Kenneth W. Abbott

Hard and Soft Law in International Governance

We examine why international actors—including states, firms, and activists—seek different types of legalized arrangements to solve political and substantive problems. We show how particular forms of legalization provide superior institutional solutions in different circumstances. We begin by examining the baseline advantages of “hard” legalization (that is, precise, legally binding obligations with appropriate third-party delegation). We emphasize, however, that actors often prefer softer forms of legalization (that is, various combinations of reduced precision, less stringent obligation, and weaker delegation). Soft legalization has a number of significant advantages, including that it is easier to achieve, provides strategies for dealing with uncertainty, infringes less on sovereignty, and facilitates compromise among differentiated actors.

The Concept of Legalization

We develop an empirically based conception of international legalization to show how law and politics are intertwined across a wide range of institutional forms and to frame the analytic and empirical articles that follow in this volume. International legalization is a form of institutionalization characterized by three dimensions: obligation, precision, and delegation. Obligation means that states are legally bound by rules or commitments and therefore subject to the general rules and procedures of international law. Precision means that the rules are definite, unambiguously defining the conduct they require, authorize, or proscribe. Delegation grants authority to third parties for the implementation of rules, including their interpretation and application, dispute settlement, and (possibly) further rule making. These dimensions are conceptually independent, and each is a matter of degree and gradation. Their various combinations produce a remarkable variety of international legalization. We illustrate a continuum ranging from “hard†legalization (characteristically associated with domestic legal systems) through various forms of “soft†legalization to situations where law is largely absent. Most international legalization lies between the extremes, where actors combine and invoke varying degrees of obligation, precision, and delegation to create subtle blends of politics and law.

Why States Act through Formal International Organizations

States use formal international organizations (IOs) to manage both their everyday interactions and more dramatic episodes, including international conflicts. Yet, contemporary international theory does not explain the existence or form of IOs. This article addresses the question of why states use formal organizations by investigating the functions IOs perform and the properties that enable them to perform those functions. Starting with a rational-institutionalist perspective that sees IOs as enabling states to achieve their ends, the authors examine power and distributive questions and the role of IOs in creating norms and understanding. Centralization and independence are identified as the key properties of formal organizations, and their importance is illustrated with a wide array of examples. IOs as community representatives further allow states to create and implement community values and enforce international commitments.

Navigating the Anthropocene: Improving Earth System Governance

The United Nations conference in Rio de Janeiro in June is an important opportunity to improve the institutional framework for sustainable development. Science assessments indicate that human activities are moving several of Earths sub-systems outside the range of natural variability typical for the previous 500,000 years (1, 2). Human societies must now change course and steer away from critical tipping points in the Earth system that might lead to rapid and irreversible change (3). This requires fundamental reorientation and restructuring of national and international institutions toward more effective Earth system governance and planetary stewardship.

The Transnational Regime Complex for Climate Change

In climate change, as in other areas, recent years have produced a ‘Cambrian explosion’ of transnational institutions, standards, financing arrangements, and programs. As a result, climate governance has become complex, fragmented, and decentralized, operating without central coordination. Most studies of climate governance focus on inter state institutions. In contrast, I map a different realm of climate change governance: the diverse array of transnational schemes. I analyze this emerging system in terms of two theoretical frameworks developed to describe, explain, and evaluate complex governance arrangements—regime complex theory and polycentric governance theory—revealing fruitful avenues for positive and normative research. I conclude by arguing that the benefits of institutional complexity could be increased, and the costs reduced, through nonhierarchical ‘orchestration’ of climate change governance, in which international organizations or other appropriate authorities support and steer transnational schemes that further global public interests.

Transnational Business Governance Interactions: Conceptualization and Framework for Analysis

This special issue demonstrates the importance of interactions in transnational business governance. The number of schemes applying non-state authority to govern business conduct across borders has vastly expanded in numerous issue areas. As these initiatives proliferate, they increasingly interact with one another and with state-based regimes. The key challenge is to understand the implications of these interactions for regulatory capacity and performance, and ultimately for social and environmental impact. In this introduction, we propose an analytical framework for the study of transnational business governance interactions. The framework disaggregates the regulatory process to identify potential points of interaction, and suggests analytical questions that probe the key features of interactions at each point.

Values and Interests: International Legalization in the Fight Against Corruption

Standard rational choice analysis explains many but not all aspects of the highly political process of international legalization. Because law engages and affects not only the interests of actors but also their normative values, the development and operation of legal regimes can be understood only by considering both motivations together. We develop a simple model of the interaction of “value” and “interest” actors that shows how their different logics of behavior and distinctive strategies drive the politics of legalization—both in particular episodes and through deeper interrelationships over time. To demonstrate our argument empirically, we analyze how various turning points in the development of the 1997 Organization for Economic Cooperation and Development Anti‐bribery Convention can be fully understood only as resulting from the interplay of values and interests. Our analysis thus blends rational choice with normative or constructivist approaches to provide a richer account of international legalization.

Organizational Ecology and Institutional Change in Global Governance

The institutions of global governance have changed dramatically in recent years. New organizational forms ‐ including informal institutions, transgovernmental networks and private transnational regulatory organizations ‐ have expanded rapidly, while the growth of formal intergovernmental organizations has slowed. Organizational ecology provides an insightful framework for understanding these changing patterns of growth. Organizational ecology is primarily a structural theory, emphasizing the influence of institutional environments, especially their organizational density and resource availability, on organizational behavior and viability. To demonstrate the explanatory value of organizational ecology, we analyze the proliferation of private transnational regulatory organizations (PTROs), compared to the relative stasis of intergovernmental organizations (IGOs). Continued growth of IGOs is constrained by crowding in their dense institutional environment, but PTROs benefit from organizational flexibility and low entry costs, which allow them to enter “niches” with limited resource competition. We probe the plausibility of our analysis by examining contemporary climate governance.

Reinvigorating International Climate Policy: A Comprehensive Framework for Effective Nonstate Action

As countries negotiate a new climate agreement for the United Nations climate conference in December 2015, a groundswell of climate actions is emerging as cities, regions, businesses and civil society groups act on mitigation and adaptation, independently, with each other and with national governments and international organizations. The Paris conference provides a historic opportunity to establish a framework to catalyse, support, and steer these initiatives. Without such a framework, ‘bottom-up’ climate governance runs the risk of failing to deliver meaningful results. Social science research highlights the need for a comprehensive approach that promotes ambition, experimentation and accountability, and avoids unnecessary overlaps. This article specifies functions and design principles for a new, comprehensive framework for sub- and nonstate climate actions that could provide effective coordination.

International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts

Over the last ten years, international relations (IR) theory, a branch of political science, has animated some of the most exciting scholarship in international law. If a true joint discipline has not yet emerged, scholars in both fields have clearly established the value of interdisciplinary cross-fertilization. Yet IR -- like international law -- comprises several distinct theoretical approaches or “methods.” This complexity makes interactions between the disciplines especially rich. This essay summarizes the four principal schools of IR theory -- conventionally identified as “realist,” “institutionalist,” “liberal” and “constructivist” -- and applies them to the norms and institutions governing serious violations of human dignity during internal conflicts (the “atrocities regime”). The essay explores how these theories might explain three central features of the atrocities regime: the distinction between international and internal armed conflicts, the emergence of norms governing certain abuses outside of armed conflict, and the increasing reliance on criminal responsibility and criminal tribunals. In addition to their analytical insights, the visions of international relations and international law presented here have significant implications for the future of the atrocities regime. This essay summarizes the engines of change identified by each school of theory, and considers the special role of legal institutions in the evolution of the regime.