Theories of Compliance with International Law and the Challenge of Cultural Difference

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Table of Contents

I.   Introduction
II.  Culture and Intersubjectivity
III. Why Constructivism: Rational Choice and Culture
IV.  Constructivism and Compliance: Taking Culture
     A. Culture, Identity and International Norms
     B. Acculturation and the Presumption of Community
     C. Persuasion and Legitimacy of Norms: Constructivism
     All the Way Down
        (i) Persuasion and Horizontal Legitimacy
        (ii) Persuasion and Vertical Legitimacy
V.   Conclusion: The Promise of Critical Constructivism

I. Introduction

The question of states' compliance with international law (IL) has become one of the central topics of academic research in the field. (1) As more and more areas of social life are being heavily regulated by IL, understanding the connection between law and state action becomes crucial. Explaining why states do or do not comply with IL is important for designing international commitments and improving the effectiveness of international institutions. The study of state behaviour, however, often takes an unduly narrow definition of 'compliance' as its starting point. The traditional view of international lawmaking considered law as a collection of formalized and institutional features, and it is striking to see how this view continues to be explicitly endorsed by leading scholars who have shaped the compliance debate in recent years. (2) These scholars treat the act of contractual obligation as the defining moment when a law comes into being and measure the behaviour of states with reference to that point in time. (3) What these analyses often fail to acknowledge is that, given the nature and reach of IL in the past few decades, these traditional categories must be reexamined. Very often, the formal act of accepting a legal obligation is only a point signalling the beginning of a broad process of lawmaking. (4) Law is thus 'much more about process than about form or product.' (5) There is an increasing number of voices advocating a more expansive view of law and aiming to situate it in a broader social context. Harold Koh's formulation of 'transnational legal process' has been especially influential. International legal obligation is created, he maintains, in a series of continuous repeated interactions in which a legal rule is constructed, interpreted, clarified, internalized, and enforced. (6) Even after binding commitments are made, their clarification, interpretation and implementation is constantly renegotiated and reflected upon in light of changing circumstances, new information, or a deepening consensus among the key actors.

Studying compliance, in turn, increasingly demands a close consideration of social processes, including the necessary economic, political and cultural conditions for the successful implementation of international legal commitments. A particularly pertinent example of this challenge is the Climate Change Convention. (7) Compliance with this agreement requires more than the domestic incorporation of a set of international rules and regulations. Compliance demands profound changes in political, social and individual patterns of thinking, and entails private consumers' acceptance of decisions that would have direct impact on their daily lives, as well as major changes in productions industries. Such profound changes in values and perceptions are likely to proceed differently across cultures. Another example is the implementation of intellectual property rights norms, requiring a development of what Tom Tyler has termed a 'culture of compliance' whereby people avoid illegal use of copyrighted materials because they internalize the norms prohibiting it. (8) When compliance can only be achieved in this 'wide' and 'deep' sense, governments need more than their publics' support in order to meet their commitments--an active participation of the public is a necessary condition for the successful implementation of international commitments. …