Date Posted: January 2012
Novel legal questions raised by the war on terror and the evolving technology of warfare have highlighted the importance of executive branch legal interpretation, in particular how agencies address difficult questions about the scope and application of international law, often without review by Congress or the courts. This Article presents a public choice analysis of how the executive branch in the United States determines questions of compliance with international law. In contrast to theories that treat the state as a unitary entity, the public choice approach examines the different interests and incentives of the executive branch agencies that advise the President. These agencies frequently disagree about the content and application of international law and the executive branch often fails to coordinate these interests consistently. The unpredictability of the process encourages agencies to compete for control over international legal policy. Analyzing domestic inputs as well as coordinating institutions, the public choice approach considers how the “they” of the executive branch seeks to function as an “it.”
This leads to some distinct conclusions and predictions about international law compliance. First, it demonstrates some of the limitations of unitary state models, but also how public choice can be complementary to rational choice theories. Second, it predicts that competition to control central decision making will encourage agencies to use the indeterminacy of international law strategically. Agency officials benefit by keeping open the widest range of policy options consistent with international law. Finally, if government officials in other countries face similar incentives, this may provide an explanation based on sub-state actors for why international law does not exhibit the clarity and compliance often considered an aspiration for international law.