“The
considerations that international law is without a court for its enforcement,
and that obedience to its commands practically depends upon good faith, instead
of upon the mandate of a superior tribunal, only give additional sanction to
the law itself and brand any deliberate infraction of it not merely as a wrong
but as a disgrace.”[1]
- President Grover Cleveland
I.
Introduction
Compliance
is an essential element of international law. Theories of states compliance with international law not only facilitate
in explaining the trend towards law as a positive phenomenon, but they also
provide for an vital empirical ground for testing the value of interdisciplinary
work and policies for the regulation of organizations and contracts. If States
had no incentive to adhere to international norms and
standards, international legal regimes and institutions would have no purpose
and perhaps the concept of international law would have existed only on paper.
Although a great deal has been written on the
validity of international law and its effect on sovereign states, a suitable
theory of adherence to it has not ye been developed.[2]
II.
Meaning
of Compliance
Kal Raustiala defines compliance as “a state of conformity or identity
between an actor's behavior and a specified rule”.[3] Thus,
the existence of a norm is presumed and then the compliance of its subjects to
it is tested. Thus, adherence to international law includes the conduct of a
state to comply with the provisions of a treaty or a specific rule of
international law. It looks to the resultant conformity rather than the methods
of implementation.
However, implementation may not always be a
necessary for obedience to international law. In some cases conformity with
international law may be merely co-incidental or unintentional. For example, if the
requirements of an international treaty or rule are in resonance with already
existing scenario in a state, implementation becomes unnecessary and conformity
is involuntary. On the other hand,
implementation may not always lead to compliance and may not always be
possible.
One
can observe a spectrum of compliance with international law based on
implementation, participation and effectiveness. A State may ratify a treaty,
the level of conformity with its provisions and its participation in the regime
may vary. It is also a possibility that a State may ratify a treaty yet not make
any adequate effort to comply with it. And lastly, a State may not sign or
ratify, yet it may show a certain degree of compliance with the provisions of the
treaty.
III.
Theories
of State Compliance
A.
The
Managerial Model
In 1993, Abram Chayes and his wife, Antonia Handler
Chayes, advanced the “managerial model” theory as an alternative to the
prevalent “enforcement model” theory.[4]
Under the enforcement model, compliance was dependent on coercive enforcement
and proponents of this model believed that to secure compliance to an
international rule, such rule must be given "teeth"
i.e. sanctions to discourage and penalize infringement. Abram and
Antonia submitted that the primary reason for non-compliance
was not willful disobedience, but “lack of capability or clarity or priority.”
Some of the reasons for non-compliance are:-
·
While
attempting to achieve a generality in treaties, in order to be suitable for all
states, treaties usually end up becoming ambiguous and leave a very wide scope
for interpretation.
·
Some states
may have inherent incapacity to comply with the regulations.
·
The
international regulations are of such nature that achieving compliance is a
long process, during which the State is still not considered to be at a stage
of compliance.
The managerial model relies on problem-solving and a cooperative approach. It approaches the issue of performance of
treaty obligations with a continuing dialogue between the parties to create
pressure to obey. According to this model, the solutions to the above reasons
of non-compliance are transparency, informal dispute settlement measures and
express provisions for technical assistance.
However, the managerial model only gives a
satisfying explanation to resolve coordination problems, but does not provide
any reason for compliance itself. The theory presumes that there is a general
norm in favour of compliance, without providing any adequate explanation. Thus,
this model is beneficial for guiding compliance but not so much at explaining
it.
B.
Legitimacy
Theory
The Legitimacy Theory was proposed by Thomas Franck.
According to Thomas Franck, whether a nation complies with international law is
determined by the following factors: - determinacy, symbolic validation, coherence,
and adherence.[5]
Pressure towards compliance is directly proportional to these for factors.
Determinacy is said to be high if the rule is less or not at all ambiguous.
Symbolic validation signifies the existence of practices or routines that give
a rule symbolic significance. Coherence depends on the rationality of the rule.
Lastly, adherence denotes to the relation between a primary rule and the secondary
rules used to construe the primary rule.
Even the legitimacy theory does not offer any valid
or reasonable explanation as to why States comply with international law but
merely makes an assertion that treaties are to be obeyed.
C.
Consent
Theory
According to the consent theory sovereign states are
not under any compulsion to comply with international law until they have
consented to it. Once an international rule is consented to by a State, it generates
a legal obligation because of which that state is obligated to obey it.
Consent theory is criticized mostly because it does
not explain what prevents nations from merely withdrawing their consent. International
law would be of little use if States’ commitment to treaties was not irrevocable.
But this criticism is not significant since ‘consent’ can also include consent
to irrevocably bind oneself.
It must be noted, however, even the consent theory
does not present any reason why states consent to international law in the
first place, must only explains obedience after consent. Thus, under this
theory it is presumed that there exists something more than mere consent, for
consent by itself does not explain States’ incentive to comply with
international law.
D.
Institutionalist
Theory
According to this theory policies and standards
established by institutions modify a nation’s decision-making process, thereby
encouraging a nation to comply with treaties that are in resonance with these
policies and standards.[6] For example, under a direction of the African
Union, the New Partnership for Africa’s Development (NEPAD) was founded to encourage
democracy in Africa and aid economic integration and peace and security among
African countries. In furtherance of this purpose, the African Union also established
the African Peer Review Mechanism (APRM) that promotes conformity with governance
values and socioeconomic integration in African countries.[7]
The institutionalist theory throws light on the fact
that the force of international law is of limited power. Therefore, scholars of
international law must re-think the role and impact of international law on
transnational order, and re-examine the States’ approach in deploying
international law.
E.
Transnational
Legal Process
This theory was proposed by
Professor Harold Koh and is somewhat on the same lines as the institutionalist
theory. It illustrates how “public and private actors . . . interact
in a variety of public and private, domestic and international fora to make,
interpret, enforce, and ultimately, internalize rules of transnational law.” [8]
Professor Kof recognizes that the real choice of whether to adhere to or disobey
an international rule or norm is up to domestic institutions. The theory also
proposes that such institutions internalize international legal norms, which
ultimately leads to obedience.
In the Haitian refugee case, U.S.
human rights advocates did not manage to attain judicial internalization of an
international treaty norm, but in due to the mounting social outrage regarding
the treatment of Haitian refugees, it ultimately attained political
internalization.
The transnational theory is aimed
directly at explaining compliance. However, a lacuna in the theory lies in the
fact that it offers no explanation of how and why legal norms become internalized.
Also, the theory lacks a valid theoretical structure and merely asserts the
relation between inertnalization and compliance.
F.
Liberal
Theories
Professor Anne-Marie Slaughter is one of the
fore-most supporters of the liberal theory. The theory assumes that it is not
the States, but rather individuals and private groups, who are the primary
actors in defining international relations. Advocates of this theory submit
that adherence to international law is dependant significantly on the domestic
structure of a country. Thus, States with a ‘liberal’ model, which means a
democratic government, basic civil and political rights, and an efficient
judicial mechanism, generally obey international law.
G.
Neo-Realist
Theory
According to the neo-realist theory, compliance with
international norms will only subsist as long as such compliance is in the interest
of the affected states. Power and security are generally accepted to be the
primary interests of States, and the same cause states to focus on the advantages
they may derive from compliance. Advocates of this theory believe that international
rules have a negligible or absolutely no impact on the behavior of states. Obedience
to international norms and standards is rooted at a already existing similarity
between international law and a State’s self-interest.
Unlike the Institutionalist theory, the neo-realist
theory does not submit that international institutions can play a role in
aiding international cooperation. However, it is submitted that this
proposition does not hold water. The significance of international law in
today’s world cannot be ignored. Take
for instance, the Uruguay Round negotiations, which after eight years and after
consuming numerous resources led to the establishment of the WTO. It is hard to believe that States would devote
so much time and resources to setting up international regimes, if
international law was of little significance.
IV.
Loss
of Reputation
Needless to state that a State suffers from a
substantial loss of reputation whenever it violates an international norm. The
degree of such loss is dependant on the nature of the breach. A breach of an insignificant international norm
or rule or a breach caused due to inadvertence which can be remedied with least
prejudice caused to other States will not lead to a large loss of reputation. On the other hand, a clear and deliberate breach
of important international rules will probably harm a State’s reputation to a
great extent. Take for instance, the Basle Accords which was negotiated and
agreed to by the central bankers of twelve countries. The Accords are not treaties and, therefore,
are not considered binding in the strict sense of international law, but are
merely recommendations for regulations in the banking industry. However, the
central banking authorities of a nation did not supervise its banking activity
in accordance with the Accords, that nation would certainly face a loss of reputation,
thereby making other nations reluctant to enter into future negotiations in
relation to international regulation of banking.
V.
Direct
Sanctions
A hundred percent obedience with international norms
is not absolutely favourable. [9] In
cases where the advantages of infringing international rules overshadow the advantages
of obeying them, it is favourable that the international rules be thrown to the
wind. One form of direct sanction
consists of retaliatory measures taken by one or more states against another. For instance, when the passing of the Hawley-Smoot
Tariff Act of 1930 increased U.S. tariffs considerably, other States retaliated
with tariff increases of their own.[10]
VI.
Conclusion
It
may be concluded that compliance with international law is a result of a
combination of domestic pressure, achieving self-interests and moral/ legal reasons. On their own reputation, reciprocity and the
possibility of direct sanctions are not sufficient incentives to comply with
international law. Thus, there is a constant flux in the degree of compliance
of a State towards various international rules and norms. It is necessary to
take all such factors into account in order to reach agreements
between States and to predict the behaviour of sovereign States in relation to international
law.
"Why is it,that an actor acquires and feels
some sense of obligation to conform its behavior to the dictates or
requirements of a regime or an institution? ... I think that there are
differences in being obligated to do something because of a moral reason, a
normative reason and a legal reason.”[11]
-
Oran R. Young
------------------------
[2][2]
Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of
International Law, 24 Yale Journal of International Law 1 (1999).
[3]
Raustiala, Kal, Slaughter, Anne-Marie, 2002, “International Law, International Relations and Compliance,
Handbook of International Relations, (Eds.) Carlsnaes, Walter, Risse, Thomas,
Simmons, Beth A., pp. 538–558, Sage, London.
[4] Abram Chayes &
Antonia Handler Chayes, The New
Sovereignty: Compliance with International Regulatory Agreements (1995).
[5] Thomas M. Franck, Legitimacy in the International System,
82 American Journal of International Law (1988).
[6] Catherine Powell, United States Human Rights Policy in the
21st Century in an Age of Multilateralism, 46 Saint Louis University Law
Journal 421 - 426 (2002).
[9] Andrew T. Guzman, A Compliance-Based Theory of International
Law, 90 California Law Review 1823 (2002). 48 available at http://scholarship.law.berkeley.edu/californialawreview/vol90/iss6/2
accessed 20 June 2014
[11] International Law and International Relations Theory: Building Bridges,
86 American Society of International Law Proceedings 172, 175 (1992).
Keywords: Why States Comply with International Law OR Why States Obey International Law, Mowing the Law, compliance, obedience
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