Volume 96 - No. 1 Minnesota Law Review

Public Choice and International Law Compliance: The Executive Branch Is a “They,” Not an “It”

This Article presents a public choice analysis of how the executive branch in the United States determines questions of compliance with international law. In contrast to traditional theories that treat the state as a unitary entity, the public choice approach examines the different interests and incentives of the many executive branch agencies that advise the President about international law compliance. These agencies frequently disagree about the application of international law and the executive branch has failed to coordinate these interests consistently. The unpredictability of the process encourages agencies to compete for control over international legal policy. These institutional considerations go beyond other disaggregated or liberal theories that focus on the role of domestic actors. As a consequence, the public choice analysis leads to some distinct conclusions. First, it highlights how public choice can address some of the limitations of unitary state theories by explaining how state interests are formed. Second, it predicts that competition will encourage agencies to take advantage of areas of “softness” in international law—its imprecision, open-endedness, and lack of enforcement mechanisms. Agency officials benefit by keeping open the widest range of options under international law. Finally, if government officials in other countries face similar incentives, this provides another explanation for why international law does not display more clarity and stronger enforcement mechanisms.

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