Durkee: Persuasion Treaties

Melissa J. Durkee (Columbia Univ. - Law) has posted Persuasion Treaties (Virginia Law Review, forthcoming). Here's the abstract:

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties along a fault line: Treaties that govern the behavior of state parties and their agents fall on one side. Treaties in the second category — those I call “persuasion” treaties — commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, we simply cannot address critical global problems without them.

I use the term “persuasion” in order to communicate the observation that the success — and sometimes the very existence — of treaties in this class depends upon whether state parties can successfully enlist private sector support. The theory builds on recent scholarship that identifies the depth of regulatory interdependence between private and public sector actors. Business entities may choose either to cooperate with or to impede domestic regulatory regimes, and their decisions are not fully susceptible to legal control. The business choice is significant on the international stage: without a successful domestic regulatory regime, a state will not be able to keep corresponding international commitments. Moreover, many states do not commit to treaties they cannot implement or enforce. Thus, persuasion treaty regimes must attract the support of relevant business entities, either ex ante (to secure international agreement), or ex post (to achieve results).