Q. Critically assess the basis of obedience by states in international law. What factors do states take into account in compliance with international law rules?
The international community is increasingly becoming an integrated unit following major fronts of development, with law and governance leading alongside economic agenda. In light of organizational needs of the integrated body of international community, it is important that certain laws are formulated and enforced for the integrity of the community to pass the test of existence. However, there are certain hurdles that stand in the way of an efficient transition from the segregated existence to the more inclusive arrangement. Enforcement of the international protocol faces the most potent challenge of embracing of the formulated laws and sustenance of the appropriate adherence across the member states (Alter, 19). While the membership of the international community has evolved in the recent past to be synonymous with the most acceptable yardstick for development, there are several considerations that make the expected transition the challenge it is today.
The platform on which the international law is founded outlines the integrity of the leadership and governance of the international community and is built on commitment to comply with the binding regulations. Due to the unavailability of a political structure at such a level, only goodwill can be applied in the delivery of the commitment expected for compliance and adherence. In such an arrangement, it is evident that there are loopholes which expose the sovereignties of individual member states to the mercy of external forces. External interference is a contradiction to the existence of the member states as sovereign states, which is the predominant building block of the international community. In the protection of the integrity of the individual state and the international community, there is undoubted favor for the integrity of the member state sovereignty which is the basic unit of the international community. In light of conflicting interests and objectives as expected in such an arrangement, there are important considerations to be made by the leadership of the individual member states regarding becoming signatories of the effective protocols as well as the details of compliance.
State behavior in embracing international law and handling international relations is important in determining the considerations that are likely to be highlighted by various leaderships before making commitment to such undertakings (Raustiala and Slaughter, 544). While politics therefore becomes central to the nature of state behavior detailing embracing international laws, specific regimes as guided by ideological foundations may not play this role within the spirit of the modern international community. However, there is a general agreement that nations have a common behavior in accepting international law which is usually formulated to be applied equally across the board. It is important to note that commitment to comply with international laws by member states may be a behavioral phenomenon than that of choice. As an illustration, there are very few instances of a single nation declining to comply with an international convention where the rest of the members, particularly if close allies embraced undertook to comply and be bound by such law.
According to Henkin (74), a general wave of influence is made on the benefits of the implementation of the particular international law which is usually designed to be more beneficial if all the member states are involved including image, reciprocity and other norm factors. In certain instances, the behavioral phenomenon has resulted in later considerations and analysis which indicate that certain compliance decisions were as a result of some influence. To illustrate this, compliance to the Rome Statute which establishes and guides on the International Criminal Court (ICC) has started to appear as an unfavorable decision by many countries, particularly the African countries that are largely affected by the compliance thereon (Stone, 124). While reverting the signatory commitment engaged in such international laws may not act in the best interests of the image of the country, there are cases of such reversals late into the commitment.
In another consideration given weight in favor of complying with international law, there is scholarly evidence that replacing segregated law arrangements with a wider concept of regional regimes is more beneficial to member states. International law studies provided information on the regime theory from several perspectives proving the advantages of favoring international cooperation. Under such scholarly evidence, it became increasingly important for legal advisers to the state to analyze the positions of complying with international laws which almost always acts in support of the move. A debate emerged regarding international law compliance among constructivists and rationalists on the various perspectives of the binding nature of the international commitment entered into through various platforms (Henkin, 21). It is clearly evident therefore that there is need for deep considerations by member states on the most important position to be adopted regarding cooperating with international law systems.
Considering certain sanctions set aside by various international legally binding fora presents a valid cause of concern during the deliberation on complying or abstaining. While the demanding needs of certain international regimes act as an important point of consideration by the member state, there are more issues that require to be factored in the decision regarding membership and compliance thereon. On one hand, there are beneficial considerations on the regime created by cooperation among member states in terms of legal synergy and development. Generally, there are certain benefits in undertaking to join a certain international body with legally binding terms as outlined in the objectives of the body (Pulkowski, 513). On the other hand, it is important to consider the disadvantageous impact likely to be experienced due to noncompliance. There are sanctions for defectors from the legally binding regime. Gains of defection or noncompliance must be considered against the loss sustained by victims of sanctions arising from compliance issues.
Additionally, national interests are considered within the backdrop of international regimes presented by the international conventions and treaties with legally binding terms requiring compliance. An analysis of case facts based on the ceteris paribus perspective from which the cost and benefit position is likely to be established must be deliberated on. Under such an analysis, the individual considerations indulged by the leadership of a member state goes beyond political and policy interests. In such a perspective, a larger framework is involved to interrogate the public goods perspective which highlights deep aspects of the presenting challenge of compliance. Two dominant items of consideration are usually highlighted to handle the interests of the member state in a more conclusive way. One of these items of consideration is referred to as the problem structure that is intended to capture the most strategic position when the country is subjected to the membership of the legally binding integration. Coordination and collaboration aspects of binding integrations are usually based on the strategic positioning of the member states. As an illustration, a state may need to consider the underlying problem necessitating the establishment of an international convention and the cooperation of states to alleviate the problem. While it may be in the best interest of a country to cooperate with the international community in alleviating an international disaster, domestic regulation of the effective laws may be out of proportion by certain states with regard to the relative threat experienced by the states.
It therefore implies that the variables of the need to comply with a particular international law may force the problem structure to be brought to the fore of the contemplations. Compliance to this end would be dependent on the severity of the challenge that the common interest aims to resolve, with the most affected members bearing the most burden of compliance than the least affected. However, it may act as a protective move for less affected member states to strongly stand for the implementation of specific international laws as well as improve the image of the country in the respective area of international policy. A closely related consideration referred to as the solution structure which involves the considerations of capacity that the country has to implement the enforcement requirements of the specified regulations. While the provisions of the implementation may differ with different legal requirements provided in various conventions, it is important to consider how the member state is institutionally prepared to handle the proposed regime. Since this approach considers the practicality of a specific legal regime within its jurisdiction, it implies that it also involves the consideration of the strategic position adopted in terms of the cost of compliance.
Finally, the postulates of the theory of obedience may perhaps explain what countries consider before they comply with international law. As observed earlier in this discourse, the international community is conventionally founded on the principles of law and as such, the need to comply with a particular international law may be in line with the general context of cooperation spirit held by the international community as defined by international relations. Being a part of the international community is therefore a predetermining exposure that induces certain expectation and culture established within the established cooperation. Obedience theory is therefore an important contextual consideration from where international standards of legal processes are keenly developed with regard to international mood of high regard to rule of law (Koh, 2634). This is a different perspective from the apparent member states’ influence on each other on the premise that there is an internal need for a country to be compliant to international law based on the fact that internal systems are themselves based on a similar arrangement.
Alter, Karen J. The new terrain of international law. Oxford: Oxford University Press, 2010. Print
Henkin, Louis How nations behave, 2nd edn. New York: Columbia University Press, 1979. Print
Koh, Harold Hongju. “Why Do Nations Obey International Law?” The Yale Law Journal, 106.8(1997): 2634.
Pulkowski, Dirk. “Testing Compliance Theories: Towards US Obedience of International Law in Avena Case” Laiden Journal of International Law, 19(2006):511-554
Raustiala, Kal. & Slaughter, Ann-Marie. “International Law, International Relations and Compliance”. In Carlnaes, W., Risse, T. & Simmons, B. A. (Eds.), Handbook of international relations New York: Sage Publications, (2002). Print
Stone Sweet, Alec. Constitutional dialogues in the European Union: In the European Court of Justice and national courts—doctrine and jurisprudence, Oxford: Hart Publishing, 1998. Print