The Concept of Compliance as a Function of Competing Conceptions of International Law
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Description
“Compliance” is one of the central concepts in current and proposed research projects using social science methods to study the effects and significance of international law. Discussion of compliance often proceeds as if the concept is largely shared, i.e. there is a shared understanding that compliance is adequately defined as conformity of behavior with legal rules, and agreement that the real problems are about such matters as measuring, monitoring and improving compliance, and simultaneous optimization of levels of compliance and rigor of the relevant standards. This chapter makes the contrary argument that the concept of compliance with law does not have, and cannot have, any meaning except as a function of prior theories of the nature and operation of the law to which it pertains. Compliance with law is not a free-standing concept, but derives meaning and utility from theories of law, so that different theories of law lead to significantly different notions of what is meant by compliance. Thus work on compliance with law cannot stand on its own, but must depend on a stipulated or shared theory of law. In the case of international law, the elements of the concept of law which must be specified to give meaning to the concept of compliance are deeply contested and are far from being universally shared. There is also likely to be considerable variance in concepts of national law that are relevant to compliance with international law. Concepts of compliance depend upon understandings of the relations of law, behavior, objectives, and justice. These relations are of central importance to the real-world problems with which international lawyers are habitually concerned, and must be theorized if there is to be any theory of compliance. The purpose of this chapter is to challenge the tendency in the existing literature to view compliance in an under-theorized way simply as “correspondence of behavior with legal rules.” This tendency has an eminently intelligible basis combining a particular theoretical view of law and a practical concern to get on with the important task of producing empirical studies of compliance. The theoretical view is that law can properly be defined and understood as a body of rules. The logical corollary is that a reasonable degree of conformity between these rules and actual behavior is necessary to an efficacious legal system, so that recurrent and widespread nonconformity with rules would usually call into question the existence of law. Given these theoretical premises, the first practical task is to determine whether, as is often asserted by international lawyers, most states and other subjects of international law conform to most legal rules most of the time. We have impressions which may rise to the level of “anecdata,” but in many areas we certainly do not have systematic studies to show whether or not most states conform to most international law rules most of the time, and such studies as we do have show that impressions based on anecdata are not necessarily reliable. While raw data is increasingly available on responses by states to some types of international decisions, especially where a monitoring or supervisory body exists or where the decisions confer particular benefits on other actors who perform monitoring functions, the dearth of good empirical studies of correspondence between state behavior and international legal rules and decisions is a serious obstacle to adequate understanding and evaluation of the international legal system. Likewise, systematic work on the results of different modalities for promoting correspondence of behavior to international rules is patchy, although domestic compliance studies have demonstrated the practical importance for policy goals and the unanticipated consequences of different modalities. The much-needed empirical work on compliance is beginning to appear in increasing quantity, involving case studies, large-n series, and other methodologies. Yet, as those engaged in this work readily acknowledge, the methodological obstacles to this inquiry are severe. Characterization in marginal cases is rendered difficult by the problems international lawyers address daily: differences of opinion as to interpretation, disputes and uncertainty as to the status and authority of different sources of law, issues of opposability and excuses precluding responsibility. Recent studies of environmental and human rights norms show checkered patterns of conformity and non-conformity with rules, and highlight the differences between conduct prescribed by rules and conduct and long-term policies necessary to meet the underlying objectives of the particular international regime as well as other important policy goals. These and other studies show that the assumption that conformity and non-conformity are binary is not an adequate reflection of international practice, in which degrees of conformity or non-conformity and the circumstances of particular behavior often seem more important to the participants. But even if we knew how far state behavior conformed with international norms, we would not necessarily have an account of the causal relations of law and behavior, nor would we be much further toward evaluating legal rules against propositions about justice. Although empirical work is vital, it must depend for its meaning and implications on further development of the theory of international law as regards compliance. Defense of a particular theoretical approach would be too ambitious for this chapter. The modest aim is to sketch a sufficient variety of competing concepts of law, with their divergent implications for notions of “compliance,” to establish that much is lost by treating the basic concept of compliance as unproblematic, and to show that choosing and deploying a theory (or interlocking theories) of law is essential to articulating and defending a concept of compliance.
Source Publication
International Compliance with Nonbinding Accords
Source Editors/Authors
Edith Brown Weiss
Publication Date
1997
Recommended Citation
Kingsbury, Benedict, "The Concept of Compliance as a Function of Competing Conceptions of International Law" (1997). Faculty Chapters. 1005.
https://gretchen.law.nyu.edu/fac-chapt/1005
