International Law and Rational Choice Theory. I agree with Henry’s discussion of the limits of rational choice theory and so don’t understand why he thinks I commit the fallacies that he describes. It would be one thing if I said that states’ compliance with treaty X is consistent with rational choice because the folk theorem allows for cooperation, while states’ noncompliance with treaty Y is consistent with rational choice because the folk theorem allows for noncooperation. Or if I said that states comply with treaty W because they care about their reputations for complying with W but that states fail to comply with treaty Z because they don’t care about their reputations for complying with Z. But I never make such arguments, instead ruling out the first type of argument as uninformative and the second as circular. My account of international law is parsimonious, and the usual criticism directed at it is not that it can be manipulated so as to explain anything, but that in fact it fails to explain why certain legal regimes have been successful. So, for example, if in fact states do overcome a collective action problem and collectively sanction states that violate human rights, that is a problem for my theory, not something that I try to explain away by asserting that states have an interest in (say) having a good reputation for enforcing human rights treaties. This is why both Henry and I have invoked the empirical literature on this topic. If I could save my theory by redefining state interests or picking and choosing among multiple equilibria, I wouldn’t have bothered to cite evidence.
Again, the major criticism of my theory is not that it is unfalsifiable but that it is false. I have acknowledged anomalies, both in Perils of Global Legalism and in other work. The European Union is a big problem (as are the many other political unions that have taken place throughout history). The European Court of Human Rights is, at a minimum, in tension with my theory. Another frequently invoked refutation is the WTO system; I addressed this argument in my earlier book. So there is much that the theory does not capture or does not capture cleanly. But alternative theories, those that express a great deal more optimism about the capacity of international law to constrain states, have an even less terrific record. Henry perhaps has in mind other theories of international law that explain variations in compliance levels across states and treaties in a more persuasive way—theories that are both testable and consistent with the evidence. If so, one would want to hear what these theories are.
Let me conclude by briefly discussing one of the themes of Perils—international adjudication. Nineteenth century international arbitration was generally considered successful and inspired calls for genuine international courts in the twentieth. Yet the performance of the international courts has been disappointing. What theory of state behavior can reconcile these outcomes? My argument is a (version of) rational choice theory that emphasizes the possibility (folk theorem again) of bilateral cooperation but expresses skepticism about robust forms of multilateral cooperation. Arbitration flourished because it relied on simply forms of bilateral cooperation; adjudication failed because it relied on ambitious forms of multilateral cooperation. If the theory is correct, it suggests skepticism about proposals to create more international courts and strengthen existing ones.
The theory might not be correct, but if so, the problem is not that I incorporate preferences to use international arbitration or adjudication in the definition of states’ interests. What one wants to hear is not cavils about the general weaknesses of rational choice theory but either a refutation of the empirical claims or the alternative theory that can explain (away) the failures of adjudication and thus provide the basis for optimism about future courts and, better yet, proposals for improving them.
The UNCHR. In a previous post, I commented that the UNCHR was a failure because it did not stop or mitigate human rights abuse, or maybe a success because states, to avoid the sting of its criticism, replaced it with an institution that appears to be even more toothless. Henry replies:
These possible explanations obviously cannot both be true at the same time. Arguing in the alternative may perhaps be an accepted approach in the legal academy (I am not, obviously, a legal scholar), but it doesn’t seem to me to be a good way of dismissing the merits of empirical claims (it can, of course, be useful, at the earlier stage of hypothesis formulation).
Ouch! Lawyer I am, with all the faults of that tribe, but in this case I didn’t argue in the alternative (“my client didn’t shoot the victim and, if he did, it was because the victim pointed a gun at him first”), nor are my statements inconsistent. The UNCHR had enough power to annoy states (by publicizing their human rights abuses or those of their allies) but the sting was not enough to cause states to improve their human rights practices. There are numerous possible explanations for this outcome. The cost of improving human rights practices was higher than the cost of the absorbing the sting; or states believed that even if they reasonably improved their human rights practices, they would be stung again, so there was no reason to bother; or the sting afflicted especially powerful states (for example, the United States which tired of the criticisms of Israel). Whatever the reason, states responded by disbanding the UNCHR and—to all appearances—replacing it with an institution that is even more toothless. The success was tactical, the failure was strategic.
Perhaps Henry’s only point is that even the modest tactical success is inconsistent with the theory that I advance in the book. Perhaps; I will have to think about it. For now, I can only revert to the overall purpose of the book. If states set up an international institution for the purpose of generating a collective good, and that institution turns out to have the power to annoy some states but does not measurably change their behavior other than to cause them to disband it, that is not much of a testament to the power of international law, still less of global legalism.