3 - Interactional law and compliance

Summary

[T]he 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.

Introduction

Compliance questions have now preoccupied international lawyers for almost two decades, and they have animated much of the re-engagement between international law and international relations (IR) theory. We deliberately speak of engagement between ‘international law’ and ‘international relations theory’, rather than between ‘international law theory’ and ‘international relations theory’. We believe that a limitation of much recent compliance scholarship is its failure to articulate a theory of international law or, more specifically, a theory of international legal obligation. In much of this writing, theories of international law and obligation operate only in the background, if at all. All too often, international law is treated simply as a fact of international life, or is assumed to emanate from formal sources and the consent of states. The result is that the distinctive ‘compliance pull’ of international law, to use Thomas Franck’s evocative phrase, is disregarded or undervalued, and important opportunities for understanding and promoting compliance are missed.

One might forgive international relations theorists for spending little time distinguishing between ‘norms’ and legal norms, or for building their frameworks on the positivist accounts of law that remain dominant among international lawyers. As we discussed in the Introduction, the positivist view of law has reinforced the realist and rationalist theories of compliance that have long been dominant within the discipline of international relations. In that dominant view, law, like other social norms, can provide predictable rules and stable institutional structures. But if international law is only a formal phenomenon contingent upon state will, it is at least initially plausible that states’ interests and relative powers will determine their compliance. The general absence of compulsory dispute settlement and enforcement mechanisms rounds out the perception of international law as weak or even ‘epiphenomenal’. Constructivist international relations scholars, by and large, have not challenged the thin account of law that underpins the majority of compliance theories. Although compliance scholars working in a constructivist vein are by definition ‘norm interested’, they too have been remarkably uninterested in examining whether legal norms are ‘distinctive’ in more than merely a formal sense, and what the implications for their capacity to shape identities and induce compliance might be.