Government S-1740

1. Government S-1740 INTERNATIONAL LAW Summer 2006 Lecture 3: Explaining Law Compliance

2. OUTLINE • Puzzle: Why Comply? • The Case Libya • The Case if 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 • Rational Functionalism • Regime Type:Liberal Democracies • Constructivism: Ideas, Norms, Identity & International Society

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 • Endogeneity of international rules • Selection effects at the commitment stage

15. 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

16. Regime Type • Liberal democracies are associated with better law compliance • Liberal democracies characterized by: • Representative government • Separation of powers • Civil and political liberties • Independent judiciaries • Market economy. private property rights

17. Versions of Liberal Theories of Compliance • Monadic: • Popular constraints

18. Should the US comply with a decision of the ICJ? Support no matter what Opposed no matter what 50% “Median voter”

19. Should the US comply with a decision of the ICJ? Support no matter what Opposed no matter what 50% “Median voter”

20. Indifferent, but value law compliance Should the US comply with a decision of the ICJ? Support no matter what Opposed no matter what 50% “Median voter”

21. Could law influence compliance through a democratic mechanism? 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?

22. Versions of Liberal Theories of Compliance • Monadic: • Popular constraints • Transparency, signaling, and selection effects • Affinity: principled limits on political power.

23. Versions of Liberal Theories of Compliance • Dyadic theories: liberal democracies are more likely to use international law and comply with it in their mutual relationships • Shared values • Societal transnational linkages • Mutual transparency: virtuous circle of trust • Transjudicial dialog

24. Ideas, Norms, & International Society • Moral arguments for international law compliance • Rules viewed as legitimate are more likely to be obeyed • Malem in se v. Malem in prohibitum • Rules that resonate cross-culturally • clarity, coherence, determinacy • Normative momentum; the “spread” of compliance norms.

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

26. Characteristics of the activity involved? Realism Rational Functionalism Domestic Regime Type Normative Approaches Crucial. May comply with “unimportant” treaties, but in-terests 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. Not very central. But may matter if domestic public opinion is viewed as the constraint on government behavior. Central. Rules regarding activities that are perceived as normatively governed are more likely to be complied with.

27. Characteristics of the treaty? Realism Rational Functionalism Domestic Regime Type Normative Approaches Insignificant. In fact, willingness to comply determines how the treaty is written, not the other way around. Important. Agreements that include monitoring or surveillance, over-come collective action problems, and/or create clear expectations for behavior are likely to be complied with. Not very central. 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.

28. National (Domestic) Characteristics of the Country? Realism Rational Functionalism Domestic Regime Type Normative Approaches Power matters; domestic charac-teristics 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. Crucial. Demo-cratic gov’ts are inherently more “law abiding”: transparency, watchdog groups, experi-ence with limited gov’t encourage compliance. Can matter. Domestic characteristics such as regime type (value placed on the rule of law) can matter for compliance.

29. International Environment? Realism Rational Functionalism Domestic Regime Type Normative Approaches 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 environ-ment, but concern for reputation and future interactions generally create incentives for compliance. Not very central, though some argue that demo-cratic gov’ts are more likely to comply with agreements with the “community of democracies” than with other regime types. To the extent that the rule reflects “shared norms and beliefs” of international society, it is more likely to be complied with.

30. 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 • Domestic regime type: constraints, credible commitments, rule of law affinity • Constructivists: norms, ideas, and international society • Particular theories may shed light on particular issue areas.