Abbot & Snidle

I. Introduction to International Legalization

• Contemporary International Relations: Increasingly governed by legalized frameworks, displaying significant variety.

• Hard vs. Soft Legalization:

  • Few institutions reach the ideal of "hard" legalization.

  • Most international law is "soft" in various ways.

• Core Argument: International actors strategically choose legalization forms to solve specific substantive and political problems.

• Softer Forms: Chosen when they offer superior institutional solutions.

II. Advantages of Hard Legalization

1. Definition of Hard Law: Legally binding obligations that are precise and delegate authority for interpretation and implementation.

2. Benefits of Hard Law:

   • Reduces transaction costs.

   • Strengthens commitment credibility.

   • Expands available political strategies.

   • Resolves incomplete contracting problems.

III. Costs of Hard Legalization

• Restrictions on Behavior and Sovereignty: Hard law limits actors' freedom and autonomy.

• Normative Considerations: Legalization involves commitment to legal norms and instantiation of normative values.

• Law as Contract and Covenant: Captures both interest-based and normative characteristics.

IV. Soft Law

1. Definition: Legal arrangements weakened along dimensions of obligation, precision, and delegation.

2. Criticisms:

   • Realists: Dismiss international law as mere window dressing due to lack of independent judiciary and enforcement.

   • Normative Perspective: Some lawyers fear soft law destabilizes the international normative system.

   • Interim Step: Others see it only as a temporary move towards harder legalization.

V. Advantages of Soft Legalization

1. Strategic Choice: Often deliberately chosen as superior institutional arrangements.

2. Benefits:

   • Offers many advantages of hard law.

   • Avoids some costs of hard law.

   • Has independent advantages like flexibility and ease of achievement.

   • More effective in dealing with uncertainty and facilitating compromise.

VI. Factors Influencing the Choice Between Hard and Soft Law

1. Variables:

   • Transactions costs.

   • Uncertainty.

   • Implications for national sovereignty.

   • Divergence of preferences.

   • Power differentials.

VII. Contracts and Covenants: Rationales for Hard Law

1. Two Understandings of International Agreements:

   • Contracts: Agreements to further interests.

   • Covenants: Agreements to manifest normative commitments.

2. Rationalist vs. Constructivist Perspectives:

   • Rationalists: Agreements as contracts to solve coordination, collaboration, or domestic politics problems.

   • Constructivists: Agreements as covenants embodying shared norms and understandings operating through persuasion and internalization.

VIII. Credible Commitments

1. Importance: Crucial for welfare-enhancing cooperation.

2. Legalization as a Method: Increases commitment credibility by:

   • Constraining self-serving auto-interpretation.

   • Increasing reneging costs.

3. Alternatives: Bonding and escrow are more costly.

4. Enforcement Capacity: Hard legal commitments are interpreted and applied by judicial institutions.

5. Domestic Law Integration: International legal commitments often become part of domestic law, increasing delegation.

6. Normative Channels: Violation entails reputational costs.

IX. Reducing Transactions Costs

1. Managerial Process: Applying and elaborating agreed rules.

2. Enforcement: Enforcing commitments.

3. Legalization Benefits:

   • Facilitates interpretation, application, and elaboration.

   • Sets clear bounds on dispute resolution and negotiation.

   • Constrains techniques of dispute settlement and negotiation.

X. Modifying Political Strategies

• Hard Legalization: Allows states to pursue different political strategies.

• Legal Institutions: Supplement or provide alternatives to political techniques for addressing disputes.

• Domestic Litigation: Becomes part of the international toolkit.

XI. Handling Problems of Incomplete Contracting

1. Challenges of Precision: Wasteful, counterproductive, rigid, and may prevent agreement.

2. Delegation: Often the best way to deal with incomplete contracting problems.

3. Regimes: Utilize administrative and judicial institutions to interpret and extend broad legal principles.

XII. The Advantages of Soft Legalization

1. Lower Contracting Costs: A major advantage of softer forms of legalization.

2. Flexibility: Allows states to dampen security and distributional concerns.

3. Learning: Provides states with an opportunity to learn about the consequences of their agreements.

XIII. Factors Increasing Costs of International Agreement

1. Sovereignty Costs: Accepting a binding legal obligation.

2. Uncertainty: New and complex international issues.

3. Divergence Among National Preferences: Difficulty in negotiating hard agreements among heterogeneous states.

4. Differences in Time Horizons and Discount Rates: Difficulties in achieving compromise.

5. Power Differentials Among Major Actors: Influence the nature of legal agreements.

XIV. Sovereignty Costs

1. Definition: Costs to states accepting binding legal obligations, including loss of authority and encroachments on sovereignty.

2. Issue Type: Sovereignty costs vary across issues; higher in national security, lower in technical matters.

XV. Uncertainty

1. Definition: Many international issues are new and complex, making it hard to anticipate consequences.

2. Strategies:

   • Reducing precision of commitments.

   • Using non-legally binding arrangements.

   • Employing moderate delegation.

XVI. Soft Law as a Tool of Compromise

1. Compromise at a Point in Time: Soft law eases bargaining among states and provides flexibility.

2. Compromise Over Time: Soft law provides a way of achieving compromise over time through characteristic forms of discourse and procedure.

3. Compromise Between the Weak and the Strong: Soft legalization facilitates compromise between weak and powerful states, helping both achieve their goals.

XVII. The Role of Private Actors

1. Growing Role: Nonstate actors play a crucial role in new international agreements.

2. Theoretical Perspectives:

   • Pluralist Interactions: Interactions among private groups determine national preferences and international outcomes.

   • Public Choice: Government officials pursue private rewards.

   • Statism: Governments retain autonomy and influence accommodations among private actors.

XVIII. Conclusion

• Soft vs. Hard Legalization: International legalization is a spectrum, and soft law is valuable on its own.

• Intertwined Politics and Law: International politics and international law are deeply intertwined.

• Future of International Legalization: The trend may not necessarily continue towards harder legalization; soft law remains a significant feature.