How Compliance Understates Effectiveness
108 Am. Soc. Int’l L. Proc. (2014 Forthcoming)
6 Pages Posted: 26 Aug 2014
Date Written: August 25, 2014
International law skeptics have long worried that a focus on compliance with international law may overstate effectiveness — the extent to which international law induces changes in state behavior. In this essay, I argue that using compliance as the primary metric to evaluate international law risks understating its effectiveness for at least two reasons. First, noncompliance is often used as a negotiation technique. Despite the growth of international tribunals in recent decades, international law remains principally a negotiated system of law. States thus often use compliance disputes as tools to define legal obligations prospectively, rather than only or even primarily to determine responsibility retrospectively. Second, a state may use its own short-term noncompliance as part of long-term strategy to change its own behavior. Interest groups may press for a state to join an international agreement so that they can use the state’s noncompliance to push for changes domestically. Governments may also join regimes with which they know they will be noncompliant in order to gain access to foreign assistance, which can enhance compliance over time. Far from indicating international law’s ineffectiveness, when used in these two ways noncompliance indicates states’ long term commitment to working within a legal regime.
Keywords: international law, compliance, lawmaking, tribunals
JEL Classification: K33
Suggested Citation: Suggested Citation