Government S-1740 INTERNATIONAL LAW Summer 2008 Lecture 3: Explaining Law Compliance OUTLINE 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 вЂ“ Why Comply? A. Realism B. Rational Functionalism C. Regime Type D. Ideas, Norms, & International Society I. I. Puzzle: Why Comply? Chad and Libya: Territorial Conflict вЂўMilitary conflict over the Aozou Strip вЂўFurther escalation вЂўDelegation to the ICJ вЂўNegotiation over implementation вЂўCompliance Why Comply with the ICJ? пЃ¬ To signal a foreign policy demarche? пЃ¬ Because the decision was likely to be enforced? пЃ¬ Would he have conceded the territory anyway? Why Comply with the Committee Against Torture? The Case of Israel вЂўDomestic rules regarding torture вЂўLate 1980s: the Intifada вЂў1991: Commitment to the CAT вЂўThe debate over what constitutes torture вЂўNGOs and publicity Torture litigation in Israel Cases Filed 16 14 12 Cases Decided 1991: Israel ratifies CAT 1999: Landmark torture ruling 10 number of Supreme Court 8 cases 6 4 2 0 1986 1988 1990 1992 1994 1996 Year 1998 2000 2002 2004 Toward Compliance вЂўThe role of the Committee Against Torture вЂўThe judicial option вЂўThe 1999 Supreme Court decision вЂўA critical self-appraisal: improvement if not full compliance II. Introduction: Definitions Compliance: вЂњWhen actual behavior of a given subject conforms with prescribed behavior. Non-compliance is when actual behavior departs significantly from prescribed behavior.вЂќ (Oran Young, 1979) Compliance is distinct from: пЃ¬Effectiveness пЃ¬Implementation First and Second Order Compliance пЃ¬First order compliance: compliance with the substantive rules embodied in treaty agreements. пЃ¬Second order compliance: compliance with the authoritative decision of a third party regarding the interpretation or adjudication of a primary rule. III. Theory вЂ“ Why Comply? пЃ¬ Realism вЂ“ power and interest пЃ¬ Rational Functionalism вЂ“ mutual gain пЃ¬ Constructivism: Ideas, Norms, & Identity Realism: пЃ¬Anarchic world; states must guard sovereignty carefully пЃ¬Concerned пЃ¬National with power, rather than law. interests (power, security) influence state behavior пЃ¬Concerned primarily with issues of вЂњhigh politicsвЂќ (e.g. security, war, peace, national vulnerability) Realists explanations for law compliance пЃ¬ Force пЃ¬ Endogeneity of international rules вЂ“ вЂњeasy rulesвЂќ пЃ¬ Selection effects at the commitment вЂ“ вЂњwilling joinersвЂќ 19 7 19 0 7 19 1 7 19 2 7 19 3 7 19 4 7 19 5 7 19 6 7 19 7 7 19 8 7 19 9 8 19 0 8 19 1 8 19 2 8 19 3 8 19 4 8 19 5 8 19 6 8 19 7 8 19 8 8 19 9 9 19 0 9 19 1 9 19 2 9 19 3 9 19 4 9 19 5 9 19 6 9 19 7 9 19 8 99 Ratio girls:boys 93 100 91 90 89 87 70 60 85 50 83 40 81 30 79 20 77 10 75 0 Ratio of Girls to Boys Proportion of countries ratifying CEDAW Proportion of Ratifications CEDAW and Girls' Education (Global Averages) 80 Rational Functionalism пЃ¬States are rational and self-interested пЃ¬States want to enhance welfare, not just power. пЃ¬International agreements solve common problems (reduce transactions costs, increase transparency, coordinate behavior). International Trade пЃ¬But why comply? вЂ“Reputation. вЂ“Reciprocity Constructivist пЃ¬ Politics are: вЂ“ Idiographic вЂ“ Purposive вЂ“ Ethical вЂ“ Instrumental пЃ¬ Compliance is more likely when governments come to understand it as appropriate behavior, given their identity. Idiographic: Liberal democracy пЃ¬ Who are we? A вЂњLiberal DemocracyвЂќ пЃ¬Liberal democracies value: вЂ“Representative government вЂ“Separation of powers вЂ“Civil and political liberties вЂ“Independent judiciaries вЂ“Market economy. private property rights Liberal democracies вЂњshouldвЂќ better comply with international law than other kinds of regimes. Does a legal commitment вЂњmatterвЂќ 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? Law Treatm ent: No Law Treatm ent: don't know 2% don't know 3% no 7% no 18% yes 47% possibly 29% yes 62% possibly 32% Ethical Considerations: Moral Arguments for Law Compliance вЂўRules viewed as legitimate are more likely to be obeyed вЂўMalem in se v. Malem in prohibitum вЂў Rules that resonate cross-culturally вЂў 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? Realism Rational Constructivism Functionalism Crucial. May Important. comply with Governments are вЂњunimportantвЂќ likely to comply treaties, but with agreements interests designed to meet determine needs/goals that behavior where cannot be security and other achieved important issues unilaterally. are involved Central. Rules regarding activities that are perceived as normatively governed are more likely to be complied with. Characteristics of the treaty? Realism Rational Functionalism Constructivism Insignificant. In Important. Important. GovвЂ™ts fact, willingness to Agreements that are more likely to comply include comply with determines how monitoring, agreements they the treaty is surveillance, overview as obligatory. written, not the come collective Rules that are other way around action problems, specific, durable, and/or create clear & coherent are expectations for seen as legitimate behavior are likely and are more to be complied likely to be with. complied with. National (Domestic) Characteristics of the Country? Realism Rational Constructivism Functionalism Important. Power matters; Can matter. If a domestic problem persists Domestic characteristics characteristics do because of a such as regime not. Large domestic inability type (value placed countries get to solve it, govвЂ™ts on the rule of law) away with have an incentive can matter for noncompliance. to agree to and compliance. comply with international agreements. International Environment? Realism Rational Constructivism Functionalism Crucial. Anarchy Important. GovвЂ™ts makes self-help an respond to the imperative. incentives of the GovвЂ™ts respond to external the incentives of environment, but the external concern for environment. reputation and Enforcement is future usually necessary interactions to secure generally create compliance. incentives for compliance. Governments can become persuaded by international norms. To the extent that a rule reflects вЂњshared norms and beliefsвЂќ of international society, it is more likely to be complied with. Summary: пЃ¬ Compliance is defined behaviorally пЃ¬ Compliance varies across cases. пЃ¬ Theories offer a range of explanations for compliant behavior Realism: the coincidence with interests пЃ¬ Rational functionalism: reciprocity, reputation пЃ¬ Constructivists: norms, ideas, and international society пЃ¬ пЃ¬ Particular theories may shed light on particular issue areas.