Why do states obey international law?
Why do states obey international law? In Louis Henken’s book titled How Nations Behave, he notes that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time. The statement captures the relation between states and international law where there is an inclination towards compliance. Even so, not all states comply with international law, and those that comply do not do it all the time. Regardless, states exhibit predictable behavior predicated on a pattern of obedience and almost full compliance to international law. What drives these states to compliance?
While one would argue that strong states have a lesser likelihood of compliance compared to weaker states, the variance differs between and within countries. In a study conducted in the European Union, outcomes indicate that no single factor separates the compliant and non-compliant states. An example is that while UK and Italy are similar on different fronts including population and the size of the economy, Italy had a non-compliance level three times that of the UK (Pickering, 2014). The differing levels of compliance are although all countries have to adhere to the laws set by the European Union. As such, while most states comply with international law, there is no defining factor for non-compliance.
Compliance from a theoretical perspective
One of the theoretical perspectives advanced in explaining the compliance of states relates to realism. Self-interest is the driving factor towards compliance and realists are sceptical of the idea that formal agreements have a significant influence on state behaviour. the argument made is that countries will only pursue their interests whether the treaties are in existence or not. Even so, states try as much as possible to ensure that their interests fit within the defined limits of international law and treaties.
Similar to the realist position, liberals also consider that the interests of the state are central but believe that international institutions help states in enforcing the agreements. The liberals also contend that the behaviour towards compliance or non-compliance is dependent on the regime type. A regime with a representative government that supports political and civil rights while respecting the rule of law has a higher likelihood of obeying international law.
Another influencing factor to compliance relates to the essence that states form agreements to mitigate international anarchy. The perspective aligns with the democratic peace theory denoting that democracies do not go to war against each other. The adherence to international law is therefore an outcome of the pursuit of interests as well as the fact that particular regimes form agreements that they must adhere to.
The constructivist position is that self-interests are not fixed but are rather outcomes of social constructions. Identities commonly held philosophic principles, shared terms of discourse, and norms of behavior inform the social construction of self-interests. The norms in the international community establish the standards of behavior and expected levels of conduct that nations follow. The constructivists argue that a shared understanding between states is of high value compared to actual treaties and this leads to compliance due to the respect shared by different nations. On the other hand, states will often engage in behavior considered to be acceptable. The implication is that they will obey international law if they consider compliance to be acceptable.
Do states have to abide by international law?
While the different theories project some of the factors influencing state behavior, there are other variables that a state considers before compliance. One such element is the fairness of a treaty to a particular nation. The structure of the treaty should be fair to all participants and this is a determining factor for a high level of compliance. According to Chayes and Chayes (1998), non-compliance to international law is largely an outcome of an ambiguous language in the treaty. Deliberate ambiguity is part of the international treaties and is usually for purpose of settling the disagreements. If the ambiguity is fair to all nations, there is a higher likelihood of complying with international law. The essence is that the treaty and or law have to promote the self-interests of the individual countries.
Another variable driving compliance relates to the element of consent. In the formation of international law or the creation of international institutions, member countries agree to ratify and comply with the agreed norms. Based on this essence, there is a moral obligation for states to obey international laws. It is within such a framework that nations that are yet to ratify a treaty cannot be held accountable for actions that are against the established norms. Immanuel Kant thought that international law is a purposive system with a dedication to securing peace, justice, liberalism, and democracy. With such elements guiding the formation of international law, nations have the moral and ethical obligation to obey.
States may also comply with international law when there is the capacity to meet the defined obligations. According to Pickering (2014), some nations fail to comply with international law because they lack the capabilities to meet the defined obligations. An example is that a weak or poor state may lack the resources needed to comply with an international treaty on anti-trafficking. While such a nation may be interested in complying or obeying international law, it cannot meet such a goal. Domestic institutions even in developed nations may limit the ability to obey international laws. The argument emerging is therefore that states obey international law if they have the resources and capabilities needed to comply.
In summation, different factors drive the compliance with international law for states. Liberals, constructivists, and realists project the idea of self-interests albeit from different perspectives. States can comply with international laws based on the fact that they ratified the treaties and therefore have moral and ethical obligations. Even so, the self-interest perspective bears more weight as regards the compliance of states to international law. No country will seek to obey an international law that is detrimental to its interests. On the other hand, non-compliance does not always imply opposition since nations may lack the resources and capabilities to comply with established norms.
Chayes, A., & Chayes, A. (1998). The New Sovereignty: Compliance with International Regulatory Agreements. Cambridge, Harvard University Press.
Pickering, H. (2014). Why the Do States Mostly Obey International Law? https://www.e-ir.info/2014/02/04/why-do-states-mostly-obey-international-law/