Comparing Legal vs. Non

Comparing legal vs. non-legal agreements

Daniel Bodansky Arizona State University College of Law

How might an agreement influence state behavior?  Normative  Domestic

factors

political factors

 Instrumental

factors

Normative factors 

Agreement changes view of appropriate behavior 

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

Creates sense of legal obligation, sense of duty to comply Promotes social learning, changes perceptions of self-interest Norms in agreement internalized, followed as a matter of course

Instrumental factors 

Agreement changes states’ calculus of costs and benefits 







States comply because they are afraid that if they violate, others will as well States comply to to avoid reputational costs of violation Other states threaten to raise costs of violation by imposing sanctions Other states provide assistance to lower costs of compliance

Domestic political factors 

Agreement changes domestic political game 





Empowers domestic agencies with implementation responsibilities Can be applied/enforced by domestic courts Gives NGOs a hook to pressure government

Legal form only one aspect of “bindingness” 

Other factors can influence effectiveness  

 



Ambition Precision Mandatory quality of provisions Review mechanisms

Can be trade-offs among factors 

Legal form may lower effectiveness if leads to less amibitious, vaguer commitments

Effectiveness of political agreements 

Negotiations can   



Increase public awareness Encourage social learning Lead to convergence of expectations

Agreement can 

 

Encourage domestic policy development and implementation Create review mechanisms Produce reputational costs for violation

Effectiveness of legal agreements 

Legal agreements can 

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

Create stronger sense of internal obligation Reflect greater domestic buy-in Produce higher reputational costs for violation Allow domestic judicial implementation

>> Legal agreements signal stronger commitment than political agreements

Is there empirical evidence that legal agreements more effective? 



Most of scholarship on legal vs. non-legal agreements theoretical Little empirical study comparing effectiveness of legal vs. non-legal agreements 



Usually, legal and non-legal agreements differ along other dimensions as well Hard to find an “apples to apples” comparison