Dissecting international legal compliance: an unfinished Odyssey.

• Author: Mushkat, Roda

Rule conformity in the global arena, a non-traditional subject with distinct behavioral underpinnings, has evolved into one of the most extensively and intensively researched subjects in the field of contemporary international law. What started as a strictly American enterprise is now a broader undertaking spanning both sides of the Atlantic. A selective examination of an array of competing theories in light of the features and experience of the Sino-British Joint Declaration regarding the future of Hong Kong suggests that a further widening beyond the Western core of the world system may yield valuable substantive and methodological insights.

I. INTRODUCTION

The academic discipline of international law has traditionally been concerned with the emergence, via custom-based and treaty-based channels, of international rules. In parallel to this predominantly descriptive endeavor, systematic efforts have been carried out to interpret and evaluate the end-products of the norm-creation process. Analytical schemes of an explanatory nature, particularly ones of the elaborate variety, have not featured prominently on the research agenda, which has displayed modest theoretical orientation. Historical accounts, factual assessment, rule determination, philosophical exploration and value judgment have largely shaped the evolution of this field of inquiry. Theory-building, as commonly conceived, (1) has mostly been relegated to the periphery, albeit not marginalized to a point of being overlooked altogether.

International legal scholars following the traditional path have tended to blur the distinction between "what is" and "what ought to be." This has not manifested itself in a symmetrical fashion in that these two concepts have not been subject to equally critical examination. Prevailing realities have routinely been scrutinized in light of established prescriptive yardsticks--indeed, at times even novel ones--but the standards assumed to govern State action have seldom been juxtaposed with patterns of behavior witnessed in concrete international settings. It has often been posited, whether explicitly or implicitly, that general rule acceptance is tantamount to faithful rule observance, or that "what ought to be" (in the broadly empirical, if not strictly normative, sense of the term) effectively translates into "what is" in typical circumstances. (2)

This analytical disposition cannot be said to be flagrantly at variance with global policy trends and well-ingrained, discipline-specific fundamental postulates. After all, legalization, productive or otherwise, of international exchanges appears to be underway. The corollary is that "[a]cross many issue-areas, the use of law to structure world politics seems to be increasing." (3) By the same token, rightly or wrongly, law and prescribed behavior are inevitably intertwined at the conceptual level, at least in legal contexts, even if the empirical basis of the relationship may prove tenuous in practice. Law and prescribed behavior may be viewed as interchangeable by legal researchers, but not social scientists, because their work is heavily geared towards producing adherence to rules. That is not the case elsewhere in the academic domain. (4)

Prevailing realities may be adjusted or, alternatively, held constant for analytical purposes, in order to accomplish legitimate discipline-specific objectives. This is not however an inherently open-ended process in that, at some stage, they need to be incorporated into the conceptual framework for, otherwise, the mismatch between "what is" and "what ought to be" may materially impede scholarly progress. The fact is that prescribed State behavior commonly diverges from international law and that this phenomenon must be both duly acknowledged and methodically explained. Indeed, the empirical dichotomy between rules and adherence/non-adherence persistently witnessed in the global arena has provoked a strong response on the part of researchers in the field of international law (and, naturally, international relations). Substantial intellectual resources have thus been channelled in recent years into the study of State compliance, a move akin to a paradigm shift in terms of the deep theoretical re-orientation observed. (5)

In the rapidly expanding literature on the subject, compliance is broadly defined as "a state of conformity or identity between an actor's behavior and a specified rule." (6) Some authors include motives in their analytical schemes, drawing a distinction between compliance induced by negative-style tactics (e.g., fear of punishment) and more positive/subtle attitudinal techniques (e.g., inculcation of norms via formal or informal educational socialization). (7) Yet, this is not the dominant practice and, for the most part, the issue of causality is addressed separately. Compliance is also generally not equated with implementation, where implementation is defined as the process of converting commitments into action and legal system effectiveness. This is because rule effectiveness may persist in the face of low compliance and high compliance may coincide with ineffective standards. (8)

The scholarly work undertaken in this field is wide in scope and conceptually intricate. At the same time, it is still evolving and branching out in different directions. This may be viewed as a healthy development at this early juncture, and taking stock of divergent theoretical trends in an organized fashion may be more appropriate than attempting a thorough synthesis. (9) The purpose of this paper is even more modest. It accepts analytical fluidity and diversity as inevitable features of an extended learning process and the socio-political complexity towards which the endeavor is directed. It nevertheless critically examines some of the crucial assumptions underlying the principal conceptual schemes that have emerged and selectively pinpoints tangible gaps in the academic writings on international legal compliance (the two objectives converge, partially or fully, in concrete settings).

The Sino-British Joint Declaration (officially known as the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong (10)) will serve as a source of empirical illustrations in this context, albeit eclectically so. The choice of this particular case reflects the fact that it does not fall into the over-represented but not-comprehensive American and European categories. It is a way of stretching the boundaries of the population from which students of international law and international relations typically choose their samples when seeking to buttress theoretical assertions. The Sino-British Joint Declaration also possesses somewhat different attributes from those displayed by legal regimes commonly explored in compliance-oriented research, without constituting a distant outlier. It has also been adequately researched by both lawyers and social scientists. This paper, however, does not focus on the Sino-British Joint Declaration as such.

Before proceeding to survey briefly the relevant theoretical literature, it should be emphasized that the Sino-British Joint Declaration is not a statement of policy intent but a genuine international treaty. The status of such a mechanism is not affected by its title (Declaration) or the (declaratory) method embraced by the parties (the two governments in question) entering into an accord. By the same token, the Sino-British Joint Declaration readily meets the definitional criteria necessary to qualify as an international treaty. (11) Last but not least, the two signatories went to considerable lengths to signal that they consider the agreement (including its Annexes) as an instrument giving rise to binding rights and obligations (e.g., by registering it with the United Nations in accordance with article 102 of the UN Charter). (12)

The issue of effectiveness doubtless poses an analytical and practical challenge. No sanctions may be invoked in the event the provisions of the accord are violated. To make matters worse, no means of dispute settlement are available and access to the International Court of Justice is realistically precluded (due to the non-acceptance by the PRC of the compulsory jurisdiction of the institution). This is a potentially problematic configuration, hinging on the goodwill exhibited by the parties (or, to be exact, one of them) in changing circumstances over a long period of time. (13) As indicated earlier, however, compliance and effectiveness need not be highly correlated. Strong adherence to poorly-structured legal regimes, and the opposite pattern, is not rare socio-political phenomena.

II. SEARCH FOR THEORETICAL ENLIGHTENMENT

Cross-fertilization between international law and sister disciplines has varied over time and from one specific area of academic inquiry to another. A certain degree of openness to external influences has nevertheless prevailed throughout its intellectual evolution and this has manifested itself in the handling of the topics dissected. Compliance has consistently been at the high end of the ever-widening historical range. From inception (to the extent that it may be identified with any precision), the study of the subject has borne traces of a coherent interdisciplinary/multidisciplinary orientation. The impact of major schools of thought shaping the development of the social sciences (particularly, but not exclusively, international relations) has been apparent, whether or not explicitly acknowledged. This includes realism, liberalism, structuralism, public/rational choice and constructivism.

The frequent crossing of established scholarly boundaries may account for the methodological consciousness displayed, another salient characteristic of the work on international legal compliance. There is a definite awareness of the formal side of...