[judith l. goldstein, miles kahler, robert o. keoh(bookfi.org)

Legalization and World Politics

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LEGALIZATION ANDWORLD POLITICS

edited byJudith Goldstein, Miles Kahler, Robert O. Keohane,

and Anne-Marie Slaughter

The MIT PressCambridge, Massachusetts and London, England

The contents of this book were first published in International Organization (ISSN 0020-8183) apublication of the MIT Press under the sponsorship of the IO Foundation. Except as otherwisenoted, copyright in each article is held jointly by the IO Foundation and the Massachusetts Instituteof Technology.

2001 by the IO Foundation and the Massachusetts Institute of Technology

All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanicalmeans (including photocopying, recording, or information storage and retrieval) without permission inwriting from the publisher.

Library of Congress Cataloging-in-Publication Data

Legalization and world politics / edited by Judith Goldstein ... [et al.].p. cm.

Includes bibliographical references.ISBN 0-262-57151-X (pbk. : alk. paper)1. Law and politics. 2. World politics. 3. International relations. 4. Legalization. I. Goldstein, Judith.

K487.P65 L34 2001341.3dc21 00-051117

Contents

xiiiPreface Judith Goldstein, Miles Kahler, Robert O. Keohane,and Anne-Marie Slaughter

Legalization and World Politics: An Introduction

1Introduction: Legalization and World Politics Judith Goldstein,Miles Kahler, Robert O. Keohane, and Anne-Marie Slaughter

17The Concept of Legalization Kenneth W. Abbott,Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter,and Duncan Snidal

Legalization and Dispute Resolution

37Hard and Soft Law in International GovernanceKenneth W. Abbott and Duncan Snidal

73Legalized Dispute Resolution: Interstate and TransnationalRobert O. Keohane, Andrew Moravcsik, and Anne-Marie Slaughter

Law and Economic Integration

105The European Unions Legal System and Domestic Policy:Spillover or Backlash? Karen J. Alter

135NAFTA and the Legalization of World Politics: A Case StudyFrederick M. Abbott

165Legalization as Strategy: The Asia-Pacific Case Miles Kahler

Legalization in Three Issue Areas

189The Legalization of International Monetary AffairsBeth A. Simmons

219Legalization, Trade Liberalization, and Domestic Politics:A Cautionary Note Judith Goldstein and Lisa L. Martin

249International Human Rights Law and Practice in Latin AmericaEllen L. Lutz and Kathryn Sikkink

Conclusion

277Conclusion: The Causes and Consequences of LegalizationMiles Kahler

301References

Contributors

Frederick M. Abbott is Edward Ball Eminent Scholar Chair in International Lawat Florida State University College of Law, and Visiting Professor of Law, Univer-sity of California at Berkeley School of Law. He can be reached [email protected].

Kenneth W. Abbott is Elizabeth Froehling Horner Professor of Law and Com-merce at Northwestern University, Chicago, Illinois. He can be reached [email protected].

Karen J. Alter is Assistant Professor of Government, Northwestern University,Chicago, Illinois. She can be reached at [email protected].

Judith Goldstein is Professor of Political Science at Stanford University, Stanford,California. She can be reached at [email protected].

Miles Kahler is Rohr Professor of Pacific International Relations at the GraduateSchool of International Relations and Pacific Studies (IR/PS), University of Cali-fornia, San Diego. He can be reached at [email protected].

Robert O. Keohane is James B. Duke Professor of Political Science at Duke Uni-versity, Durham, North Carolina. He can be reached at [email protected].

Ellen L. Lutz is an attorney with the firm of Buckalew & Lutz in Westborough,Massachusetts, and an adjunct faculty member at the Fletcher School of Diplomacyat Tufts University in Medford, Massachusetts. She can be reached [email protected].

Lisa L. Martin is Professor of Government at Harvard University, Cambridge,Massachusetts. She can be reached at [email protected].

Andrew Moravcsik is Professor of Government at Harvard University, Cambridge,Massachusetts. He can be reached at [email protected].

Kathryn Sikkink is Professor of Political Science at the University of Minnesota,Minneapolis, Minn. She can be reached at [email protected].

Beth A. Simmons is Associate Professor of Government at the University of Cali-fornia, Berkeley. She can be reached at [email protected].

Anne-Marie Slaughter is J. Sinclair Armstrong Professor of International, For-eign, and Comparative Law at Harvard University, Cambridge, Massachusetts. Shecan be reached at [email protected].

Duncan Snidal is Associate Professor of Political Science and Public Policy at theUniversity of Chicago, Chicago, Illinois. He can be reached [email protected].

Abstracts

The Concept of Legalizationby Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik,Anne-Marie Slaughter, and Duncan SnidalWe develop an empirically based conception of international legalization to show how law andpolitics are intertwined across a wide range of institutional forms and to frame the analytic andempirical articles that follow in this volume. International legalization is a form of institution-alization characterized by three dimensions: obligation, precision, and delegation. Obligationmeans that states are legally bound by rules or commitments and therefore subject to thegeneral rules and procedures of international law. Precision means that the rules are definite,unambiguously defining the conduct they require, authorize, or proscribe. Delegation grantsauthority to third parties for the implementation of rules, including their interpretation andapplication, dispute settlement, and (possibly) further rule making. These dimensions are con-ceptually independent, and each is a matter of degree and gradation. Their various combina-tions produce a remarkable variety of international legalization. We illustrate a continuumranging from hard legalization (characteristically associated with domestic legal systems)through various forms of soft legalization to situations where law is largely absent. Mostinternational legalization lies between the extremes, where actors combine and invoke varyingdegrees of obligation, precision, and delegation to create subtle blends of politics and law.

Hard and Soft Law in International Governanceby Kenneth W. Abbot and Duncan SnidalWe examine why international actorsincluding states, firms, and activistsseek different types oflegalized arrangements to solve political and substantive problems. We show how particular forms oflegalization provide superior institutional solutions in different circumstances. We begin by exam-ining the baseline advantages of hard legalization (that is, precise, legally binding obligations withappropriate third-party delegation). We emphasize, however, that actors often prefer softer forms oflegalization (that is, various combinations of reduced precision, less stringent obligation, and weakerdelegation). Soft legalization has a number of significant advantages, including that it is easier toachieve, provides strategies for dealing with uncertainty, infringes less on sovereignty, and facilitatescompromise among differentiated actors.

Although our approach is largely interest-based, we explicitly incorporate the normative elementsthat are central in law and in recent international relations theorizing. We also consider the importantrole of nonstate actors who, along with states, are central participants in contemporary internationallegalization. We illustrate the advantages of various forms of international legal arrangements withexamples drawn from articles in this special issue and elsewhere.

Legalized Dispute Resolution: Interstate and Transnationalby Robert O. Keohane, Andrew Moravcsik, and Anne-Marie Slaughter

We identify two ideal types of international third-party dispute resolution: interstate and trans-national. Under interstate dispute resolution, states closely control selection of, access to, andcompliance with international courts and tribunals. Under transnational dispute resolution, bycontrast, individuals and nongovernmental entities have significant influence over selection,access, and implementation. This distinction helps to explain the politics of international legal-izationin particular, the initiation of cases, the tendency of courts to challenge nationalgovernments, the extent of compliance with judgments, and the long-term evolution of normswithin legalized international regimes. By reducing the transaction costs of setting the processin motion and establishing new constituencies, transnational dispute resolution is more likelythan interstate dispute resolution to generate a large number of cases. The types of casesbrought under transnational dispute resolution lead more readily to challenges of state actionsby international courts. Transnational dispute resolution tends to be associated with greatercompliance with international legal judgments, particularly when autonomous domestic insti-tutions such as the judiciary mediate between individuals and the international institutions.Overall, transnational dispute resolution enhances the prospects for long-term deepening andwidening of international legalization.

The European Unions Legal System and Domestic Policy: Spillover or Backlash?by Karen J. Alter

Under what conditions do domestic actors use international legal mechanisms to influencedomestic policy? Drawing on the European case, where legalization has progressed the fur-thest, I develop a generalizable framework for explaining variation in the use of the EuropeanUnions legal system by domestic actors to influence national policy. Four steps are involvedin using the European legal process to pressure for policy change: (1) there must be a point ofEuropean law that creates legal standing and promotes the litigants objectives; (2) litigantsmust embrace this law, adopting a litigation strategy; (3) a national court must refer the case tothe European Court of Justice or apply ECJ jurisprudence; and (4) domestic actors must followthrough on the legal victory to pressure national governments. Different factors influence eachstep, creating cross-national and cross-issue variation in the influence of EU law on nationalpolicy. Raising a significant challenge to neofunctionalist theory, I argue that negative interac-tive effects across the four steps and backlash created by the success of integration can stop oreven reverse the expansionary dynamic of the legal process. I conclude by exploring thegeneralizability of this framework to other international contexts.

NAFTA and the Legalization of World Politics: A Case Studyby Frederick M. Abbott

I examine the trend toward using hard legal instruments in international trade governance andexplain this trend in the context of the North American Free Trade Agreement (NAFTA). Isuggest that hard law (1) reduces intergovernmental transaction costs, (2) reduces private riskpremiums associated with trade and investment, (3) promotes transparency and provides cor-ollary participation benefits, (4) tends to restrain strategic political behaviors, and (5) mayincrease the range of integration effects by encouraging private actors to enforce intergovern-mental obligations. I compare the legalization model of NAFTA with those of the EuropeanUnion (EU) and the Asia-Pacific Economic Cooperation (APEC) forum.

Legalization as Strategy: The Asia-Pacific Caseby Miles Kahler

The Asia-Pacific region offers an example of low legalization of regional institutions andperhaps an explicit aversion to legalization. An examination of three key regional institutionsASEAN (Association of Southeast Asian Nations), APEC (Asia-Pacific Economic Coopera-tion), and the ARF (ASEAN Regional Forum)confirms a regional process of institutionbuilding without legalization. Recent developments in these institutions permit some discrimi-nation among competing explanations for low legalization. On the one hand, ASEAN hasembraced a legalized dispute-settlement mechanism; Asian governments have also employedlegalized global institutions. On the other hand, the ARF and APEC continue to resist clear-cutlegal obligations and third-party dispute resolution. This pattern suggests that legalization isbest viewed as driven by the demands of economic integration and as a strategic response bygovernments in particular institutional settings. These explanations undermine alternativesbased on domestic legal culture and uniformly high sovereignty costs. The Asian economiccrisis has reopened a debate over regional institutions, which may fix on legalization as part ofa new regional institutional design.

The Legalization of International Monetary Affairsby Beth A. SimmonsFor the first time in history, international monetary relations were institutionalized after WorldWar II as a set of legal obligations. The Articles of Agreement that formed the InternationalMonetary Fund contain international legal obligations of the rules of good conduct for IMFmembers. Members were required to maintain a par value for their currency (until 1977), touse a single unified exchange-rate system, and to keep their current account free from restric-tions. In this article I explore why governments committed themselves to these rules and theconditions under which they complied with their commitments. The evidence suggests thatgovernments tended to make and keep commitments if other countries in their region did so aswell. Governments also complied with their international legal commitments if the regimeplaced a high value on the rule of law domestically. One inference is that reputational concernshave a lot to do with international legal commitments and compliance. Countries that haveinvested in a strong reputation for protecting property rights are more reluctant to see it jeopar-dized by international law violations. Violation is more likely, however, in the face of wide-spread noncompliance, suggesting that compliance behavior should be understood in its re-gional context.

Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Noteby Judith Goldstein and Lisa L. MartinIf the purpose of legalization is to enhance international cooperation, more may not always bebetter. Achieving the optimal level of legalization requires finding a balance between reducingthe risks of opportunism and reducing the potential negative effects of legalization on do-mestic political processes. The global trade regime, which aims to liberalize trade, has becomeincreasingly legalized over time. Increased legalization has changed the information environ-ment and the nature of government obligations, which in turn have affected the pattern ofmobilization of domestic interest groups on trade. From the perspective of encouraging thefuture expansion of liberal trade, we suggest some possible negative consequences of legaliza-tion, arguing that these consequences must be weighed against the positive effects of legaliza-tion on increasing national compliance. Since the weakly legalized GATT institution proved

sufficient to sustain widespread liberalization, the case for further legalization must be strongto justify far-reaching change in the global trade regime.

International Human Rights Law and Practice in Latin Americaby Ellen L. Lutz and Kathryn SikkinkHuman rights practices have improved significantly throughout Latin America during the 1990s,but different degrees of legalization are not the main explanation for these changes. We ex-amine state compliance with three primary norms of international human rights law: the prohi-bition against torture, the prohibition against disappearance, and the right to democratic gover-nance. Although these norms vary in their degree of obligation, precision, and delegation,states have improved their practices in all three issue-areas. The least amount of change hasoccurred in the most highly legalized issue-areathe prohibition against torture. We arguethat a broad regional norm shifta norms cascadehas led to increased regional andinternational consensus with respect to an interconnected bundle of human rights norms, in-cluding the three discussed in this article. These norms are reinforced by diverse legal andpolitical enforcement mechanisms that help to implement and ensure compliance with them.

Conclusion: The Causes and Consequences of Legalizationby Miles KahlerThe intersection of law and politics provides tentative answers for two questions: First, why,among the variety of institutional forms available to governments, are legalized institutionspreferred in some contexts and not in others? Second, what are the consequences of legaliza-tion? Explanations for variation in legalization are directed to the supply of legalized institu-tions, grounded in the preferences of the most powerful states. Those preferences are shaped,in turn, by domestic political demands for legalization as well as unanticipated domestic po-litical dynamics that can increase legalization over time. Domestic political demands for legal-ization have increased as a result of international economic integration; the effects of democ-ratization have been more ambiguous. Outside the industrialized democracies, the intersectionof supply and demand is often different: supply of legalized institutions is lower and sover-eignty costs are often higher. The authors in this special issue examine three important conse-quences of legalization: its effects on government compliance with international agreements,its impact on the evolution of international norms, and the conditions under which it willharden and spread. In each case, domestic political links are central to the effects of legaliza-tion. International agreements and institutions that are legalized, compared with those that arenot, seem to be more deeply rooted in domestic politics: their existence often draws on bothanticipated and unanticipated actions by domestic actors; their consequences are shaped bydomestic characteristics and constituencies.

PrefaceJudith Goldstein, Miles Kahler,Robert O. Keohane, and Anne-Marie Slaughter

A collective work such as this one depends on a genuine community of scholars, andas Aristotle says, community depends on friendship (Politics Book IV, chapter xi,paragraph 7). All four editors have been friends for some time, and the origins of thisspecial issue arise from these friendships.

Anne-Marie Slaughter and Bob Keohane began in the spring of 1993 seriously todiscuss a joint article that they had first imagined during a conference on anotherjoint project: a conference at Stanford on ideas and foreign policy, organized by JudyGoldstein and Bob Keohane in January 1990. Their notions were somewhat incho-ate, but had to do with how domestic courts might strengthen the credibility of inter-national commitments. The specific origins of this volume, however, began with avisit by Bob Keohane to Stanford in early 1994, during which Judy Goldstein sug-gested putting together a working group on domestic politics and international law.She then took the first concrete step, by applying to the National Science Foundationprogram in law and society for a conference grant. For crucial funding for this project,we are particularly grateful to the National Science Foundation, and to the Instituteon Global Conflict and Cooperation (IGCC) of the University of California.

The four of us first got together to discuss the project at Provence restaurant inNew York City, at the American Political Science Association convention, Septem-ber 1994, and decided to do this project. We then wrote in early 1995 to a number ofcolleagues inviting them to a preliminary conference on domestic politics and inter-national law. We asked not for papers but for short memos with ideas about themes.The Center for International Affairs at Harvard generously supported this confer-ence, and the Center for European Studies offered its magnificent facilities for ourmeeting, which took place 24 November 1995.

At that meeting, we began to discuss the concept of legalization, although ourdefinition of this concept was quite rough and vague. The Harvard meeting, however,was decisive in turning our attention in this direction, and in solidifying our collec-tive view that this was a topic worthy of our sustained attention. A number of even-tual contributors to this volume attended that meeting, including Kenneth Abbott,

International Organization 54, 3, Summer 2000, pp. xiiixv 2000 by The IO Foundation and the Massachusetts Institute of Technology

Lisa Martin, Andrew Moravcsik, Kathryn Sikkink, Beth Simmons, and Duncan Sni-dal. We are also grateful to the other participants, some of whom we unsuccessfullysought as authors of articles for this project. These participants included AbramChayes, Stanley Hoffmann, Benedict Kingsbury, Stephen D. Krasner, Charles Lip-son, Kal Raustiala, Jeremy Rabkin, John Setear, Martin Shefter, Alec Stone Sweet,Frank Upham, Ruth Wedgwood, and Barry Weingast.

After the Harvard meeting, we continued to write on this subject and communicatewith one another. Judy Goldstein, Anne-Marie Slaughter, and Kathryn Sikkink pre-sented papers for a roundtable on international law and domestic politics at the Ameri-can Political Science Association convention in August 1996, in which other mem-bers of our group also participated. Several participants in the Harvard conferencereconvened for a small meeting on international institutions at Duke in September1996, and further discussed aspects of legalization. Most significantly, Judy Gold-stein and Miles Kahler began to organize a full-scale conference on domestic politicsand international law at the Harvest Inn, St. Helena, California, 47 June 1997. Atthis conference, papers were presented. The descendants of some of those papersappear in this special issue. In addition to the contributors to this volume (all ofwhom attended the St. Helena conference), we are grateful to the following partici-pants, whose comments were valuable in shaping the volume to result: William Al-ford, David Caron, Benjamin Cohen, Kurt Gaubatz, Peter Gourevitch, Stephan Hag-gard, Benedict Kingsbury, David Lake, Kal Raustiala, Amy Searight, John Setear,Christina Sevilla, Martin Shapiro, and Frank Upham.

The most significant accomplishment of the St. Helena conference was an agree-ment that the focus of the volume would be legalization and world politics. Thisagreement required consensus on the core of the concept of legalization, which isdiscussed in Abbott et al. in this volume. Elements of previously separate papers byKenneth Abbott and Duncan Snidal, on the one hand, and Bob Keohane, AndrewMoravcsik, and Anne-Marie Slaughter, on the other, were merged to produce thisfive-author concepts paper. We editors are particularly grateful to Kenneth Abbott,who played a leading role in developing and explicating the concept of legalizationaround which this volume revolves.

It became clear at the St. Helena conference that some of the papers overlappedand others conflicted; some were quite strong, but many were in need of extensiverevision. To promote discussion, Judy Goldstein had organized a roundtable on do-mestic politics and international law at the American Political Science Associationconvention in August 1997, in which Karen Alter, Judy Goldstein, Miles Kahler,Stephen D. Krasner, Lisa Martin, and Beth Simmons participated. A flurry of emailcorrespondence followed over the summer and fall. By mid-December, we had de-vised a proposed outline for the volume, which bears a fairly close resemblance tothe volume that you have in your hands. By this time, the editors had sent to allauthors detailed and often extensive suggestions for changes in their papers. As theonly international lawyer in our group, Anne-Marie Slaughters guidance to authors,and her co-editors, was invaluable to whatever success this project has as an interdis-ciplinary venture.

xiv International Organization

Our suggestions were sufficiently extensive that the authors needed their summersto work on them. Between July and November 1998, the revised chapters flowed in.After further revisions had been made, we were ready to send some of the draftpapers to International Organization in April 1999. Meanwhile, Miles Kahler pro-duced a conclusion, synthesizing many of the insights of the papers, and articulatinga set of themes. By late August, the editors of IO, Peter Gourevitch and David Lake,had received reviews from the two referees. Professors Gourevitch and Lake contrib-uted extensive and perceptive comments and detailed instructions, which we re-ceived in September. Responding to these comments, the special issue editors com-municated again (for at least the third time) with each paper author, with guidance forrevisions. The results of this process included a new introduction; in addition, everypaper in the volume was thoroughly revised.

The review process was extraordinary, yielding approximately eighty single-spaced pages of comments. One of the referees, whom we now know to be ProfessorRichard Steinberg of UCLA Law School, wrote the most brilliant and meticulouslydetailed comments that we have ever seenon every paper. Professor Steinberg istruly our shadow editor. We are extraordinarily grateful to him, to the anonymousreferee, and to the editors of IO, for contributions that were far and above the call ofduty, and without which our volume would have been much inferior to what youhave in your hands. We would also like to thank Lynne Bush and Joni Harlan for theirextraordinary efforts in producing this volume.

Collective projects entail collective action, which can retard progress. With foureditors, responsibility for taking initiatives was not always well-defined. As long as itwas not clear that the volume would succeed, authors were naturally reluctant to giveit the highest priority in their own work schedules. During the period between August1997 and April 1999, Bob Keohane played the role of principal organizer, cheer-leader, and arm-twister, seeking to maintain momentum and morale. In the springof 1999, when the papers were submitted to IO, Miles Kahler took over the chiefresponsibility for organizing the editorial process. When the volume was condition-ally accepted for publication in September 1999, we all pushed aside other projectsto put Legalization and World Politics on the front burner. As a result, all paperswere back to IO before the end of 1999. Subject to some last-minute revisions,completed in February, the editors put us on the fast track for publication in thesummer of 2000.

The long gestation period of this project has been accompanied by some moodswings, with periods both of exhilaration and malaise. But the editors friendshiphas survived, and has even become more robust. Friendship is a stimulus to franknessbut an antidote to irritation. A shared ironic sense of humor also helps. In the end, wehope that our friendship will have made a contribution to the scholarly community ofwhich we are only a small part.

Preface xv

Introduction: Legalizationand World PoliticsJudith Goldstein, Miles Kahler,Robert O. Keohane, and Anne-Marie Slaughter

In many issue-areas, the world is witnessing a move to law. As the century turned,governments and individuals faced the following international legal actions. TheEuropean Court of Human Rights ruled that Britains ban on homosexuals in thearmed forces violates the right to privacy, contravening Article 8 of the EuropeanConvention on Human Rights.1 The International Criminal Tribunal for the FormerYugoslavia indicted Yugoslav president Slobodan Milosevic during a NATO bomb-ing campaign to force Yugoslav forces out of Kosovo.2 Milosevic remains in place inBelgrade, but Austrian police, bearing a secret indictment from the InternationalCriminal Tribunal, arrested a Bosnian Serb general who was attending a conferencein Vienna.3 In economic affairs the World Trade Organization (WTO) Appellate Bodyfound in favor of the United States and against the European Union (EU) regardingEuropean discrimination against certain Latin American banana exporters.4 A U.S.district court upheld the constitutionality of the North American Free Trade Agree-ment (NAFTA) against claims that its dispute-resolution provisions violated U. S.sovereignty.5 In a notable environmental judgment, the new Law of the Sea Tribunalordered the Japanese to cease all fishing for southern bluefin tuna for the rest of theyear.6

1. See Lustig-Prean and Beckett v. The United Kingdom, App. Nos. 31417/96 and 32377/96 (27 Sept.1999); Smith and Grady v. The United Kingdom, App. Nos. 33985/96 and 33986/96 (Eur. Ct. H.R.) (27Sept. 1999) (available athttp://www.echr.coe.int/eng/Judgments.htm).

2. See Roger Cohen, Warrants Served for Serbs Leader and 4 Assistants, New York Times, 28 May1999, A1; and Raymond Bonner, Despite Indictment, Politicians and Diplomats Control Milosevics Fu-ture, New York Times, 28 May 1999, A13.

3. See Marlise Simons, Top Bosnian Officer Arrested for U.N. Tribunal, New York Times, 26 August1999, A10.

4. See European CommunitiesRegime for the Importation, Sale, and Distribution of BananasRecourse to Arbitration by the European Communities Under Article 22.6 of the DSU, Decision by theArbitrators, WTO Doc. WT/DS27/ARB (9 Apr. 1999) (available at http://www.wto.org/wto/dispute/distab.htm).

5. See Made in the USA Foundation v. United States, 56 F. Supp. 2d 1226 (n.d. Ala. 1999).6. See Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (order of 27 August

1999) (Intl Trib. for the Law of the Sea) (available at http://www.un.org/Depts/los/ITLOS/Order-tuna34.htm).International Organization 54, 3, Summer 2000, pp. 115 2000 by The IO Foundation and the Massachusetts Institute of Technology

These actions, taken in the course of a single year, were representative of a longerterm trend: some international institutions are becoming increasingly legalized. Thediscourse and institutions normally associated with domestic legal systems have be-come common in world politics. This move to law is not limited to the actions ofinternational tribunals. Legally binding environmental treaties have proliferated inrecent years. These agreements often trace their lineage to hortatory political pro-nouncements but often become closer to hard law over time. The Montreal Protocolon Substances Depleting the Ozone Layer, for instance, is now a legally binding andprecise agreement with a related system of implementation review involving thirdparties.7 Arms control agreements display increasing precision and elaboration intheir commitments and in the scale of their implementing bureaucracies. The prolif-eration of nuclear weapons and the possession and deployment of entire classes ofother weapons (among them chemical weapons and landmines) are now subject todetailed legal conventions.

Despite these prominent examples, however, the move to law is hardly uniform.Compliance with the judgments of international tribunals and WTO panels remainsuneven. Military intervention, both unilateral and multilateral, continues to occurwithout clear international legal authority. The NATO bombing of Serbia in 1999was only one recent example of a decline in the precision of rules governing armedintervention, as challenges to the old norms of territorial sovereignty have mounted.Major arms control treaties are stalled by domestic political opposition. Neither ex-change rates nor the provision of multilateral financial aid are subject to precise legalrules. An important environmental initiative, the Framework Convention on ClimateChange, imposes only vague obligations, although the recent Kyoto Protocol hassubstantially increased the density of the norms in this regime. Other regimes, suchas that for international whaling, have maintained the same degree of legalizationover several decades. Many Asian nations have explicitly rejected legalized institu-tions, preferring a model that eschews formal legal obligations. Latin American na-tions have been similarly cautious about pooling sovereignty in independent institu-tions such as those that characterize the EU, despite repeated efforts to promoteeconomic integration of various parts of the continent.

The goal of this special issue of IO is a better understanding of this variation in theuse and consequences of law in international politics. Legalization, a particular formof institutionalization, represents the decision in different issue-areas to impose inter-national legal constraints on governments. This issue of IO defines legalization andelaborates different types of legalization. It charts the extent of legalization and itsvariation across issue-areas and regions. It explains why actors choose to createlegalized institutions. It investigates the consequences of legalization on participants,on political and legal processes, and on the international system. Finally, it exploreshow international politics within legalized institutions differs from politics in non-legalized institutions.

7. Victor 1998.

2 International Organization

By developing a framework for the study of legalization, we are able to uniteperspectives developed by political scientists and international legal scholars andengage in a genuinely collaborative venture. We view law as deeply embedded inpolitics: affected by political interests, power, and institutions. As generations ofinternational lawyers and political scientists have observed, international law cannotbe understood in isolation from politics.8 Conversely, law and legalization affectpolitical processes and political outcomes. The relationship between law and politicsis reciprocal, mediated by institutions.

In this introduction we map the way in which legalization, its causes, and itsconsequences will be assessed. We provide a summary of the definition of legaliza-tion adopted in this issue and as developed in the article by Kenneth Abbott, RobertO. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal. Wedescribe the different perspectives on legalization coming from international law andpolitical science and outline the theoretical puzzles that legalization poses for inter-national relations theory. Finally, we summarize the articles in the context of thebroader research problems faced by each of the contributors to this special issue.

Legalization and International Institutions

International institutionsenduring sets of rules, norms, and decision-making proce-dures that shape the expectations, interests, and behavior of actorsvary on manydimensions. The WTO and the international regime for the protection of polar bearsare both institutions, but they differ according to the scope of their rules, the re-sources available to the formal organizations, and their degree of bureaucratic differ-entiation. In general, greater institutionalization implies that institutional rules gov-ern more of the behavior of important actorsmore in the sense that behaviorpreviously outside the scope of particular rules is now within that scope or thatbehavior that was previously regulated is now more deeply regulated.

Substantial institutionalization can be demonstrated to exist in world politics, butlegalization represents a specific set of dimensions along which institutions vary. Thedefinition of legalization adopted in this issue contains three criteria: the degree towhich rules are obligatory, the precision of those rules, and the delegation of somefunctions of interpretation, monitoring, and implementation to a third party. Fullylegalized institutions bind states through law: their behavior is subject to scrutinyunder the general rules, procedures, and discourse of international law and, often,domestic law. Legalized institutions also demonstrate a high degree of precision,meaning that their rules unambiguously define the conduct they require, authorize, orproscribe. Finally, legal agreements delegate broad authority to a neutral entity forimplementation of the agreed rules, including their interpretation, dispute settlement,and (possibly) further rule making.

8. See Henkin 1979; Schacter 1991; and Claude 1966.

Introduction 3

Each of these three dimensions can vary from high to low, and each can varyindependently of the others. Abbott, Keohane, Moravcsik, Slaughter, and Snidal con-struct a typology of legalized institutions that varies from an ideal-type of completelegalization in which all three properties are high through various forms of partiallegalization to institutions without legalization. Abbott and Snidal, in their article,elaborate this typology along a spectrum from hard to soft law, and develop a richand innovative set of candidate explanations for this variation. They draw on a widerange of actual examples of more or less legalized regimes within the categories setforth by the typology.

This definition does not portray legalization as a superior form of institutionaliza-tion. Nor do the contributors to this special issue adopt a teleological view that in-creased legalization in international relations is natural or inevitable. In using theconcept of legalization to guide our collective analysis, we consider softer variants(lower legalization) to be of equal interest to hard law. Why actors move from oneform of legalized institution to another is also central. Such moves include the formal-ization of an informal understanding or customary practice, the adoption of system-atic rules to crystallize and codify practices as they evolve, and the strengthening ofdelegation to increasingly independent and powerful third-party tribunals.

The Uneven Expansion of Legalization

Legalization has expanded in contemporary world politics, but that expansion isuneven. In this section we review the approach of recent international legal scholar-ship, which has chronicled and categorized this move to law but has largely failedto evaluate or challenge it. Approaches from political science should be more helpfulin explaining the puzzle of uneven legalization; the remainder of the section de-scribes the insights and shortcomings of the political science literature.

Variation in Legalization

The revival of the use of law in international politics has not gone unnoticed, al-though legal scholarship has analyzed it through different lenses. The actual or argu-able power of law and courts has been one central perspective in the study of the EUand the WTO, for example. Many specialists in law accept that European economicintegration has depended on the construction of an effective EU legal system. TheEuropean Court of Justice (ECJ) is depicted as a central player in this process, pro-pounding the legally binding character of both the Treaty of Rome and EU directivesand ensuring that EU law was enforceable through third-party adjudication, ofteninitiated by private individuals and firms.9 Recently, political scientists and lawyershave challenged this canonical narrative, emphasizing congruence between ECJ judg-

9. See Stein 1981; Weiler 1991; and Burley and Mattli 1993.


ments and state interests and variation in the relationship between the ECJ and differ-ent national courts.10

In the legal literature, these debates now fall under the larger rubric of the consti-tutionalization of the Treaty of Rome,11 a view that emphasizes the role of courts ina unique effort to construct a supranational European polity rather than the legaliza-tion of an intergovernmental regime. Constitutional rhetoric and an emphasis on agrowing role for law and third-party adjudication also figure in research on the evo-lution of the world trading system, now increasingly understood as the emergence ofan international economic constitution.12 Constitutionalization, however, is a verybroad brush, sweeping in foundational problems of social order. More narrowly fo-cused studies of trade regimes and of the commercial arbitration agreements thatfacilitate foreign direct investment instead describe the phenomenon of judicializa-tion of dispute-settlement processes, essentially emphasizing our third variable:delegation.13

Many scholars have analyzed the judicialization of the General Agreement onTariffs and Trade (GATT) dispute-settlement system, chronicling the long-runningstruggle between trade legalists, those seeking third-party adjudication of tradedisputes under clear legal rules, and trade pragmatists, those supporting nonbind-ing forms of dispute resolution that allowed more scope for power and diplomacy.14The evolution of GATT dispute-settlement procedures in the direction of a morelegalized regime under the WTO represents a victory for the legalists. ContemporaryWTO panels are conducted in accord with legal norms. Lawyers present detailedlegal arguments that require a response from all parties; panel members constructtheir decisions with the assistance of a legal secretariat that helps them to resolvelegal issues rather than broker a political compromise.15 International commercialarbitration has experienced a similar evolution, as arbitrators become more like judgesand arbitration procedure becomes more like judicial procedure.16

An emphasis on courts as both creators and guarantors of an international rule oflaw extends beyond economic regimes. International lawyers have drawn attentionto the proliferation of international and supranational tribunals in such issue-areas ashuman rights, the law of the sea, intellectual property, and international environmen-tal protection.17 These tribunals range from courts with direct jurisdiction over indi-vidual claims and enforcement powers over national governments to much less am-bitious noncompliance bodies designed to oversee implementation of variousenvironmental agreements.18 An entire subspecialty has developed in international

10. See Garrett and Weingast 1993; Garrett, Kelemen, and Schulz 1998; Slaughter, Stone Sweet, andWeiler 1998; and Alter 1998a,b.

11. See Weiler 1999; and Stone Sweet 1998.12. See Jackson 1998; and Petersmann 1991.13. See Hudec 1992; and Stone Sweet 1999 and 2000.14. See Trimble 1985; Jackson, Louis, and Matsushita 1984; and Jackson and Davey 1986.15. Hudec 1992 and 1999.16. See Lillich and Brower 1994; and Stone Sweet 1999.17. Romano 1999.18. Ibid.

Introduction 5

criminal law, driven by the creation of international war crimes tribunals, such as theBosnia and Rwanda tribunals, proposed hybrid arrangements involving both nationaland international judges in Cambodia and possibly East Timor, and a nascent Interna-tional Criminal Court.19

The legal literature typically describes these tribunals, analyzes and evaluates theirdecisions, and theorizes their relationship to one another in terms of a global legalsystem.20 A growing number of scholars also seek to evaluate their effectivenessbased on a set of criteria developed across issue-areas.21 What the legal literatureomitsand what this special issue includesis an explanation for government deci-sions to establish such tribunals. Somewhat paradoxically, legal scholars also oftenfail to analyze courts in the larger context of legalization.

The broader definition of legalization that informs this special issue includes judi-cialization, but it also emphasizes the importance of rule precision and degree ofobligation. For example, certain international agreements, including in part the UNConference on the Law of the Sea Convention, are expressly designed as instrumentsof codification. Other agreements, such as the transformation of voluntary guidelinesof the UN Food and Agricultural Organization and the UN Environment Programregarding hazardous pesticides and chemicals into legally binding treaties are changesin the obligatory rather than the formal qualities of law.22 The rules themselves canbecome more specific, highly elaborated, and technical, qualities captured in theconcept of juridification in some areas of domestic law.23

Legalization as defined here also allows capture of a wider range of variation ininternational institutions. A singular focus on high-profile international tribunals canobscure a broader spectrum of delegation. The World Bank, for example, under itsgeneral mandate to promote development, has developed operational standards forenvironmental impact assessment, treatment of indigenous peoples, and participationof nongovernmental organizations in project planning. These policies become le-gally binding on borrower states when incorporated in loan documents, and they areenforced by the World Banks Inspection Panel. In other instances, states avoid suchdelegation. Merit Janow notes, for example, that even the most legalistic of APECsmembers [the United States, Canada, and Australia] have not called for the creationof an expanded APEC bureaucracy or the development of a new supra-national au-thority to administer or develop APEC-wide rules.24 Even within particular treatyregimes, levels of delegation can vary. NAFTA contains a wide variety of dispute-settlement mechanisms: binational panels that produce resolutions enforceable throughnational courts, transgovernmental commissions appointed to oversee specific issue-areas, and interstate bargaining with a nonbinding panel decision as a focal point.25

19. See Bassiouni 1999; Morris and Scharf 1995 and 1998; and Ratner and Abrams 1997.20. See Romano 1999; and Charney 1999.21. See Helfer and Slaughter 1997; Romano 1999; Pan 1999; Noyes 1998; Knox 1999; and Helfer

1998.22. Mekouar 1998.23. Teubner 1987.24. Janow 1996/1997.25. Morales 1997.


Just as many existing treatments of the move to law have concentrated on thedimension of delegation and the creation of new judicial or quasi-judicial tribunals,so examination of the consequences of legalization has emphasized its effects ondomestic legal institutions. NAFTAs domestic legal effects have varied to the samedegree as its legalization. The binational panels established under NAFTA Chapter19 have changed U.S. administrative behavior in the determination of unfair tradingpractices that warrant the imposition of countervailing duties.26 Gilbert Winham de-scribes the NAFTA Chapter 19 achievement as the possible beginning of an interna-tionalized form of administrative law.27 A Mexican legal scholar argues that in-creased competition from international tribunals promotes domestic judicial reformin Mexico.28 On the other hand, NAFTAs transgovernmental Commission on Envi-ronmental Cooperation is too weak to create the pressures necessary to cause sub-stantial redrafting of environmental legislation and is useful largely as a device fordisseminating information about effective domestic environmental law.29 What isagain often missing in these accounts is an exploration of the wider political context.

Explaining Legalization

The expansion of legalization into new domains and the unevenness of that expan-sion raise theoretical puzzles that have remained largely unexplored. Why and whendo states choose legalized institutional forms when their autonomy would be lessconstrained by avoiding legalization? How do legalized constraints operate to changegovernment behavior, if they do? Are efforts to legalize certain issue-areas in worldpolitics realistic attempts to facilitate cooperation or misguided attempts to constructa stable order on the basis of fragile norms rather than the realities of power politics?Although contemporary theoretical perspectives in international relations can sug-gest tentative answers to these puzzles (or at least suggest where to look for theanswers), in recent decades few international relations scholars have directly tackledthe question of legalization and its consequences.

Realist arguments regard international legal constraints as either nonexistent orweak. For those propounding an anarchic international politics based on nationalself-help, the central puzzles are why states devote so much attention to constructinglegalized institutions that are bound to have so little effect and why states accept ascredible pledges to obey legal rules that could effectively bind them to act in waysthat might be antithetical to their interests. To the degree that legalization representsrules that do bind at least some governments, the realist explanation is clear: legalrules emanate from dominant powers and represent their interests. Legal rules thatwork bind the weaker members of the system; enforcement of those rules ulti-mately depends on a willingness by stronger powers to bear the costs of enforcement.

26. Goldstein 1996.27. Winham 1998.28. Fix-Fierro and Lopes-Ayllon 1997.29. Raustiala 1996.

Introduction 7

Normatively, realist political scientists have been skeptical of the value of interna-tional legal advances. E. H. Carr famously criticized legalism divorced from powerand politics;30 George F. Kennan attacked what he saw as the legalism-moralismof U.S. foreign policy.31 Legalism as an approach to world politicsif not legaliza-tion as defined hereprovides comforting and delusional justification for policiesthat are inconsistent with the realities of interest and power. Those policies are likelyto collapse under pressure, often with catastrophic consequences. In this view, legal-ism may constrain intelligent diplomatic accommodation.

Institutionalist theory offers a different, though only partial, answer to these puzzles.Functionalist theories of international institutions, which stress the role of institu-tions in reducing uncertainty and transaction costs, have seldom dealt directly withthe distinction between legalized and nonlegalized agreements.32 In certain respectsthe study of international institutions in political science has been directed to demon-strating that informal institutionsnot legalized and lacking any centralized enforce-mentcould still be effective. On the basis of institutionalist theory one shouldexpect frequent informal agreements, some formal rules, and loopholes that provideflexibility in response to political exigencies. Institutionalist theory accommodatessuch antilegalist realities as the neglect of dispute-settlement mechanisms in GATTduring the 1970s, at the same time that voluntary export restraints and other gray-area measures proliferated outside the GATT legal structure. Institutionalist theoryhas explained how cooperation endures without legalization, but it has not explainedlegalization. Abbott and Snidal extend institutionalist reasoning to an explanation oflegalization and its variations in their article in this issue.

Although liberal approaches to world politics have been most closely associatedwith a promotion of international law and legalized institutions (for example, theInternational Court of Justice), liberalisms theoretical contribution to the investiga-tion of legalization lies more in its emphasis on the importance of domestic politics:the preferences of domestic groups and their mobilization and representation in do-mestic and transnational political institutions. The attention paid by liberal theoriststo the relationship between domestic politics and international institutions produceshypotheses regarding the causes and consequences of legalization. Certain forms ofinternational legalizationin particular those that fall under the category that Keo-hane, Moravcsik, and Slaughter term transnational legalizationmay be de-signed to grant domestic actors direct access to international tribunals. This de factoshift in the institutional representation for social actors provides a unique form ofrepresentation for many social actorsone that reduces the cost of political action,thereby increasing the flow of internationally directed legal action and hence thelikelihood of further development of legal rules.

30. Carr 1939.31. Kennan 1984.32. Charles Lipsons research on informal agreements is a partial exception, emphasizing that informal

agreements can promote cooperation and seeking to explain how decentralized systems of incentives canhelp to make agreements effective without a formal legal system. Lipson 1991.


Governments and domestic groups may also deliberately employ international le-galization as a means to bind themselves or their successors in the future. In otherwords, international legalization may have the aim of imposing constraints on domes-tic political behavior. Finally, liberal theory suggests that the primary site for theenforcement of international law is ultimately domestic. International legal normsare most effectively enforced when they are embedded in autonomous domestic ruleof law legal systems through legal incorporation, judicial acceptance, or acceptanceby lawyers and litigants. The more important incentives for compliance are ulti-mately domestic.33

Constructivists have called attention to the basis for international identities andinstitutions in shared norms and beliefs, but they have not explained the distinctive-ness of legal norms or why actors sometimes prefer to reinforce normative consensuswith legalized institutions. Some constructivist scholars explicitly integrate their ap-proach with the study of law.34 Others emphasize the particular role that law can playas the crystallization of state expectations, suggesting a dynamic process of hard-ening norms over time.35 Within legal scholarship, Thomas Francks theory of legallegitimacy, which explains the compliance pull of legal norms through their deter-minacy, pedigree, adherence, and coherence, also fits easily within a constructivistframe of analysis.36 Overall, constructivist explanations of legalization are likely tohinge less on functionalist and interest-driven accounts and more on historicallycontingent narratives regarding the emergence of a particular legal understanding.37

If legal scholars have provided a rich and valuable account of one dimension ofcontemporary international legalizationincreasing delegation to judicial and quasi-judicial institutionsinternational relations theorists have pointed to several alterna-tive explanations for the variable appearance of legalization and likely sites for exam-ining the consequences of legalization. Each of these approaches finds expression inthis special issue, as a more detailed description of the articles will demonstrate.

Organization of the Special Issue

The first three articles present a theoretical frame that each of the subsequent articlesdeploys. Abbott, Keohane, Moravcsik, Slaughter, and Snidal set forth and elaboratethe definition of legalization. A typology of legalization, presented in Table 1 of theirarticle, provides a classificatory structure for comparative analysis. The case studiesin the remaining articles (except the article by Abbott and Snidal) can be located andcompared with one another in the terms set by this table.

Abbott and Snidal develop the spectrum of hard and soft legal arrangements. Theyprovide explanations for decisions to make agreements harder or softer on one

33. See Slaughter 1995a; and Mattli and Slaughter 1998b.34. Finnemore 1996, 13943.35. Finnemore and Sikkink 1998.36. Franck 1990.37. Finnemore and Sikkink 1998.

Introduction 9

or more dimensions that focus on contracting and transaction costs theory as well asnormative considerations. In their view legalization can help states and other actorsresolve the commitment problems that are pervasive in international politics, reducetransaction costs, and expand the grounds for compromise. These benefits stem fromboth interest-based and norm-based processes, and they accrue to interest-based andnorm-based agreements. But legalization also entails contracting costs of its own, aswell as imposing constraints on government action (autonomy costs). Under differ-ent conditions, including different levels of uncertainty and different time horizonsamong actors, hard and soft law will imply different ratios of costs and benefits.Hence, it should be possible, Abbott and Snidal argue, to account for variations inlegalization by identifying how institutional arrangements involving greater or lesserdegrees of obligation, precision, and delegation generate particular patterns of costsand benefits. Their approach to legalization can be deployed to explain governmentbehavior as well as the behavior of groups that evaluate their interests for or againstlegalization.

Keohane, Moravcsik, and Slaughter introduce an explanatory variable that tieslegalization to domestic politics more directly: whether individuals have direct ac-cess to the dispute-resolution process (transnational dispute resolution) or whetherthose processes are limited formally to governments (interstate dispute resolution).They describe the different politics that surround these two types of dispute resolu-tion and argue that the two have very different results for the expansion of legaliza-tion. Since members of civil society may assess the autonomy costs of legalizationvery differently than governments, transnational legalization has much greater poten-tial for expansion than traditional interstate legalization.

The remaining contributors examine specific institutional arrangements, arrayedby region (Karen Alter; Frederick Abbott; and Miles Kahler) and by issue-area (BethSimmons; Judith Goldstein and Lisa Martin; and Ellen L. Lutz and Kathryn Sik-kink). These contributors evaluate the extent of legalization in each case, providingexplanations for the pattern of legalization and what effect legalization has had onparticipants and policies.

Alter concentrates on the effects of high legalization in the EU on EU policies. Shediscovers, in accord with the model of transnational dispute resolution presented byKeohane, Moravcsik, and Slaughter, that the politics surrounding European law andlegal institutions are different from a strictly interstate model. However, she alsoargues that the effects of this highly legalized system are highly dependent on media-tion by domestic political and judicial institutions. The dynamic of increasing legal-ization is far from automatic or inevitable. She suggests conditions under which thatdynamic is likely to be more or less powerful, or to be reversed in the face of nationalbacklash.

Frederick Abbott describes another, less legalized regional agreement, NAFTA,that embodies a high degree of obligation and precision but a much lower degree ofdelegation than one finds in the EU. NAFTAs design ensures that political leaderswill continue to make key decisions. Nevertheless, where delegation has occurred,such as the delegation of midlevel decisions to binational panels, the degree of imple-


mentation of these decisions has been very high. In assessing NAFTAs implementa-tion, Abbott notes that the agreement has not been tested in hard times: politicalcommitment to implementation on the part of member governments has been high.Whether the constraints of NAFTA are binding in the longer term will only be re-vealed when a member government is dissatisfied with major provisions of the agree-ment.

The case of regionalism in the Asia-Pacific region, examined by Kahler in hisarticle, is the principal example of an explicit choice in favor of low legalization.Kahler demonstrates this choice on the part of Asian governments in a comparison ofthree different regional organizations: the Association of Southeast Asian Nations(ASEAN), the ASEAN Regional Forum, and Asia-Pacific Economic Cooperation(APEC). Kahler presents institutionalization in the near-absence of legalization. Re-cent differentiation among these regional organizations, however, suggests not onlythat the level of legalization could change in the future, but that it is explained by thestrategic choice of governments in the face of a changing international and regionalenvironment.

The final three articles examine legalization in three key issue-areas: internationalmonetary affairs, trade, and human rights. Simmons explains both the willingness ofgovernments to accept binding legal obligations in international monetary affairs andtheir compliance with those commitments. In an international regime that has demon-strated wide swings in legalization over time, she concentrates on Article VIII of theInternational Monetary Fund Articles of Agreement, which requires members to keepcurrent account transactions free from exchange restrictions. Her analysis illumi-nates both international and domestic explanations for these choices in favor of legal-ized commitments. Most provocatively, she calls into question any easy connectionbetween democracy and the choice for legalization (or compliance with legal obliga-tions).

Goldstein and Martin analyze legalization of the international trade regime, usu-ally accepted as one of the most legalized global economic regimes. Despite theregimes relatively high level of legalization, Goldstein and Martin emphasize thatlegalization operates through politics, by changing processes of decision making,interpretation, and implementation. However, their assessment of the domestic politi-cal effects of legalization under GATT and the WTO leads to skepticism regardingthe positive effects of legalization on national compliance and international coopera-tion. Overall, the impact of legalization on trade liberalization will depend on itseffects on the incentives for political mobilization at home.

Lutz and Sikkink examine human rights law in Latin America through the evolu-tion of norms and international legal obligations regarding democratization and twohuman rights abuses, torture and disappearance. Levels of legalization vary consider-ably in these three issue-areas, but all three demonstrated marked improvement in the1980s and 1990s. Lutz and Sikkink propose an alternative explanation based ontransnational politics and the evolution of international norms to explain improvedcompliance in the absence (in some cases) of higher legalization.

Introduction 11

Kahler, in his conclusion to the special issue, couples the authors empirical find-ings with the theoretical frameworks presented in the first three articles. He empha-sizes that variation found in the pattern of legalization across issue-area and regioncan be explained only through understanding both interstate strategic calculations(will other governments accept legal obligations and higher levels of delegation?)and the domestic politics of participating states. The domestic politics of legaliza-tion, in turn, involve both choices for or against legalization by domestic groups andthe often unforeseen consequences of legalization on the structure and processes ofdomestic politics.

Legalization and World Politics: Common Assumptionsand Working Hypotheses

The contributors to this special issue have different disciplinary perspectives andinvestigate cases that vary by region and issue-area. Nevertheless, they share a com-mon set of assumptions and working hypotheses.

Legalization is a specific form of institutionalization. The contributors to thisissue all adopt the conceptualization of legalization set forth in The Concept ofLegalization by Abbott, Keohane, Moravcsik, Slaughter, and Snidal: a fully legal-ized institution is one with high levels of obligation, precision, and delegation. Mov-ing away from this ideal-type of hard law, institutions can be identified as partiallylegalized and legalized on one or more of these dimensions. Although the form oflegalization may vary, as represented in Table 1 of the article by Abbott et al., through-out the special issue legalization is understood as a particular and distinctive form ofinstitutionalization. All legalized regimes are institutionalized (they have durablerules); but not all institutionalized regimes are legalized. Legalized institutions incor-porate relatively precise substantive rules or obligations, though they may also con-tain the procedural rules and largely hortatory obligations that are characteristic ofnonlegalized international institutions. With respect to international agreements thatare not highly legalized, the interpretation of rules occurs in national capitals; legalinstitutions, on the other hand, delegate this function to third parties.

Legalized institutions can be explained in terms of their functional value, thepreferences and incentives of domestic political actors, and the embodiment ofparticular international norms. In addition to describing variation in legalizedinstitutions, the authors offer explanations for the choice of a legal form of interstatecooperation. The special issue is not committed to the view that legalized institutionsare a better or more efficient form of organization. Rather, the authors aim toexplain why actors choose legalized forms. The explanations advanced cluster intothree broad categories.

The first group of explanations is based on the anticipated consequences of alegal agreement. The incentive for nations to agree to more, rather than less, legal-ized accords derives from the functions performed by harder agreements. Using


this mode of explanation, Abbott and Snidal emphasize in particular the benefits oflegalization in forging credible commitments and reducing transactions costs. Thosebenefits, however, may be wholly or partially offset by negotiating costs and theadded constraints that legalization imposes on government decision-making au-tonomy. In this functional view legalized institutions provide a different set of pro-spective benefits than nonlegalized institutions.

The second group of explanations modifies this model of calculation by unitaryactors by adding the calculations of domestic political actors. These influential con-stituencies will have diverse preferences over the move to legalization. The simplestmodification of the first explanatory model finds the source of government prefer-ences in the aggregated preferences of influential groups. Individuals and groups willfavor or oppose legalization based on their assessments of whether the outcomes willfurther their interests. More complexity is added, however, when those domesticpolitical actors make strategic calculations designed to constrain not only other gov-ernments in their international behavior but also domestic actors, including their owngovernment. In the eyes of some domestic actors, estimates of the relevant conse-quences of legalization are not only international but also domestic. Since prospec-tive agreements differentially affect domestic actors, they change domestic politicsby mobilizing some actors and giving them greater access to policymaking. In par-ticular, precise agreements with binding arbitration introduce new actors into poli-tics, such as domestic courts and lawyers, and they also change the venues in whichdisputes are handled, away from national capitals and into court-like forums.

A third explanation for the choice of more legalization lies in normative evolution.Legalization can change domestic normative discourse regarding the efficacy of therule of law. Some actors favor law not only because it serves their interests but alsobecause they believe decisions taken according to legal precepts are superior to otherforms of governance. Belief in law as a good is not evenly distributed in thepopulation or across regions. Certainly, lawyers more often believe in the use of lawthan other occupational groups, though it is hard to separate the normative from thematerial basis of their support. Rule of law societies, given a precise definition bySimmons, appear to have a different record of compliance with legal obligations thanother societies. Understanding the interaction of norms and legalization is a chal-lenge for social science. In this special issue, only Lutz and Sikkink explicitly take upthe task. However, other contributors also suggest an interaction between an interest-based and a norms-based explanation for regime creation.

A key consequence of legalization for international cooperation lies in its effectson compliance with international obligations. Many of the contributors examinethe relationship between legalization and compliance. Without legalization, compli-ance is a difficult concept to define or measure, since no authoritative body exists tointerpret its meaning or apply it to particular cases.38 Legalization has its principaleffect on compliance and international cooperation through the mobilization of indi-

38. Simmons 1998, 78.

Introduction 13

viduals and groups in domestic politicsthe compliance (or noncompliance) constitu-encies discussed in Kahlers conclusion. As Keohane, Moravcsik, and Slaughter ar-gue, these compliance constituencies can have a transnational as well as a nationalcharacter. Different forms of legalization, particularly interstate and transnationallegalization, generate a different political dynamic, leading to variation in compli-ance with international obligations.

All of the contributors agree that legalization has led to some behavior change,although the magnitude and direction of these effects on compliance and interna-tional cooperation vary. Perhaps the most prominent cases are provided by the EUand the WTO, in which delegation to courts and quasi-judicial bodies has led to morefundamental changes in the locus of decision making.

Compliance with obligations, institutional effectiveness, and increased interna-tional cooperation may not coincide, in part because of the domestic effects oflegalization. The contributors do not base their investigations on any assumptionthat legalization, as compared to other forms of institutionalization, will necessarilyenhance international cooperation. The increased certainty produced by legalizationcould, in principle, reduce the risks of agreement and therefore enhance coopera-tion.39 For the functional reasons already stated, legalized agreements and institu-tions may induce more long-lasting agreements. The changes in domestic politicsgenerated by legalization may also reinforce the position of interests that favor en-hanced international cooperation. On the other hand, because of their increased cer-tainty and precision, legal agreements engender high negotiating costs, both acrosssocieties and within them: ex ante bargaining is likely therefore to be more prolongedand difficult.40 As Goldstein and Martin argue, clarity of obligation in an agreementmay reduce interest in the agreement itself, since its anticipated distributional conse-quences are clarified as well. A systematic evaluation of the net effects of legalizationon cooperation is beyond the reach of this special issue. It would require both validmeasures of cooperation in particular domains and an ability to distinguish the ef-fects of legalization from other causal variables, such as increases in economic inte-gration, shifts in domestic interests, and normative evolution. Since legalization, likeinstitutionalization, is to some extent endogenous to such factors, such an assessmentwould be daunting.41

The effects of legalization on world politics in the long run will depend on itscontinuing uneven spread. Its spread will depend on the evolution of interna-tional norms, its consequences for domestic and transnational politics, and itsperceived benefits for key actors. It is possible that legalization at the end of thecentury will be remembered as a temporary aberration, as it was in the 1920s. The

39. Bilder 1981.40. Fearon 1998.41. Keohane and Martin 1999.


articles that follow suggest at least three ways in which legalization could have longerlasting effects on international politics.

First, legalization may have a direct effect on the evolution of international norms.Legalization is more explicitly principled than specific diplomatic bargains, even ifthose bargains implicitly incorporate norms. The strengthening of norms helps ex-plain patterns of compliance and the expansion of legalized forms into new issue-areas; that is, beliefs can be self-reinforcing. Second, legalization may permanentlychange the nature of domestic and transnational politics in participating countries.International law can become internalized.42 Differential access by groups, the expan-sion of the role of the courts, and the delegation of authority to third parties couldlead domestic actors to change their expectations and behavior and promote an expan-sion of legalization. Legalization could also create transnational communities of sup-port for legalized agreements in specific issue-areas. This pro-law epistemic EUwould protect international agreements from retrenchment, and its members wouldserve as transnational advocates for its expansion. Finally, the more often legal agree-ments are signed and reap cooperative outcomes, the more often actors will return tothis institutional form as a model for future agreements. International cooperation isdifficult. Actors rely on focal points, not only for the distribution of gains from coop-eration but also for models of organization to assure joint gains. Whatever the rea-sons for success, success may well become associated with legalized forms. (Just asthe failure of some legalized institutions in the interwar decades provoked a negativereaction.) Success or failure, whether due to the institutional form or not, may be themost important determinant of whether the hard law model becomes more wide-spread across regions and issue-areas.

Legalization and World Politics: Aims and Expectations

The editors and authors of this special issue do not claim to have provided a coherentnew theory to explain the differentiated phenomenon that we have defined as legal-ization. Our interest is principally to open some conceptual and analytical doors to amore sustained and explicitly theoretical analysis of the connections between lawand politics in contemporary world politics. Overall, the authors express consider-able skepticism about the significance and contingency of the international and do-mestic effects of legalization. No assumption is made that legalization is a wave ofthe future. We did not begin with a normative stance, and we make few hard predic-tions about the future. Interstate legalization, as reflected in the jurisprudence of theInternational Court of Justice, has not transformed world politics. Likewise, althoughsignificant changes have occurred in such areas as trade and human rights, not all ofthese changes may be causally associated with legalization. We write neither to praisenor to bury legalization, but to analyze its dimensions, its sources, and its current andprospective effects.

42. Koh 1998.

Introduction 15

The Concept of LegalizationKenneth W. Abbott, Robert O. Keohane,Andrew Moravcsik, Anne-Marie Slaughter,and Duncan Snidal

The subject of this volume is legalization and world politics. World politics inthis formulation needs no clarification, but legalizationthe real focus of thevolumemust be more clearly defined, if only because of its relative unfamiliarity tostudents of international relations. In the introduction the editors have briefly pre-viewed the concept of legalization used throughout the volume, a concept developedcollaboratively by the authors of this article. We understand legalization as a particu-lar form of institutionalization characterized by three components: obligation, preci-sion, and delegation. In this article, we introduce these three characteristics, exploretheir variability and the range of institutional forms produced by combining them,and explicate the elements of legalization in greater detail.

The Elements of Legalization

Legalization refers to a particular set of characteristics that institutions may (ormay not) possess. These characteristics are defined along three dimensions: obliga-tion, precision, and delegation. Obligation means that states or other actors are boundby a rule or commitment or by a set of rules or commitments. Specifically, it meansthat they are legally bound by a rule or commitment in the sense that their behaviorthereunder is subject to scrutiny under the general rules, procedures, and discourse ofinternational law, and often of domestic law as well. Precision means that rulesunambiguously define the conduct they require, authorize, or proscribe. Delegationmeans that third parties have been granted authority to implement, interpret, andapply the rules; to resolve disputes; and (possibly) to make further rules.

Each of these dimensions is a matter of degree and gradation, not a rigid di-chotomy, and each can vary independently. Consequently, the concept of legalizationencompasses a multidimensional continuum, ranging from the ideal type of legal-

International Organization 54, 3, Summer 2000, pp. 1735 2000 by The IO Foundation and the Massachusetts Institute of Technology

ization, where all three properties are maximized; to hard legalization, where allthree (or at least obligation and delegation) are high; through multiple forms of par-tial or soft legalization involving different combinations of attributes; and finallyto the complete absence of legalization, another ideal type. None of these dimen-sionsfar less the full spectrum of legalizationcan be fully operationalized. Wedo, however, consider in the section entitled The Dimensions of Legalization anumber of techniques by which actors manipulate the elements of legalization; wealso suggest several corresponding indicators of the strength or weakness of legalarrangements.

Statutes or regulations in highly developed national legal systems are generallytaken as prototypical of hard legalization. For example, a congressional statute set-ting a cap on emissions of a particular pollutant is (subject to any special exceptions)legally binding on U.S. residents (obligation), unambiguous in its requirements (pre-cision), and subject to judicial interpretation and application as well as administra-tive elaboration and enforcement (delegation). But even domestic enactments varywidely in their degree of legalization, both across stateswitness the vague procla-mations and restrictions on judicial review imposed by authoritarian regimesandacross issue areas within statescompare U.S. tax law to political questions un-der the Constitution. Moreover, the degree of obligation, precision, or delegation informal institutions can be obscured in practice by political pressure, informal norms,and other factors. International legalization exhibits similar variation; on the whole,however, international institutions are less highly legalized than institutions in demo-cratic rule-of-law states.

Note that we have defined legalization in terms of key characteristics of rules andprocedures, not in terms of effects. For instance, although our definition includesdelegation of legal authority (to domestic courts or agencies as well as equivalentinternational bodies), it does not include the degree to which rules are actually imple-mented domestically or to which states comply with them. To do so would be toconflate delegation with effective action by the agent and would make it impossibleto inquire whether legalization increases rule implementation or compliance. Nordoes our definition extend to the substantive content of rules or their degree of strin-gency. We regard substantive content and legalization as distinct characteristics. Aconference declaration or other international document that is explicitly not legallybinding could have exactly the same substantive content as a binding treaty, or even adomestic statute, but they would be very different instruments in terms of legaliza-tion, the subject of this volume.

Our conception of legalization creates common ground for political scientists andlawyers by moving away from a narrow view of law as requiring enforcement by acoercive sovereign. This criterion has underlain much international relations think-ing on the topic. Since virtually no international institution passes this standard, it hasled to a widespread disregard of the importance of international law. But theoreticalwork in international relations has increasingly shifted attention away from the needfor centralized enforcement toward other institutionalized ways of promoting co-


operation.1 In addition, the forms of legalization we observe at the turn of the millen-nium are flourishing in the absence of centralized coercion.

Any definition is ultimately arbitrary at the margins. Yet definitions should striveto meet certain criteria. They should be broadly consistent with ordinary language,but more precise. To achieve precision, definitions should turn on a coherent set ofidentifiable attributes. These should be sufficiently few that situations can be readilycharacterized within a small number of categories, and sufficiently important thatchanges in their values will influence the processes being studied. Defining legaliza-tion in terms of obligation, precision, and delegation provides us with identifiabledimensions of variation whose effects on international behavior can be empiricallyexplored.

Our concept of legalization is a working definition, intended to frame the analyticand empirical articles that follow in this volume as well as future research. Empiricistin origin, it is tailored to the phenomena we observe in international relations. We arenot proposing a definitive definition or seeking to resolve age-old debates regardingthe nature of law or whether international law is really law. Highly legalizedarrangements under our conception will typically fall within the standard interna-tional lawyers definition of international law. But many international commitmentsthat to a lawyer entail binding legal obligations lack significant levels of precision ordelegation and are thus partial or soft under our definition.

We acknowledge a particular debt to H. L. A. Harts The Concept of Law.2 Hartdefined a legal system as the conjunction of primary and secondary rules. Primaryrules are rules of obligation bearing directly on individuals or entities requiring themto do or abstain from certain actions. Secondary rules, by contrast, are rulesabout rulesthat is, rules that do not impose obligations, but instead conferpowers to create, extinguish, modify, and apply primary rules.3 Again, we do notseek to define law or to equate our conception of legalization with a definition of alegal system. Yet Harts concepts of primary and secondary rules are useful in help-ing to pinpoint the distinctive characteristics of the phenomena we observe in inter-national relations. The attributes of obligation and precision refer to internationalrules that regulate behavior; these closely resemble Harts primary rules of obliga-tion. But when we define obligation as an attribute that incorporates general rules,procedures, and discourse of international law, we are referring to features of theinternational system analogous to Harts three main types of secondary rules: recog-nition, change, and adjudication. And the criterion of delegation necessarily impli-cates all three of these categories.4

1. See the debate between the managerialperspective that emphasizes centralization but not enforce-ment, Chayes and Chayes 1995, and the compliance perspective that emphasizes enforcement but seesit as decentralized, Downs, Rocke, and Barsoom 1996.

2. Hart 1961.3. Hart 1961, 79.4. Hart, of course, observed that in form, though not in substance, international law resembled a primi-

tive legal system consisting only of primary rules. We sidestep that debate, noting only that the character-istics we observe in international legalization leave us comfortable in applying Harts terms by analogy.We also observe that the international legal framework has evolved considerably in the decades since Hart

The Concept of Legalization 19

The Variability of Legalization

A central feature of our conception of legalization is the variability of each of itsthree dimensions, and therefore of the overall legalization of international norms,agreements, and regimes. This feature is illustrated in Figure 1. In Figure 1 eachelement of the definition appears as a continuum, ranging from the weakest form (theabsence of legal obligation, precision, or delegation, except as provided by the back-ground operation of the international legal system) at the left to the strongest orhardest form at the right.5 Figure 1 also highlights the independence of thesedimensions from each other: conceptually, at least, the authors of a legal instrumentcan combine any level of obligation, precision, and delegation to produce an institu-tion exactly suited to their specific needs. (In practice, as we shall explain, certaincombinations are employed more frequently than others.)

It would be inappropriate to equate the right-hand end points of these dimensionswith law and the left-hand end points with politics, for politics continues (albeitin different forms) even where there is law. Nor should one equate the left-hand endpoints with the absence of norms or institutions; as the designations in Figure 1suggest, both norms (such as ethical principles and rules of practice) and institutions(such as diplomacy and balance of power) can exist beyond these dimensions. Figure1 simply represents the components of legal institutions.

Using the format of Figure 1, one can plot where a particular arrangement falls onthe three dimensions of legalization. For example, the Agreement on Trade-RelatedAspects of Intellectual Property (TRIPs), administered by the World Trade Organiza-tion (WTO), is strong on all three elements. The 1963 Treaty Banning Nuclear Weap-ons Tests in the Atmosphere, in Outer Space, and Under Water is legally binding and

wrote. Franck reviews these changes and argues that international law has developed a general rule ofrecognition tied to membership in the international community. Franck 1990, 183207.

5. On the obligation dimension, jus cogens refers to an international legal rulegenerally one ofcustomary law, though perhaps one codified in treaty formthat creates an especially strong legal obliga-tion, such that it cannot be overridden even by explicit agreement among states.

FIGURE 1. The dimensions of legalization


quite precise, but it delegates almost no legal authority. And the 1975 Final Act of theHelsinki Conference on Security and Cooperation in Europe was explicitly not le-gally binding and delegated little authority, though it was moderately precise.

The format of Figure 1 can also be used to depict variations in the degree oflegalization between portions of an international instrument (John King Gamble, Jr.has made a similar internal analysis of the UN Convention on the Law of the Sea6)and within a given instrument or regime over time. The Universal Declaration ofHuman Rights, for example, was only minimally legalized (it was explicitly aspira-tional, not overly precise, and weakly institutionalized), but the human rights regimehas evolved into harder forms over time. The International Covenant on Civil andPolitical Rights imposes binding legal obligations, spells out concepts only adum-brated in the declaration, and creates (modest) implementing institutions.7

Table 1 further illustrates the remarkable variety of international legalization. Here,for concise presentation, we characterize obligation, precision, and delegation aseither high or low. The eight possible combinations of these values are shown inTable 1; rows are arranged roughly in order of decreasing legalization, with legalobligation, a peculiarly important facet of legalization, weighted most heavily, del-egation next, and precision given the least weight. A binary characterization sacri-fices the continuous nature of the dimensions of legalization as shown in Figure 1and makes it difficult to depict intermediate forms. Yet the table usefully demon-strates the range of institutional possibilities encompassed by the concept of legaliza-tion, provides a valuable shorthand for frequently used clusters of elements, andhighlights the tradeoffs involved in weakening (or strengthening) particular ele-ments.

Row I on this table corresponds to situations near the ideal type of full legalization,as in highly developed domestic legal systems. Much

[judith l. goldstein, miles kahler, robert o. keoh(bookfi.org)

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