comparing legal vs. non-legal agreements daniel bodansky arizona state university college of law

Comparing legal vs. non-legal agreements

Daniel BodanskyArizona State University College of Law

How might an agreement influence state behavior?

Normative factors

Domestic political factors

Instrumental factors

Normative factors

Agreement changes view of appropriate behavior Creates sense of legal obligation, sense

of duty to comply Promotes social learning, changes

perceptions of self-interest Norms in agreement internalized,

followed as a matter of course

Instrumental factors

Agreement changes states’ calculus of costs and benefits States comply because they are afraid

that if they violate, others will as well States comply to to avoid reputational

costs of violation Other states threaten to raise costs of

violation by imposing sanctions Other states provide assistance to lower

costs of compliance

Domestic political factors

Agreement changes domestic political game Empowers domestic agencies with

implementation responsibilities Can be applied/enforced by domestic

courts Gives NGOs a hook to pressure

government

Legal form only one aspect of “bindingness”

Other factors can influence effectiveness Ambition Precision Mandatory quality of provisions Review mechanisms

Can be trade-offs among factors Legal form may lower effectiveness if leads

to less amibitious, vaguer commitments

Effectiveness of political agreements

Negotiations can Increase public awareness Encourage social learning Lead to convergence of expectations

Agreement can Encourage domestic policy

development and implementation Create review mechanisms Produce reputational costs for violation

Effectiveness of legal agreements

Legal agreements can Create stronger sense of internal obligation Reflect greater domestic buy-in Produce higher reputational costs for

violation Allow domestic judicial implementation

>> Legal agreements signal stronger commitment than political agreements

Is there empirical evidence that legal agreements more effective?

Most of scholarship on legal vs. non-legal agreements theoretical

Little empirical study comparing effectiveness of legal vs. non-legal agreements Usually, legal and non-legal agreements

differ along other dimensions as well Hard to find an “apples to apples”

comparison