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Lecture 03 - Explaining Law Compliance

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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 – 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
•Military conflict
over the Aozou
Strip
•Further escalation
•Delegation to the
ICJ
•Negotiation over
implementation
•Compliance
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
•Domestic rules regarding torture
•Late 1980s: the Intifada
•1991: Commitment to the CAT
•The debate over what
constitutes torture
•NGOs 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
•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:
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 – Why Comply?
пЃ¬
Realism – power and interest
пЃ¬
Rational Functionalism – 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 “high politics”
(e.g. security, war, peace, national vulnerability)
Realists explanations for law
compliance
пЃ¬
Force
пЃ¬
Endogeneity of international rules –
“easy rules”
пЃ¬
Selection effects at the commitment
– “willing joiners”
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?
–Reputation.
–Reciprocity
Constructivist
пЃ¬
Politics are:
– Idiographic
– Purposive
– Ethical
– 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 “Liberal
Democracy”
пЃ¬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?
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
•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?
Realism
Rational
Constructivism
Functionalism
Crucial. May
Important.
comply with
Governments are
“unimportant”
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. Gov’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, gov’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. Gov’ts
makes self-help an
respond to the
imperative.
incentives of the
Gov’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 “shared
norms and
beliefs” 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.
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