The design of enforcement: Collective action and the enforcement of international law
| DOI | 10.1177/0951629819875514 |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| Author | Leslie Johns |
| Subject Matter | Articles |
Article
Journal of Theoretical Politics
2019, Vol.31(4) 543–567
ÓThe Author(s) 2019
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DOI: 10.1177/0951629819875514
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The design of enforcement:
Collective action and the
enforcement of international
law
Leslie Johns
Department of PoliticalScience, University of California, USA
Abstract
International organizations (IOs) play a vital role in enforcing international law. I argue that
collective-action problems and the design of legal-standing rules drive decisions about whether to
enforce international law. When cooperation generates concentrated benefits—such as compen-
sation for the expropriation of foreign investment—transnational standing can work well because
the cost and benefit of enforcement are both fully internalized by the litigant. However, when
cooperation generates diffuse benefits—like a cleaner environment—individuals and even govern-
ments have the incentive to free ride on enforcement, avoiding the cost of litigation in the hopes
that another actor will step up. In such circumstances, supranational standing is necessary to
uphold international law. Finally, hybrid regimes, which contain multiple forms of enforcement,
are most needed when an IO has members that vary in their ability to enforce, or regulates issue
areas that vary in their diffuseness.
Keywords
Enforcement; internationalcourts; international law; international organizations
1. Introduction
International organizations (IOs) play a vital role in enforcing international law by
adjudicating disputes between states (Abbott et al., 2000; Johns, 2015). Almost all
IOs have dispute-settlement procedures, which create institutionalized ways to
Corresponding author:
Leslie Johns, Department of PoliticalScience, University of California, 4289 Bunche Hall, Los Angeles, CA
90024, USA.
Email: ljohns@polisci.ucla.edu
challenge state behavior. Yet, these procedures vary greatly on the matter of legal
standing—namely, who is allowed to challenge possible legal violations? While
scholars of international law have catalogued variation in these standing rules, few
have asked: how do standing rules affect the enforcement of international law?
Most IOs rely upon international enforcement—states have legal standing to file
complaints about possible legal violations. For example, the World Trade
Organization (WTO) relies on its member-states to identify possible violations and
file disputes. The WTO itself cannot sue its member-states. In contrast, sometimes
states allow other actors to enforce international rules. Under supranational
enforcement, states grant an IO the standing to challenge possible legal violations.
One example is the International Criminal Court (ICC). While cases can be
referred to the Court in various ways, neither individual victims nor the ICC’s
member-states can file lawsuits. The ICC Prosecutor is responsible for all investiga-
tions and prosecutions, so the ICC itself chooses which cases to pursue. Under
transnational enforcement, states give private actors—including individuals, firms,
and interest groups—the standing to enforce international rules (Johns, 2018). For
example, bilateral investment treaties usually allow international arbitration of dis-
putes, but these arbitral bodies rely upon firms and individual investors to chal-
lenge possible legal violations (Allee and Peinhardt, 2010, 2011). Finally, some
international regimes, like the European Union (EU), use a hybrid of these designs,
giving multiple kinds of actors standing to enforce international rules. Through
various complex procedures, the EU allows private actors, member-states, and EU
bodies to file lawsuits at the European Court of Justice.
I argue that the enforcement of international law via litigation is driven by the
underlying nature of legal violations and the design of legal standing. Any actor
that challenges a possible legal violation must pay a private litigation cost.
Sometimes enforcement generates a highly concentrated benefit, ensuring that a
litigant fully internalizes the cost and benefit of enforcement. For example, when
firms use investment treaties to file arbitration cases against a foreign government,
they seek financial compensation for alleged treaty violations. In contrast, some-
times enforcement generates a highly diffuse benefit, such as environmental protec-
tion. While all potential litigants benefit from a cleaner environment, each has
incentive to free ride on the efforts of others, shirking on enforcement in the hopes
that someone else will and letting someone else pay the cost of litigation.
I use a formal model to show that collective-action problems affect decisions
about whether to enforce international law. I examine how diffuseness—the distri-
bution of enforcement benefits across actors—affects decisions by strategic actors
about whether to challenge possible violations of international rules. I show that
diffuseness produces two competing effects. On the one hand, cases that produce
more diffuse benefits have more potential litigants, each of whom has incentive to
enforce. This suggests that diffuseness mightincrease the likelihood of enforcement.
On the other hand, cases that produce more diffuse benefits induce free riding: each
potential litigant will be less likely to challenge a possible legal violation in the hope
that another actor steps in and bears the litigation cost. This suggests that diffuse-
ness might decrease the likelihood of enforcement. Diffuseness, therefore, has a
544 Journal of Theoretical Politics 31(4)
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