A Theory of Boilerplate in International Agreements
Abstract: In international agreements, states use language that has stood the test of time. Such settled language may be efficient and further legal certainty but may also have a dark side. In private contracts, boilerplate is Janus-faced: efficiency and certainty; but also take-it-or-leave-it unilateralism. In that context, boilerplate has been found to confer significant advantages on companies at the expense of consumers. By contrast, we know little about boilerplate’s role in public international law, despite its theoretical and practical importance. How boilerplate operates in international law could differ substantially from domestic law. This paper develops a theory on boilerplate in public international law and asks: (1) how does boilerplate affect bargaining, and (2) why do states use boilerplate? (3) where does boilerplate come from and what are the patterns of its diffusion; and (4) how does boilerplate contribute to international law making. It challenges the conventional wisdom that international agreements are closely negotiated and highly responsive to varying constellations of national interests and country circumstances. The implications for the negotiation of agreements and for international cooperation could be significant.
