Government S-1740 Lecture 3: Explaining Law Compliance INTERNATIONAL LAW Summer 2008

OUTLINE I. Puzzle: Why Comply? A. The Case Libya B. The Case of Israel II. Introduction A. Definition of Compliance B. First vs. Second Order Compliance III. Theory – Why Comply? A. Realism B. Rational Functionalism C. Regime Type D. Ideas, Norms, & International Society

I. Puzzle: Why Comply?

Chad and Libya: Territorial Conflict Military conflict over the Aozou Strip Further escalation Delegation to the ICJ Negotiation over implementation Compliance

Why Comply with the ICJ? To signal a foreign policy demarche? Because the decision was likely to be enforced? Would he have conceded the territory anyway?

Why Comply with the Committee Against Torture? The Case of Israel Domestic rules regarding torture Late 1980s: the Intifada 1991: Commitment to the CAT The debate over what constitutes torture NGOs and publicity

Toward Compliance The role of the Committee Against Torture The judicial option The 1999 Supreme Court decision A critical self-appraisal: improvement if not full compliance

II. Introduction: Definitions Compliance: “When actual behavior of a given subject conforms with prescribed behavior. Non-compliance is when actual behavior departs significantly from prescribed behavior.” (Oran Young, 1979)

Compliance is distinct from: Effectiveness Implementation

First and Second Order Compliance First order compliance: compliance with the substantive rules embodied in treaty agreements. Second order compliance: compliance with the authoritative decision of a third party regarding the interpretation or adjudication of a primary rule.

III. Theory – Why Comply? Realism – power and interest Rational Functionalism – mutual gain Constructivism: Ideas, Norms, & Identity

Anarchic world; states must guard sovereignty carefully Concerned with power, rather than law. National interests (power, security) influence state behavior Concerned primarily with issues of “high politics” (e.g. security, war, peace, national vulnerability) Realism:

Realists explanations for law compliance Force Endogeneity of international rules – “easy rules” Selection effects at the commitment – “willing joiners”

States are rational and self-interested States want to enhance welfare, not just power. International agreements solve common problems (reduce transactions costs, increase transparency, coordinate behavior). But why comply? –Reputation. –Reciprocity International Trade Rational Functionalism

Constructivist Politics are: – Idiographic – Purposive – Ethical – Instrumental Compliance is more likely when governments come to understand it as appropriate behavior, given their identity.

Idiographic: Liberal democracy Who are we? A “Liberal Democracy” Liberal democracies value: – Representative government – Separation of powers – Civil and political liberties – Independent judiciaries – Market economy. private property rights Liberal democracies “should” better comply with international law than other kinds of regimes.

Does a legal commitment “matter” in a democracy? There is currently a debate about whether the United States should tighten rules for interrogating detainees limiting psychological forms of abuse. These forms of abuse are outlawed by the Convention Against Torture, which the U.S. has ratified. Do you think the U.S. should follow rules limiting psychological forms of detainee abuse, even if it makes it more difficult to collect intelligence information from them?

Ethical Considerations: Moral Arguments for Law Compliance Rules viewed as legitimate are more likely to be obeyed Malem in se v. Malem in prohibitum Rules that resonate cross-culturally Rules with clarity, coherence, determinacy

Each of these theories emphasizes different factors that are crucial for understanding international law compliance

Characteristics of the activity involved? RealismRational Functionalism Constructivism Crucial. May comply with “unimportant” treaties, but interests determine behavior where security and other important issues are involved Important. Governments are likely to comply with agreements designed to meet needs/goals that cannot be achieved unilaterally. Central. Rules regarding activities that are perceived as normatively governed are more likely to be complied with.

Characteristics of the treaty? RealismRational Functionalism Constructivism Insignificant. In fact, willingness to comply determines how the treaty is written, not the other way around Important. Agreements that include monitoring, surveillance, over- come collective action problems, and/or create clear expectations for behavior are likely to be complied with. Important. Gov’ts are more likely to comply with agreements they view as obligatory. Rules that are specific, durable, & coherent are seen as legitimate and are more likely to be complied with.

National (Domestic) Characteristics of the Country? RealismRational Functionalism Constructivism Power matters; domestic characteristics do not. Large countries get away with noncompliance. Can matter. If a problem persists because of a domestic inability to solve it, gov’ts have an incentive to agree to and comply with international agreements. Important. Domestic characteristics such as regime type (value placed on the rule of law) can matter for compliance.

International Environment? RealismRational Functionalism Constructivism Crucial. Anarchy makes self-help an imperative. Gov’ts respond to the incentives of the external environment. Enforcement is usually necessary to secure compliance. Important. Gov’ts respond to the incentives of the external environment, but concern for reputation and future interactions generally create incentives for compliance. Governments can become persuaded by international norms. To the extent that a rule reflects “shared norms and beliefs” of international society, it is more likely to be complied with.

Summary: Compliance is defined behaviorally Compliance varies across cases. Theories offer a range of explanations for compliant behavior Realism: the coincidence with interests Rational functionalism: reciprocity, reputation Constructivists: norms, ideas, and international society Particular theories may shed light on particular issue areas.