Behavioral Analysis of International Law: On Lawmaking and Nudging

Abstract

This article examines the application of insights from behavioral economics to the area of international law. It reviews the unique challenges facing such application and demonstrates the contribution of behavioral findings to the understanding of lawmaking, the use of nudges, and states’ practices in the international arena. In the sphere of lawmaking, the article first highlights the contribution of experimental game theory to understanding international customary law. It then analyzes the psychological mechanisms underpinning the advancement of treaty law through the use of deadlines, grandfather provisions, deferred implementation, and temporary arrangements. More generally, it provides insight into the processes through which international soft law evolves into hard law. The article then argues that in the absence of a central legislative body or strong enforcement mechanisms, nudges (that is, low-cost, choice-preserving, behaviorally-informed regulatory tools) can play a particularly important role in influencing the behavior of states and other entities. The article describes the current use of nudges, such as opt-in and opt-out arrangements in multilateral treaties, goal settings, and international rankings—and calls for further employment of such means. Finally, the article suggests that the extent to which states comply with international norms may be explained by phenomena such as loss aversion and the identifiability effect, and that further insight into states’ (non)compliance may be gained from the emerging research in behavioral ethics.