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Abstract

The conceptual, and more recently empirical, study of compliance has become a central preoccupation, and perhaps the fastest growing subfield, in international legal scholarship. The authors seek to question this trend. They argue that looking at the aspirations of international law through the lens of rule compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of inter-national law to politics. Citing a range of examples from different areas of international law – ranging widely from international trade and investment to international criminal and humanitarian law – the authors seek to show how the concept of compliance (especially viewed as rule observance) is inadequate for understanding how international law has normative effects. A fundamental flaw of compliance studies is that they abstract from the problem of interpretation: interpretation is pervasively deter-minative of what happens to legal rules when they are out in the world, yet ‘compliance’ studies begin with the notion that there is a stable and agreed meaning to a rule, and we need merely to observe whether it is obeyed.

Policy Implications

  • Looking at the aspirations of international law through the lens of rule compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of international law to politics.
  • States, as well as other actors – corporations for example – instead of simply ‘complying’ with international legal rules may bargain in light of them, and around them. Given that there are transaction costs of negotiating, the rules will have an effect on the bargain, but one that will not be observed if what one is focused on is rule compliance.
  • In altering the focus and agenda of states and nonstate actors in dealing with conflict and post-conflict transitions, international law may have raised expectations too high that where politics and economics, and for that matter moral idealism, have failed to solve enduring human problems, law will succeed.
  • International law may create benchmarks for a wide range of private decision making, and this even when in the first instance the rules in question have not been explicitly addressed, at least not traditionally to nonstate actors. Such benchmarks may affect to whom firms lend, with whom they deal as suppliers or subcontractors, design specifications for products such as ships and aircraft, the terms of such diverse transactions as the adoption of children, the transportation of hazardous products and the transfer of high technology. Private actors may simply adopt these benchmarks as common terms of commerce regardless of the extent to which they have been ‘implemented’ by states.
  • International law (norms and/or institutions such as courts and tribunals) may shift in whole or in part decision-making, interpretative and/or legitimating power from one set of elite actors to another (for example from diplomats, foreign policy analysts and military planners to legal professionals such as judges, lawyers and law professors).