All states, leading powers included, are urged to explain their actions and omissions in regards to legal rules and internationally accepted norms. The theories attempting to dissect this topic are split up between two groups. What we will begin to find is international law comes into effect and power based on the state(s) consent. Some individuals may question whether international law is even “law” to begin with. The process for making laws was described at the International Civil Aviation Organization and referred to language such as “international standards” and what the “recommended practices” are, and does not offer insight on any required practices. Even if a state may recognize an international law or norm — or even ratify a treaty — it does not necessarily mean they are adhering to or complying with the law in itself. Compliance is the action “of a state which follow the provisions of a particular treaty or rule of customary international law.” To comply with a rule in general is to act in accordance with the rules state you can and cannot do, in this case, it corresponds to following the legal obligations you have committed your state to. States may sign a treaty as an expression of commitment, but will show no real change in their behavior. On the other hand, we will also notice that some states may not necessarily ratify a treaty, but still abide by the rules or some of the rules and legal obligations stated within. In this reading, we will explore the debate about international law and analyze real-world examples that provide answers as to whether international law constrains state behavior.
Theorists on one side (Side 1) of the debate argue that state behavior is constrained by international law and limits their ability to make decisions as they please. While we realize states are not required to follow international laws or recommendations, there are arguments offered by scholars that state compliance with international laws can be enforced due to fear of potential consequences. There are essentially seven reasons or arguments that offer explanations as to how/why states are constrained by international laws. The first explanation, and possibly the most easiest to understand, is called the “Effect of Initial Commitment.” The Effect of Initial Commitment explains that overall, states comply with international laws because they have consented to do so, to begin with. Further, scholars on the other side (Side 2) may argue that a state may realize later that it is in their best interest to back out of a treaty or not comply with a law. Scholars (Side 1) believe that while that is a likely occurrence, some states continue to comply because even if short-term needs or interests are not fulfilled, it may satisfy a state’s long-term interests. Long-term benefits and the need for growth will often hold more importance than short-lived, short-term concerns. The second explanation describes that states comply with international laws due to a fear of negative reputation consequences. States globally give much importance to their standing and reputation within the international community — especially larger and leading powers. This especially applies to newSly developing or developed states because of their need to be recognized and respected by the global community. States generally have a high opinion of other nations whom have a reputation for respecting international law. Further, a good and bad reputation of a state has its own consequences. A good reputations for complying with rules can create stronger foreign relations, as opposed to having a reputation known for making false promises with no intent to deliver on one’s commitment, which will hinder future state cooperation or agendas. A reputation for actions that follow legal obligations will be resourceful for states in the future in which they can use it as reassurance to maintain future agreements and treaties with various other states. The third explanations for reasons of compliance is the “compliance-pull” effect, also known as the legitimacy theory. According to Professor Thomas Franck, states comply with rules that are understood to have “come into being in accordance with the right process.” Franck explains that there are four factors which exemplify a state’s compliance with international law. The four factors are as follows: determinacy (referring to the clarity of the rule/norm), symbolic validation (referring to the presence of a procedural practice), coherence (referring to the connection between rational principles and that law itself, and adherence (referring to the connection between the rule and secondary rules used to understand the primary rule). According to Franck, “where these four factors are present, the compliance pull theory predicts a strong pressure towards compliance, and where they are absent, it predicts a very limited impetus in that direction.” The next explanation for state compliance, number four, which we will examine is national processes. Some nations may already have rules or norms established that follow a treaty or international law or that states may internalize an international law which ultimately leads to compliance. Once an international law is internalized, the enforcement mechanism(s) improve through the state’s own domestic laws, regulations, statues, and courts. The fifth explanation we will explore is a state’s fear of reciprocity following the non-compliance of an international law. A state’s digression from an international law they agreed to may result in threatening or negative behavior from other states. For example, should a violate a law within a treaty to which they’ve ratified, the other party to the treaty may consider the treaty null and void, and curtail the treaty altogether. In some cases, this may apply more to developing or newly developed states rather than greater powers. Greater powers may be stable enough to withstand retaliation whether it is economic sanctions, military retaliation, or termination of a treaty. The next explanation offered is non-forcible and forcible coercion. The following methods can be used to coerce a non-compliant state to adhere to a legal obligation they have previously committed to: diplomatic sanctions, economic sanctions, and military enforcement. Non-compliant states can be coerced not only by other states, but also by international organizations (e.g. United Nations). While states are not required to engage in relations with other states, almost every state can agree that they do not want to be in a position where other states do not want to engage in diplomatic relations with their own state. In regards to international organizations imposing diplomatic sanctions, the United Nations concluded in 1993 that:
“…there is no clear consensus in international law as to when coercive mea- sures are improper, despite relevant treaties, declarations, and resolutions adopted in international organizations which try to develop norms limiting the use of such measures.”
Further, states can have their membership(s) revoked from the international organizations that they are a part of. According to the text, Principles of International Law,
“The UN provides that a state can be suspended from the rights and privileges of membership if the Security Council takes action against the state….The Char- ter also provides that a member can lose voting rights in the General Assem bly….”
The second type of coercion is the imposing of economic sanctions. Economic sanctions occur when a state freezes another state’s assets or forgoes foreign aid, etc. Another example of an economic sanction is the imposing of tariffs in trade disputes. While these sanctions may not always succeed in either states in great power or in developing countries, economic sanctions are efficient in trying to influence the behavior of other foreign actors. The last form of coercion is military enforcement. Military coercion can only be justified under international law in two circumstances, 1) cannot violate the prohibition against the use of force against the territorial rights and political freedom of the non-compliant State, or 2) must fall under the right to use force as self-defense. The final explanation behind why state behavior is constrained by international law is the ease of identification by states and authorities of non-compliance reporting and monitoring. States can monitor and report another state’s actions or omissions, which is generally outlined within the text of most treaties. However, we also must take into account that not all states execute an honest attempt at reporting and not all states report their findings on time. What some states may decide is to make use of method called independent verification — which is delegating the verification of compliance to an outside, independent agency. Of the seven methods offered as explanations to support the argument that international laws do constrain state behavior, the ease of identification of non-compliance makes reciprocity easier and results in more effective coercive tactics.
Theorists whom refute the ideas presented above (Side 2), express that states are not constrained by international laws. Scholars state that most states adopt behaviors that they are already in compliance with. This is known as the selection bias theory. Selection bias forms the arguments that states enter into treaties or legal obligations that they would have adopted anyways absent the treaty. They further state that to fully prove that a treaty (or treaties) has had an effect, one must provide evidence of a state’s compliance when it is not furthering their own agenda or in the state’s best interests.
After my examination of both sides of this scholarly debate, I am inclined to agree that international law does not constrain state behavior. Due to a lack of enforcement mechanisms, most states do not adhere to treaties, customary laws, or hard laws, because it doesn’t promote their own agenda. To begin with, states’ normally begin negotiation talks or become a part of conventions on treaties to directly express what they are looking for a in a treaty and what they require prior to their ratification of a treaty. History repeats itself in showing that states have ratified treaties that require little to no deviation from their own practices absent the legal obligations mentioned in the agreement. Scholars that argue international law does constrain state behavior, will point out that if states only succumb to treaties or laws that they already comply to absent the agreement, then what would be the point of the existence of any treaties? In rebuttal to that, what we will notice is that international treaty conventions or agreements occur more often and become more likely only if international interests become similar. Second, the explanations offered by theorists on the opposing side state several different types of sanctions, reputation damages, and financial loss should states decide to become non-compliant. However, there is no legitimate authority in the international world as there is domestically. While a state may have to pay a fine or have their membership suspended from an organization, there is no real lasting effect. It is almost as if as time passes by, states will in a sense, “forget” about the non-compliant states actions and will eventually reinstate diplomatic relations or lift sanctions and unfreeze assets. There is no real enforcement mechanism set into place to urge a state to comply as promised.
The empirical examples of states succumbing to treaties that already prioritize their best interests and current behaviors is as follows, but not limited to: the United States. The United States has been a part of the following conventions or have ratified the following treaties:
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Convention on the Rights of the Child (CRC)
Convention for the Protection of all Persons from Enforced Disappearance
Mine Ban Treaty
Convention on Cluster Munitions
Convention on the Rights of Persons with Disabilities (CRPD)
Optional Protocol to the Convention against Torture
The titling of these treaties, conventions, and negotiations implicitly suggest they were already in the best interests of the United States, absent the negotiations. America has not had a history of torturing children, or have ever been a supporter of enforced disappearances. Rather, they advocate for the exact opposite of the agreements listed above. For example, the CEDAW contains provisions rot ensure women’s ability to participate in the workforce under quality. The United States has provided equal rights for women in and outside the workplace absent the ratification of the Convention on the Elimination of All Forms of Discrimination against Women. This reflects that great powers, such as the United States, entertain treaties that already align with their current behavior and practices.
International law and policies has been a matter of interest for legal scholars, international organizations, and state actors. Many treaties have been adopted and many rules have been set into place by the doing of major powers, and the issue of influence arises when it comes to lawmaking and international conventions on treaties. While international organizations and states can urge one another to become a part of a movement, each state has always exercised their free will and eventually become a part of agreements and enforce laws when it benefits their personal interests most — not the interests of the people.