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Government S-1740

Government S-1740. INTERNATIONAL LAW Summer 2008. Lecture 3: Explaining Law Compliance. OUTLINE. Puzzle: Why Comply? The Case Libya The Case of Israel II. Introduction A. Definition of Compliance B. First vs. Second Order Compliance III. Theory – Why Comply? A. Realism

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Government S-1740

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

  2. OUTLINE • Puzzle: Why Comply? • The Case Libya • 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

  3. I. Puzzle: Why Comply?

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

  5. 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?

  6. 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

  7. 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

  8. 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) II. Introduction: Definitions

  9. Compliance is distinct from: • Effectiveness • Implementation

  10. 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.

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

  12. Realism: • 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)

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

  14. 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 Rational Functionalism InternationalTrade

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

  16. 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.

  17. 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?

  18. 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

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

  20. Characteristics of the activity involved?

  21. Characteristics of the treaty?

  22. National (Domestic) Characteristics of the Country?

  23. International Environment?

  24. 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.

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