Compliance Legal Issue Essay

One of the major questions in the research on international institutions, as stated by Robert Keohane (1984), has been “why governments, seeking to promote their own interests, ever comply with the rules of international regimes when they view these rules as in conflict with . . . their myopic self-interest. ”While realists argue that states simply do not comply if the costs of a rule are too high, rational institutionalists point to the role of international regimes and organizations, whose monitoring, sanctioning, and adjudication mechanisms increase the costs of noncompliance. In contrast to these enforcement approaches, management theories assume that noncompliance is involuntary and results from a lack of resources and, therefore, focus on capacity-building and rule specification. Finally, social constructivists stress legitimacy, socialization, and nor m internalization through processes of social learning and persuasion as mechanisms explaining compliance behavior. These three approaches provide different explanations for why states comply. They have paid less attention to the question of why some states are worse compliers than others. Their explanatory power is even more limited when it comes to understanding why the same state complies less with certain international laws than with others.

Theories Of State Compliance: Power, Capacity, And Legitimacy

To explain why there is substantial variation between states compliance with international law, country-based explanations are necessary. Compliance theories, such as enforcement, management, and legitimacy approaches, primarily focus on institutional design (monitoring and sanctioning, capacity-building and adjudication, and socialization). Consequently, they have largely been used to account for variation in compliance across international institutions. However, all three approaches can be reformulated in a way to account for country-based explanatory factors, such as power (enforcement), capacity (management), and the acceptance of international rules and institutions (legitimacy).

Enforcement approaches assume that states choose to violate international norms and rules because they are not willing to bear the costs of compliance that result even from technical and narrow legal acts. From this rationalist perspective, noncompliance can only be prevented by increasing the costs of noncompliance. Establishing institutionalized monitoring and sanctioning mechanisms can alter the strategic cost-benefit calculations of states. The likelihood of being detected and punished increases the anticipated costs of noncompliance. However, state power can significantly mitigate the extent to which states are affected by and sensitive to compliance costs.

States are more sensitive to reputation and material costs imposed by others if they have less political or economic power and are more dependent on future goodwill and cooperation than are other states. Powerful states, in contrast, can afford to be more resistant to external pressures because they have more alternatives to cooperation with a particular partner and can more easily pay for reputation or material damages. At the same time, powerful states can use their economic and political resources to shape international laws according to their preferences, thereby reducing the costs of compliance. Their assertiveness should render powerful states, such as the United States or China, better compliers, while their power of recalcitrance would expect exactly the opposite. Power-based approaches are less indeterminate when it comes to predicting the compliance behavior of small and weak states, which have neither the power to shape international laws nor to resist compliance.

Unlike the enforcement approach, the management school assumes that noncompliance is involuntary. Even if states are willing to fully act in accordance with international law, they are prevented from doing so if the preconditions that enable states to comply are absent. The literature has identified three sources of such involuntary noncompliance: lacking or insufficient state capacities, ambiguous definitions of norms, and inadequate timetables within which compliance has to be achieved. Only state capacities can account for interstate variation, because the other variables are rule-specific.

The concept of state capacity is not used uniformly in the literature, and its operationalization differs significantly. Resource-centered approaches define capacity as a state’s ability to act (i.e., the sum of its legal authority and financial, military, and human resources). Neoinstitutionalist approaches, in contrast, argue that the domestic institutional structure influences the degree of a state’s capacity to act and its autonomy to make decisions. Thereby, domestic veto players come to the fore, blocking the implementation of international rules because of the costs they have to (co-)bear. A large number of veto players reduces the capacity of a state to make the necessary changes to the status quo for the implementation of costly rules. Irrespective of the operationalization, states with low capacities are expected to be bad compliers.

Social constructivist approaches, finally, draw on the logic of appropriateness to explain state compliance with international law. They assume that states are socialized into the norms and rules of international institutions. They comply out of a normative belief that an international rule or institution ought to be obeyed rather than because it suits their instrumental self-interests. This sense of moral obligation is a function of the legitimacy of the rules themselves or their sources. Legitimacy can be generated in several ways. In order to explain interstate variation, country variables, such as the national rule of law culture and domestic support for the rule-setting institution, are of particular relevance.

Legal sociological studies refer to the relation between national legal cultures and states’ inclinations to comply with national norms. Legal cultures comprise three elements: the characteristics of legal awareness, general attitudes toward the supremacy of law, and general attitudes toward the judicial system and its values. In this perspective, the degree of compliance correlates with the extent to which rule addressees accept the legitimacy of the rule of law and consider compliance with legal norms as demanded by a domestic logic of appropriateness. The acceptance of a rule and the subsequent inclination to comply with it result from the diffuse support for lawmaking as a legitimate means to ensuring political order in a community. Consequently, even costly rules will be complied with principally. While this argument was developed for compliance with domestic laws, it should apply also to international rules because they also constitute law. Yet, rules are not only complied with because laws ought to be obeyed, but because the rules are set by institutions, which enjoy a high degree of support. Thus, social constructivist approaches would expect states to comply with international laws if their rule of law culture is strong or their domestic support for the international institution issuing the law is high.

Toward An Integrative Approach

The three compliance approaches, which dominate the international relations literature, treat power, capacity, and legitimacy as alternative or competing explanations of variation in state compliance with international law. Yet, there are good empirical and theoretical reasons to combine them. Empirical studies have shown that combination of management and enforcement instruments is an effective way to restore compliance. On the theoretical level, some of the explanatory variables are causally connected, so that they condition their respective effects on compliance. For instance, enforcement and management approaches can interact, because differences in capacity affect the cost sensitivity of states concerning compliance decisions. While powerful states can afford to resist enforcement pressures by international institutions or other states, those with high capacities will less frequently choose to infringe on international law than their less resourceful and inefficient counterparts because they have the capacity to comply. And indeed, research on compliance with European law shows that states with high capacities but little power, such as Denmark, comply much better than powerful countries with limited capacities (e.g., Italy).

From Interstate To Intrastate Compliance

While the international relations literature provides a fairly good account for why some states comply less than others, explanations are less adequate as to why the same state violates some international laws more frequently than others. First, compliance theories are rather state-centric and focus on country-based variables, such as power, capacity, and legitimacy. They neglect that those variables can vary within states (e.g., across different policy areas). Second, most studies explore state compliance with one particular international regime, such as human rights, environmental protection, or trade. Comparisons of different international regimes are rare. As a result, policy-related explanations as developed in the early implementation literature, such as issue salience, redistributive consequences, or policy style, have not received much attention. Variation in state compliance with different bodies of international law is at best explained with reference to institutional design (e.g., varying degrees of obligation, delegation, and precision).


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