Theories of compliance with international law and the challenge of cultural difference.

• Author: Alkoby, Asher
• Position: Report

Table of Contents I. Introduction II. Culture and Intersubjectivity III. Why Constructivism: Rational Choice and Culture IV. Constructivism and Compliance: Taking Culture Seriously? A. Culture, Identity and International Norms B. Acculturation and the Presumption of Community C. Persuasion and Legitimacy of Norms: Constructivism All the Way Down (i) Persuasion and Horizontal Legitimacy (ii) Persuasion and Vertical Legitimacy V. Conclusion: The Promise of Critical Constructivism I. Introduction

The question of states' compliance with international law (IL) has become one of the central topics of academic research in the field. (1) As more and more areas of social life are being heavily regulated by IL, understanding the connection between law and state action becomes crucial. Explaining why states do or do not comply with IL is important for designing international commitments and improving the effectiveness of international institutions. The study of state behaviour, however, often takes an unduly narrow definition of 'compliance' as its starting point. The traditional view of international lawmaking considered law as a collection of formalized and institutional features, and it is striking to see how this view continues to be explicitly endorsed by leading scholars who have shaped the compliance debate in recent years. (2) These scholars treat the act of contractual obligation as the defining moment when a law comes into being and measure the behaviour of states with reference to that point in time. (3) What these analyses often fail to acknowledge is that, given the nature and reach of IL in the past few decades, these traditional categories must be reexamined. Very often, the formal act of accepting a legal obligation is only a point signalling the beginning of a broad process of lawmaking. (4) Law is thus 'much more about process than about form or product.' (5) There is an increasing number of voices advocating a more expansive view of law and aiming to situate it in a broader social context. Harold Koh's formulation of 'transnational legal process' has been especially influential. International legal obligation is created, he maintains, in a series of continuous repeated interactions in which a legal rule is constructed, interpreted, clarified, internalized, and enforced. (6) Even after binding commitments are made, their clarification, interpretation and implementation is constantly renegotiated and reflected upon in light of changing circumstances, new information, or a deepening consensus among the key actors.

Studying compliance, in turn, increasingly demands a close consideration of social processes, including the necessary economic, political and cultural conditions for the successful implementation of international legal commitments. A particularly pertinent example of this challenge is the Climate Change Convention. (7) Compliance with this agreement requires more than the domestic incorporation of a set of international rules and regulations. Compliance demands profound changes in political, social and individual patterns of thinking, and entails private consumers' acceptance of decisions that would have direct impact on their daily lives, as well as major changes in productions industries. Such profound changes in values and perceptions are likely to proceed differently across cultures. Another example is the implementation of intellectual property rights norms, requiring a development of what Tom Tyler has termed a 'culture of compliance' whereby people avoid illegal use of copyrighted materials because they internalize the norms prohibiting it. (8) When compliance can only be achieved in this 'wide' and 'deep' sense, governments need more than their publics' support in order to meet their commitments--an active participation of the public is a necessary condition for the successful implementation of international commitments.

If the spread of international norms needs to be achieved in both a 'wide' and 'deep' sense, variations in cultural perceptions and diffusions of such norms become particularly relevant. A theory of state compliance with international norms must therefore consider cultural diversity a crucial factor when attempting to build a coherent compliance model. This article examines some of the important conceptual and empirical contributions to the study of compliance in order to ask to what extent existing approaches consider the impact of cultural diversity on state compliance with IL. Much of this scholarship purports to develop models of compliance that claim to have practical utility for institutional design. Cultural diversity, I argue, is a crucial explanatory factor that is often overlooked in the study of international normative change.

The burgeoning literature on compliance is still in its infancy, but there is a growing interest in building a unified theory among IL scholars that is greatly influenced by international relations (IR) scholarship. International lawyers turn to IR theory for better explanatory models for the evolution of norms and for compliance with them, while IR scholars turn to theories on law for normative models in order to better understand observed behavioural regularities. (9) Coming from one discipline (IL), my foray into the other (IR) is motivated not by an attempt at 'bridging' them or seeing how they may converge but by the need to critically examine the influence of the one (IR) on the other (IL) in light of the recent extensive cross traffic between the two. (10)

Given my interest in the nature of the process through which norms are constructed and rule-guided behaviour is then achieved, I define compliance not in co-relational terms (the measured conformity of a behaviour with a norm), but in a causal way (compliance as a norm driven behaviour). (11) IR/IL compliance literature identifies three causal mechanisms that lead states to comply with international norms: coercion, persuasion and acculturation (or normative coercion). The first emphasizes the constraining effect of norms, while the latter two are said to have a constitutive effect on actors, namely the power to alter their identities and preferences. Rational choice theories emphasize coercion, positing that norms may influence the behaviour of states by providing benefits for conformity or creating costs for nonconformity. (12) This approach assumes that beyond self-interestedness, only external forces can motivate compliance: norms are not internalized by actors but merely serve to constrain their behaviour. The rationalist model offers a very limited engagement with cultural difference because it fails to treat both the international and the domestic realms as social environments.

Constructivist approaches, on the other hand, treat states as social entities that, in interacting with each other, develop shared understandings regarding what is appropriate, which then give rise to behavioural norms. These norms, in turn, shape the identities of states, which then transform their interests . This growing body of literature is now infusing the debate over the character of the international system with exciting new insights, and the empirical studies that it has generated to date have successfully challenged the materialist assumptions that form the basis of many of the dominant rationalist accounts. The serious contemplation of social action offered by constructivism opens the way to a much-needed consideration of cultural contingency. This article suggests, however, that the particular strand of constructivism that is gaining some followers in the IL community does not fully realize the potential of this approach to meaningfully engage with the challenge of diversity.

Conventional constructivists (13) claim that human agents do not operate in a normative vacuum but in a social environment with 'its collectively shared systems of meaning ("culture" in a broad sense).' (14) The causal mechanism that they emphasize is social sanctioning, which is shown to be an effective tool for inducing compliance with norms. In much empirical work, therefore, a mechanism of acculturation is highlighted. This form of normative coercion serves as a collective disapprobation for the breach of norms, which is imposed by the community to which the noncompliant actor belongs. States have a sense of belonging to the international community, and it is their fear of loss of good standing in that community that motivates them to comply. While constructivism is ontologically about the intersubjective construction of norms, then, this strand of the literature focuses on the unidirectional diffusion of pre-existing normative structures through means of normative coercion.

More promise lies in another strand of constructivism, which has not gained much currency among IR compliance researchers, let alone IL scholars. Critical constructivism emphasizes the discursive interventions through which norms are constructed, and the meanings that they take on in that process. Discourse ethics, an idea most associated with the work of Jurgen Habermas, is a normative ethics for pluralistic societies which no longer have a single, overarching moral authority. Under this approach, actors engaged in a genuine discourse ought to be motivated and guided by a willingness to be persuaded by the 'unforced force of the better argument' which means that 'agents suspend their own truth claims, respect the claims of others and anticipate that their initial points of departure will be modified in the course of dialogue.' (15) In this view, norms will be complied with when they are constructed, interpreted and implemented in a process of mutual persuasion, in keeping with the procedural rules of discursive argumentation. While IR compliance research has begun producing empirical evidence for processes resembling the conditions for discourse ethics identified in critical theorizing, (conventional) constructivists only...