Andrew T Guzman

The Consent Problem in International Law

Andrew T. Guzman — Wed, 13 Oct 2010 11:49:35 PDT

Extraterritoriality and Cooperation

Andrew T. Guzman — Tue, 14 Sep 2010 17:16:49 PDT

Soft Law and the Global Commons: Soft Law Approches to International Environmental Challenges (with Chris Brummer & Timothy Meyer)

Andrew T. Guzman — Tue, 14 Sep 2010 17:14:57 PDT

International Order Without Law: The Power of Soft Law in Global Governance

Andrew T. Guzman — Tue, 14 Sep 2010 17:10:48 PDT

An Insider's Guide to the WTOs Problems

Andrew T. Guzman — Tue, 14 Sep 2010 17:01:43 PDT

A Plan to Make Imports Safe

Andrew T. Guzman — Tue, 14 Sep 2010 16:55:44 PDT

How We Can Protect Ourselves From Unsafe Foreign Goods

Andrew T. Guzman — Tue, 14 Sep 2010 16:33:53 PDT

A Strategy for Cooperation in Global Competition Policy

Andrew T. Guzman — Tue, 14 Apr 2009 15:05:47 PDT

Two Degrees: How Climate Change Will Cause Floods, Famine, War, and Disease

Andrew T. Guzman — Tue, 14 Apr 2009 15:00:55 PDT

Reputation and International Law

Andrew T. Guzman — Tue, 24 Mar 2009 17:08:49 PDT

Among the reasons that states comply with international law in the absence of coercive enforcement mechanisms is a concern for their reputation for compliance with international legal rules. Such a reputation is valuable because it allows states to make credible commitments to one another in an effort to overcome problems of cooperation. To date neither the international relations nor the international law literature has developed a theory of reputation that explains in detail how states acquire a reputation for compliance, how they lose it, and how it affects behavior. This paper seeks to provide such a theory. It examines how states' reputation for compliance can be gained or lost and how reputational concerns interact with other payoffs. It considers strategic decisions states must make to manage reputation over time as well as the connection between better information and more effective reputational sanctions. Finally, the paper discusses the question of whether states have a single reputation for compliance with international law or, instead, several such reputations corresponding to different issue areas. The way in which this compartmentalization of reputation influences the ability of states to solve international problems is explained.

Cooperation in International Antitrust

Andrew T. Guzman — Tue, 24 Mar 2009 17:04:15 PDT

Determining the Appropriate Standard of Review in WTO Dispute Resolution

Andrew T. Guzman — Tue, 24 Mar 2009 16:56:31 PDT

This article considers how the WTO judicial organs should determine the standard of review in the case they decide. It argues that a key factor should be the relative strengths of the WTO adjudicatory organs and domestic governments. On this bais, it explains when review at the WTO should be de novo, when it should be an intermediate review, and when it should largely defer to the decisions of member states. In the process, it compares these normative claims to existing WTO practice.

Importers as Regulators: Product Safety in a Globalized World

Andrew T. Guzman — Tue, 24 Mar 2009 16:44:52 PDT

In the wake of scandals involving lead toys, toxic toothpaste, poisonous pet food, and other dangerous products in recent years, policymakers have proposed a variety of strategies that purport to address safety concerns. Though many of these proposals would have salutary effects on consumer product safety, they do not provide, either individually or collectively, a full solution to the problem. This chapter offers a different proposal for addressing the challenges that global production poses for state-centered regulation of import safety. We argue that regulators should structure administrative penalties to make private importers regulate the foreign manufacturing processes from which they benefit.

Specifically, we make the case that where U.S. regulators expect a threat to consumer protection from foreign goods and services, they should augment the legal penalties imposed against foreign and domestic partners in international trade that are within the reach of American authorities. This enhanced threat of legal liability would serve to ensure that these parties act as de facto regulators of the foreign activity from which they benefit, even when those activities themselves are beyond the reach of American law. Trade in domestic goods and services would not trigger the same penalties because these products face regulation of the production process that, in principle, achieves the desired level of safety.

How International Law Works: A Response to Commentators

Andrew T. Guzman — Tue, 24 Mar 2009 16:42:51 PDT

This is a response to the discussion of commentators in a symposium on my book, How International Law Works.

How International Law Works: Introduction

Andrew T. Guzman — Tue, 24 Mar 2009 16:41:22 PDT

This comment serves as the introduction to a symposium on my book, How International Law Works.

Regulation and Competition in the Global Economy: Cooperation, Comity, and Competition Policy, Oxford University Press

Andrew T. Guzman — Tue, 24 Mar 2009 16:39:14 PDT

International Soft Law

Andrew T. Guzman et al. — Wed, 04 Mar 2009 12:08:36 PST

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range state behavior than has been previously explained.

First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance.

Second, under what we term the “loss avoidance” theory, moving from soft law to hard generates higher sanctions which both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations.

Third, under the “delegation theory,” states choose soft law when they are uncertain about whether the rules they adopt today will be desirable tomorrow and when it is advantageous to allow a particular state or groups of states to adjust expectations in the event of changed circumstances. Moving from hard law to soft law makes it easier for such states to renounce existing rules or interpretations of rules and drive the evolution of soft law rules in a way that may be more efficient than formal renegotiation.

Fourth, we introduce the concept of international common law (“ICL”), which we define as a non-binding gloss that international institutions, such as international tribunals, put on binding legal rules. The theory of ICL is based on the observation that, except occasionally with respect to the facts and parties to the dispute before it, the decisions of international tribunals are non-binding interpretations of binding legal rules. States grant institutions the authority to make ICL as a way around the requirement that states must consent in order to be bound by legal rules. ICL affects all states subject to the underlying rule, regardless of whether they have consented to the creation of the ICL. As such, ICL provides cooperation-minded states with the opportunity to deepen cooperation in exchange for surrendering some measure of control over legal rules.

These four explanations of soft law, and in particular the theory of ICL, provide a firm justification for the coherence of soft law as an analytic category. They demonstrate that there are a range of non-binding international instruments from which legal consequences flow, just as in the domestic setting non-binding documents such as legislative committee reports often have legal consequences when, for example, used to interpret binding rules. Moreover, the theories offered in this paper explain the circumstances under which this quasi-legal characteristic of soft law will be attractive to states.

Climate Change and U.S. Interests

Andrew T. Guzman et al. — Fri, 09 Jan 2009 12:27:47 PST

The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.

In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the “climate change winner” argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation – the construction of both literal and figurative sea walls to reduce the effects of global warming.

The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach.

We demonstrate that even if one accepts that the premises of the climate change winner argument – that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states – the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong.

We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs.

This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.

International Common Law: The Soft Law of International Tribunals

Andrew T. Guzman et al. — Fri, 12 Sep 2008 16:17:40 PDT

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal’s decision – its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations – is best characterized as a form of soft law.

Despite its inability to bind states, a tribunal can influence state behavior by implicating a state’s reputation for compliance with international law, by bolstering the reciprocity underlying an agreement, or by triggering retaliation. In this sense the rulings of a tribunal influences states through the same mechanisms as does binding international law. Because tribunal rulings are soft law, however, they avoid the need for unanimity among states, thereby making it easier for the legal system (including the non-binding aspects of that system) to adapt to changing circumstances and conditions.

By establishing a tribunal to interpret legal obligations in a way that gives rise to a soft law jurisprudence, therefore, states are able to expand the tribunal’s influence beyond those states that submit to the tribunal’s jurisdiction. In effect, all states subject to the underlying legal obligation come to be subject to the soft law impact of the tribunal, regardless of whether they have formally submitted to the tribunal’s jurisdiction. In this way tribunals create what can be called an international common law able to evolve without formal agreement from states.

How Would You Like to Pay for That? The Strategic Effects of Fee Arrangements on Settlement Terms

Andrew T. Guzman et al. — Thu, 24 Apr 2008 10:24:15 PDT