International legal compliance: surveying the field.

Author:Bradford, William C.
 
FREE EXCERPT

INTRODUCTION

Does international law matter, or is it but a "fairy ship upon a fairy sea: a beautiful construct of the legal imagination floating upon a sea of false assumptions"? (1) International legal compliance (ILC), (2) the newest and most rapidly developing subfield in international law, was born in the early 1990s from the revived debate between legalization theorists--a group committed to the belief that the transformations wrought by the end of the Cold War have rendered international law independently capable of constraining and shaping the behavior of states--and their critics--a camp committed to the contrary notion that international law remains primarily an aspirational enterprise subordinate to politics and epiphenomenal to state practice. In attempting to prevail on the question of the efficacy of international law, legalists and skeptics alike have set about propounding and testing an array of interrelated theories, and in the process, the questions of whether, and if so, why and under what circumstances, states elect to comply with international law have emerged as the most central and pressing issues within the international legal academy. Building upon the insights of international relations theory and the methodologies of the social sciences, the field of ILC has organized around competing answers to these meta-questions, and the body of ILC scholarship now consists of eight books and nearly one hundred articles.

This Bibliography lists and annotates the major entries within the ILC corpus. For each entry a brief summary, together with one or more numbers corresponding to a list of major ILC themes, is provided. Although it is intended to be complete and comprehensive, the Bibliography does not list every article that could arguably be included within the ILC corpus. Short articles duplicative of the previous work of scholars have been omitted, as have articles that are tangentially connected to ILC or are largely descriptive, rather than analytical. Although the majority of ILC scholars are legal academics, an effort has been made to include the works of authors in related fields such as international relations and economics.

The methodology is as follows. A search of Westlaw, Lexis, and Worldcat was conducted to identify every potential book and article in the field of ILC. Each source was then read to ensure that it fit within the field. Additional articles cited or discussed by the authors of each source were noted for possible inclusion. A preliminary draft of the Bibliography was sent to each author for comments, corrections, and suggestions for additional authors and sources.

To be included in the Bibliography, each source was required to address one or more themes that constitute the field of ILC. These themes, along with the number and letter scheme employed to denote them, are as follows:

  1. General theory. Many ILC scholars have advanced competing theories to explain and predict patterns of compliance and noncompliance in international relations. These various theories, described in the annotations accompanying relevant bibliographic entries, can be organized into the following series of theoretical clusters: (a) realism, (b) enforcement theory, (c) rational choice theory, (d) liberal theory, (e) managerial theory, (f) reputational theory, (g) transnational legal process, (h) legitimacy theory, (i) constructivism, (j) organizational-cultural theory, and (k) personality theory.

  2. Empirical analysis. ILC scholars are increasingly moving beyond mere descriptive work or thought experimentation and are subjecting ILC theories to empirical analysis. Several have applied the methodological tools of the social and natural sciences, including multivariate statistics, rigorous comparative analysis, and detailed case studies, to develop testable and falsifiable general propositions regarding relationships between rules and behaviors and to inform proposals for regime modification.

  3. Skeptics. A minority of ILC scholars insist that compliance is the exception rather than the rule and that international law is little more than an aspirational venture. Some, without rejecting outright the causal significance of law in regard to state behaviors, contend that legalization inversely correlates with rates of compliance with the normative principles underlying regimes.

  4. Critical perspectives. Several scholars treat the question of compliance as the point of entry to challenge international law more generally as illegitimate for failing to include or for subordinating a plethora of subnational organizations, groups, and peoples.

  5. Relationship to domestic law and institutions. A number of scholars link compliance with international law to the structure or function of domestic law or institutions, typically by treating incorporation of international law within the domestic legal system as a necessary condition precedent to compliance or by describing domestic courts as the only effective sites for enforcement.

  6. High/low politics. The assumption central to the discipline of international law that regards international relations as uniformly susceptible to legal regulation may well be false. Some ILC scholars contend very directly that a hierarchy of issue-areas orders the international legal system and that patterns of cooperation have been far easier to generate and sustain in respect to "low politics," generally understood as economic, cultural, and social issues, than in questions of "high politics," defined narrowly as matters of war and peace. Other scholars, without directly asserting a high/low politics distinction, simply confine their analyses of findings to the particular low politics issue-areas under investigation and refrain from generalizing to other issue-areas.

  7. Survey. Many of the authors provide an overview, description, and a critique of some or all of the various ILC theories.

  8. Human agency. A small group of scholars with interdisciplinary backgrounds regard the state as an abstraction without the capacity to exercise a choice between alternatives and thus treat the question of compliance as one of human agency. For human agency theorists within the ILC field, people, rather than states, make compliance decisions, and the objective of their scholarship is producing an account for the micro-foundations of personality that are causally linked to compliance.

  9. Methodological and epistemological issues. Part of the literature within the ILC field is dedicated to the operationalization of the concept of compliance as a testable phenomenon, the design of experiments to test causal relationships between legal regimes and state behaviors, the selection and application of analytical methods to assess compliance data, the systematic and rigorous interpretation of research findings, the validation of data, methods, and conclusions, and the articulation and evaluation of knowledge claims.

  10. Effectiveness. A group of empirically-minded scholars have called into question whether "compliance" is an adequate conceptual frame work within which to evaluate whether international legal regimes further their normative policy objectives. Because a high level of compliance with a given regime may simply reflect the failure to require states to undertake anything more than modest departures from what they would have done in the absence of an agreement, and because certain agreements that impose significant constraints may meet with relatively low levels of compliance without sabotaging the norms states-parties seek to advance, the concept of "effectiveness," defined as the degree to which a regime is successful in transforming state behaviors consistent with the norms that underlie the regime, has been introduced as a substitute for compliance.

The following annotations, of course, cannot begin to do justice to the rich body of thought they summarize; at most, they identify several major themes in each source. Readers are encouraged to engage with the complete works themselves.

ANNOTATED BIBLIOGRAPHY

Kenneth W. Abbott, "Trust But Verify": The Production of Information in Arms Control Treaties and Other International Agreements, 26 CORNELL INT'L L.J. 1 (1993). (le, 2).

Develops a modified rational choice theory of compliance that assumes that self-interested states can be motivated to cooperate provided uncertainties as to other states' intentions and actions that impede cooperation can be reduced through a combination of verification and assurance procedures. Employs iterated prisoners' dilemma to the study of several arms control regimes to support the hypothesis that enhanced monitoring and verification are complementary strategies that promote compliance by increasing transparency, equalizing information, and enhancing payoffs for cooperation. Suggests that the appropriate package of measures is specific to each treaty member and that general theories of compliance are perhaps beyond the state of the discipline, at least in the issue-area of arms control.

William J. Aceves, Critical Jurisprudence and International Legal Scholarship: A Study of Equitable Distribution, 39 COLUM. J. TRANSNAT'L L. 299 (2001). (3, 4, 5).

Imports insights from Critical Legal Studies (CLS) metatheory to reinforce the central premise of legitimacy theory and transnational legal process theory: that compliance is a function of the degree to which substance and process of a legal regime are generally perceived as fair and inclusive of all stakeholders. Suggests that existing international institutional designs are insufficiently legitimate because they fail to incorporate a great many subnational groups. Faults the principle of equitable distribution for broadening the inclusiveness of institutions with regard to states but perpetuating the exclusion of subnational organizations, groups, peoples, and people. Suggests, but does not specify, that a deconstructivist program for enhancing the fairness of...

To continue reading

FREE SIGN UP