How International Law Works: A Rational Choice Theory.

• Author: Geisinger, Alex
• Position: Book review

HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY. By Andrew T. Guzman. Oxford and New York: Oxford University Press. 2007. Pp. vi, 247. $35.

INTRODUCTION

Scholars have long considered the linked questions of whether and why states obey international law. Contemporary contributions to this inquiry include schools of thought that aver the bearing of transnational legal process on state socialization, (1) the impact of acculturation on state behavior, (2) the sway of a state's desire to be held in esteem by other international actors, (3) and the influence of a given state's belief in the rule of law. (4) Common to each of these approaches is the notion that external norms have some effect on state action.

A second group of scholars takes an atomistic, instrumentalist approach. Skeptical of normative pressure, they envision states as rational actors seeking to maximize stable and preexisting preferences. (5) The most recent contribution to this approach is How International Law Works: A Rational Choice Theory by Andrew T. Guzman. (6) The book is an ambitious attempt to generate "a comprehensive and coherent theory"--based on the assumption that states are rational, self-interested actors--that can explain how international law "works across its full spectrum" (pp. 8-9).

By endeavoring to comprehensively explain international law within a rational choice framework, Rational Choice makes a valuable contribution to the developing body of international law scholarship. Guzman's efforts to more fully describe the reputational aspects of international law within a rational choice framework are especially significant. (7) It is relatively easy to understand how direct economic or material benefits (or detriments) can motivate states to enter into or comply with international agreements. However, the influence of more indistinct reputational forces on the behavior of states has been a fertile source of contention between various schools of thought in this field.

Guzman does an admirable job describing the nexus between a state's rational self-interest and concern over its reputation among other states. It is, however, the limited role played by reputation in the theory as a whole that raises serious concerns regarding the book's claim to comprehensiveness. The book's focus on cooperation and coordination as the exclusive bases for treaty formation relegates reputational forces to playing a role only in treaty compliance, not treaty formation. Yet the formation of a considerable component of international law comprised by human rights treaties cannot be explained solely through the game-theoretic lens of cooperation and coordination. Because cooperation and coordination games cannot account for the formation of human rights treaties--leaving us instead to consider the reputational force behind treaty creation--we are required to reconsider Rational Choice's claim that it is a comprehensive theory applicable "to all international agreements" (p. 121). If, as we suggest, reputation plays a role in treaty formation, a more robust theory of reputation is necessary for any rational-choice-based explanation of international law to succeed. We can project that some of the strengths and weaknesses revealed by our examination of human rights treaty formation and compliance carry over into other parts of Guzman's theory.

Part I of this Review sets forth Guzman's general theory of international law with specific consideration of the way reputation influences state behavior. Part II then tests Guzman's overarching thesis by applying it to human rights treaties and concludes that explaining states' entry into human rights treaties requires a broader conception of reputation than Rational Choice allows.

1. RATIONAL CHOICE THEORY AND INTERNATIONAL LAW

   As with many rational choice accounts of group behavior, Guzman starts with cooperation and coordination games to describe how international law develops and, ultimately, why states choose to obey their obligations. According to his view, international law reflects the agreements of self-interested states that cooperate to maximize their individual utility (p. 12); more trenchantly, he argues that states "will only enter into agreements" if doing so makes them "better off" (p. 121).

   Rational Choice makes its analytical baseline assumptions abundantly clear at the outset. The book assumes that states are "rational, self-interested, and able to identify and pursue their interests," which it presumes are "exogenous and fixed," aimed at maximizing "their own gains or payoffs," and not concerned with the welfare of other nations (p. 17). As a result of this existential view, states "have no innate preference for complying with international law, they are unaffected by the 'legitimacy' of a rule of law," and "there is no assumption that decision-makers have internalized a norm of compliance with international law" (p. 17). Rather, as self-interested actors, states only enter into agreements that become the embodiment of international norms when the subsequent cooperative benefit engenders a greater gain than the cost of those obligations.

   Rational Choice begins its analysis by distinguishing "easy" games from "hard" games as a means of identifying those situations when international law has significant influence on state behavior. Easy games are games where international law becomes "superfluous" and does little work to create state obligations or to ensure that states comply with them (p. 29). These easy games generally take the form of coordination games where the main role of international law is to provide a focal point around which states can coordinate their behavior (p. 28). One instance is the Warsaw Convention governing international air travel, which establishes such things as air-traffic routes so that airlines can ensure their planes will not crash in mid-air (pp. 26-27).

   By contrast, hard games are generally defined as situations where states have a need not to coordinate behavior but to cooperate in order to maximize their aggregate benefits (pp. 29-30). The classic example of this sort of cooperation game is the prisoner's dilemma, which posits two rational, self-interested individuals who must choose between alternate strategies. Under the conditions of this game, pursuit of self-interest leads to worse results for each side than if it had cooperated with the other. (8) Guzman believes such games are prevalent in international relations and therefore focuses on them (pp. 121-29).

   Much of Guzman's analysis takes place in the form of applications or explanations. For example, to discuss how states rely on international law to their benefit in hard cases, Rational Choice turns to the 1972 Anti-Ballistic Missile Treaty between the United States and the Soviet Union. The treaty was aimed at solving a problem within the broad area of arms control: the states were engaged in a race to the bottom in an almost-unrestrained acquisition of weapons and technology that significantly drained their respective resources. Both states wanted to maintain an edge in their nuclear strike capabilities, but doing so required the creation of more and better nuclear weapons than the other. Moreover, efforts to develop a defensive system by one state would create significant incentives for the other to upgrade their weapons in order to penetrate these defenses (pp. 30-31).

   While both states would benefit from mutual cooperation whereby they could limit the resources dedicated to arms production, the dominant strategy for each state was to cheat because of the "potentially enormous payoff that would come to whichever side developed the ability to wipe out the other's second strike capability" (pp. 30-31). Such a conundrum, of course, takes the form of a prisoner's dilemma, and Guzman diagrams the payoffs of each strategy as follows (9):

   THE ABM TREATY PRISONER'S DILEMMA Soviet Union Comply Violate United States Comply (100, 100) (-50, 200) Violate (200, -50) (80, 80) In such a case, "when doing so makes them (or, at least, their policymakers) better off' (p. 121), the United States and the Soviet Union might enter an enforceable agreement. According to Guzman, "states enter into treaties for the same basic reasons that individuals enter into contracts," namely, that these instruments "allow them to resolve problems of cooperation, to commit to a particular course of conduct, and to gain assurances regarding what other states will do in the future" (p. 121). This contract model underlies Rational Choice's explanation of all treaty formation.

   Of course the willingness to enter into treaties is itself dependent on a state's belief that other states will comply with their treaty obligations. Guzman turns to the iterated nature of relations between states to describe how compliance with treaty terms may arise. He concludes that certain forces that arise when games are continuously played can lead states to abide by their cooperative agreements. Guzman calls these forces of compliance the "three R's," and it is the three Rs--retaliation, reciprocity, and reputation--that are responsible for states' compliance with their international obligations (p. 33). Since this theory forms the core of Rational Choice, it is worth quoting Guzman's description at length:

   The repeated nature of the interactions between the United States and the Soviet Union allowed cooperation to take place. Each country valued cooperation not only in contemporary terms, but also in the future. This gave the parties at least three reasons to comply with the treaty. First, and perhaps most important, is reciprocity. A violation by one side would likely provoke a violation by the other side. The one to violate initially would enjoy a one-period gain, but thereafter the treaty might collapse, in which...