectionof the Ozone Layer (signed 22 March 1985 and enteredinto force 22 September1988; hereaftercited as Vienna Ozone Convention),Article 2(2), in IntemationalLegal Materials,vol. 26, 1986,p. 1529. 68. MontrealProtocol, Article 2(4). 69. London Amendments,Annex 1, Articles2A(5) and 2B(3). 70. Conventionon Long-Range TransboundaryAir Pollution (signed 13 November1979 and enteredinto force 16 March 1983), in IntemationalLegal Materials,vol. 18, 1979,p. 1442. 71. Protocol to the 1979 Conventionon Long-Range TransboundaryAir Pollution on the Reductionof SulphurEmissions or Their TransboundaryFluxes by at Least 30 Percent(signed 8 July1985), UN Doc. ECE/EB.AIR/12, reproducedin IntemationalLegal Materials,vol. 27, May 1988,pp. 698-714; see especiallyp. 707. 72. Protocolto the 1979 Conventionon Long-RangeTransboundary Air PollutionConcerning the Controlof Emissionsof NitrogenOxides or Their TransboundaryFluxes (signed 31 October 1988 and enteredinto force 14 February1991), UNEP/GC.16/Inf.4,p. 169. Additionalprotocols to the originalconvention are the Protocolto the 1979 Conventionon Long-RangeTransboundary Air Pollution on Long-Term Financing of the Co-operative Program for Monitoringand Evaluation of the Long-Range Transmissionof Air Pollutantsin Europe (signed 28 September 1984), UN Doc. EB.AIR/AC.1/4, reproducedin IntemationalLegal Materials,vol. 27, March 1988, pp. 698-714 (see especiallyp. 701); and the Protocol Concerningthe Control of Emissions of Volatile Organic Compounds or Their TransboundaryFluxes (signed November 1991), repro- duced in IntemationalLegal Materials,vol. 31, May 1992, pp. 568-611. See also the Barcelona Conventionfor the Protectionof the MediterraneanSea AgainstPollution, in IntemationalLegal Materials,vol. 15, 1976, p. 290, whichwas accompanied by the Protocol for the Preventionof Pollutionof the MediterraneanSea by Dumpingfrom Ships and Aircraft,UNEP/GC.16.Inf.4, p. 130,and the ProtocolConcerning Co-operation in CombatingPollution of the MediterraneanSea by Oil and Other HarmfulSubstances in Cases of Emergency,UNEP/GC.16/Inf.4, p. 132. The Protocolfor the Protectionof the MediterraneanSea AgainstPollution for Land-based Sources, UNEP/GC.16/Inf.4,p. 134, followedin 1980; the land-basedsources protocolcontemplates that pollutionwill be eliminatedin accordancewith "standards and timetables"to be agreed to bythe parties in the future (see Article 5[2]). The Protocol Concerning Mediterranean Specially ProtectedAreas (UNEP/GC.16/Inf.4,p. 136) was signedat Geneva in 1982.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 197 convention[s][prepared by the organization]before the authorityor authori- ties withinwhose competencethe matterlies, forthe enactmentof legislation or other action."73The ILO then became the forum for draftingand propagatinga seriesof specific conventions and recommendationson the rights of labor and conditionsof employmentfor adoption by the parties. The effortto protecthuman rights by internationalagreement may be seen as an extreme case of time lag between undertakingand performance. Although the major human rightsconventions have been widely ratified, complianceleaves muchto be desired.It is apparentthat some statesadhered withoutany seriousintention of abidingby them.But it is also true thateven partiescommitted to the treatieshad differentexpectations about compliance than with most other regulatorytreaties. Indeed, the Helsinki Final Act, containingimportant human rights provisions applicable to EasternEurope, is byits terms not legally binding.74 Even so, it is a mistake to call these treaties merely "aspirational" or "hortatory."To be sure,they embody "ideals" of the internationalsystem, but like otherregulatory treaties, they were designedto initiatea processthat over time,perhaps a long time,would bringbehavior into greater congruence with those ideals. These expectationshave not been whollydisappointed. The vast amountof public and privateeffort devoted to enforcingthese agreements- notalways in vain-evinces theirobligational content. Moreover, the legitimat- ing authorityof these instrumentswas an importantcatalyst of the revolutions of the 1980s against authoritarianregimes in Latin America and Eastern Europe and continuesto spark demands fordemocratic politics elsewhere in theworld.

Acceptablelevels of compliance

The foregoingsection identified and advanceda rangeof mattersthat might be putforward by the individualactor in defenseor excuseof a particularinstance ofdeviant conduct. From the perspective of the system as a whole,however, the centralissue is different.For a simpleprohibitory norm like a highwayspeed limit,it is in principlea simple matterto determinewhether any particular driveris in compliance.Yet mostcommunities and law enforcementorganiza- tionsin the United States seem to be perfectlycomfortable with a situationin which the average speed on interstatehighways is perhaps ten miles above the limit.Even in individualcases, the enforcingofficer is not likelyto pursue a driver operating within that zone. The fundamentalproblem for the

73. Constitutionof the InternationalLabor Organization,11 April 1919, Article405, 49 stat. 2722. 74. Conferenceon Securityand Cooperationin Europe, Final Act (1 August 1975), Article10, in IntemationalLegal Materials,vol. 14, 1975,p. 1292.

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systemis not how to induce all driversto obey the speed limitbut how to containdeviance within acceptable levels.75 So, too, it is forinternational treaty obligations. "An acceptablelevel of compliance" is notan invariantstandard. The matter is furthercomplicated because manylegal normsare not like the speed limit thatpermits an on-offjudgment as to whetheran actor is in compliance.As noted above, questions of compliance are often contestable and call for complex,subtle, and frequentlysubjective evaluation. What is an acceptable level of compliancewill shiftaccording to the typeof treaty,the context,the exactbehavior involved, and overtime. It would seem, forexample, that the acceptable level of compliancewould varywith the significanceand cost of the reliance that parties place on the others' performance.76On this basis, treaties implicatingnational security would demand strictcompliance because the stakes are so high,and to some extentthat prediction is borne out by experience.Yet even in thisarea, some departuresseem to be tolerable. In the case of the NPT, indicationsof deviantbehavior by parties have been dealt withseverely. In the 1970s,U.S. pressuresresulted in the terminationof programsto constructreprocessing facilities in South Korea and Taiwan.77 Recently,a menuof even morestringent pressures was mountedagainst North Korea, whichultimately signed an IAEA safeguardagreement and submitted to inspection.78The inspectionand destructionrequirements placed on Iraq underUN SecurityCouncil resolution 687 are, in one sense,an extremecase of thisseverity toward deviation by NPT parties. Althoughover 130 statesare partiesto the NPT, the treatyis not universal, and some nonpartieshave acquired or are seekingnuclear weapons capabili- ty.79Despite theseimportant holdouts, compliance with the NPT bythe parties remainshigh. In fact,in recentyears prominent nonparties-including Argen- tina,Brazil, and SouthAfrica-have eitheradhered to the treatyor announced thatthey will comply with its norms.80 Even therecalcitrant nonparties have not

75. Young, Complianceand PublicAuthority, p. 109. 76. Charles Lipson, "Why Are Some InternationalAgreements Informal,"International Organization45 (Autumn1991), pp. 495-538. 77. See JosephA. Yager, "The Republic of Korea," and "Taiwan," in JosephA. Yager, ed., Nonproliferationand U.S. ForeignPolicy (Washington, D.C.: BrookingsInstitution, 1980), pp. 44-65 and 66-81, respectively. 78. See David Sanger,"North Korea AssemblyBacks AtomPact," TheNew YorkTimes, 10 April 1992,p. A3; and David Sanger,"North Korea Reveals Nuclear Sites to AtomicAgency, The New YorkTimes, 7 May 1992, p. A4. The initialU.S. responseincluded behind-the-scenes diplomatic pressureand encouragingsupportive statements by concernedstates at IAEA meetings.See L. Spector,NuclearAmbitions: The Spreadof Nuclear Weapons, 1989-1990 (Boulder, Colo.: Westview Press, 1990), pp. 127-30. Japan apparentlyhas refused to consider economic assistance or investmentin NorthKorea untilthe nuclearissue is cleared up. 79. Countriesthat have not ratifiedthe NPT include Argentina,Brazil, China, France, India, Israel, and Pakistan.See Spector,NuclearAmbitions, p. 430. 80. ReutersNews Service,"Argentina and Brazil SignNuclear Accord," The New YorkTimes, 14 December 1991,p. 7; "Brazil and Argentina:IAEA SafeguardAccord," U.S. Departmentof State

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 199 openly tested or acknowledgedthe possession of nuclear weapons. Thus, despitesome significantdeparture from its norms,the NPT and the nonprolif- erationregime built around it have survived. The U.S. emphasis on the importanceof verificationof arms control agreementsseems to portendthe applicationof a strictcompliance standard.81 However, at least since the Reagan administration,presidential reports to Congress,mandated by the ArmsControl and DisarmamentAct, listeda long seriesof alleged Sovietviolations without igniting any serious move to withdraw fromthe applicabletreaties.82 One of theseviolations, the phased arrayradar constructedat Krasnoyarsk, was widelyregarded as a deliberateand egregiousbreach of the ABM treaty. Article6 requiresthat early-warningradars be sited "along the peripheryof [the]national territory and orientedoutward." Krasnoyarsk was sevenhundred kilometersfrom the Mongolian border and pointednortheast over Siberia. The issue was repeatedlythrashed out betweenthe twogovernments over a period of years, sometimes at the highest levels. The United States linked its resolution to progress on future arms control agreements. The Soviets maintainedthat the installationwas a space-trackingradar system and thusnot subject to the prohibition,but ultimatelythey acknowledged the breach and agreed to eliminatethe offendinginstallation. Nevertheless, throughout this entireperiod the ABM treatyregime continued in fullforce and effect,and the U.S. administrationnever seriouslypursued the option of withdrawalor abrogation.83Even in connectionwith its cherishedSDI, the Reagan adminis- trationpreferred to attemptto "reinterpret"the treatyrather than accept the moreserious domestic political costs of abrogation.

Dispatch,23 December 1991,p. 907; ReutersNews Service,"South AfricaSigns a TreatyAllowing Nuclear Inspection," The New York Times, 9 July 1991, p. All; and "Fact Sheet: Nuclear Non-proliferationTreaty," U.S. Departmentof State Dispatch,8 July1991, p. 491. 81. The 1977 Congress enacted a requirementfor "adequate verification"of arms control agreements.This was describedby Carteradministration officials as a "practicalstandard" under whichthe United Stateswould be able to identifysignificant attempted evasions in timeto respond effectively.See Chayes and Chayes,"From Law Enforcementto Dispute Settlement,"pp. 147-48. It should be noted thatwhen the Soviet Union in 1987 finallyagreed to substantiallyunlimited on-siteinspection, the United States drew back fromits earlier insistence on thatrequirement, as it has in chemicalwarfare negotiations. 82. Withdrawalfrom all U.S.-Soviet arms controlagreements is permittedon shortnotice if "extraordinaryevents related to the subjectmatter of the treatyjeopardize the supremeinterests" ofthe withdrawing party. See, forexample, Treaty Between the United States and theSoviet Union on the Limitationof AntiballisticMissile Systems,26 May 1972, Article 15(2), 23 U.S.T. 3435 (1972). The law of treatiesalso permitsthe suspensionof a treatyin whole or in part ifthe other partyhas committeda materialbreach. See theVienna Conventionon the Law of Treaties,Article 60(1),(2). 83. The closestapproach to such an initiativewas the mildlycomic bureaucratic squabble in the closing years of the Reagan administrationabout whetherthe Krasnoyarskradar should be denominateda materialbreach of the ABM treaty.See Paul Lewis, "Soviets Warn U.S. Against AbandoningABM Pact," TheNew YorkTimes, 2 September1988, p. A9; and Michael R. Gordon, "MinorViolations of ArmsPact Seen," TheNew YorkTimes, 3 December 1988,p. 5.

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In the last analysis,the long listof asserted"violations" presented no threat eitherto the U.S. securityinterests that the treaties were designedto safeguard or to thebasic bargainthat neither side would deployABM systems.American political and militaryleaders were more than willingto tolerate nonperfor- mance at the marginas the price of continuingconstraint on a meaningful Sovietattempt to shiftthe strategicbalance. If national securityregimes have not collapsed in the face of significant perceivedviolation, it shouldbe no surprisethat economic and environmental treatiescan toleratea good deal of noncompliance.Such regimesare in fact relativelyforgiving of violations plausiblyjustified by extenuatingcircum- stances in the foreignor domesticlife of the offendingstate, provided the action does not threaten the survivalof the regime. As noted above, a considerableamount of deviance fromstrict treaty norms may be anticipated fromthe beginningand accepted,whether in the formof transitionalperiods, special exemptions,limited substantive obligations, or informalexpectations of the parties. The generallydisappointing performance of states in fulfillingreporting requirementsis consistentwith this analysis.84 It is widelyaccepted thatfailure to filereports reflects a low domesticpriority or deficientbureaucratic capacity in the reportingstate. Since the reportingis not centralto the treatybargain, the lapse can be viewed as "technical." When, as in the Montreal Protocol, accurate reportingwas essentialto the functioningof the regime,the parties and thesecretariat made strenuousefforts to overcomethe deficiency,and with some success.85 The Conventionon InternationalTrade in Endangered Species (CITES) ordinarilydisplays some tolerancefor noncompliance,but the alarmingand widelypublicized decline in the elephantpopulation in East Africanhabitats in the 1980s galvanizedthe treatyregime. The partiestook a decision to listthe elephantin AppendixA ofthe treaty (shifting it from Appendix B, whereit had previouslybeen listed),with the effectof banningall commercialtrade in ivory. The treatypermits any party to entera reservationto such an action,in which case the reservingparty is not bound by it. Nevertheless,through a varietyof pressures,the United States togetherwith a group of European countries insistedon universaladherence to the ban, bringingsuch major tradersas Japan and Hong Kong to heel.86The head of the Japanese Environment

84. U.S. GeneralAccounting Office, International Environment: InternationalAgreementsAre Not Well-Monitored,GAO, RCED-92-43, January1992. 85. See Report of the Secretariaton the Reportingof Data by the Partiesin Accordancewith Article7 of the MontrealProtocol, UNEP/OzL.Pro.3/5, 23 May 1991, pp. 6-12 and 22-24; and Addendum,UNEP/OzL.Pro.3/5/Add.1, 19 June1991. 86. For a reportof Japan's announcementof its intentionnot to entera reservationon the last day of the conference,see United Press International,"Tokyo Agrees to JoinIvory Import Ban," Boston Globe, 21 October 1989, p. 6. Japan stated that it was "respectingthe overwhelming sentimentof the internationalcommunity." As to Hong Kong,see JanePerlez, "IvoryBan Said to Force FactoriesShut," The New YorkTimes, 22 May 1990,p. A14. The Hong Kong reservationwas

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Agency supported the Japanese move in order "to avoid isolation in the internationalcommunity."87 It was freelysuggested that Japan's offerto host the nextmeeting of the conferenceof parties,which was accepted on the last day of the conferenceafter Japan announcedits changed position, would have been rejectedhad it reservedon the ivoryban. The meaningof the backgroundassumption of general complianceis that most stateswill continueto comply,even in the face of considerabledeviant behaviorby other parties. In other words, the free-riderproblem has been overestimated.The treatywill not necessarilyunravel in the face of defections. As Mancur Olson recognized,if the benefitsof the collectivegood to one or a group of partiesoutweigh the costs to themof providingthe good, theywill continueto bear the costsregardless of the defectionsof others.88 It seems plausible thattreaty regimes are subjectto a kind of critical-mass phenomenon,so thatonce defectionreaches a certainlevel, or in the face of particularlyegregious violation by a majorplayer, the regimemight collapse.89 Thus,either the particular character of a violationor theidentity of the violator may pose a threatto the regimeand evoke a higherdemand forcompliance. This analysiswould account forboth the similaritiesand differencesbetween the Krasnoyarskand CITES cases. In the firstcase, althoughcore security values were at stake and the violationwas egregious,it did not threatenthe basic treatybargain. The United States respondedwith a significantenforce- menteffort but did not itselfdestroy the basic bargainby abrogating the treaty. In the second case, involvingrelatively peripheral national interests from the realistperspective, a reservationpermitted under the treatythreatened the collapse of the regime.A concertedand energeticdefense resulted.

Determiningthe acceptable compliance level

If,as we argue above, the "acceptable level of compliance"is subjectto broad varianceacross regimes, times, and occasions,how is whatis "acceptable" to be determinedin anyparticular instance? The economistshave a straightforward answer: invest additional resources in enforcement(or other measures to not renewed after the initial six-monthperiod. Five African producer states with effective managementprograms did enterreservations but agreed not to engage in trade untilat least the next conferenceof the parties. See Michael J. Glennon, "Has InternationalLaw Failed the Elephant,"American Journal of International Law 84 (January1990), pp. 1-43, especiallyp. 17. At the 1992 meetingthey ended theiropposition. See "Five AfricanNations Abandon Effortto Resume ElephantTrade in CITES Talks,"Bureau of NationalAffairs Environment Daily, electronic newsservice, 12 March 1992. 87. United Press International,"Tokyo Agrees to Join IvoryImport Ban," Boston Globe, 21 October 1989. 88. Mancur Olson, TheLogic of CollectiveAction (Cambridge, Mass.: HarvardUniversity Press, 1971), pp. 33-36. 89. For a discussionof critical-massbehavior models, see Thomas Schelling,Micromotives and Macrobehavior(New York: Norton,1978), pp. 91-110.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions 202 InternationalOrganization induce compliance) up to the point at which the value of the incremental benefitfrom an additionalunit of complianceexactly equals the cost of the last unit of additionalenforcement resources.90 Unfortunately, the usefulnessof thisapproach is limitedby the impossibilityof quantifyingor even approximat- ing, let alone monetizing,any of the relevantfactors in the equation-and marketsare not normallyavailable to help. In suchcircumstances, as CharlesLindblom has toldus, theprocess by which preferencesare aggregatedis necessarilya politicalone.91 It followsthat the choicewhether to intensify(or slacken) the internationalenforcement effort is necessarilya politicaldecision. It implicatesall the same interestspro and con thatwere involvedin the initialformulation of the treatynorm, as modifiedby interveningchanges of circumstances.Although the balance will to some degree reflectthe expectationsof compliancethat the partiesentertained at thattime, it is byno means rare,in internationalas in domesticpolitics, to find thatwhat the lawmakerhas givenin the formof substantiveregulation is taken awayin the implementation.What is "acceptable" in termsof compliancewill reflectthe perspectivesand interestsof participantsin the ongoingpolitical processrather than some externalscientific or market-validatedstandard. If the treatyestablishes a formalorganization, that body may serve as a focus formobilizing the politicalimpetus for a higherlevel of compliance.A strong secretariatcan sometimesexert compliance pressure, as in the IMF or ILO. The organizationmay serve as a forumfor continuing negotiation among the partiesabout the level of compliance.An example of these possibilitiesis the effortof the InternationalMaritime Consultative Organization (IMCO)-and after1982 its successor,the InternationalMaritime Organization (IMO)-to controlpollution of the sea by tanker dischargesof oil mixed with ballast water.92IMCO's regulatoryapproach was to impose performancestandards limitingthe amountof oil thatcould be dischargedon anyvoyage. From 1954, whenthe first oil pollutiontreaty was signed,until the 1978 revisions,there was continuousdissatisfaction with the level of compliance.IMCO respondedby imposingincreasingly strict limits, but these produced only modest results because of the difficultyof monitoringand verifyingthe amount of oil dischargedby tankercaptains at sea. Finally,in 1978 IMO adopted a new regulatorystrategy and imposed an equipment standard requiringall new

90. See Gary Becker, "Crime and Punishment:An Economic Approach,"Journal of Political Economy76 (March/April1968), pp. 169-217;and Stigler,"The OptimumEnforcement of Laws, " p. 526. Also see Young, Complianceand PublicAuthority, pp. 7-8 and 111-27. 91. CharlesE. Lindblom,Politics and Markets(New York: Basic Books, 1977),pp. 254-55. At the domesticlevel, the decision whetherto intensifyenforcement of the treatyimplicates a similar politicalprocess, as the continuousdebates in the United States over GATT enforcementtestify. Our work-in-progressincludes a considerationof second-levelenforcement. 92. Ronald Mitchell,"Intentional Oil Pollutionof the Oceans: Crises, Public Pressure,and EquipmentStandards," in PeterM. Haas, Robert0. Keohane, and MarkA. Levy,eds., Institutions forthe Earth: Sourcesof EffectiveInternational Environmental Protection (Cafibridge, Mass.: MIT Press,forthcoming).

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 203 tankersto have separate ballast tanksthat physically prevent the intermixture of oil withthe dischargedballast water. The new requirementwas costlyto tankeroperators but easily monitored by shipping authorities. Compliance with the equipmentstandard has been close to 100 percent,and dischargeof oil fromthe new ships is substantiallynil. The sequence reflectsthe changing configurationof politicalstrength between domesticenvironmental and ship- pingconstituencies in the membersof IMO (and IMCO) whichwas originally referredto as a "shippingindustry club." At the same time, the major oil companies,which in the earlier period were shippingindustry allies, shifted politicalallegiance under environmentalist pressures. Since the internationalsystem is horizontalrather than hierarchical,if one stateor a groupof statesis willingto commitenforcement resources, it maybe able to short-circuitcumbersome organizational procedures and pursue improvedlevels of complianceby its own decision. The U.S. deploymentof trade sanctionsunder Section 301 of the TariffAct againstviolators of GATT obligationsreflects a unilateralpolitical decision (1) that existinglevels of compliance were not acceptable and (2) to pay the costs of additional enforcement.93In that case, however,gains in compliance with substantive obligationsmust be weighed againstlosses attendanton departurefrom the proceduralnorms mandating multilateral dispute settlement.94 Again, aftera considerableperiod of fruitlessexhortation in the Interna- tionalWhaling Commission, Japan finally agreed to participatein a temporary moratoriumon whalingthat had been proclaimedby the organization when the United States threatenedtrade sanctionsunder the Marine Mammal Protec- tionAct.95 The Japaneseban on ivoryimports shows a mixtureof economic and reputationalthreats. The United States hinted at trade sanctions,and the conferenceof theparties of CITES threatenednot to scheduleits next meeting in Kyotoif Japan remained out of compliance. If thereare no objectivestandards by which to recognizean "acceptable level of compliance,"it may be possible at least to identifysome general typesof situationsthat might actuate the deploymentof politicalpower in the interest of greatercompliance. First, states committed to the treatyregime may sense thata tippingpoint is close, so thatenhanced compliancewould be necessary forregime preservation. As noted above,the actionsagainst Japan on theivory

93. UnitedStates Code, Title 19,Section 2411. Section301, however,has been widelycriticized as itselfa violationof GATT. See A. 0. Sykes,"Constructive Unilateral Threats in International CommercialRelations: The LimitedCase forSection 301," Law and Policyin International Business 23 (Spring 1992), pp. 263-330; and Thomas 0. Bayard and KimberlyA. Elliott, "Aggressive Unilateralismand Section 301: Market Opening or Market Closing," The WorldEconomy 15 (November1992), pp. 685-706. 94. GATT, Articles22 and 23, 30 October 1947, as amended. See "GATT Basic Instruments and Selected Documents,"in UNTS, vol. 55, no. 814, 1950,p. 194. 95. See SteinarAndresen, "Science and Politicsin the InternationalManagement of Whales," MarinePolicy, vol. 13, no. 2, 1989, p. 99; and Patricia Birnie,International Regulation of Whaling (New York: Oceana, 1985).

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importban mayhave been ofthis character. After the high visibility given to the CITES moves to ban the ivorytrade, there would not have been much leftof the regimeif Japan had been permittedto importwith impunity. Second, states committedto a level of compliance higher than that acceptableto the generalityof the partiesmay seek to ratchetup the standard. The Netherlands often seems to play the role of "leader" in European environmentalaffairs both in the North Sea and Baltic Sea regimesand in LRTAP.96 Similarly,the United States may be a "leader" for improving compliancewith the NPT, where its positionis far strongerthan that of its allies. Finally,campaigning to improvea compliancelevel that states concerned wouldjust as soon leave alone is a characteristicactivity for NGOs, especiallyin the fieldsof the environmentand of human rights.NGOs increasinglyhave directaccess to the politicalprocess both within the treatyorganizations and in the societies of which they are a part. Their technical,organizational, and lobbyingskills are an independentresource for enhanced complianceat both levelsof the two-levelgame.

Conclusion

The foregoingdiscussion reflects a view of noncomplianceas a deviantrather thanan expectedbehavior, and as endemicrather than deliberate. This in turn leads to de-emphasisof formal enforcement measures and even,to a degree,of coercive informalsanctions, except in egregiouscases. It shiftsattention to sources of noncompliancethat can be managed by routine international politicalprocesses. Thus, the improvementof dispute resolutionprocedures goes to the problemof ambiguity;technical and financialassistance may help cure the capacitydeficit; and transparencywill make it likelierthat, over time, national policy decisions are brought increasinglyinto line with agreed internationalstandards. These approachesmerge in the processof jawboning-an effortto persuade the miscreantto change its ways-that is the characteristicform of interna- tionalenforcement activity. This processexploits the practicalnecessity for the putativeoffender to give reasons and justificationsfor suspect conduct. These reasons and justificationsare reviewedand critiquedin a varietyof venues, public and private,formal and informal.The tendencyis to winnow out reasonablyjustifiable or unintendedfailures to fulfillcommitments-those that comportwith a good-faithcompliance standard-and to identifyand isolate the few cases of egregiousand willfulviolation. By systematicallyaddressing and eliminatingall mitigatingcircumstances that might possibly be advanced,

96. See Peter M. Haas, "Protectingthe Baltic and NorthSeas," in Haas, Keohane, and Levy, Institutionsfor the Earth.

This content downloaded from 143.107.26.38 on Thu, 26 Feb 2015 15:35:53 UTC All use subject to JSTOR Terms and Conditions On compliance 205 thisprocess can ultimatelydemonstrate that what may at firsthave seemed like ambiguous conduct is a black-and-whitecase of deliberate violation. The offendingstate is leftwith a starkchoice between conformingto the rule as defined and applied in the particularcircumstances or openly floutingits obligation.This turnsout to be a very uncomfortableposition for even a powerfulstate. The Krasnoyarskstory represents an exampleof thisprocess in action. Perhaps anotheris the repeated Iraqi retreatin showdownswith the UN-IAEA inspectionteams.97 Enforcementthrough these interactingmeasures of assistanceand persua- sion is less costlyand intrusiveand is certainlyless dramaticthan coercive sanctions,the easy and usual policyelixir for noncompliance. It has the further virtue that it is adapted to the needs and capacities of the contemporary internationalsystem.

97. For an account of the Iraqi response,see Sean Cote, A Narrativeof theImplementation of SectionC of UN SecurityCouncil Resolution 687.

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