May 21, 2016 Abstract This Article examines international law from the perspective of compliance. Using insights from international relations theory, the Article adopts a theory in which compliance comes about in a model of rational, self-interested states. Specifically, states are concerned about both reputational and direct sanctions for their conduct.
The model allows us to consider international law in a new light. Most strikingly, one is forced to reconsider two of the most fundamental doctrinal points in the field – the definitions of customary international law (CIL) and of international law itself. A reputational model of compliance makes it clear that CIL affects the behavior of a state because other states believe that the first state has a commitment that it must honor. A failure to honor that commitment hurts a state’s reputation because it signals that it is prepared to breach its obligations. This implies a definition that turns on the existence of an obligation in the eyes of other states rather than the conventional requirements of state practice and a sense of legal obligation felt by the breaching state.
Classical definitions of international law look to two primary sources of law – treaties and CIL. A reputational theory, however, would label as international law any commitment that materially alters state incentives. This includes agreements that fall short of the traditional definition, including what is often referred to as “soft law.” The Article points out that there is no way to categorize treaties and CIL as “law” without also including soft law. Agreements such as ministerial accords or memoranda of understanding represent commitments by a state which, if breached, will have a reputational impact. For this reason, these soft law agreements should be included in the definition of international law.
The Article also calls for a refocusing of international law scholarship. Because international law works through reputational and direct sanctions, we must recognize that these sanctions have limited force. As a result, international law is more likely to have an impact on events when the stakes are relatively modest. The implication is that many of the topics that receive the most attention in international law – the laws of war, territorial limits, arms agreements, and so on – are unlikely to be affected by international law. On the other hand, issues such as international economic matters, environmental issues, and so on, can more easily be affected by international law. This suggests that the international law academy should focus greater attention on the latter subjects and less on the former.
A. A Theory of the Irrelevance of International Law 18
B. A Model of International Law 21
C. Applying the Model – Bilateral Investment Treaties 28
D. Dynamic Issues 30
E. The Level of Commitment 33
F. International Law and Coordination 35
IV. Violation and Compliance 39
A. Reputational Sanctions 39
B. Direct Sanctions 44
C. When Will Sanctions Work Best? 47
D. Acceptance of Sanctions 50
V. Rethinking International Law 51
A. Treaties 52
B. A New Definition of Customary International Law 53
C. A New Definition of International Law 58
D. Revisiting Existing Theories 63
E. The Problem of Large Stakes 66
VI. Conclusion 69
International law scholarship lacks a satisfactory theory of why and when states comply with international law. Certainly, most legal scholars and practitioners believe that international law matters in the sense that it affects the behavior of states.1 Furthermore, this belief is consistent with empirical evidence indicating that international law matters.2 Nevertheless, those theories that have been advanced by legal scholars are generally considered flawed because they are difficult to reconcile with modern international relations theory, rely heavily on axiomatic claims about national behavior, and lack a coherent theory of compliance with international law. The absence of a coherent theory may explain why most conventional international law scholarship does not ask why there is compliance but rather simply assumes as much.3
The failure to understand the compliance decision is troubling because compliance is one of the most central questions in international law. Indeed, the absence of an explanation for why states obey international law in some instances and not in others threatens to undermine the very foundations of international law. If international law matters, it must be the case that it alters state behavior in some circumstances. Without an understanding of this connection between international law and state actions, scholars cannot hope to provide useful policy advice with respect to international law. Without a theory of compliance, we cannot examine the role of treaties, customary international law, or other agreements. Nor can we consider how to improve the functioning of the international legal system, or develop a workable theory of international legal and regulatory cooperation.
At present, the best source of theory relevant to international law and compliance comes not from legal scholarship, but from international relations.4 These theories, however, are often skeptical of the role international law has to play in the governance of the international system,5 and often ignore “international law” altogether.6 To date, neither conventional international law scholars, nor those adopting an international relations approach, has presented a satisfactory model that is capable of explaining why states comply with international law in some circumstances and violate it in others.7 International law scholarship assumes a high level of compliance and provides little theoretical framework within which to examine the compliance decision while international relations scholars largely ignore the role of international law in national decision making.
This Article draws on international relations theory to develop a better theory of compliance with international law. Unlike traditional international law scholarship, the theory developed here explains compliance within a model of rational, self-interested states. Compliance exists because states are concerned with both the reputational implications and the direct sanctions of violating the law. The model explains not only why nations comply, but also why and when they violate international law.
That article responds to the argument that international law is merely epiphenomenal by constructing a model of rational, self-interested states in which international law does, in fact, matter.8
On the other hand, the model also raises fundamental questions about international law as it is currently studied. By taking the question of compliance seriously, we gain a new perspective on international law, and that new perspective forces us to question some of the central issues in international law. Though the analysis impacts other aspects of international law, four primary implications of the analysis are discussed in the paper.
First, the analysis suggests that the current understanding of customary international law (CIL) is inadequate.9 To square CIL with a sensible theory of compliance and international law requires a new definition of CIL. The existing definition of CIL has been the subject of a great deal of criticism, and some have gone so far as to suggest that no such law exists.10 Rather than attempting to salvage the traditional definition, this Article proposes a new one that focuses on whether or not a rule of customary international law affects behavior. It is shown that the requirements of widespread state practice and a sense of legal obligation do not contribute to a useful understanding of CIL. By studying CIL within a reputational model, and with a focus on compliance, it is possible to achieve a deeper understanding of that form of international law.
Second, the Article challenges our understanding of international law itself. When it is considered from the perspective of compliance, it is clear that the classical definition of “international law” is under-inclusive and should be broadened to include not only treaties and customary international law, but also agreements such as ministerial accords, memoranda of understanding, and so on. Like treaties and customary international law, these instruments affect the incentives of countries and, therefore, should be considered international law. Including them allows us to study the full range of international obligations within a single theoretical framework, and, unlike traditional theories, explains why such agreements exist and why they are so popular. This approach, then, resolves the existing debate regarding “soft law” by pointing out that it should not be considered different in kind from other forms of international law. Rather, it should be recognized as part of a spectrum of commitment along which states choose to locate their promises.
Third, it is demonstrated that international law is most likely to affect outcomes when there are many repeated interactions and each of those interactions involves relatively small stakes. Although this claim is not new, it leads to the conclusion that the topics which have traditionally held center stage in international law -- such as the laws of war, neutrality, arms control, and so on -- are precisely the topics in which international law is least likely to be relevant. This conclusion has two lessons for international law scholarship. The first is that international law scholarship may be unduly focused on these topics. The fact they are arguably the most important issues in international relations does not imply that they should form the centerpiece of international law because international law will often be unable to affect outcomes. Scholars may have a greater impact on human well-being if they devote more energy to areas in which international law can alter outcomes more reliably. These include a range of important areas including economic issues, environmental issues, labor issues, and so on. The second, somewhat more subtle, lesson is that the study of these issues, and the design of international institutions should proceed with an understanding of the limits of international law. International law can play a role in encouraging cooperation, but can only do so if obligations are structured in a fashion that reduces the importance of each compliance decision. For example, an arms treaty, by itself may have little success but a treaty that provides for periodic inspections by a neutral third party may stand a much greater chance of achieving the goal of arms control.
Fourth, it is shown that sanctions for violations of international law are generally not optimal. Because sanctions consist primarily of weak military or economic punishment and reputational losses, they are often too weak to achieve optimal compliance.11 Under certain circumstances, however, sanctions can be rationalized and states can be given better incentives. In particular, states can at times be induced to voluntarily submit to dispute resolution procedures and accept sanctions. This is possible where a failure to accept a sanction leads to an even greater loss. The Article discusses the circumstance in which that can occur, and how international interactions can be structured to encourage it.
Understanding how to encourage participation in dispute resolution procedures in turn sheds light on the role of international organizations. These bodies have an important role because they can be used to coordinate international interactions in such a way as to increase the likelihood that states will submit themselves to the authority of dispute resolution bodies. The obvious example of this sort of behavior is seen at the World Trade Organization (WTO). Although certainly not a flawless process, the WTO is able to resolve disputes among members and impose sanctions closer to the optimal level.12
The Article proceeds as follows. Part II discusses the most prominent theories of international law from both traditional legal scholarship and international relations perspectives. Part III presents the model of compliance. Any theory of compliance must come to terms with the fact that international law, however that terms is defined, has virtually no enforcement mechanism.13 When a state violates international law there are few formal procedures through which other countries can invoke sanctions.14 That is not to say, however, that the violation of international law is without cost. Two costs are of central importance and will be the focus of this Article. First, following a country’s breach of an international obligation, other states may choose to impose some form of sanction. This may range from criticism of the offending state to economic or even military sanction. The second cost of violating an international obligation is reputational. If a country violates international law, other states may refuse to enter into future agreements, may demand greater concessions when entering into such agreements, or may lose faith in the strength of existing agreements.
Part IV presents a detailed discussion of how reputational and direct sanctions affect states and how the magnitude of those sanctions changes depending on the circumstances of the violation. Part V develops several of the most striking implications of the theory, explaining how it affects our understanding of treaties and customary international law and explaining why the definition of international law should be expanded. The interaction of this theory of compliance with other theories of international law is also explored. Finally, the Article discusses the fact that some of the traditional topics of interest to international legal scholars are unlikely to be affected by international law, and calls for a refocusing of scholarship on other areas, where international law can have a greater impact.