Nonconsensual International Lawmaking
Laurence R. Helfer | 2008 U. Ill. L. Rev. 71
This article documents the rise of nonconsensual international law-making and analyzes its consequences for the treaty design, treaty partic-ipation, and treaty adherence decisions of nation states. Grounding trea-ties on upon the formal consent of states has numerous advantages for a decentralized and largely anarchic international legal system that suffers from a pervasive “compliance deficit.” But consent also has real costs, including the inability to ensure that all nations affected by transborder problems join treaties that seek to resolve those problems. This “partici-pation deficit” helps explain why some international rules bind countries without their acceptance or approval. Such rules have wide applicability. But they can also increase sovereignty costs, exacerbating the compliance deficit.
Nonconsensual international lawmaking thus appears to create an insol-uble tradeoff between increasing participation and decreasing compli-ance. This article explains that such a tradeoff is not inevitable. Draw-ing 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 coopera-tion problems, together with their institutional and political context, cre-ate self-enforcing equilibria in which compliance is a dominant strategy. In these situations, nonconsensual lawmaking reduces both the participa-tion and the compliance deficits. In other issue areas, by contrast, prob-lem structure and context do not affect the tradeoff between the two defi-cits, and the incentive to defect remains unaltered. Analyzing the differences among these issue areas helps to identify the conditions under which nonconsensual lawmaking increases the welfare of all states.