State Responses to International Law

Kendall Stiles

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317652946
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

Do countries keep their promises to the international community? When they sign treaties or learn about new expectations, do they take them seriously and implement them? Since we already know intuitively that not all countries do, the next question – and the topic of this book – is: who complies? By considering a wide range of different rules – each precise enough to allow one to measure state compliance – and a variety of methods, we hope to answer this question once and for all.

Including a systematic analysis of 8 different countries selected for the variety of regime type, international engagement and economic development they represent, the work caps a five-year research program and represents the culmination of twenty years' worth of work in the disciplines of international relations and international law on legalization and compliance. Stiles highlights the importance of systematic study of compliance in order to move further towards solving truly global issues, such as terrorism, human trafficking, air pollution and collective goods provision. With international laws generally designed to improve the human condition and current levels of complianceinconsistent at best, it is vital to gain a better understanding of who complies and why.

This detailed study will be of interest to students of Politics, International Law and International Relations.

Part I

Quantitative analysis

1 Explaining compliance with international law

Why we need to know who complies

This projects starts with the observation that there is considerable variation in the degree to which states comply with international law. Further, this variation seems to cut across issue areas. Canada almost always complies with almost every rule, while North Korea rarely complies with any rule. While most of the literature on international law compliance focuses on the nature of the rules and their broader context, this opening observation warrants further scrutiny. Put simply: are there certain national characteristics that increase the likelihood that a country will comply with international rules? The purpose of this study is to answer this question.

This book is an effort to cut through some of these theoretical difficulties by focusing on a range of issues for which very specific rules have been articulated – rules that have been acknowledged as valid and vital by essentially the entire community of states. Further, these rules call for specific actions by states, such that it is possible for outsiders to monitor and assess compliance. Not only that, in some cases the assessment of compliance has already been carried out by relatively impartial observers. By measuring compliance with a variety of rules across a variety of issues and an even wider variety of countries, we can begin to answer our central question: who complies?

We explore a wide range of possible explanations. At this point, we should say that none is entirely satisfactory, and so this work is not an apology for a particular theory. Nor is it an exposition of a single, simple explanation that supplants all the rest. Such an approach could not be carried out and still be intellectually honest because the reality around us is simply too complex and contingent. We are favorable to a qualified rationalism and reject as simplistic some of the dominant theories, namely legitimacy theory, managerialism, liberalism, and realism. Rationalism is only a starting point, however, as one must go beyond myopic materialism to understand that national aims derive from a combination of preferences held by state elites, the international system, and the domestic system. Depending in particular on domestic political institutions, the personal attitudes of heads of state, and the degree to which international norms have insinuated themselves into the national discourse, state policies may comply more or less with international norms. Furthermore, much depends on the issue at hand, as decisions to comply with regulatory law, human rights law, and law relating to national sovereignty are arrived at in different ways and the basis of different principles and interests.

We will argue that while rationalism is a fair starting point, one must not rely on myopic materialism to explain all compliance since we find so many instances in which states opt to sacrifice short-term material gain for the sake of other objectives. In particular, we are convinced that much depends on the type of reputation state elites hope to establish – both vis-à-vis the international community and their national counterparts as well as in relation to the domestic society. A desire for a reputation for “playing by the rules” will both direct and constrain state behavior. However, if compliance risks provoking discontent at home, what seems to matter most is the head of state’s “executive tenacity.” Naturally, autocrats can act with far more freedom than democratically elected leaders, but this means they will always ignore public opinion. Conversely, if the state elites are more interested in developing a reputation for irascibility, this must be weighed against domestic expectations and it is possible that the politically vulnerable leader will opt to comply in the face of public support for the rule despite his initial inclinations. All of this occurs against a backdrop of economic incentives and governing capacity, of course.

What others have said about who complies

Before discussing the methodology of this study and the plan of the book, it is necessary to consider what others have said with respect to our central question. Theories of compliance tend to focus on one of two things: the characteristics of the rules that enhance compliance and the characteristics of the countries that enhance compliance. As indicated earlier, we choose – somewhat arbitrarily – to focus only on the second question. We will nonetheless provide some historical background and legal exposition on each of the rules we will study, but the book will not focus on this. With respect to the second question, theories can generally be categorized into three different groups or “theoretical clusters.” First are theories that assume states are strategic utility maximers. Governments weigh whether to comply with a rule primarily in terms of costs and benefits. These costs and benefits may be economic or political, international or domestic, short term or long term. But ultimately the question is not whether complying is the right thing to do, but whether it is the shrewd thing to do. Second are theories that assume the opposite – that states worry most about their reputations and whether what they are doing is appropriate – or at least whether it will be seen by their friends and neighbors as appropriate. These theories predict that much will depend on how closely tied a country is to the rest of the world – or at least its neighborhood. They also predict that much will depend on whether the rule appears legitimate and fair, and whether the government wants to have a reputation for complying with these types of rules. Finally, another school – not entirely distinct from the two previously mentioned – stresses domestic processes, including domestic political and legal institutions, decision-making processes, domestic pressure groups and public opinion, and so forth. From this perspective, much depends on regime type and societal structures. Democracies will behave differently from autocracies and countries with highly educated, post-modernist societies will behave differently from those with feudalistic, traditional societies.

As we will see throughout the book, while separating these theories conceptually is not especially difficult, it is very difficult to sort out which theoretical cluster actually explains real-world developments most accurately. It is the central argument of this book that almost all theories of compliance make an important contribution to solving the puzzle of compliance, and that only a synthetic approach can provide a complete explanation. As we proceed through the theoretical and empirical material, a synthetic theory will become clear and will be elaborated in the concluding chapter.

Rationalism and realism¹

Scholars of the realist and rationalist traditions generally agree that states will do what they think is necessary and prudent to achieve their objectives, and questions of legality are weighed against the importance of the objectives. Primary among these national aims is security, although economic gains may at times take precedence – especially where security can be taken for granted (Krasner 1999; Glennon 2001). States may even pursue the “politics of prestige” from time to time (Morgenthau 1978, 77–91). As pointed out by Goldsmith and Posner (2005), states will cooperate only when the expected advantages outweigh the costs: “International law emerges from states’ pursuit of self-interested policies on the international stage. International law is, in this sense, endogenous to state interests. It is not a check on state self-interest; it is a product of state self-interest” (Goldsmith and Posner 2005, 13).

Compliance with international rules is seen as instrumental and theorists predict it will end as soon as it is no longer advantageous (Hathaway 2002; Glennon 2004/2005). This is the case even where institutions may lower transaction costs and raise the price of breach of promises, especially where promises are seen as of marginal salience (Guzman 2002). This said, the most powerful states will generally shape international rules and provide incentives and sanctions to induce compliance when the stakes warrant it (Drezner 2007, 5). One should not be surprised by a degree of cynicism as well. Vreeland finds, for example, that dictators seem to be willing to sign international human rights agreements in order to temporarily dull opposition and make it easier to increase repression later on (Vreeland 2008). Some have gone so far as to say that international law is dominated by – if not cynical and duplicitous – at least “cheap” talk wherein states commit only to carry on activities in which they are already engaged (Downs et al. 1996).

Even post-modernist constructivists will agree that policy flows from a general perception of the interests of the state, with interests defined in a particular historical and normative context (Sterling-Folker 2002). The simplest version of this theory holds that states will generally do what they’ve been doing already. As put by Jacobson and Weiss:

One very important factor shaping how well a country does is what it has traditionally done in the past with respect to the issue in question, including what legislation and regulation it already had in place at the time it became party to the treaty.

(Jacobson and Weiss 1995, 140)

Raustiala refers to the level of past compliance with rules as a good predictor of future compliance (2000, 393).

Note that this approach is agnostic with regard to the source of state interests – it only predicts that state interests will be consistent as a result of pre-existing conditions and the “entangling alliances” states subsequently enter into. That said, it has been noted that exogenous shocks have sometimes produced shifts in a state’s foreign policy orientation. The most obvious, of course, is when a state has been attacked. There is broad consensus that the “day of infamy” contributed directly to the shift of US policy from relative isolation to international engagement (LaFeber 1989, 386; Jones 2001, 188). Others refer to the biological metaphor of “punctuated equilibrium” to explain how some global cataclysms may alter dramatically the foreign policies of many states at once. Consider, for example, how revelations about the Holocaust affected state policies regarding genocide and the protection of civilians, or how the collapse of the Soviet Union allowed states in Eastern Europe to realign their foreign policies. Taken together, then, these theories point toward predicting state...