A gradual process of change, termed ‘deepening and widening’ of international law, can be observed in response to new challenges to the world order, such as the increased global economic interdependence, demands for human rights and ethnic autonomy, and transboundary environmental damage. States are increasingly entering formal international agreements and transferring a portion of their sovereignty to authoritative international institutions. The proliferation and evolution of international arrangements has raised the question of States’ compliance with international law having in mind the horizontal nature of the international legal system. Law and compliance are conceptually linked as law explicitly aims to provide compliance with legal rules. Theories of compliance draw on both international relations and international law scholarship. Understanding state behaviour in terms of compliance with international law is vital for effectively designing international commitments and improving the efficiency of international institutions. The first section of the present essay outlines the discussion of the nature and function of international law. The common themes of the status of law of international law and its decentralised nature are discussed. The next section addresses theories of compliance with international law. States’ compliance motives are grouped in three categories: ‘international law of power’, ‘international law of community’ and ‘international law of reciprocity’.
In a speech that he delivered on 5 April 2009 in Prague, United States President Barack Obama stated that “[r]ules must be binding. Violations must be punished. Words must mean something.” Critically discuss this sentiment in relation to the theory and practice of international law.
1. Introduction
A gradual process of change, termed ‘deepening and widening’ of international law, can be observed in response to new challenges to the world order, such as the increased global economic interdependence, demands for human rights and ethnic autonomy, and transboundary environmental damage. States are increasingly entering formal international agreements and transferring a portion of their sovereignty to authoritative international institutions. The proliferation and evolution of international arrangements has raised the question of States’ compliance with international law having in mind the horizontal nature of the international legal system. Law and compliance are conceptually linked as law explicitly aims to provide compliance with legal rules. Theories of compliance draw on both international relations and international law scholarship. Understanding state behaviour in terms of compliance with international law is vital for effectively designing international commitments and improving the efficiency of international institutions. The first section of the present essay outlines the discussion of the nature and function of international law. The common themes of the status of law of international law and its decentralised nature are discussed. The next section addresses theories of compliance with international law. States’ compliance motives are grouped in three categories: ‘international law of power’, ‘international law of community’ and ‘international law of reciprocity’.
2. The Nature and Function of International Law
International law is frequently compared to municipal law. For example, Higgins demonstrates that there is an important similarity between domestic and international law: ‘The role of law is to provide an operational system for securing values that we all desire – security, freedom, the provision of sufficient material goods.’[1] Both international and domestic law have two sets of functions – one is an operating system and the other is normative. However, the status of law of international law is contested on two grounds: that there has to be a centralised mechanism for law enforcement which is present in municipal law and that law has to be the product of force, sanctions and coercion.
Firstly, since international law does not fit the domestic law model of legislature, judiciary and executive, the question of the legal quality of international law has been posed. The origins of this tradition lie in the Hobbesian view that ‘where there is no common power, there is no law’.[2] This view can be illustrated with the traditional realist perspective, the assumption of which has been that States desire to preserve their sovereignty in a struggle for material power in an anarchic international system. Due to its decentralised character based on consent, international law is regarded as epiphenomenon, representing the prevalent balance of power.[3] The absence of compulsory judicial settlement of international disputes is taken as evidence that politics and extra-legal factors outweigh the law. Article 59 of the ICJ Statute states: ’The decision of the Court has no binding force except between the parties and in respect of that particular case’.[4] According to one view, the lack of a mechanism for centralised sanctions is the reason why rules are frequently ignored. Until the adoption of the United Nations Charter in 1945, States were authorised to resort to force in order to impose their terms of settlement, unless they had already entered into a treaty requiting self-restraint on the matter.
The absence of a centralised mechanism for law enforcement in the international community finds its expression in the idea that international law rests on the will of States. This view is referred to the notions of ‘voluntarism’ and ‘consensualism’. According to this approach, which developed in the 19th century, States are seen as independent agents and they can only be bound with their own consent (theory of auto-limitation).[5] However, auto-limitation theory proves unsatisfactory in explaining what happens if a State withdraw from an international agreement. A reversal of agreement does not render the agreement optional, but places the State in breach of its obligations due to the principle that agreements are binding (pacta sunt servanda). One approach to this problem is to refer to the doctrine of consensus. This approach is based on solidarist theories, which argue that valid international law derives not only from those rules to which States have consented, but also from rules to which international society as a whole has achieved solidarity or consensus. Consensus is seen as ‘an overwhelming majority, a convergence of international opinion, a predominance, to something more than a simple majority but something less than unanimity or universality’.[6] Additionally, rational choice theories emphasise that States have to rely on consensus for a peaceful and beneficial coexistence in the international community. The second ground on which the status of international law as law is contested is that law has to be the product of force, sanctions and coercion. Coercion is seen as the determining factor whether a social order can be characterised as law. According to John Austin, law is ‘the command of the sovereign’ and thus law is distinct from other social systems such as politics, morality and religion by its character as a coercive order. Thus international law is not properly law, but it is seen as ‘positive international morality’. Two groups of theorists oppose this view: those who argue that international law, though operating in a decentralised system, nevertheless rest on coercion; and those who doubt that law has to be viewed in terms of coercion.
Kelsen argues that international law is a coercive order which is based on decentralised sanctions rather than centralised. The employment of the ‘force monopoly of the community’ in international law, an enforcement action carried out on the behalf of the international society as a whole, is based on the principle of self-help. Sanctions are applied by individual members of the community, such as reprisals and war. However, international law is true law if ‘the coercive acts of states are permitted only as a reaction to a delict and the employment of force to any other end is forbidden – if the coercive act undertaken as a reaction against a delict can be interpreted as a reaction of the international community.’[7] A potential difficulty with this approach is identifying whether an act is a delict or a sanction. For example, in a case of war States may not agree which side in the conflict possesses a just cause. This exhibits the actual lack of solidarity in the international society.
An alternative view of international law as law is to question the assumption that law necessarily has to rest on sanctions, force and coercion. H.L.A. Hart contends the concept of law as ‘order backed by threats’[8]:
[T]he factual background to international law is so different from that of municipal law, there is neither a similar necessity for sanctions … nor a similar prospect of their safe and efficacious use. This is so because aggression between states is very unlike that between individuals. To initiate a war is, even for the strongest power, to risk much of an outcome. The organization and use of sanctions may involve fearful risks and the threat of them adds little to the natural deterrents. Against this very different background of fact, international law has developed in a form different from that of municipal law… [N]o simple deduction can be made from the necessity of organized sanctions to municipal law, to the conclusion that without them international law, in its very different setting, imposes no obligations, is not binding, and so not worth the title of ‘law’.
Hart argues that what distinguishes a legal system is the existence of primary and secondary rules. While primary rules specify standards of behaviour, secondary rules provide the means to confer power, identify and develop rules. Such rules establish legislative, executive and judicial powers. Primitive societies would possess only primary rules and so would be characterised by uncertainty and stagnation. According to Hart, international law is an example of a social structure consisting only of primary rules. Thus, international law does not constitute a ‘system’ but ‘a set of rules’. This approach has been criticised for its over-concentration upon rules and for failing to recognise the sophistication and vitality of the international legal system.[9]
3. Compliance with International Law
More than three decades ago, Louis Henkin stated that ‘almost all nations observe almost all of their obligations almost all of the time’.[10] The lack of coercive power comparable to that which enforces the laws of a State has provoked the question of what motivates States to comply with international legal norms. Various motives can be identified which bounds State behaviour and encourage States to comply with international law: reputation, reciprocity, domestic politics, norm observation, rewards and benefits, common frame of reference (common language). These factors contribute to the general pressure for conformity to rules. When States violate international law it is not on the footing that rules are not binding, but when the issue is regarded vital to their interests. Efforts are made by States to conceal the facts of their violation or to legally justify it.[11] Therefore, the impact of rules in international law should not be seen as limited to its efficacy. Legal rules may have impact on States even when a degree of deviation from actual and prescribed behaviour can be observed. Compliance to international law as a conceptual variable can be defined as ‘a state of conformity or identity between actor’s behaviour and a specified rule’.[12] There is a widely held definition of international law as a ‘dense body of rules and practices’.[13] However, Alkoby argues that law is a ‘social process’ directed to a variety of social ends rather than a given body of rules and obligations.[14] Scholars have tended to ‘measure’ compliance by firstly, treating the act of contractual obligation as the defining moment when a law comes into being and secondly, determining to what extent States have complied with the obligation from that point in time. An alternative definition of compliance is ‘not in co-relational terms (the measured conformity of a behaviour with a norm), but in a causal way (compliance as a norm driven behaviour)’. International legal obligations are seen as a series of ‘continuous repeated interactions in which a legal rule is constructed, interpreted, clarified, internalized, and enforced’.[15]
Furthermore, compliance has to be distinguished from implementation and effectiveness. Implementation is the process of putting international commitments into practice, such as enforcement of rules, passage of legislation and creation of institutions. Compliance can occur without implementation. For example, if a commitment corresponds to current practices, compliance is automatic and implementation is unnecessary.[16] Effectiveness, on the other hand, is the degree to which a rule induces change in States behaviour. A poorly designed agreement could achieve high levels of compliance without much impact on the issue. States can follow rules constituted in international customary and conventional law because of habit or inertia as they are ‘programmed to operate within the framework of established principles’.[17] However, as far as their obedience derives from deliberation, motives of compliance can be grouped in three categories: international law of community, international law of power and international law of reciprocity.
International law of community
Some international lawyers and political theorists argue that the structure of international law is not devoid of an autonomous normative direction. Compliance with international law results from a sense of belonging to the international community and States come to define not only their objectives but also their identity in international law. This idea finds expression in constructivist theories. Constructivist approaches treat States as social entities that in interacting with each other developed shared values. Constructivists drew on the normative power of rules and the importance of shared knowledge and discourse, which shape interests and identity. Normative and ideational structures are seen as important as material structures and emphasis are put on the ‘inner morality of law’ and the ’culture of civility’. According to this view, State compliance with international law is less a matter of rational calculation or externally imposed constraints than of internalised identities. Obedience to international law results because a particular issue is seen as valuable and morally mandatory apart from being legally required. However, critics have argued that a significant tension exists between the individualistic sovereign-based international society and the communitarian stance of the international legal system. Thus, the ‘objective’ legal order of the community is in tension with the subjective sovereign values of individual States.
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[1] Rosalyn Higgins, Problems and process: international law and how we use it (Oxford University Press 1994) 1.
[2] H.Bull, The Anarchical Society: a Study of Order in World Politics (Basingstoke Palgrave 2002)124.
[3] C. Reus-Smith, The Politics of International Law (Cambridge University Press 2004) 17.
[4] Statute of ICJ, Art.59.
[5] Malcolm N. Shaw, International law (Cambridge University Press 2008) 9.
[6] H.Bull, The Anarchical Society: a Study of Order in World Politics (Basingstoke Palgrave 2002)142.
[7] Hans Kelsen, Principles of International Law (The Lawbook Exchange LTD. 2003) 19.
[8] HLA Hart, The Concept of Law (2nd edn, Clarendon Press 1994) 219.
[9] Malcolm N. Shaw, International law (Cambridge University Press 2008) 52.
[10] Louis Henkin, How Nations Behave (Published for the Council on Foreign Relations by Columbia University Press, 1979) 47.
[11] James A Green, An Unusual Silence ( New Law Journal, 2007, Vol.157, Issue 7294) 2.
[12] Karl Raustiala and Anne-Marie Slaughter (International Law, International Relations and Compliance) in Walter Carslnaes et al. (eds.) Handbook of international relations (SAGE Publications Ltd. 2002) 539.
[13] Hans Kelsen, Principles of International Law (The Lawbook Exchange LTD. 2003) 19.
[14] Asher Alkoby, Theories of Compliance with International Law and the Challenge of Cultural Difference (4 J. Int'l L & Int'l Rel. 151 2008) 152.
[15] Koh cited at Asher Alkoby, Theories of Compliance with International Law and the Challenge of Cultural Difference (4 J. Int'l L & Int'l Rel. 151 2008) 152.
[16] Karl Raustiala and Anne-Marie Slaughter (International Law, International Relations and Compliance) in Walter Carslnaes et al. (eds.) Handbook of international relations (SAGE Publications Ltd. 2002) 539.
[17] H.Bull, The Anarchical Society: a Study of Order in World Politics (Basingstoke Palgrave 2002) 133.
- Quote paper
- Veronika Minkova (Author), 2011, Barack Obamas speech on 5 April 2009 in Prague in relation to international law, Munich, GRIN Verlag, https://www.grin.com/document/179305
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