Melissa J. Durkee, Persuasion Treaties, 99 Va. L. Rev. 63 (2013), https://digitalcommons.law.uw.edu/faculty-articles/232
Virginia Law Review
All treaties, akin to contracts between nations, formalize the promises of their parties. Yet the contents of those promises differ, with important consequences.
One particular difference is underappreciated and divides treaties into two fundamentally different categories. In one category of treaty, nations agree that they themselves will act, or refrain from acting, in certain ways. For convenience, I call these “resolution” treaties because they demand that states resolve to act. In the second category, nations make promises they can only keep if nonstate third parties also act or refrain from acting. These are what I term “persuasion” treaties because they require states to persuade third parties to do something differently, through regulatory or other means.
Significantly, each type of treaty carries a unique set of execution and compliance problems. Persuasion treaties are both distinctly important and distinctly challenged. Identifying the difference between these types of treaty commitment provides conceptual clarity that organizes treaty critiques, clarifies conditions for treaty success, and helps resolve critical persuasion treaty pathologies.
This Article seeks to unearth the execution and compliance problems that drive the privatization critique, analyze the nature of those problems, and identify means of ameliorating them. I propose that the answers turn on identifying and understanding the class of treaties to which the problems inhere.
Part I outlines the privatization critique and explains why it merits our attention; Part II constructs and defends the persuasion treaty theory; Part III illustrates the theory with preliminary empirical support; and Part IV shows how the theory frames problems and identifies possible solutions.