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



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




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