Helfer: Nonconsensual International Lawmaking

Laurence R. Helfer (Vanderbilt Univ. - Law) has posted Nonconsensual International Lawmaking (University of Illinois Law Review, forthcoming). This is yet another contribution to the Symposium "Public International Law and Economics," forthcoming in the University of Illinois Law Review. (For symposium papers previously posted see here, here, here, and here.) Here's the abstract:

This article documents the rise of nonconsensual international lawmaking and analyzes its consequences for the treaty design, treaty participation, and treaty adherence decisions of nation states. Grounding treaties on formal consent has numerous advantages for a decentralized and largely anarchic international legal system that suffers from a pervasive "compliance deficit." But consent also has significant costs, including the inability to ensure that all nations affected by transborder cooperation problems join treaties that seek to resolve those problems. This "participation deficit" helps to explain why international organizations, international tribunals, and sub-groups of states sometimes create legal rules that bind countries without their acceptance or approval. Such rules have wide applicability. But they also can significantly increase sovereignty costs, exacerbating the compliance deficit.

Nonconsensual international lawmaking thus appears to create an insoluble tradeoff between increasing participation and decreasing compliance. This article explains that such a tradeoff is not inevitable. Drawing on recent examples from multilateral efforts to prevent transnational terrorism, preserve the global environment, and protect human rights, the article demonstrates that the game-theoretic structure of certain cooperation problems, together with their institutional and political context, create self-enforcing equilibria in which compliance by all states is a dominant strategy. In these situations, nonconsensual lawmaking reduces both the participation deficit and the compliance deficit. In other issue areas, by contrast, problem structure and context do not alter preexisting incentives to defect and the tradeoff between the two deficits remains unaltered. Analyzing the differences among these issue areas helps to identify the conditions under which nonconsensual lawmaking increases the welfare of all states.