Written by: Boitumelo Sediti, University of Cape Town
Debates around the rationale behind a state’s compliance with international law have been point of contention across a host of disciplines. While each discipline extrapolates interpretative toolkits unique to their fields, there seem to be no single answer to this debate. International law Theorists such as Harold Kohand Andrew Guzmanhave attempted to answer this question through the theory of Transnational Legal Process (TLP) and the reputational theory, respectively. The former is the internalization of global norms into domestic systems.The latter, however, rests on the idea that compliance with international law is attributed to the esteem or prestige that comes with doing so.This paper argues that while these two theories should be used with circumspection because they fail to take cognizance of the role of power, and proposes an alternative theory of power-dynamics to explain compliance with international law. It takes cognizance of the fact that Guzman’s reputational theory does pay homage to the role of power, albeit to a limited extent. This paper takes a four-pronged approach. The first and second part will define key concepts and will give a contextual overview, respectively. The third part of this paper will provide a general overview of the theories posited by Koh and Guzman, and lead into last part of the paper – a critical analysis of the work of these authors; and an exposition of how a new theory of power-dynamics can offer a way forward in our understanding of state compliance with international law.
Definitions in International Law
The generally accepted definition of international law is that it is the set of rules that regulate relations between states.Authors like Eric Posnertakes this even further by describing international law as a source of expectations imposed on the actions of states under various conditions. These expectations may be expressed in treaties or custom in the form of Customary International Law (CIL). Treaties generate rights and obligations that are binding on states that have consented to them; as a result, their validity isnotpredicated on custom.States are also required to ratify these treaties and incorporate them into their domestic laws. An example of a treaty may be The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.It is only those states who have consented to this treaty who are bound by it.
Customary International Law – on the other hand – is premised on state practice as well as opinio juris. The cases of Nicaraguaand North Sea Continental Shelf Casesproves to be useful in this regard. The court in these cases defined state practice as usage by states which is the frequent occurrence of an act. In Nicaraguait gave a few requirements on when state practice is assumed; most notable of these being the consistency of the practice. Therefore, state practice is an objective assessment. This is the antithesis of opinio iuris whichis the conviction that certain conduct is obligatory when construed subjectively.Put differently, opinion juris is when states believe that they have the legal obligation to act in a certain way and subsequently act in accordance with that belief. A state in this context means a sovereign territory with a centralized government that exercises authority over people.
Contextualization: the Importance of the ‘Compliance Question’
This question of obedience or compliance (the compliance question) is paramount within the broader scope of international law. Obedience invariably suggests a compromise albeit mostly within the realm of the international community – one state must often go against its wishes in honour of a law.Consider this example in the context of climate change. Countries in the ‘Global South’ are said to be the ones who release the least amount of greenhouse gases omissions which are detrimental to the climate.This is notwithstanding the fact that these countries are the most vulnerable when it comes to climate change.On the other hand, Countries in the Global North (such as the US) release more greenhouse gases. International law agreements, however, do not reflect this disproportionate release of greenhouse gases. The implications of this is that countries in the Global South, who are yet to realise their potential for industrialization, are now bound by agreements similar to those in the global south which are flourishing in terms of industrialization.
Therefore the task of this paper is to answer why they do so even if it is not in their immediate best interest. In doing so, one must first look at the work of Harold Koh and Andrew Guzman.
Understanding the Work of Harold Koh and Andrew Guzman: An Overview
Harold Koh’s Transnational Legal Process
The scope of Koh’s theory is on private and public actors such as multinational corporations as well as governments – in that order. Koh finds the compliance questionto be very polycentric.By this it is suggested that it has a bearing on the broader context of the international community; for it matters to every institution whose success is based on the compliance or obedience of a state why a state would obey an international law to begin with. In answering this question he introduces his own theory of Transnational Legal Process (TLP) by first exploring the work of other theorists such as Chayes & Chayesand Thomas Franck.He posits that these theories do not do justice in answering why states obey international law.
Chayes and Chayes put forward a managerial approach in answering the compliance question. They do so through the lenses of treaty regimes (international law agreements consented to by states as defined above) and the accomplishment thereof.In rejecting the enforcement model which is premised on sanctions, this approach advocates for model of compliance that is based on co-orporation.Koh criticizes Chayes and Chayes by arguing that there is no substantive difference between the enforcement model and the managerial model. In tandem with this, the latter’s reach is too narrow (because of how it oversimplifies and distorts things) and does not capture what happens in CIL for instance.Koh also has reservations with Franck’s fairness approach. The kernel of Franck’s fairness approach is whether international law is fair or not.
For Franck, compliance “is not so much the managerial process as the fairness of international rules themselves”.Thus, Franck fixates on the fairness of rules. For, apartheid South Africa would go against the fairness of rules because of the racial inequalities which resulted from these rules. In addition, this fairness approach is rested on distributive justice which is a proponent of change contrary to preserving the status quo.This change is arguably one that is geared towards ensuring that rules are fair. Yet, Koh also critiques this theory. He believes that it is silent on institutional interaction which triggers interpretation of ideals and norms which are invariably internalized into the domestic arena.As a result, he felt compelled to introduce his own theory.
The Transnational Legal Process is described as “the complex process of institutional interaction whereby global norms are not just debated and interpreted, but ultimately internalized by domestic legal systems”.The TLP takes issue with the aforementioned theories for it asserts that they both reach the same outcomes albeit through different methods.For Koh, these theories are still not adequate to answer the compliance question. He further asserts that a better suited way to answer this is three-fold; namely through interaction, interpretation and ultimately, internalization. Through this, it gives the necessary link that is missing from the Chayes & Chayes and Franck’s theories. The link being an appreciation for how “repeated compliance gradually becomes habitual obedience” when translated into domestic laws. Koh, however, does not explore the compliance questions only through the ideas of these authors; he also looks into other schools of thought such as Instrumentalist interest theories; liberal identity theory as well as the constructivist international society approach.
The Instrumentalist interest theories consider the costs involved with certain actions while the liberal identity theory is fixated on the identity of states. Both of these also do not find favour with Koh on the charge that they negate the ‘transnational revolution’.A theory that somewhat resonates with Koh but still appears to have missing elements is the constructivist international society approach which pays homage to participation in the legal process.This theory has been viewed with scepticism by theorist like Andrew Guzman, amongst other.
Andrew Guzman’s reputational theory
Guzman shares similar sentiments with Koh vis-à-vis the inadequacy of the aforementioned theories in answering why states comply with international law. Guzman however, also finds Koh’s transnational legal process theory guilty of the same charge. Thus, he finds it fitting to introduce his own theory dubbed as the reputational theory of compliance based on the rational actor model where the value or preference for reputation is what ensures compliance with international law. Guzman starts off by flagging the importance of compliance of international law. This he does by looking into the role of treaties and CIL inter alia. He posits that understanding why there is compliance is also useful in considering ways in which one can improve certain rules or regulatory systems.The the gravamen of his argument is that international law exists, and there is compliance for it, for two main reasons. The first (and most important it emerges) is reputational which is arguably linked to legitimacy and parallel could be drawn to the ideas of Franck, albeit narrowly. The second is sanctions which the author contends does not really ensure compliance.This is owing to the fact that “sanctions consist primarily of economic punishment and reputational losses, they are often too weak to achieve optimal compliance.”Like Koh, Guzman pays homage to the integral role of international organizations notwithstanding his criticism of the theory of the former.
In critiquing Koh, Guzman argues that he negates
At the core of Guzman’s own theory lies the idea that an adequate theory should be able to answer the compliance question as well as why international law is violated. He explains his theory through the aid of a two-staged model. The first involves a compromise through negotiation of the law while the second directly tackles the question of why there is compliance with international law.It is the second stage that shows the self-interested nature of states such as the concern over potential sanctions or losing reputational capital. Guzman posits that a state is likely to comply if the costs of doing so are outweighed by the benefits.Consider the example above of countries in the global south in relation to climate change. Guzman would argue that it will only comply with environmental law to the detriment of economic interest if there are other benefits to complying.
Potential benefits include avoiding trade sanctions that could have adverse effects on its economy or
Direct sanctions, for Guzman, primarily focuses on
An Analysis: the Pitfalls of the Theories of Koh and Guzman.
This analysis seeks to not only critique the aforementioned theories by showing their shortcomings; it is also geared towards ascertaining whether one can sever the good from the bad and fully answer the compliance question. It will be shown that because states comply because of the power at their disposal, both Koh and Guzman’s work is useful in this regard. Alas, their usefulness is restricted owing to their failure in considering the role of power in complying with international law. Furthermore, it must be stated that theories are mere lenses through which we unpack the real world.They help us understand why certain things happen or even better, as with what Guzman would argue, why certain things such as compliance does not happen. They invariably fall short of giving an adequate description or answer to a problem. The theories put forward by these two authors are no exception to this.
States comply with international law because failure to do so will lead to lack of legitimacy and they may suffer sanctions. This legitimacy is arguably one that is derived from relations with other states who are usually the same states that may threaten certain sanctions. These states are usually powerful ones such Britain and the United States of America (US). It follows, the role of power is essential in promoting a state to comply with international law. In the same breath, power may also give a state the confidence to violate international law. The assertion here is that states with power are more likely to violate international law.There are at least two examples to this extent. The first could be gleaned from the involvement of the United States of America (US) in the Vietnam war where the chemical weapons it used had a lingering effect on the former.Still keeping with the US, the second example is its role in the Syrian War. While the jury is still out with respect to whether the military invasion of the US in Syria is justifiable self defence in terms of international law, the use of force by the US can be classified as a violation of international law.
At this juncture, it is important to look at the aforementioned theories to ascertain as to whether they account for the role of power – or lack thereof – in answering the compliance question. Power, in this context, refers to a state’s economic and political stability and its ability to use this to secure its own interest.These advantages (using the example of the Iraq war) are usually economic.We can however, not address the issue of power without reference to the role played by colonialism. Colonialism was a system in which imperial states like Britain used the power at their disposal to forcefully subjugate people through various laws such as the notorious Black Administrative Act of South Africa.
Koh’s TLP which asserts that compliance occurs because of internalization does not answer or fully consider the role played by power in process of this internalization. Guzman makes this critique himself when he argues that Koh fails to explain how internalization takes place.The howcould be answered by looking into the various power dynamics at play. Power is important when looking into the internalization of domestic rules because of the various factors which influence these rules. If using South Africa as an example, it is a diverse country with an oppressive past and it is also reported to be one of the most unequal in the world.It would matter who gets to be part of this process of internalization since that would ultimately have a bearing on what is being placed on the policy agenda of the country pursuant to translation into law.
Furthermore, borrowing yet again from Guzman’s critique of Koh, the latter does not account for the reason why certain norms are considered during this internalization while others are overlooked.A theory unpacking power dynamics would arguably be able to answer this question by asserting that certain norms are overlooked because of the influence of its proponents. Therefore, although the transnational legal process is useful in explaining the compliance question one must be wary of its failure in considering the role of power. Guzman’s reputational model is also guilty of the same charge, although for different reasons.
Guzman fails to deal with the role of power with respect to reputation. He neglects the opportunity to answer why reputation is so paramount and also, who gets to set the ideal critique of what reputable state is? Again, an analysis of power dynamics would be able to show that a fixation on reputation exists because of the influence of those who yield power to shape it. This does not completely take away from the strengths of this theory for it goes further than Koh by unpacking why states violate international law. However, even this analysis fails to look into the role of power in compliance with international law.
A Way Forward: Power Dynamics in Compliance with International Law
The issue of power in international law has been grappled with by a host of thinkers in the past. Earlier writers like Thomas Hobbs asserted that the power of a state is pivotal in maintaining order.For Oscar Schactherpower is ‘is exercised through deprivation and benefits’. This suggests that one party is possibly gaining at the expense of another. Schacther explores the importance of power and how it permeates through international law. At the heart of his argument lies the premise that power affects conduct which is integral to the process of legal rules.This could potentially fill the gaps left by Koh’s TLP. In tandem with this, the author also explores custom in international law through the lenses of Charles De Visscherwho argued that ‘every international custom is the work of power’.
Moreover, Schacther looks into the influence of non-state actors such as big corporations in shaping international law.He fails however, to also consider why there has been compliance with international law; but in using the thesis of his article one would deduce that compliance exists because of the power dynamics at play in prompting that compliance. Schachter offers a perspective on an earlier claim made in this paper that sometimes, access to power also deters a superpower like the US from complying.This is perhaps the most useful way in answering the compliance question by looking into the power that is evenly distributed in both the international and domestic arenas.
Furthermore, this is useful because Schacther seems to embody sentiments raised by various other theories (mostly from international relations). For example, realists also consider the role of power in the international law by arguing that states are the most important and powerful actors.Constructivism also considers the role of power, but differs slightly from realism in that it fixates on the role of identities such as race and gender in international relations.What is clear from these theories as well as the work of Schachter is that power plays an important role in prompting a state to comply with international law. This compliance is usually as a result of the fear of sanctions and losing legitimacy in the international community. The former speaks to the reputational theory of Guzman.
In summation, while Koh’s TLP is important in answering why states comply with international law, it fails appropriately to consider power as a potential driver for compliance – a mistake that Guzman’s reputational theory also falls prey to. Reformulating these two theories with the importance of power in mind offers a more holistic lens through which compliance with international law can be examined, and progress in a decades-long debate made.
.Koh, Harold Hongju, Abram Chayes, Antonia Handler Chayes, and Thomas M. Franck. 1997. “Why Do Nations Obey International Law?”. The Yale Law Journal 106 (8): 2599. doi:10.2307/797228.
Andrew T. Guzman 2002. “A Compliance-Based Theory Of International Law”. California Law Review 90 (6): 1823. doi:10.2307/3481436.
Op cite note 1 at 2602.
Op cite note 2.
TW Bennett and J Strung Introduction to International Law 2013.
Eric Posner Do States have a moral obligation to obey law under international law? 55 Stan. L. Rev. 1901 2003.
TW Bennett and J Strung op cite note 5 at 12.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Military and Paralimilitary Activities in and Against Nicaragua(Nicaragua v USA), Merits, Judgment, ICJ Reports 1986.
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and The Netherlands), Judgment, ICJ Report 1969.
Ibid at 17-19.
Ibid at 57.
Andrew Guzman op cite note 2.
Beer, Christopher Todd. “Climate Justice, the Global South, and Policy Preferences of Kenyan Environmental NGOs.” The Global South 8, no. 2 (2014): 84-100. doi:10.2979/globalsouth.8.2.84.
Ibid, see alsoEmily Barritt, and Boitumelo Sediti. 2019. “The Symbolic Value Of Leghari V Federation Of Pakistan: Climate Change Adjudication In The Global South”. King’s Law Journal, 1-8. doi:10.1080/09615768.2019.1648370.
Harold Koh op cite note 1 at 2600.
Abram Chayes & Antonia Chayes, On Compliance, 175, 176 (1993).
Franck, Thomas M. 1988. “Legitimacy In The International System”. The American Journal Of International Law 82 (4): 705. doi:10.2307/2203510.
 Abram Chayes & Antonia Chayes op cite note 18.
 Harold Koh op cite note 1.
Thomas .M. Franck op cite note 19.
Harold Koh op cite note 1.
Ibid at 2635.
Ibid at 2603.
Andrew Guzman op cite note 2.
Ibid at 1826.
Ibid at 1829.
Ibid at 1835.
Ibid at 1836.
Ibid at 1846.
Ibid at 1861
Ibid at 1865.
Ibid at 1882.
Karen Mingst and Ivan Arreguin “Contending Perspectives: How to thinking about International Relations Coherently” in Esstentials of International Relations (2011)67.
Troy Lavers The New Crime of Aggression: A Triumph for Powerful states (2013).
Jack Goldsmith “The Contributions of the Obama Administration to the Practice and Theory of International Law” Harvard International Law Journal57 2016 455 at 461. Also note thatthere are a host of requirements a state has to meet in order for its use of force to qualify as self defence under international law.
Marc Wellar People Power in International Law (2013).
Karen Mingst and Ivan Arreguin op cite note 38 at 90.
Richard Roberts and Kristen Mann Law in Colonial Africa (1991) 3.
Andrew Guzman op cite note 2.
Avinash Govindjee The Role of the Courts in Addressing Poverty, Inequality and Unemployment in South Africa (2008).
Andrew Guzman op cite note 2.
Charles De Visscher Theory and Reality in Public International Law(1968) 12-15.
Oscar Schachter, Role of Power in International Law, (1999) 200.
Troy Lavers op cite note 39.
Ibid at 154.
Marc Wellar op cite note 40 at 203.
Karen Smith “International Organisations” in Power, Wealth and Global Equity (2006) 153
Op cite note 35 at 84.
Barritt, Emily, and Sediti, Boitumelo 2019. “The Symbolic Value Of Leghari V Federation Of Pakistan: Climate Change Adjudication In The Global South”. King’s Law Journal, 1-8. doi:10.1080/09615768.2019.1648370.
Bennett, TW & Strung, J. Introduction to International Law (2013. Cape Town: Juta & Co Ltd.
Chayes Abram & Chayes Antonia, On Compliance, 175, 176 (1993).
De Vischer, Charles. Theory and Reality in Public International law. (P.E. Corbett trans., rev. ed. 1968).
Franck, Thomas, M. Legitimacy in the International System. (1988) 705. Oxford: Clarendon Press, Jack Goldsmith 2016. “The Contributions of the Obama Administration to the Practice and Theory of International Law” Harvard International Law Journal57.
Govindjee, Avinash. The Role of the Courts in Addressing Poverty, Inequality and Unemployment in South Africa (2008).
Guzman, Andrew T. 2002. “A Compliance-Based Theory Of International Law”. California Law Review 90 (6): 1823. doi:10.2307/3481436.
Harold Hongju, Koh “Why Do Nations Obey International Law?” (1997). Faculty Scholarship Series. Paper 2101.
Lavers, Troy. The New Crime of Aggression: A Triumph for Powerful States, 18 J. Conflict & Sec. L. 499 (2013).
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Smith, Karen “International Organisations” in McGowan, Patrick., Cornelissen, Scarlett & Nel, Phillip (eds) Power, Wealth and Global Equity (2006). Cape Town: UCT. 219-254.
Posner, Eric A. Do States Have a Moral Obligation to Obey International Law, 55 Stan. L. Rev. 1901 (2003).
Roberts, Richard & Mann, Kristen. Law in Colonial Africa (1991) 3.
Schachter, Oscar Role of Power in International Law, 93 Am. Soc’y Int’l L. Proc. 200 (1999).
Weller, Marc. People Power in International Law, (1992).