The Dynamics of International Legal Regime Formation: The Sino-British Joint Declaration on the Question of Hong Kong Revisited: A Reply to Roda Mushkat

Abstract

Professor Roda Mushkat�s article, arguing for the application of international regime theory to understanding the Sino-British Joint Declaration, is a curate�s egg. As I read it, I often found myself nodding in agreement with her, especially her analysis and critiques of various international relations theories and methodologies. But she fails to make the case for regime theory analysis in general and for its application to the Sino-British Declaration in particular. International regime theory has been with us since John Ruggie introduced this concept to international relations through his seminal article �International Reponses to Technology: Concepts and Trends�1 in 1975. Underlying this theory is the notion that imperatives of behaviour coordination compel the formation of international regimes. Thus, �regimes� include international organizations such as the International Monetary Fund (IMF) or international agreements, such as the Kyoto Protocol. They evolve � become structured �regimes� � because they serve as a forum to standardize and facilitate discussion, communications and agreements across various countries. Scholars like Stephan Krasner (whom Mushkat cites) argue that the presence of a hegemon � such as a superpower like the United States � gives momentum to the creation of the regime. This has been called the �hegemonic stability theory�2 because hegemons use their power to create regimes. Correspondingly, when the power of these hegemons wane, the effectiveness of the same regimes come under threat. Regimes can be subjects of international law in that they shape the behaviour of states, sometimes to the extent that state practice may constitute a source of customary international law. Mushkat starts out by arguing that students of international behaviour have something to say about the formation of international legal regimes and proceeds to spend �