Academic journal article Chicago Journal of International Law

International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law

Academic journal article Chicago Journal of International Law

International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law

Article excerpt

Abstract

Compliance with international law is always dependent upon a contemporaneous domestic political decision to comply. This Article articulates the importance of the interdependence between home-state domestic politics and foreign-state domestic politics in determining compliance. International legal commitments allow the formation of domestic coalitions between those who will benefit from their own state's compliance with the international legal rule, and those who will benefit from other states' compliance with the international legal rule. This Article extends the rationalist approach to compliance with international law to the domestic politics of the target state. The theory developed in this Article builds on established approaches to international relations in the political science literature, in particular the "liberal" theory of international relations associated with Andrew Moravcsik, the two-level game theory approach associated with Robert Putnam, and the "second image reversed" approach associated with Peter Gourevitch. This Article extends these approaches (i) from broader international relations to international law and (ii) from adherence to compliance. The model advanced in this Article allows the formalization and contextualization of a variety of factors that up to now have been viewed in isolation as explanatory variables in the decision to comply. Policymakers can use this model as an analytical template by which to assess whether their counterparties would comply with any undertakings they may make.

"[A] prudent ruler cannot keep his word, nor should he, where such fidelity would damage him, and when the reasons that made him promise are no longer relevant." Niccolo Machiavelli1

"Applied to relations between nations, [the] bureaucratic politics model directs attention to intra-national games, the overlap of which constitutes international relations." Graham Allison2

I. INTRODUCTION

If international law is to be a useful tool of international cooperation, we must know more about its social effects: its ability to cause states to take action that they would not have taken, or to refrain from taking action that they would have taken but for the existence of the international law rule. Greater understanding of the effects of international law will allow more efficient allocation of diplomatic and analytical resources toward international law that will resolve international problems and will reduce uncertainty that may result in under-use of international law as a tool of cooperation. However, greater understanding will require greater particularity of analysis.

This Article proposes a social scientific theory of compliance with international law that focuses attention on the domestic politics underlying a state's decision to comply with a particular international legal rule. It develops further a preference -based model that describes the internal mechanisms of state compliance with international law, building on work in political science by Dai, Gourevitch, Moravcsik, Iida, Milner, Mo, Putnam, and others who have been instrumental in developing a two-level game-based theory of international cooperation. That political science literature focuses on cooperation in the form of adherence to a "rule." Except for the work by Dai, however, the literature does not examine the subsequent issue of compliance with the rule. The two extensions of this work made in this Article - from broader international relations to international law, and from adherence to compliance - help to illuminate the problem of compliance, and provide a social scientific, positive approach to compliance.

Most prior social scientific theories of compliance with international law take the structure of the state's aggregate utility function as a given and evaluate the circumstances under which the threat of retaliation, or perhaps the fear of reduced reputation or reduced opportunities for future cooperation, would provide incentives for compliance. …

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