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Abram Chayes and Antonia Handler Chayes Source: International Organization, Vol On Compliance Author(s): Abram Chayes and Antonia Handler Chayes 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 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. The MIT Press is collaborating with JSTOR to digitize, preserve and extend access to International Organization. http://www.jstor.org 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 (Boston: 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 United Nations (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 United States 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. 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 177 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
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