Monday, August 18, 2014

Submitting to International Law: What’s the Incentive?

“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

[1] President Grover Cleveland’s Message to Congress (18 December 1893).
[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).
[7] See African Union, The New Partnership for Africa’s Development, 16–21 (October, 2001).
[8] Harold H. Koh, Transnational Legal Process, 75 Nebraska Law Review. 181, 183-84 (1994).
[9] Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 California Law Review 1823 (2002). 48 available at accessed 20 June 2014
[10] Ibid.
[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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