1. 1 International Environmental Law Class on compliance in the field of environmental protection, prepared for Prof. Alberto do Amaral Junior’ class Cristiane Lucena Professora Doutora, IRI/USP cristiane.lucena@usp.br

2. Overview  Raustiala & Slaughter (2002) International Law, International Relations and Compliance  Abram Chayes & Antonia Chayes (1993) On Compliance  George Downs (1998) Enforcement and the Evolution of Cooperation  Downs, Rocke & Barsoom (1996) Is the Good News about Compliance Good News about Cooperation?  Downs & Jones (2002) Reputation, Compliance and International Law 2

3. Kal Raustiala & Anne-Marie Slaughter  Clustering of potential explanatory variables: 1) Problem structure 2) Solution structure 3) Solution process 4) Norms 5) Domestic linkages 6) International structure  Enforcement, regime design and legalization 3

4. George Downs 1998  The political economy (institutionalist theory) of enforcement  Evaluation of the managerial and transformationalist critiques Managerial tradition  Limited role for sanctions and enforcement  Nonvolitional character of violations  Treaty ambiguity and state capacity Transformationalist tradition  Enforcement’s negative impact on the evolution of cooperation 4

5. Evaluation of the Managerial and Transformationalist Traditions  Correlation between the depth of cooperation and the extent of enforcement → 0.74  Set of 50 multilateral environmental agreements  “As multilaterals increase their level of cooperation over time, they also increase their level of enforcement”  EU, WTO  Case studies: the WTO, the International Criminal Court, others? 5

6. The Political Economy Theory of Enforcement  Enforcement as a strategy of deterrence  Strategic aspects of enforcement  Expectations and goals Recent scholarship: Nikolay Marinov (2005)  Competing views amongst international lawyers and political economists Role of issue linkage for political economists Limited role of legitimacy in their analysis 6

7. The Political Economy Theory of Enforcement  (...) The frequency of enforcement depends on the distribution of games underlying agreements. [This distribution] may well change over time. → Thus, the evolution of cooperation Examples: Battle of the Sexes; Prisoner’s Dilemma  Intervening factors: i.Challenges for monitoring behavior ii.Nature of the good (possibility of exclusion?) iii.Role of formal dispute resolution 7

8. Enforcement v. Management v. Transformation *  Challenges for evaluation and testing  Selection bias; limited quantitative evidence  Usefulness of the concept of “depth of cooperation” 1) Amount of behavioral change that an agreement requires 2) Magnitude of the behavioral change that an agreement has actually brought among signatories  Impact on recent scholarship Moravcsik (2001); Gilligan (2001); Simmons (2009); Rosendorff & Hollyer (2011) 8

9. Compliance and Cooperation Downs, Rocke & Barsoom  Relationship between the nature of the cooperation problem and the magnitude of enforcement required  Realists and Neorealists  Rational choice theorists  Managerialists Rarity of deep cooperation Causes and cures of non-compliance 9

10. Compliance and Cooperation Downs, Rocke & Barsoom  Implications of rival theories → Correlation between enforcement and the depth of cooperation → Limited role of self-interest in explaining treaty violations (role of ambiguity, capacity limitations, externalities)  Examples of the rarity of deep cooperation  Outer Space Treaty, Seabed Arms Control Treaty, Anti-Ballistic Missiles Treaty, SALT, START, Montreal Protocol, GATT/WTO, European Community/European Union 10

11. Compliance and Cooperation Downs, Rocke & Barsoom *  Disagreement over the causes and cures of noncompliance  Washington Naval Treaty (1923)  GATT and Section 301 and Super 301 of the U.S. Trade Act  Eleven international fisheries commissions  The Mediterranean Plan  International Maritime Organization and MARPOL (International Convention for the Prevention of Pollution from Ships, which incorporated stronger enforcement 11

12. 12 Reputation, Compliance, and Int’l Law Downs & Jones  What is the role of state reputation, with respect to compliance and enforcement in international law?  Common wisdom: state reputation plays a key role with respect to compliance  Prisoner’s Dilemma  Reputation = “reliability”  The unitary theory of reputation

13. 13 The Argument  States have multiple (segmented) reputations  Factors that influence reputational costs:  Costs and benefits associated with compliance  How much states value the agreement  The nature of the agreement (possibility to withhold benefits associated with the agreement)  Anecdote  Trade war between the EU and the US over the banana export regime and their record of cooperation during NATO’s campaign in the former Yugoslavia

14. 14 Opportunities to Establish a Reputation *  The notion of reputation promotes compliance with international law more effectively in the areas of trade and international security  The opposite is true for environmental protection and human rights  New countries!  Implications for the research agenda on compliance

15. Reputation and Reciprocity  Michael Tomz (2007): “Reputation and International Cooperation: Sovereign Debt across Three Centuries”  The reputational mechanism vis-à-vis:  The use of force  Economic sanctions  Collective retaliation  Instant updating

16. Reputational Mechanisms Michael Tomz  Reputation:  Beliefs/ perception about the types of countries  Beliefs/ perception about state behavior in context  Types of countries:  “Stalwart”, “Fair-weather”, “Lemon”

17. Figure 2.1: Reputations Change When Governments Act Contrary to Their Perceived Type (p. 19) Reputed StalwartReputed Fair-WeatherReputed Lemon Favorable conditions Adverse conditions Favorable conditions Adverse conditions Favorable conditions Adverse conditions Repay XXX  Default  XXX

18. Michael Tomz - Conclusão  Variation in the cost/price (interest) of loans during the XVIII, XIX, and XX (first half) centuries confirm Tomz’s thesis  Case illustrations:  Brazil, during the first half of the 19 th Century  Venezuela in 1902  Argentina in 1929