A Theory of Expressive International Law

61 Pages Posted: 4 May 2006 Last revised: 16 Apr 2008

See all articles by Michael Ashley Stein

Michael Ashley Stein

Visiting Professor, Harvard Law School; University of Pretoria Faculty of Law, Centre for Human Rights

Alex C. Geisinger

Drexel University Thomas R. Kline School of Law

Abstract

Ever since Grotius first suggested that desire for esteem from the broader global community motivates States to comply with international law, identifying just how this desire effects compliance has proven illusive. The ability to harness the pull of international society is important to virtually all treaty formation and compliance. It is especially important in the area of human rights regimes where other compliance forces such as coercion, are rarely, if ever, used. Recent empirical evidence, however, suggests that human rights regimes are ineffective. Indeed, in many situations this evidence suggests that the human rights practices of States that ratify such treaties may actually worsen after ratification. The need to understand how, or whether, the pull of international society influences state behavior, thus, has never been greater. This Article provides an initial detailed model of the forces motivating human rights treaty creation and compliance by drawing on evolving expressive law literature. It begins by setting forth a need-reinforcement model that explains how normative pressure influences rational actors to alter their behavior and beliefs while seeking regard from other group members. Next, the Article applies this model to State treaty ratification and compliance, and describes how treaties exert expressive effects that lead rational States to change their behavior because of their desire to be part of and esteemed by the global community. The Article then demonstrates how an expressive theory harmonizes the contributions of divergent international law scholars into a more complete theory of why States enter into and obey international law. In doing so, it provides a framework from which regime design implications can be drawn.

Suggested Citation

Stein, Michael Ashley and Geisinger, Alex C., A Theory of Expressive International Law. Vanderbilt Law Review, Forthcoming; Drexel College of Law Research Paper No. 2008-A-03. Available at SSRN: https://ssrn.com/abstract=900016

Michael Ashley Stein (Contact Author)

Visiting Professor, Harvard Law School ( email )

1585 Massachussetts Avenue
Austin Hall 305
Cambridge, MA 02138
United States
617-495-1726 (Phone)

University of Pretoria Faculty of Law, Centre for Human Rights ( email )

Private Bag X20
Hatfield 0028
Pretoria
South Africa

Alex C. Geisinger

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States
215-571-4792 (Phone)

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