Fairness in International Law and Institutions.

• Author: Koh, Harold Hongju

By Thomas M. Franck.(***) Oxford: Clarendon Press, 1995. Pp. 500. $55.00.

Why do nations obey international law?

This remains among the most perplexing questions in international relations. Nearly three decades ago, Louis Henkin asserted that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."(1) Although empirical work since then seems largely to have confirmed this hedged but optimistic description,(2) scholars have generally avoided the causal question: If transnational actors do generally obey international law why do they obey it, and why do they sometimes disobey it?

The question is fundamental from both a theoretical and practical perspective. It challenges scholars of international law and international relations alike. It vexes all subfields in international affairs, from international security to political economy; from international business transactions to international trade; from European Union law to international organizations. It poses a critical ongoing challenge for United States foreign policy, for if we cannot predict when nation-states will carry out their international legal obligations respecting trade retaliation, environmental protection, human rights, global security, and supranational organizations, how can we count on "multilateralism" to replace bipolar politics as the engine of the post-Cold War order? Not least, it remains the daily practical question facing nongovernmental organizations that challenge governmental officials on behalf of victims of human rights abuse.

International law and relations scholars have inquired into the power of rules in international affairs for centuries, but the Cold War's demise, and its implications for the possibilities of international law, have dramatically sharpened interest in the "compliance question."(3) Within the last decade, the growing perception that "international law does matter" has brought the question to the attention of political scientists, regime theorists, international law practitioners, and legal philosophers.

Two recent books, which cap the careers of three eminent international lawyers, represent the most comprehensive and sophisticated efforts to date to address this demanding question. In The New Sovereignty, Harvard Law Professor Abram Chayes, former Legal Adviser to the U.S. State Department, and Antonia Handler Chayes, former Undersecretary of the U.S. Air Force, argue that compliance with international law is best fostered, at least within treaty regimes, by a "managerial model."(4) In the Chayeses' view, nations obey international rules not because they are threatened with sanctions, but because they are persuaded to comply by the dynamic created by the treaty regimes to which they belong. "[T]he fundamental instrument for maintaining compliance with treaties at an acceptable level," they argue, "is an iterative process of discourse among the parties, the treaty organization, and the wider public."(5)

In Fairness in International Law and Institutions,(6) New York University Law Professor Thomas Franck argues that the key to compliance is not so much the managerial process as the fairness of international rules themselves. Threaded with philosophical arguments from his earlier work,(7) and based on his 1993 Hague Lectures in Public International Law, Franck's tour d'horizon of international law asserts that nations "obey powerless rules" because they are pulled toward compliance by considerations of legitimacy (or "right process") and distributive justice.

Both volumes are works of adepts. Both recognize that the modern transformation of sovereignty has remade international law, so that international law norms now help construct national identities and interests through a process of justificatory discourse.(8) Moreover, the Chayeses' managerial approach and Franck's fairness approach give cogent modern expression to two prominent intellectual traditions in international legal scholarship, which I will call the "process" and "philosophical" traditions. These intellectual traditions have historically defended the discipline against two divergent claims: on one hand, the realist charge that international law is not really law, because it cannot be enforced;(9) on the other, the rationalistic claim that nations "obey" international law only to the extent that it serves national self-interest.(10)

Yet both books, instructive as they are, give shape to only parts of the blind men's elephant. Both the managerial and the fairness accounts of the compliance story omit, in my view, a thoroughgoing account of transnational legal process: the complex process of institutional interaction whereby global norms are not just debated and interpreted, but ultimately internalized by domestic legal systems.(11) Both the managerial and the fairness accounts fail to describe the pathways whereby a "managerial" discourse or "fair" international rule penetrates into a domestic legal system, thus becoming part of that nation's internal value set. Both books thereby avoid explaining the evolutionary process whereby repeated compliance gradually becomes habitual obedience. In my view, this overlooked process of interaction, interpretation, and internalization of international norms into domestic legal systems is pivotal to understanding why nations "obey" international law, rather than merely conform their behavior to it when convenient.

Part I of this Review Essay examines the history of scholarly efforts to grapple with the compliance question. Part II locates the Franck and Chayeses volumes amid this intellectual landscape, and suggests what they have gotten right, wrong, and incomplete. Part III sketches what I believe to be a more complete approach toward understanding why nations obey, one that combines the managerial and fairness approaches with deeper analysis of how transnational legal process promotes the interaction, interpretation, and internalization of international legal norms.

1. THE ROOTS OF THE COMPLIANCE PROBLEM

   Like most laws, international rules are rarely enforced, but usually obeyed.(12) Although this phenomenon has been studied in the domestic law context by psychologists, philosophers, anthropologists, and domestic lawyers,(13) it has received far less direct attention in the international realm. Indeed, the very way that the compliance question has been treated over the years as, in turn, a religious, moral, philosophical, political science, process, and now empirical question, itself provides a fascinating window into how internationalists have chosen to think about the role and function of international law. This evolution in academic thinking reflects the fact that this serial examination has transpired against the backdrop of an epochal transformation of international law. That transformation has been characterized by the marked decline of national sovereignty; the concomitant proliferation of international regimes, institutions, and nonstate actors;(14) the collapse of the public-private distinction; the rapid development of customary and treaty-based rules; and the increasing interpenetration of domestic and international systems. These trends have restructured the planetary stage on which international law performs, making way for what Franck calls "the post-ontological era" of mature and complex international law.(15)

   1. Ancient and Primitive International Law

      During the classical period of international law, the causal question of why nations obey was generally conflated with the normative question of why they should obey, which was in turn usually answered by "semi-theological" reference to "the higher law--the 'law of nature,' of which international law was but a part."(16) Before the Roman empire, religion served as the paramount source of the law of nations.(17) In Roman law, Gaius defined jus gentium in terms of "law 'common to all men.'"(18) The Preface to Justinian's Institutes, published in 533 A.D., began with observations about the relationship between the law of nations and natural law.(19) During the Middle Ages, international or universal law merged with ecclesiastical law, and even positive treaty law was considered to have legal force only because treaties were confirmed by oath, which "being a 'sacrament,' subjected the obligation incurred to the jurisdiction of the Church."(20) Nor did medieval legal scholars distinguish municipal from international law, instead viewing the law of nations, understood as jus naturae et gentium, as a universal law binding upon all mankind.(21) Thus in these early years, the public/private, domestic/international categories that later came to dominate classical international legal theory had not been developed. The law of nations was thought to embrace private as well as public, domestic as well as transborder transactions, and to encompass not simply the "law of states," such as rules relating to passports and ambassadors, but also the law between states and individuals, including the "law maritime" (affecting prizes, shipwrecks, admiralty, and the like) and the "law merchant" (lex mercatoria) applicable to transnational commercial transactions.(22) The system was "monistic," inasmuch as international and domestic law together constituted a unified legal system, with domestic institutions acting as important interpreters and enforcers of international legal norms.(23)

      As one scholar has noted, "the most fundamental difference between ancient and modern international law" was "antiquity's complete elimination of process as an essential link between sources and substance.... [T]he ancient mind could not conceive of norms of State behavior apart from the admittedly diverse sanctions for non-compliance with those rules."(24) This began to change in the fourteenth century, as the theoretical distinctions that came to dominate international legal discourse began to appear...