spoiling the party? multilateralism, participation, and...

Spoiling the Party? Multilateralism,Participation, and International

Cooperation

Nikolas Stürchler & Manfred Elsig∗

Paper prepared for delivery at the conference on ‘The New International Law’, Oslo 15-18 March 2007

Work in progress

Abstract. In order to understand the prospects of a new international law, we need tolook in more detail at the willingness of states to build multilateral legal regimes.How willing are they to act in concert through multilateral treaties to create new lawand solve global problems? Theories of both international law and internationalrelations tended to gloss over differences among individual states, focusing insteadon general structural impediments to cooperation. But evidently the differencesamong the constituent members of international society matter. We provide adescriptive statistics of multilateral regime building treaties concluded between1990-2005 and argue that there is an essential division between states that are regimesponsors, on the one hand, and a core group of states that are regime ‘spoilers’, onthe other. Drawing from the literature on peace processes, we develop a taxonomy ofspoiling and sponsoring and look at the specific implications of the division: how hasthe tension between spoilers and sponsors usually been played out? What arecommon techniques for spoiler management? How do spoilers react to emerginglegal regimes? Using selected evidence from case studies, we conclude that thephenomenon of spoiling goes a long way in understanding the prospects of present-day regime-building, and consequently, of a new international law.

∗ NCCR Trade Regulation, Switzerland. We thank Corinne Karlaganis and Sarah Levy for the diligentcoding of multilateral treaties. We also gratefully acknowledge funding by the Swiss National ScienceFoundation.

Spoiling the Party? | 2

Introduction

One of the major questions occupying international lawyers lately is how far one canexpect states to embark on multilateral regime building projects. How willing arethey to act in concert through multilateral treaties to eradicate international diseases,reduce global warming, combat international crimes, manage financial crises,preserve natural resources, fight poverty, or to prevent genocide? Multilateral treatiesare crucial for international lawyers because they are the central pathway forprogress in their discipline. Like no other of the traditional sources of internationallaw, multilateral treaties serve as platforms to introduce comprehensive and specificrules to an issue-area, and they are indispensable for the creation of internationalorganisations to act as custodians of these rules. Scholars of international law havethus recognised that if an international rule of law is to emerge, it is most realisticthrough the vehicle of multilateral agreement. Accordingly, they consider treatiessuch as the United Nations Charter of 1945 or the Geneva Conventions of 1949 asparticularly praiseworthy, and there is a long tradition among members of thediscipline to understand such treaties as constitutive building blocks for a ‘newinternational law’.

In contrast, scholars of international relations traditionally maintained a rather soberoutlook on the prospects of multilateral cooperation, legal or otherwise. During theCold War, the ideological struggle between the USA and the Soviet Union gavereason to believe that multilateral cooperation was difficult and essentiallyephemeral. But today, the impediments to genuine international cooperation seemless in evidence as realists used to assert. In fact, multilateral treaties dealing withglobal issues appear to be on the rise. Well known recent examples are the ChemicalWeapons Convention of 1992, the Comprehensive Nuclear Test Ban Treaty of 1996,the Kyoto Protocol of 1997, the Rome Statute of 1998, or the Cartagena BiosafetyProtocol of 2000. Throughout the 1990s, a series of multilateral treaties set out toaddress global concerns in unprecedented ways. International relations scholarshence have also become more interested in studying international agreements, even ifwith a sceptical eye.

In this paper, we wish to investigate the differences in participation betweenmultilateral treaties as a contribution to the study of international cooperation. Whydo some multilateral treaties succeed in attracting universal acceptance while othersfail? Despite the rise of multilateralism, not all multilateral treaty projects have beenequally successful in gaining broad acceptance. Some, such as the efforts to reformthe UN Security Council, have stalled in the negotiation phase, while others, such asthe International Watercourse Convention of 1997, suffer from small-numberratifications. Thus, while a host of treaties receive broad support (for instance,virtually all states in the world have signed up to the Climate Change Convention of1992), at least some fail to do so. We know of no study that has attempted an


explanation, nor even a systematic account of present-day multilateral treaty-makingefforts for which such an explanation could be brought to bear.1

We proceed in three steps. In a first step, we briefly sketch dominant explanations ininternational relations and ask what they predict about participation in multilateralregime building projects. In a second step, we offer a descriptive statistics of themajor multilateral projects of the period 1990 to 2005 and contrast our findings withthe views exhibited. We argue that conventional theories, which have emphasisedstructural impediments to cooperation, cannot sufficiently explain state behaviour.We show that instead, there is an essential division between states that sponsorregimes and a core group of states that are regime ‘spoilers’ – states that not onlydecide to remain uncommitted to multilateral legal regimes but also seek toundermine their success, and that this calls for new explanations. In a third step, wedevelop a conceptual framework that focuses on the participation strategies and inparticular on the interaction between spoilers and sponsors. We look at the specificimplications of the division: how spoilers react to emerging legal regimes, and whattechniques sponsors commonly use to manage spoilers. We elaborate a number ofhypotheses and discuss these by using selected evidence from case studies. Weconclude that structural impediments alone cannot fully make sense of modernmultilateralism. Rather, it is useful to rely on three additional parameters: first, theattitude of participants to multilateralism; second, the conditions that affect spoiling;and third, spoiler strategies, as determined by the interests of the parties involved.

Our conclusions are preliminary. As the dataset on which we rely becomes morecomprehensive, it will be possible to refine, and sometimes to revise, our hypotheses.In particular, we realise that our data cannot justify inferences about competingregulatory venues, such as soft-law regimes, informal regimes such as the G8 or theNuclear Supplier Group, public-private partnerships or bilateral and regional treaty-making. Their inception may unfold according to different patterns; legal regimes arejust a subset of all possible regime constellations, weak or strong. Finally, we do notwish to appear mindlessly in favour of multilateralism. Although the term ‘spoilers’has a negative connotation, we use it mainly as an analytical device. Our intention isnot to imply that multilateralism is always preferable to unilateralism. It is not.2 Yetwe do wish to draw attention to the tension between participants and absentees ofmultilateral treaties, which we believe to be an important aspect of present-dayregime creation and development.

1 A case study exception is Neumayer (2005). Also consider the work of Jana von Stein on the climatechange conventions.2 On the contrary, we take realist concerns seriously. The welfare effects of legal regimes aresometimes questionable, such as in the case of the complicated dispute settlement provisions of theUN Convention on the Law of the Sea of 1982. Occasionally, spoiling is also in the eye of thebeholder: for many US citizens, French refusal to go along with Security Council authorisations to useforce against Iraq in 2003 was an act of spoiling; to many Europeans, it was the USA that wasspoiling the work of ongoing weapons inspections and respect for UN Charter principles.


Treaty participation and conventional theories

States practice cooperation if they work together to the same end. Early scholarshipon cooperation in international affairs suggested that cooperation is difficult toachieve (Morgenthau 1948). Even if, in a given situation, cooperation would makeall states better off, they individually could still have strong incentives to reject orabandon it. The famous Prisoner’s Dilemma game illustrated the inherently self-defeating nature of many real-life situations, in particular in the field of militarysecurity (Herz 1950). Even if general disarmament made all parties better off, itcould be shown that the dominant strategy for individual states was not to disarm, acalculation that rendered general disarmament impossible to achieve, despiterecognised advantages. Early analysis thus confirmed Hobbes’ famous portrait of anunforgiving, anarchic world in which cooperation is illusory without strong centralauthority (Hobbes 1651).

According to the prevailing analysis in the early days of cooperation theory,impediments to cooperation were thought to be structural givens; players failed tocooperate because the situation they found themselves in forced their hand.Disarmament could not be a viable policy choice for a government because othergovernments could never be entirely trusted; protecting fish in a common sea posed achallenge because no fishing nation gained something by exercising self-restraint(Hardin 1968). The story is one of tragedy, not stubborn unwillingness to cooperateper se.

Since then, advances have been made on several fronts. In a first wave, cooperationwas seen as more feasible than before, particularly when players depended on eachother for future transactions (Axelrod 1984). Key questions also involved whetherstates were driven by absolute or relative gains, or whether other game-theoreticalsituations than the Prisoner’s Dilemma were prevalent in international politics(Keohane 1984, Krasner 1991, Powell 1991). The debate was rationalist inorientation. In a second wave, this rationalist outlook was challenged in the 1990s byscholars working from a sociological perspective, stressing the role of ideas and ofnorm entrepreneurs (Finnemore and Sikkink 1998). The underlying critique was thatgame theory might have its uses, but that it said nothing about the origin of states’preferences, and how these could change over time. Knowledge-based(constructivist) approaches emerged that focused on the beliefs of states, which wereanalysed not as unitary sovereigns but complex polities, and whose constituencieswould influence the preferences of governments. Cooperation was now also a matterof attitude (Bull 1977, Wendt 1999), its achievement not solely seen dependent onovercoming structural hurdles as game theory theory suggested. Internationallawyers, for their part, have also tended to emphasise the importance of ideas, asembodied in legal principles, in their analyses. This has tended to bring them close toconstructivist thinking in international relations, since they shared the view that


states can be brought to learn the value of rule-based governance (Franck 1990;Chayes & Chayes 1995; Koh 1997).

Two additional, interest-based research fronts were articulated recently: thelegalisation literature and the rational design literature. The former contributed to theunderstanding of – sometimes unintended – effects of further institutionalisation andlegalisation of international politics (Goldstein et al. 2000). The latter was importantto re-orient researchers’ interest in structural impediments to cooperation, includingissues of distributional conflicts, enforcement, and uncertainty, in order to explainthe design of international organisations (Koremenos et al. 2001) or to suggestdifferent avenues for cooperation (Abbott & Snidal 2004). Overall, however, thetension between structural, rationalist versus attitudinal, constructivist explanationsfor cooperation is still very much alive in the literature, and unresolved.

Cooperation theory is closely related to the study of international regimes.3 To fostercooperation is a shared goal of many if not all multilateral treaties; to contribute to alegal regime is to practice cooperation. However, none of the prevailing theories oninternational regimes directly model participation in multilateral treaties, that is, theydo not tell us how many states (and which ones) can be expected to join amultilateral regime building project once it has been initiated. Following a commontypology on the theories of international regimes – power-based, interest-based, andknowledge-based explanations (Hasenclever et al. 1996) – we nonetheless derive anumber of general, simplified predictions regarding state participation in multilateraltreaties. We do this, for one thing, to frame our own enquiry, but also to highlight thestated observation that existing theories, on balance, are rather inarticulate inunderstanding multilateral treaty participation.

Power-based explanations

According to realist theory, states seek to maximise their share of power in theworld. International cooperation and international law serve the promotion ofnational interests (Morgenthau 1948) and outcomes are far from Pareto-efficient(Gruber 2000). If states engage in cooperation, it reflects the power of leading states:powerful, hegemonic states create regimes, while weaker states join because theymust. Realists expect key allies or trade partners of powerful states to join the sameagreements. At the same time, powerful states may also be expected coerce theunwilling (Gruber 2000). Following hegemonic-stability theory, powerful states havean incentive to commit to a regime if they have determined its design (Krasner 1985,Levy et al. 1995). For example, the USA can be expected to be a party to the Nuclear

3 However, the two are different. A regime exists when expectations of actors converge on a givenarea of international relations (Krasner 1983). Such expectations can be generated without statesactually cooperating with each other; put simply, they can also expect non-cooperation in a given area.Neither is cooperation necessarily done within a regime. Cooperation can be ad hoc or constantly influx, to the effect that no expectations are formed by actors involved. Nonetheless, the two phenomenaare interrelated.


Non-Proliferation Treaty of 1968 (NPT), as well as of the Montreal Protocol onSubstances that Deplete the Ozone Layer of 1987 – it was a major sponsor for bothagreements. Conversely, powerful states abstain from or actively obstructmultilateral treaty-making attempts that do not promote their national interests andcould increase the relative power of competing actors in the system. Delegationoccurs only if rules reflect the power of the regime creators (Downs et al. 1996). Inline with hegemonic stability theory, it is also assumed that the end of the Cold Warshould not have substantial effects on treaty-making, only that some agreementsmight become more unstable (Mearsheimer 1994).

Power-based theories, however, also tend to suggest that weaker states seekprotection against strong states. In order to achieve this, they support internationallaw because it is based on the principle of sovereign equality. Other states mightengage in ‘balancing’. Thus, realist explanations expect smaller states to ratify moretreaties than larger states; either because they are forced to or because theydeliberately attempt to increase leverage. Yet, explaining who ratifies treaties callsfor additional investigations on the party composition of agreements, the degree ofcommitments and delegation and how the outcome reflects the interests ofhegemonic powers. Outcomes are structure-dependent in as much as cooperationhinges on the distribution of power in the world.

Interest-based explanations

Interest-based theories ‘emphasize the role that international regimes play in helpingstates realize common interests’ (Hasenclever et al. 1996). In contrast to power-basedexplanations, actors are thought to commit to regimes voluntarily, and co-operationis the result of negotiations (Levy et al. 1995). In a Keohane-type reading,participation in international treaties depends on whether of not they offer effectivesolutions to problems of state coordination or collaboration (see also Stein 1990).Interest-based explanations emphasise structural impediments, for example, whencompliance with agreements cannot be easily verified and thus promises can neverbe entirely credible, or when states do not care that much about the futureconsequences of their actions (Axelrod & Keohane 1985). Other interest-basedexplanations draw on the ‘sensitivity’ of issue areas. To ban ozone depletingsubstances may be one thing, to dismantle a full stock of nuclear weapons essentialfor a state’s survival quite another. Multilateral treaties are unattractive because ofissue-related, structural problems (Zürn 1992). Universal acceptance of a relativelystrong regime is difficult to attain if structural problems persist.

Two variables merit attention: the type of structural situation (or game) at hand, andthe strength of the proposed regime to overcome the problems it poses. Ifcooperation helps overcome Prisoner Dilemma-type situations, treaties shouldsucceed in involving all key actors, and thereby also succeed in preventingsubstantial free-riding. Thus, variance in participation in multilateral treaties are


thought to depend on issue sensitivity (including distributive effects) andmechanisms to control for compliance. In addition, as large nations are moreconfronted with Prisoner Dilemma situations than smaller ones, they should be morelikely to subscribe to agreements.

Knowledge-based explanations

Knowledge-based explanations assume cooperation to take place as a result of acertain convergence of ideas and beliefs about the need for new regimes. Epistemiccommunities and civil society groups can help overcome collective action problems(Haas 1992). Many regimes are ‘self-generating or spontaneous regimes’ (Levy et al.1995); actors’ beliefs that multilateralism is good (going beyond self-interests) is re-enforced by participation in international agreements. In contrast, those who aresceptical about multilateralism tend to be absent from treaty-making and theirabsence re-enforces their perceptions and might help counter potential ‘cognitivedissonance’ between reality and ideas (Zürn and Checkel 2005:1054). Yet, learningis possible and thus participation in negotiations is thought to help frame and definepolicies at home. As a result, it may be expected that, first, states that believe inmultilateralism are more likely to ratify multilateral treaties than states that do notbelieve in multilateralism. Cooperation is likely where elites believe inmultilateralism. Second, the existence of strong epistemic communities and civilsociety groups should be an additional factor leading to increased participation.Third, multilateralism should be characterised by spontaneous regimes driven by aconvergence of beliefs in the need of joint action.

Shortcomings

Explanations derived from regime theories are ideal-type. In reality, internationalagreements are the result of a mix of rationales outlined above. Two shortcomingsmay be highlighted. First, while functionalist approaches have overemphasisedstructural impediments to cooperation, constructivist approaches have tended todownplay the role of power. It stands to reason that none of the three explanationsalone – power, structure, attitude – can sufficiently explain reality. There is need foran integrative approach. Second, little attention is paid to the negotiation process ofmultilateral treaties itself and the scope conditions affecting that process. Thisamounts to a neglect of individual interests and evolving strategies in the set-up ofregimes and their maintenance. Thus, there is need to investigate more clearly therelationship between pivotal actors in the process of cooperation, so to speak at themicro-level of regime formation.4 As Abbott and Snidal (2004) argue, there are manypathways to cooperation. In combination with actors’ differences in interests and

4 Already Oran Young criticized regime theories’ neglect of the role of political leadership (1991). Hedistinguished three types: structural, intellectual and entrepreneurial leaders.


power, various pathways create dynamics in negotiations that need to be reflected inconceptual frameworks to explain treaty-making.

In the third section of this study, we develop a framework that is both moreintegrative and mindful of the micro-level of regime formation. Before doing so,however, we briefly contrast empirical data from multilateralism in the post ColdWar era with the dominant theories explored.

Legal multilateralism 1990-2005

There are easily more than 60,000 treaties in existence at present, of which anestimated ninety percent were concluded after 1945 (Pearson 2001) – about 1,000treaties are registered nowadays with the United Nations every year.5 Of all treatiesin existence, a fraction of an estimated 1,500 are multilateral treaties (Bowman &Harris 1984; Szasz 1997). Relying on the United Nations Treaty Collection, weassembled a list of multilateral treaties that states concluded between 1990 and 2005and that we presently believe to meet the following criteria: (1) They offerparticipation to all recognised states in the world, which we define as UN members.6

This excludes regional treaties of any kind. (2) Obligations are created directlythrough consent. This disregards treaty amendments arrived at by majority decision.(3) They depart from previous practice and seek to establish a regime for a globalissue-area. Mere adjustments to a pre-existing treaty, such as the introduction ofdifferent voting patterns or reporting requirements, did not qualify.

The criteria do not distinguish between treaties of a more administrative nature andconstitutional contracts – treaties that may be deemed of particular relevance forglobal governance. For the present study, we believe the term ‘world order treaty’ isuseful to designate multilateral treaties that not only address a global issue-area but,in addition, (1) seek to do so in a comprehensive manner and (2) have significantimpact potential. For example, the Kyoto Protocol qualifies because it contains acommon plan to deal with the issue of global warming that might actually work.However, we did not require that signing up for a treaty involved substantialdelegation of decision-making authority, namely, to an international organisation.Effective governance of an issue-area does not necessarily require centralisation ofauthority, even if it often will. We highlight world order treaties because thewillingness of states to sign up to them is essential for the prospects of a ‘new

5 But according to some estimates, this accounts for maybe half of the true number of treatiesconcluded in a given year (World Treaty Index 2006). Thus the United Nations Treaty Collection onlycovers a portion of the total of multilateral treaties in existence, notwithstanding the obligations ofstates under article 102 of the UN Charter (Kohona 2002; Aust 2002). As of March 2006, the UnitedNations listed a total of 517 multilateral treaties (United Nations 2006).6 As of January 2007, no UN members but occasional parties to multilateral treaties were: the CookIslands and Niue, Hong Kong and Macao, the Vatican, Taiwan, and the European Community. Onthese entities see Crawford (2006).


international law’, which trusts states to increase their commitment to constitutionalpractices such as a general rule of law.

It is worth noting that under international law, world order treaties are definedsomewhat differently (Tomuschat 1993). They are said to give rise to specialobligations which, in case of breach, can be invoked by all treaty parties and not onlyjust by the party directly affected. Such a collective interest in treaty compliance istypically the mark of two types of multilateral treaties (Fitzmaurice; Pauwelyn 2003):first, those where the success of a regime hinges entirely on the compliance of allparties, and second, those where the obligations established are consideredsacrosanct from a normative point of view (Delbrück 1997; Crawford 2002; de Wet2006). The former would be the case for disarmament treaties or, for example, theAntarctic Treaty of 1961 (Simma 1986): any arms build-up or any territorial claimson the Antarctic would effectively undermine the regime, to the extent that speciallegal consequences under the law of treaties and the law of state responsibility arejustified. The latter can be found in the ban on the use of force or the prohibition ofgenocide. The special content of the obligations created justified a special treatmentunder international law, to the effect, for example, that states are not entitled toviolate human rights in response to the violations of others, or that withdrawal isconsidered illegal. At issue are ‘objective regimes’ that have systemic implications.While the lawyerly definition of world order treaties has its merits, it does notcorrespond to the requirements of the present study.7

Based on the above, we constructed a dataset consisting of two levels; a treaty leveland a state level. On the treaty level, we identified the year of conclusion, number ofsignatures, number of parties, ratification threshold, year of entry into force (ifapplicable), and whether reservations were permitted or not.8 On the state level, weidentified if and when states signed and ratified treaties, and whether they filedreservations. Reservations are of some importance because states have been knownto back-pedal on commitments through them. To analyse participation, wecomplemented our list with the following: on the treaty level, we coded the issue-areas covered. Assigning treaties to issue-areas enables us to assess whether statesvary their participation depending the type of interests at play. On the state level, wecomplemented our list with data on regional affiliation.9

7 We chose not to rely on the criteria developed in international law for two reasons. First, regimesthat are in danger with one case of non-compliance are rare; more realistic are different degrees ofvulnerability. A case in point is the nuclear non-proliferation regime. Second, whether a treatycontains sacrosanct norms is a judgement call. It is difficult to tell, for example, whether or not treatiesfor the protection of the environment qualify.8 Our cut-off date for this version of the dataset was 31 December 2006.9 Region coding follows http://cow2.la.psu.edu/COW2%20Data/MIDs/Development/regions.htm. Theinclusion of further parameters is in preparation, such as the type of government, state power,economic interdependence, the strength of domestic civil society, or data on individual contributionsof states to development aid, in percentage of their GDP.


Conceptually, four categories of multilateral treaties may be distinguished. First,there are those projects that are not even brought on the table because their chancesof success are at present thought to be entirely illusory, for example, universalcompulsory jurisdiction for the International Court of Justice or a standing UNmilitary force. A second category of projects are considered politically feasible butreaching an agreement is challenging. For example, reform of the UN SecurityCouncil has been widely discussed but so far not agreed upon; a definition ofmilitary aggression for criminal purposes is provided for in the Rome Statute of 1998but still awaits implementation. Third, there are those projects which come to aconclusion but that are either weak as a result of negotiations or struggle to attract thenecessary ratifications to enter into force. The new Human Rights Council is closingin on the poor performance of its predecessor, for example. The ComprehensiveNuclear Test Ban Treaty of 1996 was concluded but has failed to attract the requiredratifications, as specified by article XIV of the treaty. The fourth category denotesprojects that have fully entered into force, such as the Rome Statute of 1998. It isimportant to understand that only multilateral treaties that have been formallyconcluded are accounted for in our database; those of the first and second categoryare not.

Descriptive statistics

TREATY LEVEL

On a preliminary basis, we identified 50 multilateral treaties that meet the conditionsdescribed above, of which we find 8 to be world order treaties.10 This amounts toroughly 3-4 treaty conclusions per year; multilateral treaty-making in absolute termsis fairly steady in the period examined, ranging from two to seven in absolute terms.

Multilateral treaty-making was particularly lively in the issue-areas of theenvironment, trade, war (humanitarian law) and crime prevention, particularly in thefield of anti-terrorism. Other issue-areas categorised by the United Nations TreatyCollection were left as they were. For example, states left the regulations on narcoticdrugs and psychotropic substances untouched in the study period.

Treaties with the highest ratification levels are the UN Desertification Convention of1994 (191), the Biodiversity Convention of 1992 (190), and the Climate ChangeConvention also of 1992 (190). They are followed by the Chemical WeaponsConvention of 1992 (181), the Kyoto Protocol of 1997 (169), and the Financing of

10 We preliminarily classified the following treaties as world order treaties: Chemical WeaponsConvention of 1992; Biodiversity Convention of 1992; Climate Change Convention of 1992; WTOAgreement of 1994; Comprehensive Nuclear Test Ban Treaty of 1996; Kyoto Protocol of 1997; RomeStatute for the ICC of 1998; Cartagena Biosafety Protocol of 2000.


Terrorism Convention of 1999 (156). The average ratification level for multilateraltreaties is 78 (40 percent).11

Figure 1: Multilateral treaties by issue-areas 1990-2005

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Interestingly, the most broadly endorsed treaties tend to disallow reservations. Butthey fall in line with the rest to allow withdrawals – there is no treaty whichexplicitly denies states the right to do so in the study period. The commitments ofstates may sometimes be uniform but it is never expressly irreversible.12

Around 20 percent of the treaties examined did not receive the ratifications hopedfor, but 80 percent pass the self-designated ratification threshold of an average 26.For those treaties, the average waiting period between conclusion and entry intoforce was 4 years.

STATE LEVEL

Norway and Slovakia are the top ratifying states, followed by Bulgaria and Spain,France and Latvia (see annex). These states ratified 70 percent of the treaties listed,while average ratification levels per state are 41 percent. On the bottom end, Somaliaand Iraq both ratified only one treaty. They are followed by Guinea-Bissau (6),Tuvalu (8), Andorra (8), North Korea (9), Bhutan (9), and Angola (9). All of thesestates ratified less than 20 percent of all treaties listed. There certainly is an increaseof so-called failed states in this section.13 In these cases states are either unwilling orsimply unable to commit to international treaties. They usually also are weak and

11 However, our data is censored on the right side because ratification levels can change in the future.12 Compare the provisions contained in article 56(1) of the Vienna Convention on the Law of Treaties.13 Compare the Failed State Index (FSI), http://www.fundforpeace.org/programs/fsi/fsindex.php.


small, or known to be politically isolated. Overall, as figure 2 illustrated, there is aroughly bell-curved distribution of ratification levels, with most states occupying the20-60 percent range.

Figure 2: Ratification levels per state 1990-2005

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Region-wise, European states occupy the upper third of the ranking list, while theUSA (with 17 ratifications) falls slightly below the average of 20 ratifications (40percent). There is no European state that has a lower ratification level than theUSA.14 The ranking is also very revealing if one takes rich, liberal democracies as ayardstick. Clearly, the thirty OECD members crowd the top third of the list. Hereagain, however, the USA is an outlier. It has the lowest ratification level amongOECD countries. This confirms the common view that the USA is less multilaterallyinclined than most states in its category. The result is strong because the USA iseligible for all multilateral treaties under consideration, and because the same resultsappear across issue-areas. Another interesting point is that South American states,too, tend to favour multilateral treaties more than other regions.

14 Note that the European Community is an official party to no less than 24 multilateral treaties. Thus,EU membership alone results in more multilateral treaty ratifications, without even taking intoaccount the treaties concluded within the EU.


Figure 3: Ratifications by region 1990-2005

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Preliminary findings

Data worries notwithstanding, the descriptive statistics actually provide a somewhatcoherent picture of present-day multilateralism; one, however, that the prevailingtheories do not capture well. Power-based explanations fair well with the USAbecause, in line with realist assumptions, a powerful state is shown to be less likelyto ratify treaties. (We assume here that the majority of treaties are not US-sponsored.Because the USA is so powerful, its reluctance to get involved weighs more heavilythan that of any other state. And for the same reason, it does not feel the need tobuild new regimes as much as others do.) But realist assumptions fail with regard tocountries of considerable influence such as Germany, the UK or France, unless oneconsiders their participation as acts of balancing. All of them rank high in theratifications table, along with most of the wealthy OECD countries.15

Likewise, the data does not directly support the thesis that states shy away fromtreaties where the issue-area poses particular collective action or cooperationproblems. In our study, environmental treaties attracted many ratifications, but so didthe Financing of Terrorism Convention, the Tobacco Control FrameworkConvention, or the Rome Statute establishing the ICC. We also observe regionaldifferences in multilateral treaty participation. This is at odds with issue-dependencyof cooperation because we may assume that structural impediments for globalproblems such as terrorism or environmental pollution are similar across regions. Atthis stage, we lack the necessary data to control for regime-related variables such as

15 Whether powerful states ratify multilateral treaties they have sponsored is a hypothesis that wecannot address for the time being since we do not know (yet) which treaties powerful states havesponsored.


degree of delegation or costs of implementation. Nonetheless, the pattern seems to beone of commitment to an issue-area per se, that is, states join a global movement(‘end global warming’ or ‘end of impunity’) and they tend to accept whatever bestoutcome can be achieved in negotiations.

Our data so far offers better support for constructivist intuitions. Present-daymultilateralism typically involves a tension between ‘multilateralists’ and what maybe called ‘individualists’. The gap between states in terms of treaty participation isremarkably wide. While it is true that some of the states with a nearly no-ratificationpolicy are outliers, the basic finding remains that there are differences among statesthat do not seem to fit standard theories relating to power or interest. They could wellbe the result of a particular attitude. A case in point are environmental issues.Clearly, the Rio Conference of 1992 set the stage for a whole series of multilateraltreaties, sometimes arrived at quite spontaneously and in no small part driven by thepressure of civil society.

The division between multilateralists and individualists is in evidence between theEU and the USA, which confirms commonly held views about the Atlantic divide(e.g. Kagan 2003).16 But the division is not restricted to it. A North-South divide isalso observable. Rich, western-oriented countries rank high on the ratification table,whereas developing countries on average occupy bottom places. Not all of this ispuzzling. States like North Korea are known for their isolation, and failed states suchas Somalia simply do not have the means to engage in multilateralism. Morepuzzling and probably more important for regime-building is the case of states thatare open and economically well off but still shun multilateral treaty regimes. Theirremaining outside of multilateral treaty commitments is a matter of choice, not ofoutside factors. The USA indeed is the most important case of this subgroup, itsshunning of such notable treaties as the Convention on Biodiversity of 1992, theKyoto Protocol of 1997 or the Rome Statute of 1998 a recurrent topic in the news.But there are other states in the same category such as Saudi Arabia, Singapore, Iran,Israel, or Indonesia. Conventional theories offer little guidance to understand them. Ittherefore is necessary to look more closely at the role of individual states in regimeformation, and the tension between states with different attitudes towardsmultilateralism.

16 The common view is that the Atlantic divide has become more pronounced since the fall of theBerlin Wall. This is plausible because the Cold War no longer an alliance glue. Europe has becomemore independent as a result, and willing to go forward with multilateral projects without prioragreement from the USA. Likewise, the relative power of the USA has declined recently as a numberof states have gained in economic prowess, such as India, China and Brazil. This has made it easierfor a state majority to have its way even in the face of US opposition.


Sponsors, spoilers, and strategies of participation

We are interested in the reasons why some multilateral treaties succeed in attractinguniversal acceptance while others fail. Understanding these reasons requires analysisof the relationship between pivotal actors in the process of cooperation: of thetension between multilateralists on the one hand, and individualists, on the other. Itparticularly requires an analysis of how the tension is borne out in the period oftreaty initiation and negotiation, because it is in that period that the treaty content isdetermined and thus the stage for acceptance is set. In this section, we develop ananalytical framework to that end.

The idea that the success of a proposed agreement is a struggle between potentialgainers and losers of the agreement is well established in the study of peace treaties.Of those civil wars where peace treaties are concluded, the greatest risk for a returnto violence comes from spoilers – ‘leaders and parties who believe that peaceemerging from negotiations threatens their power, worldview, and interests, and useviolence to undermine attempts to achieve it’ (Stedman 1997). When, as Stedmanreports, spoilers succeed and peace treaties fail, the level of violence that results isoften as severe as before peace treaties were concluded. The best remedy againstspoilers are international actors actively protecting peace processes and seeing to itthat peace deals are enforced.

We apply Stedman’s description of spoiler problems to multilateral treaty-makingand submit that, in a modified form, it helps understand the tension betweenmultilateralists and individualists. The costs of multilateral treaty failure may not beas steep as in the case of peace treaties; yet by any measurement undertaken, they arestill significant. Not to achieve cooperation often will result in a welfare loss. Not tocome to terms with issues of global warming, for example, is said to be self-defeating already in economic terms (Stern 2006); the same may be said for suchdiverse problems such as over-fishing, corruption, energy shortages, terrorism,financial crises, or disease outbreaks. In each case the associated costs are at leastpartially a result of cooperation failure.

There are also more subtle disadvantages. Multilateral treaty negotiations may forceparties to make their disagreement explicit when previously there was no need to doso, thus deepening governments’ commitment when a more flexible course – short ofunanimous agreement – would have been the wiser outcome. A conscious decisionnot to go down the multilateral treaty road was made in the case of the ILC’s Articleson State Responsibility of 2001 and also for the Guiding Principles on InternalDisplacement of 1998 (Kälin 2001). It was felt that the potential for opendisagreement among states would not be worth jeopardising the existing consensus,notwithstanding its informal and non-binding nature. Thus multilateral treaty failurecan be costly for both ‘hard’ and ‘soft’ reasons.


Following Stedman’s example, we develop a typology of participants in multilateraltreaty creation and what strategies these participants pursue in the stages of treatypreparation and negotiation (or ‘institutional bargaining’). We present five points inthis regard: first, about treaty sponsors and treaty spoilers; second, about theconditions that favour spoiling; third, about strategies of spoilers; fourth, about(counter-)strategies of sponsors; and fifth, about matching strategies.

Treaty sponsors

Among multilateralists, a core group of states are treaty sponsors. These are statesthat exercise political leadership in support of a proposed multilateral treaty project.They hold a special interest in its success and mobilise their resources to that end.Cooperation may be sought for selfish reasons without compromising the utility ofcooperation (Axelrod 1984). States might want to solve a problem that affects themdomestically but that they cannot properly addressed on their own, or they mightpursue more intangible benefits such as international reputation or scoring politicalpoints at home. In each case, the welfare effects of a proposed regime are notdiminished, short of the case where a state is powerful enough to impose a regime onothers.

While assuming a sponsorship role can be of interest to many states in the world, notall of them with such an interest have the necessary capabilities to do so. Assemblinga proposal for a treaty requires expertise and domestic resources. This puts many(least or low income) developing countries at a disadvantage. Small advanced statesand larger developing countries may bring an initiative to the appropriate forum, butthe initiative will still need to be endorsed by others. Developing countries and smallstates often lack the strength to resist the pressure from a proposed treaty’sdiscontents. Typically, therefore, sponsorship is primarily the domain of rich,industrialised (OECD) countries.17

At the same time, sponsorship of substantive multilateral regimes is no longer theprerogative of a few hegemonic states. Today, worries centre rather on too littleinternational leadership than on too much of it. Certainly, international leadership inthe last decades never reached the ambitious levels it did in the mid-twentiethcentury, when the USA sponsored multilateral regimes such as the Marshall Plan,NATO, the UN, the World Bank Group, or the IMF. As G. John Ikenberry (1996)reports, the leadership capabilities of the USA have declined considerably since then,and no other state has risen to comparable strength (also Keohane 1984). Russia asthe successor of the Soviet Union, too, is nowhere near its previous levels of

17 These states are also more likely to respond to domestic pressures from civil society because theyare democratically organised; civil society groups for their part predominantly target the democraticgovernments of the big players (see debt-relief (Jubilee 2000) campaign). Governments of suchcountries are also more likely to make use of multilateral treaties to deal with domestic politicalconstraints (two-level games).


influence. This levelling of the playing field gives rise to the problem of collectiveaction (Olson 1965). States interested to assume sponsorship have an incentive topool their resources at the initiation phase, as is done prominently by European statesthrough the EU. Against the backdrop of globalisation, the quadrupling of statessince 1945 and the inability of any state to single-handedly determine reforms makestreaty sponsorship both more necessary and more difficult.

Treaty spoilers

Sponsors face spoilers. Spoilers are states that not only remain uncommitted tomultilateral regime projects but also actively seek to undermine their success. Unlikeindividualists in general, they are not merely indifferent but are committed to makinga difference. Multilateral regime building projects gives rise to spoiling because it israre that all states stand to gain from it; often enough, mistrust about the motives ofregime sponsors and uncertainty about the promised regime effects are alsoprevalent. Obviously, for example, Pakistan and India were not convinced of thebenefits of the Nuclear Non-Proliferation Treaty (NPT) of 1968.

It is useful to discuss the position, number, type and locus of spoilers (Stedman1997). We add timing of spoilers as a further dimension. Each dimension is relevantfor the issue of spoiler management discussed below.

TYPE OF SPOILERS

Three types of spoilers may be distinguished, according to the interests they pursue:limited spoilers, greedy spoilers, and total spoilers (Stedman 1997).

Limited spoilers pursue limited objectives; they seek to modify the proposed treatyregime to meet those objectives. If they receive what they demand, they cooperate.Limited spoilers are motivated by a variety of reasons. First, they may be constrainedby their domestic polity. National attitudes in general may be suspicious of aparticular international deal. For example, Switzerland is unwilling to abolishsubsidies for agricultural products because it does not want to jeopardise theeconomic standing of local farmers. Second, constitutional constraints, such assupermajorities for treaty approval, may compel governments to ask for concessionsin order to win the necessary majority at home.18 Famously, US reluctance towardsmultilateral projects is to no small measure a result of its constitution, which requiresa two-thirds majority in the Senate for treaty ratifications. Third, the actual impetusto demand concessions may also come from government officials themselves. Itsleaders or involved elites may come to the conclusion that the national interest is notserved unless the proposed regime is changed. This was at the heart of the matter inthe case of the Rome Statute establishing the International Criminal Court of 1998,

18 Constitutional constraints can bee used strategically as the negotiators can credibly signal that theirhands are tied (Schelling 1960, Putnam 1988). Credibility, however, is related to the positionalstrength of a nation within an issue-area (Elsig 2006).


where the USA was adamant in its demand for immunity of its peacekeepingsoldiers.

Greedy spoilers also put a premium on national interests, but their primary objectiveis simply to gain short-term benefits. They decide to oppose a multilateral treaty adhoc because, for them, the benefits of a proposed treaty regime do not prevail overperceived disadvantages, without any clear preference for success or failure of themultilateral treaty endeavour. The calculus is rational and tactical. Greedy spoilersare susceptible to bribery (‘you have to pay us’) and arm-twisting because theirdecisions can be more easily tilted in one direction or the other.

Total spoilers are spoilers that refuse multilateralism as a matter of principle andpermanently. Even the most balanced and well-intended multilateral treaty cannotconvince them of the benefits of multilateralism. They may view it as a threat to theirauthority, especially if the regime proposed provides for monitoring or the need tojustify national decisions, or they may simple practice an isolationist course. Totalspoilers tend to be community ‘outsiders’ that come with various labels: ‘rogue’,‘troubled’ or ‘failed’ states. To the likes of North Korea, any opening up to suchinstitutions as the WTO would decrease their independence and thus would tend toundermine domestic power structures. What makes total spoilers difficult is that theypursue their aims in disregard of community consequences. For instance, they mayuse military threats or massive human rights violations to pursue their ends.

POSITION OF SPOILERS

Outside spoilers demonstratively exclude themselves from treaty negotiations andseek to derail the multilateral process through countervailing diplomatic activity,including the threat of sanctions, or by pursuing a course of action that directlychallenges the treaty regime. Inside spoilers formally participate in treatynegotiations but seek to weaken the substance of the proposed regime throughobstruction in negotiations or simply by defecting once the treaty has beenconcluded. The tactic of human rights violating states to elect themselves into humanrights bodies is a well known example for inside spoiling (Lebovic & Voeten 2006).Outside spoiling is illustrated by the nuclear tests of India and Pakistan in 1998,which cast doubt on the effectiveness of the nuclear non-proliferation regime. TheUSA first practiced inside spoiling when it sought to pressure states to acceptexemptions for its soldiers in the Rome Statute of 1998. It then shifted to outsidespoiling when it sought to decrease the effectiveness of the International CriminalCourt through annual UN Security Council exemptions, bilateral immunityagreements and national legislation authorising the use of force to extract US soldiersbrought to the court.

The distinction clarifies that spoilers are not necessarily there to be negotiated with.The worst spoilers may be those who refuse to negotiate from the start and whose


course of action stands directly in conflict with the very purpose of the proposedregime, such as in the case of whale fishing or nuclear proliferation.

NUMBER OF SPOILERS

The more spoilers there are, the more important it becomes to mobilise counter-balancing support to save a treaty. As Stedman (1997) further reports, dealing withmultiple spoilers is also challenging because each ‘deal’ struck with one spoiler hasimplications for the management of remaining spoilers. If spoilers pursue opposinggoals, accommodating one spoiler may dissatisfy another. If they act in concert,making the proposed multilateral treaty widely acceptable becomes equally difficult.During the Cold War, blocks were particularly frequent; the Soviet Union and itssatellite states on the one hand, the USA and its allies on the other hand. In betweenwas the Non-Alignment Movement (NAM) that proclaimed neutrality vis-à-vis bothsuperpowers. Today, the system is characterised by ad hoc and variable coalitions. Inthe context of the WTO Doha Round negotiations, the fault lines between developingand developed countries are more and more replaced by less ideological but issue-specific coalitions. In trade relations, we witness the emergence of a multi-polarworld that at times pins regional interests against economic interests based onpragmatism and market logics.

LOCUS OF SPOILERS

The locus of a spoiler lies with the person or persons that spearheads spoilerbehaviour in a given state; it can be the president or prime minister (top locus), itsparliament, or its political constituency at large (base locus). Depending on the locusof the spoiler, the attitude of a state towards a multilateral treaty may change rapidlyor it may be more stable. Presidents and prime ministers change with elections indemocratic societies, whereas parliaments and opinions of the general populationtend to persist.19

TIMING OF SPOILERS

Switching to a spoiler position may occur in different phases of multilateral treatyprojects: before negotiations of a treaty, during its negotiation, and after itsconclusion. ‘Early’ spoilers are readily identifiable and sponsors can choose anappropriate strategy for them in the initiation phase. ‘Negotiation spoilers’ can turnthe apple sour when no one is prepared for them; skill on the spot is required todevise a useful response. ‘Late’ spoilers come in at the compliance stage whentreaties have long been ratified and entered into force. Sponsors face the difficulty ofnot knowing about them; the only option available is to include strong compliance

19 In political science, a rich literature on veto players has developed (Tsebelis 2002) thatconceptualizes the influence of various veto players within different polities.


inducing mechanisms into the treaty. Such mechanisms may involve monitoring andsanctions.20

Conditions that affect the capacity of spoilers

Spoiling may be a matter of choice but it is also a matter of opportunity. In somecases being a spoiler is difficult; in other cases it is easy. We start with theobservation that peace treaties designed to end civil war are very special kinds ofagreements. Only some of the parties are states; spoiling peace treaties is easybecause anyone with minimal military hardware can break the peace. In the case ofmultilateral treaties, however, the capacity to undermine it is not a natural given.Rather, spoiling is contingent on a number of situational factors, of which peacetreaties ending civil wars appear as one situational variant.

CRITICAL MASS AND TIPPING

As a general rule, the capacity of spoilers is greater when the envisaged benefits of amultilateral treaty cannot be achieved with a small number of participants (Abbott &Snidal 2004). Combating global warming cannot work unless a critical number ofcarbon-dioxide emitting countries play along. The greater the necessity for universalendorsement, the stronger the position of potential spoilers. In this sense peacetreaties are a subcategory of a larger set of treaties with a critical mass problem(Schelling 1978). Unless a critical number of states sign up for a proposed treatyregime, no benefits will follow simply by its conclusion or entry into force; it is thesituation in which the success of an operation crucially depends on the support ofothers. It is possible to rephrase the problem in reverse terms: critical mass is aproblem when the behaviour of spoilers incurs disproportionate negative externalitieson others, such as in the case of over-fishing, nuclear proliferation or themismanagement of an epidemic.

At one extreme of the critical mass problem are ‘all or nothing’ treaties where asmall number of spoilers is enough to bring down an entire regime, amounting toveto powers. Territorial claims for the Antarctic are a case in point for the AntarcticTreaty of 1961. The nuclear non-proliferation regime is another example whereparties are very sensitive to instances of defection. The term ‘critical mass’, derivedfrom nuclear engineering, is actually quite revealing. Once a few states abandon agiven regime (or refuse to agree to its terms), the incentives to stay within the regimeare diminished for the remaining compliers; a few states will join the initial spoilers,which causes yet another set of states to join. Hence the fear of an ever increasingnuclear weapons proliferation once some states are convinced that they arecompelled to acquire the bomb. Conversely, once a critical mass of parties exist to a

20 One way to accommodate ex post spoilers are reservations or escape clauses. These help fosteragreements as decision-makers are more inclined to subscribe to an agreement if breaching theagreement is possible in light of new (unforeseen) developments in the future (e.g. Goldstein andMartin 2000, Rosendorff and Milner 2001)


treaty, once a certain tipping point is reached, the regime exercises a gravitationalpull (Walter 2001). The more states join, the steeper the price for those who wish tostay out. As some states decide to join at a later stage, staying out becomes evenharder for the remaining spoilers. And so forth. For instance, the more states signedup for the Bologna educational reform, the more costly it became for states witholder systems to stick to it; the more states impose harsher asylum standards, themore will countries with lenient standards pay with higher influx of asylumapplications;21 the more countries that join the WTO, the more this affects thosestaying outside the system as they want to profit from most-favoured nation status.22

The negative consequences of staying out can be automatic or induced throughcollective action, as is the case when regime parties are willing to impose sanctionson outsiders.

Critical mass problems thus involve chain reactions, either towards strengthening theregime or weakening it. Spoiling capacity then is a function of (1) how many otherspoilers there are and (2) how critical the critical mass problem is in regards to thesituational problem at hand. At the other extreme are situations where the absence ofsome or any number of states will not affect the benefits that accrue to parties, thuswhere the possibilities of exclusion are good. For example, free trade agreements canwork on a bilateral or regional basis; there is no direct necessity to expandmembership to as many states as possible. Likewise, human rights protection isworth pursuing even among a few states. The benefits of the regimes are in linearrelation to their size, not in exponential relation. Spoiling a treaty is difficult if thebenefits envisaged by the treaty can be achieved no matter how many states becomepart of it.23

The logic of critical mass also applies to the introduction of new international lawthat has systemic importance, such as the law of treaties, the law of stateresponsibility or the law on self-determination. Only broadly accepted treaties alsosucceed in changing the substance of general customary international law, thusmaking the rules contained in the treaty binding to all states in the world withoutregard to them being a party (ICJ 1969). While it is true that international law hasother ways to introduce legal rules to an issue-area, such as through innovative courtdecisions, these mechanisms tend to operate only incrementally from established

21 There is also the stigma of being a spoiler that will in itself provide an incentive to join amultilateral regime, particularly in the case of small states.22 In addition, adhering to the WTO is important for a number of countries to signal to internationalinvestors that they provide national treatment to foreign investors and make transactions more secure(Gruber 2001).23 In real-life cases, critical mass will rarely present itself in absolute terms but rather as a matter ofdegree. When, in the 1980s, the USA boycotted the Olympic Games in Moscow and the Soviet Unionthose in Los Angeles, one of the purposes of the Games – determining the best athletes in the world –became compromised but not the extent that holding the Games became entirely pointless. Nuclearproliferation or carbon dioxide emissions, too, are community enterprises where the success of theregimes are matters of degree, not all-or-nothing propositions.


bases of the law; revolutionary changes are not the domain of customaryinternational law or general principles (the two other traditional sources ofinternational law-making). Thus new international law with systemic implications,too, exhibits some of the logic involved with critical mass. Spoiling is not that easybecause the persistent objector principle, which allows a disagreeing state to opt outof emerging customary rules, does precisely not affect the emergence of the newrules themselves, but merely excludes their application to the persistent objector.

The example of international law rules with systemic implications is illustrative for afurther conceptual point. Some treaty regimes, such as the NPT, offer hard, palpablebenefits like nuclear energy supply and security assurances. Other treaty regimes,such as the UN Convention on Civil and Political Rights, are more ideational.Human rights abuses in Burma do not directly affect the wellbeing of citizens inGermany; the use of chemical weapons in the Iraq-Iran war of the 1980s did notaffect the health of soldiers at other places in the world. It would be wrong, however,to discount the capacity of states to spoil the regime even in such cases. There issomething destructive of every transgression, in the sense that any disregard revealsinadequacies in a regime’s overall effectiveness. The armed attack of one stateagainst another may not directly affect all others, but it can give reason to believethat a precedent has been set that will guide the same state or other states in anunnamed future case under similar circumstances. This effect is clear in the minds ofinternational lawyers, who often worry about the legal effects of precedents, such asin the case of humanitarian intervention in the context of the UN Charter or secessionin the context of the right to self-determination. Spoiling is thus always a latentpossibility because the information on compliance is relevant for any regime.Defection today informs about the likelihood of defection tomorrow. Eachtransgression of a party undermines the overall credibility of the treaty regime andpushes others to review their policy of compliance in return. To complicate things,however, there is a fine line between the death of a regime through non-complianceand its modification through new, yet still ‘constructive’ practice. Which is the casedepends much on the significance that parties themselves attach to transgressions.

INDIVIDUAL CAPACITY

The capacities of states to be spoilers differ. When, in the 1980s, the USA and theSoviet Union subsequently to each other boycotted the Olympic Games, this greatlymattered because they both had a great number of exceptional athletes. Populationsize mattered; consequently, no great harm is done to Olympic Games that areshunned by states with small population sizes. Similarly, it is crucial that the majorcarbon-dioxide emitting states commit themselves to the Kyoto Protocol of 1998,whereas minor emitters can be neglected. Individual spoiler capacity is connected toclassic power indicators such as material capabilities or industrial prowess, but hereit is issue-dependent: the more one has of what others want, the better one’snegotiation position. The USA may be structurally powerful in arrangements


concerning UN peacekeeping or global warming, but they are less influential inregard to the preservation of biodiversity, the combat of corruption, or the fightagainst tropical diseases. Another example is arms control in outer space. Currently,only the USA, Russia and China have the individual capacity to shoot down satellites(Economist 2007). Consequently, any treaty regime specifically prohibiting takingout satellites needs to involve the three. At the same time, some factors play a roleacross issue-areas, such as the ability to lend financial support, to deliver thenecessary surveillance technology or manpower for a regime to work. The IAEA, forexample, could not operate without access to scientific experts that were trained inadvanced industrialised countries, nor could any UN peacekeeping operation eversucceed without properly trained soldiers. These are ‘internal’ capacity factors.‘External’ capacity factors are whether a state is strong enough to resist outsidepressure in the form of sticks and carrots (or ‘arm-twisting and bribery’,Kindleberger 1988). Having something that others want badly is only half of thedeal. It is also necessary to be able deny access at one’s own volition.

Both ‘internal’ and ‘outside’ spoiling capacity cannot be changed over night. A statecannot increase its domestic biodiversity or the size of its market easily, nor can itimprove its military capabilities through the stroke of a pen. But it can affect thelevels of carbon-dioxide emissions or the levels of ozone-depleting substancessomewhat, or it can increase its levels of blue whale fishing in the Pacific. In suchcases, the paradox results that states can influence their spoiling capacity (and thustheir influence in treaty negotiations) by engaging in practices diametrically opposedto the purpose of the proposed treaty regime. Moreover, governments may alsopursue the strategy of sinking costs and tying hands by committing themselves todomestic audiences (Fearon 1997). They may publicly commit themselves, forinstance, not to give up the local whaling industry. Or, alternatively, they mayengage in alternative treaty-making, such in the case of preferential trade agreementsas opposed to multilateral trade deals. Occasionally, they can also rely oninstitutionalised prerogatives like the veto in the Security Council. In all theseinstances, the logic is the same as for what negotiation scholars call BATNA – thebest alternative to no agreement (Fisher & Ury 1983). By fostering alternatives toagreement, states are able to strengthen their bargaining position and thus theirspoiler capacity (see in the context of the WTO, Elsig 2006).

Spoilers with exceptional capacities can rely on the chilling effect. Their influence isso great that some projects are not even brought on the table; the chances for successof such projects are thought to be entirely illusory. For instance, a Security Councilreform that would abolish the veto privileges of the Permanent Five is neverproposed.

SUMMARY

In summary, spoiling becomes a problem whenever a regime cannot easily operatewithout wide support. That is a function of whether or not there is a critical mass


problem, and if so to what extent. It is also a function of how spoiling capacity isdistributed in the world; trouble is ahead when what the regime needs most is locatedwith states that are influential and which thus can afford a unilateral course.

Strategies of spoilers

Spoilers can apply three strategies to undermine a multilateral treaty regime project.First, they may pursue a course of action that flies in the face of regime goals, suchas over-fishing, human rights abuses, environmental pollution, sale of nuclearweapons, finance terrorism, and so on. If critical mass problem is severe, meredefiance will compromise the regime enough to endanger it. Second, spoilers canfirst show a willingness to cooperate and later defect. They will first seek to waterdown the treaty draft to soften its effectiveness, and once agreement is reached,refuse to ratify or fail to implement it. North Korea, for example, signed the NPT butwithdrew in January 2003. A more nuanced variant to the second strategy is to trysplit an existing consensus among treaty sponsors by bringing up items on thenegotiation table that are known to be divisive. Iraq, for example, went through painsin the 1990s to exploit the differences of opinion between European states and theUSA in regard to sanctions. The USA wanted to keep all sanctions in place, whileseveral European states tended to favour a more lenient course of action. Bypractising halfway compliance with demands, Iraq sought to play the two groupsagainst one another. Third, spoilers can use their influence to bribe or arm-twist lesscommitted or weaker states (which, if they give in, turn into greedy spoilers). Treatyspoilers can combine all three strategies freely.

Strategies of sponsors

Spoiler management strategies of treaty sponsors need to match the type, locus,position, and timing of spoilers. They also need to consider their numbers and theirindividual capacities. All these attributes may not be readily available at the initiationphase, and spoilers may also have a tactical interest to give wrong signals. Sponsorstherefore may be compelled to rely on trial and error, look and see approaches. As aresult, strategies can mismatch (Stedman 1997). Another factor described above iswhether the issue-area under consideration lends itself to spoiling or not. Treatysponsors have adopted at least the following responses to spoilers: accommodation,persuasion, containment, and delay.

ACCOMMODATION

Treaty sponsors may try to induce spoilers to cooperate by accommodating theirdemands. This is an often used strategy but one that has obvious drawbacks. Bygiving in too much to demands made by spoilers, treaty sponsors accept that theproposed regime will be less effective than intended. In this sense accommodation(‘leave no state behind’) is not really a strategy but the lack of one. But the net resultmight still be better than smaller acceptance, particularly in the case of limited


spoilers. For the Kyoto Protocol of 1998, for example, it might still have been thebest strategy to offer developing countries financial incentives and no actualemission reduction obligations than not having them on board at all – particularly inlight of the idea of emissions trading. In trade agreements, the option of efficientbreach possibilities are often needed to overcome obstacles to integrate those withindividual capacity to spoil. This increases the overall stability of agreements (seeRosendorff and Milner 2001).

A common technique for accommodation is to allow treaty reservations, unilateralstatements that limit the legal force of selected treaty provisions, or to allow for opt-out or safeguard clauses.

PERSUASION OR: CHANGING THE BATNA OF OTHERS

Persuasion involves two variants to change the perceived cost-benefit calculus ofspoilers: arm-twisting on the one hand, and bribery on the other. A combination ofthe two is suitable for greedy spoilers, who can be pushed to acceptance if they areoffered the right mix of incentives. The five official nuclear weapon states appliedthis strategy successfully at the occasion of the extension conference to the NPT in1995. Not only did they offer the nuclear have nots help with peaceful uses ofnuclear energy (which they would refuse to non-parties), they also offered unilateralsecurity assurances to address various national security concerns. The idea is to offercomprehensive package deals (to prevent cherry picking) that include both sticks andcarrots, measures of inclusion and exclusion (Sebenius 1983; Stein 1989).24

Another, related variant is seeking integrative negotiations: including new issues in apackage deal (‘making the cake bigger’) can help stable outcomes (see Odell 2000).Linkage is a similar technique: in cases where states are likely to interact again onanother issue-area, it is possible to trade concessions over time. For example, accessto the WTO in exchange for more sincere human rights protection, as was at leastthought of for the case of China. This, however, does not work whereinterdependence is low and the ‘shadow of the future’ short (Axelrod 1984).

Finally, there is the variant to mobilise public opinion at one’s own home and athome of spoilers. By getting civil society engaged, public pressure for a particularcourse of action might neutralise spoilers while strengthen the bargaining position ofsponsors.

CONTAINMENT

Containment involves measures to affect the spoiling capacity of some statesdirectly. The USA for instance has been spearheading attempts to monitor NorthKorean shipments that might potential transport nuclear weapons material. Another

24 An additional problem presents itself when states are offered carrots and sticks from both spoilersand sponsors. States in such a situation might be able to play spoilers and sponsors out against eachother to their own benefit. But they might also end up getting the worse of both worlds.


variant, adopted by Greenpeace but never by states, is to stop fishing boats on thehigh seas. Another example is the destruction of coca plantations by foreign militaryforces. In each of these cases, the goal is not to influence the calculus of spoilersgiven their spoiler capacity, but to make changes to that capacity itself. Containment,however, is a difficult undertaking.

DELAY

Delay means to postpone the strong version of a regime envisaged by ‘buildingblock’ tactics. Building blocks may be a framework convention such in the case ofthe Climate Change Convention of 1992, or a small membership regime such asregional trade agreements or organisations such as the EU (Abbott & Snidal 2004).Framework conventions operate on the basis of continuing negotiations anddeepening of a regime. Small membership regimes rely on the tipping effect toconvince other states to join ranks (but see Giligan 2004).

Conclusions and outlook

Experiences of legal multilateralism in the 1990s and early 2000s suggest thatconventional theories on regime formation have shortcomings. They offer limitedguidance as to when regime formation can be expected at a given point in time, orhow successful their introduction might be; explanations tend to fall in place ex postfacto. It is difficult to predict whether a multilateral regime will be formed by usingany of the dominant theories.

Our proposition is that in order to understand present-day multilateralism, it isimportant to pay attention to the division between sponsors and spoilers of treatyregimes. The main factor determining multilateral regime formation may well be theconditions that favour spoiling. Spoiling is serious when the issue-area at stake ischaracterised by critical mass and tipping problems. It gets worse when spoilers haveextensive individual capacities for spoiling that render them indispensable for regimesuccess and immune to outside influence at the same time. Structural, issue-dependent impediments to cooperation are important for understanding spoilerproblems, but so are the general attitudes of states to multilateralism, the individualcapacities of states, and the outcome of strategies adopted by sponsors and spoilers atthe stage of treaty initiation and negotiation. In worse case scenarios, the range ofstrategies for sponsors to deal with spoilers is limited but not desperate. They can tryaccommodation, persuasion, containment or delay strategies, a combination of whichmay produce workable results.

Our analysis lends support to a basic intuition of international relations theory: thatinternational cooperation is difficult (Keohane & Axelrod 1985); and that it is easierto destroy than to build. Unless demand for a regime is virtually unanimous, wecannot expect strong regimes where spoiler problems are great. We worry about theprevalence of spoiler problems because globalisation tends to play in the hands of


spoilers: as the number of problems that need to be fixed by international cooperationgrow, the more will denial of cooperation matter. In the meantime, and for better orworse, the era of uniquely powerful treaty sponsors is over.

As indicated, our findings are preliminary. We note avenues for further research.First, our data is not yet sufficient to test the concepts developed in the third part ofour paper. More thorough, inferential statistical analysis is called for. Second, werealise that looking at levels of acceptance is of limited use if we don’t know whatstates sign up to: agreeing to delegate substantive authority in, say, matters ofnational security, is quite different from committing oneself to loosely defined goalsto make the world a better place. Both extremes can be found in treaties, but only forone is broad acceptance a measure of cooperative spirit. These are issues of regimeeffectiveness that we wish to address as our research continues.

For now, however, we believe that there is value for policy-makers and observersalike in gauging the likelihood of multilateral treaty acceptance, and in searching forbetter strategies to manage spoilers. The need is particularly clear for world ordertreaties. The new international law may depend on it; and the best party in town stillawaits to be thrown.

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Annex

Ranking of states by ratification level, in percent of all 50 treaties, as of 1 March 2006; first 30 and

last 30 states.

Country Ratifications Percent Rank

Norway 36 72% 1

Slovakia 36 72% 1


Bulgaria 35 70% 3

Spain 35 70% 3

France 34 68% 5

Latvia 34 68% 5

Lithuania 34 68% 5

Netherlands 34 68% 5

Sweden 34 68% 5

Austria 33 66% 10

Denmark 33 66% 10

Finland 33 66% 10

Portugal 33 66% 10

Romania 33 66% 10

Belgium 32 64% 15

Estonia 32 64% 15

Hungary 32 64% 15

Italy 32 64% 15

Poland 32 64% 15

Slovenia 32 64% 15

United Kingdom 32 64% 15

Cyprus 31 62% 22

Germany 31 62% 22

Belarus 29 58% 24

Brazil 29 58% 24

Luxembourg 29 58% 24

South Africa 29 58% 24

Switzerland 29 58% 24

Albania 28 56% 29

Ecuador 28 56% 29

… … … …

Vanuatu 13 26% 151

Afghanistan 12 24% 164

Congo 12 24% 164

Eritrea 12 24% 164

Indonesia 12 24% 164

Israel 12 24% 164

Solomon Islands 12 24% 164

Uzbekistan 12 24% 164

Yemen 12 24% 164

Iran 11 22% 172

Zimbabwe 11 22% 172

Bahamas 10 20% 174

Brunei 10 20% 174

Comoros 10 20% 174

East Timor 10 20% 174

Haiti 10 20% 174

Nepal 10 20% 174

Palau 10 20% 174

San Marino 10 20% 174

Saudi Arabia 10 20% 174


Suriname 10 20% 174

Tonga 10 20% 174

Angola 9 18% 185

Bhutan 9 18% 185

North Korea 9 18% 185

Andorra 8 16% 188

Tuvalu 8 16% 188

Guinea-Bissau 6 12% 190

Iraq 1 2% 191

Somalia 1 2% 191

spoiling the party? multilateralism, participation, and...

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