Volume 48
Issue 4
Summer '17

Compliance and Membership Value in International Economic Law

Written By: Marcus P.L. Gustafsson

Abstract

This Note seeks to present a unified theory of compliance in international economic law. In its first part, it suggests that states and other international actors adhere to international rules and norms because of a set of distinct benefits they obtain by doing so, grouped under the label of membership value. These include, first, the substantive and explicit aims promoted by international agreements, rules, and norms, and, second, a set of ancillary benefits inherent to the activity of international cooperation itself in the forms of reputation, coordination, participation, and global standing. In addition, the Note develops the related concept of system value to explain why global or regional hegemons may sustain multilateral regimes at great direct cost in order to reap the rewards offered by greater international stability and predictability. Furthermore, the Note develops the concept of legal regimes, widening the Note’s scope of analysis beyond  the traditional notions of law and legal systems to include highly informal and market-based groupings of rules at the international level. In the second part, the Note looks at how legal architecture and enforcement can enhance compliance with these regimes. The Note identifies four means by which this can be achieved: conditionality, risk-weighting, reciprocity, and penalization. The paper then concludes by offering some suggestions of how these means can be employed when designing future international agreements and organizations within international economic law. In particular, it is suggested that financial market access can be leveraged to induce compliance, similar to how markets for goods are used today, and that, overall, participation gains should be used more readily by international organizations to promote compliance.

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