Academic journal article Duke Environmental Law & Policy Forum

International Cooperation and the International Commons

Academic journal article Duke Environmental Law & Policy Forum

International Cooperation and the International Commons

Article excerpt

I. INTRODUCTION

Efforts to sustain international cooperation invariably culminate in the signing of an international treaty, the success of which depends on the acumen of the individuals that negotiate it and the nature of the problem being addressed. But, while diplomats can make a difference, even the cleverest of diplomats cannot be relied upon to sustain first-best outcomes in all cases. Usually cooperation will be partial and there will be some loss in efficiency. International cooperation in these situations is analogous to domestic politics. Democracy may be the best system of government imaginable, but Arrow has taught us that we cannot rely on majority voting to sustain first-best outcomes every time.(1)

In international relations, the novel constraint that prevents first-best outcomes from being realized is sovereignty. Since participation in an international treaty is voluntary, agreements that seek to sustain cooperation must be self-enforcing.(2) If the self-enforcement constraint bites with enough force (and this will depend on the nature of the problem being negotiated), then we should not expect our diplomats to return home with the first-best treaty in their briefcases. Often, however, our negotiators could do better than the records indicate.

The problem is partly that our negotiators too often have a poor conceptual understanding of the task at hand. As will be explained later, they are not helped by the sometimes confused and disjointed literature, especially with regard to whether free riding is truly a problem in creating international agreements.(3) There is also disagreement in the literature about whether compliance is a problem--and, in particular, whether "sticks" are needed to deter noncompliance. The purpose of this article is to try to make sense of the negotiators' problem by discussing what makes international agreements work and how they can be made to work better.

This article begins by defining the international cooperation problem and distinguishing it from other problems requiring negotiation. Part III then discusses the general remedies to this kind of problem, and explains why judicial remedies cannot work for every cooperation problem. Part IV discusses specific remedies (i.e., international treaties) to specific problems. Part V discusses whether compliance with international agreements is a problem or not, and Part VI distinguishes between compliance and participation. The article further distinguishes participation from free riding in Part VII and then in Part VIII it explains why, of all the problems, free-rider deterrence is the hardest to fix. Part IX distinguishes free riding from the related problem of trade leakage. Finally, the article summarizes what all of this means for our negotiators.

II. INTERNATIONAL COOPERATION AS A PRISONERS' DILEMMA

Problems of international cooperation involving regional or global public goods, or regional or global commons problems, have characteristics that are crudely captured by the famous Prisoners' Dilemma (PD) game.(4) Examples of such international problems are the harvesting of migratory tuna, polluting of the Black Sea, protection of the ozone layer, conservation of biodiversity, and climate change mitigation. The focus of this article is concerned only with problems such as these, which, in their primitive forms, resemble the PD, or at least have aspects captured by the PD

The most important feature of the PD with respect to international public goods or commons problems is that the efficient outcome may not be sustainable by a decentralized or anarchic international system.(5) For example, in the one-shot, single-round PD game, decentralization is fatal to the collective good.(6) More generally, those outcomes that are welfare-superior (as compared to their anarchic counterparts) must be sustained by an enforcement mechanism of some kind. In particular, cooperation can be sustained for even the one-shot PD provided an agreement between the players can be enforced by a third party. …

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