This book is about three things. First, it explores whether, why, and how states comply with international law, focusing on the United States and the factors that affect state calculations. Second, it examines the culture, structure, and processes of the State Department and their effect on the role of international law considerations in shaping State Department decision-making. Finally, it investigates the effect of the Trump administration and its views about international law on the culture and processes of the State Department, as well as the likely effect of a similar administration in the future. To help address these questions, seventy-seven high-level former State Department officials were interviewed, as well as a handful of former high-level attorneys in the Office of the Legal Adviser.

This chapter explores the origins and consequences of national security institutions in the People’s Republic of China during the tenure of Mao Zedong. It first explains the political logic behind Mao’s choice to shift from integrated to fragmented institutions: Mao chose to weaken the bureaucracy to ensure a stable political succession after his death. It then presents a medium-n analysis to show how this shift from integrated to fragmented institutions degraded China’s crisis performance. Detailed process tracing of two cases illustrates how different institutional designs shaped crisis performance through poor bureaucratic information provision at the onset of each crisis. Prior to the 1962 Taiwan Strait Crisis, Mao’s decision-making benefitted from high-quality bureaucratic information that comparatively inclusive and open institutions afforded. By the onset of the 1969 Sino-Soviet Border conflict, however, Mao was forced to make decisions based on incomplete and biased information provided by bureaucrats who feared Mao’s retribution. The chapter thus illustrates how institutional changes can dramatically change the quality of information upon which the same leader bases their choice of conflict.

This chapter presents an institutional theory of miscalculation on the road to war. The central proposition is that leaders face a trade-off between good information and political security. This trade-off is discussed in two parts. The chapter first discusses the informational constraints faced by leaders contemplating beginning an international crisis, explaining why integrated institutions that feature inclusive and open information flows tend to deliver better information to leaders. The chapter then discusses the political logic by which many leaders choose to forgo integrated institutions in favor of institutional alternatives that deliver less complete and less accurate information but provide political protection from bureaucratic punishment.

Chapter Two summarizes the compliance literature on international relations and international law, addressing both theoretical and empirical work. This literature can be divided into two groups: The first group explores why states comply with international law and is generally associated with the primary schools of international relations theory. The study may confirm or illustrate the applicability of aspects of one or more of these theories, although that is not necessary for it to be valuable in illuminating the motivations that affect policymakers and states. The second group within the compliance literature examines more closely how states comply at the domestic level and focuses on domestic policymaking within the United States government. In this regard, the chapter concentrates on two similar normative and process-oriented approaches. The first, the international legal process approach, is drawn from international legal scholarship; the second is primarily drawn from constructivist international relations theory, and was developed primarily by Wayne Sandholtz and Christopher Whytock, among others. Both approaches emphasize the role of internalized norms and the importance of process and organizational structure in decision-making. They are, accordingly, helpful in understanding the effect of legal norms, lawyers, and process in State Department decision-making.

This chapter explores the origins and consequences of national security institution in India from 1947 to 2015. It first discusses the evolution of India’s institutions. It argues that the trade-off between good information and political security explains three major institutional changes: Nehru’s choice to abandon his inherited institutions in favor of fragmented ones that protected his plans to transform the domestic economy; the choice of post-Nehruvian leaders to shift toward siloed institutions that balanced continued threats from national security bureaucracies against new international security challenges from Pakistan and China; and Vajpayee’s choice to establish more integrated institutions as apprehensions about bureaucratic punishment lessened. The chapter then presents a medium-n analysis suggesting that India exhibited better crisis performance under integrated institutions than under siloed and fragmented institutions. Case studies tracing decision-making during the 1962 Sino–Indian War and the 2001-2002 Twin Peaks Crisis illustrate how these institutional changes affected the quality of information upon which Indian leaders based their crisis choices.

References to “Weimar” have played an increasingly important role in trying to make sense of the present, and also to mobilize various constituencies. Related to the diagnosis of contemporary political movements as fascist or neo-fascist, there is the question of whether some of the lessons drawn in the postwar period from the failures of Weimar – especially the ones that inspired the creation of the legal toolkit generally known as “militant democracy” – should be central to attempts to defend democracy today. This chapter engages both issues and argues that the toolkit of militant democracy remains valuable in many ways – but that its instruments are often not well suited to dealing with today’s challenges to democracy.

The concluding chapter briefly summarizes the main findings and discusses the broader implications for the study of international relations. This book has argued that the trade-off between good information and political security helps to explain why leaders often charge headfirst into conflict that they lose. Whereas much of the existing literature posits that bureaucratic participation in a foreign policy decision-making process tends to degrade the information available to leaders as they choose between war and peace, this book has instead argued that institutions and leaders benefit from the information that the bureaucracy provides, especially when leaders pit bureaucracies against one another in competitive dialogue. Yet leaders often forgo these institutions precisely to avoid the costs that a powerful bureaucracy can impose on their prospects for political survival. As such, miscalculation on the road to war is often the byproduct of how leaders resolve the trade-off between a more accurate vision of the world and protection from bureaucratic punishment.

This chapter addresses in detail those rare occasions in which the Court and the Commission have adopted differing positions on the legal questions before them. In exploring both the potential for such disagreements and how they have been handled, the chapter shows that these instances attest to the strength of the inter-institutional relationship rather than undermine it. It also points out, however, that harmony comes at a cost.