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Why States Follow the Rules: Toward a Positional Theory of Adherence to International Legal Regimes

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Why States Follow the Rules: Toward a Positional Theory of Adherence to International Legal Regimes 03__AREND.DOC 8/1/2006 3:02 PM WHY STATES FOLLOW THE RULES: TOWARD A POSITIONAL THEORY OF ADHERENCE TO INTERNATIONAL LEGAL REGIMES SARAH ELIZABETH KREPS* ANTHONY CLARK AREND** INTRODUCTION There is not and never will be a “field theory” of international law and relations that succeeds in explaining individual or state conduct so completely as to permit the reliable prediction of specific state actions that will occur in distant, concrete circumstances. We cannot know whether the conditions necessary for cooperation will be present in the future, or how states will respond to the conditions that do exist.1 So opined Professor Michael J. Glennon in his recent article How International Rules Die.2 Given the messy reality of international relations, Glennon argues that we can never really know why states follow rules of international law, which is true enough.3 We cannot enter into the minds of the policymakers. We can never know with absolute certainty why decision makers chose to sign, ratify, and follow the provisions of international legal regimes. But if international relations theory is to serve any useful purpose, it must seek to make some kind of evaluation—even if it is a contingent, imperfect one—of why states act as they do. Without such evaluation, there can be no framework for understanding the behavior of international actors and no guidance for policymakers. Copyright © 2006 by Sarah Elizabeth Kreps and Anthony Clark Arend. * Senior Fellow, Institute for International Law & Politics, Georgetown University; Adjunct Professor of Political Science, George Washington University; Intelligence Officer, United States Air Force Reserve. ** Professor of Government and Foreign Service and Director, Institute for International Law & Politics, Georgetown University; Member, Council on Foreign Relations. 1. Michael J. Glennon, How International Rules Die, 93 GEO. L. J. 939, 988 (2005). 2. Id. 3. See id. 331 03__AREND.DOC 8/1/2006 3:02 PM 332 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 16:331 We believe that the problem lies not so much in the general project of political science, but rather in the nature of existing theories of international relations and international law. Each of the major theories—structural realism, modified structuralism, neoliberal institutionalism, and constructivism—offers some insights into state behavior, but none is able to provide a comprehensive framework for understanding state behavior regarding international legal regimes. What is needed is a better theory, and that is what we have sought to formulate. To respond to the failure of existing theories, we have developed a new theory that we refer to as the “positional theory of adherence.” This theory provides a much stronger basis for understanding why states adhere to international legal regimes. This positional theory has been developed inductively through an examination in which we explore the participation of nineteen global and regional powers in four prominent treaty regimes: the Comprehensive Test Ban Treaty (CTBT), the Land Mine Treaty, the Kyoto Protocol, and the Agreement Establishing the World Trade Organization. Based on this examination, we conclude that the most significant determinants of behavior are the position of that state in the international system as well as the nature of the treaty regime, the extent to which the regime infringes on state sovereignty, the nature of verification/enforcement arrangements of that regime, and the normativity of the treaty regime. This Article seeks to lay out the nature of our empirical study and to set forth the basic elements of this new theory. Part I develops the concept of “adherence” and explore insights from traditional international relations theory and international legal theory relating to adherence. Part II discusses the methodology used in our investigation, including the case and country selection. Part III then provides a detailed examination of the motivations given by these states for adherence with respect to the four treaties. Concluding that traditional theories by themselves fail to predict adherence, Part IV lays out the contours of our positional theory of adherence. Finally, Part V examines the implications of this theory for foreign policymaking. 03__AREND.DOC 8/1/2006 3:02 PM 2006] WHY STATES FOLLOW THE RULES 333 I. ADHERENCE THEORY A. The Concept of Adherence Many international legal and relations scholars4 have written about the concept of “compliance.”5 Compliance is meant to reflect the actions of a state to follow the provisions of a particular treaty or rule of customary international law.6 A state is said to be complying with a treaty or rule of customary international law if it is acting in accordance with the legal obligations established in that particular source of law. But state participation in an international legal regime is actually more complex. For example, the United States decided in 1982 to neither sign, nor ratify the Law of the Sea Convention,7 but to abide by it in part.8 President Reagan announced in 1983 that the United States would accept and abide by the provisions of the Convention dealing with “traditional uses of the ocean” including navigation over-flight vis-à-vis other states that agree to follow those provisions.9 Reagan’s primary reservation was with regard to the 4. See, e.g., ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS passim (Harvard Univ. Press 1995) (developing a theory of compliance); THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS passim (Clarendon Press 1995); Claire R. Kelly, Enmeshment as a Theory of Compliance, 37 N.Y. U. J. INT’L L. & POL. 303 (2005); Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599 (1997) (reviewing THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS (1995)); Beth A. Simmons, Money and the Law: Why Comply with the Public International Law of Money?, 25 YALE J. INT’L L. 323 passim (2000); Andrew Guzman, A Compliance-Based Theory of International Law, 90 CAL. L. REV. 1823 passim (2002). See also ANTHONY CLARK AREND, LEGAL RULES AND INTERNATIONAL SOCIETY passim (Oxford Univ. Press 1999); Anthony Clark Arend, Do Legal Rules Matter? International Law and International Politics, 38 VA. J. INT’L L. 107 passim (1998). 5. Professor William Bradford has argued that there is a growing “subfield” of international law that addresses the issue of compliance. William Bradford, International Legal Compliance: Surveying the Field, 36 GEO. J. INT’L L. 495 passim (2005). 6. Kal Raustiala notes that “[c]ompliance generally refers to a state of conformity or identity between an actor’s behavior and specified rule.” Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES. J. INT’L L. 387, 391 (2000). 7. United Nations Convention on the Law of the Sea, art. 136, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter Law of the Sea Convention]. 8. Much has been written on the United States and the 1982 Convention on the Law of the Sea. See generally ROBERT L. FRIEDHEIM, NEGOTIATING THE NEW OCEANS REGIME (Univ. of S.C. Press 1993) (providing general background information on the Law of the Sea Convention); THE LAW OF THE SEA: U.S. POLICY DILEMMA (Bernard Oxman et al. eds., Inst. for Contemp. Studies 1983). 9. In his statement released on March 10, 1983, Reagan explained that “the United States will recognize the rights of other states in the waters off their coasts, as reflected in the [Law of 03__AREND.DOC 8/1/2006 3:02 PM 334 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 16:331 provisions for deep sea bed mining (Part XI),10 which he did not consider to be customary law. His policy adhered to most but not all of the Law of the Sea Convention, suggesting the non-binary nature of participation in an international legal regime. Given this non-binary nature of participation and the problematic implications of the term “compliance,” a better word to describe the relationship between a state and a treaty regime—or rule of customary international law—might be “adherence.” “Adherence,” as the term is used here, means the level of participation of a state in the treaty regime. Adherence is not a binary concept.11 There is a spectrum along which participation in a regime takes place. States may sign a treaty, ratify, fulfill the provisions in varying degrees, and demonstrate varying degrees of commitment to the treaty based in part on their institutional investment, participation in the regime, and advocacy. They may also sign or ratify as an expression of commitment, but not effect real changes in their behavior.12 States may even fail to sign or ratify, yet exhibit some level of adherence to provisions of the agreement. Any state, at a given point in time, will fall somewhere along the spectrum of adherence. By examining a variety of indicators, a general evaluation of the level of adherence of that state can be determined. In order to develop a new theory of adherence, it is necessary to look at the reasons why states engage in these different levels of participation. From a theoretical and empirical perspective, what factors affect states’ decisions to participate along this spectrum? A good starting point for this evaluation of state behavior and the Sea] Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states.” United States Ocean Policy, 19 WEEKLY COMP. PRES. DOC. 383-84 (Mar. 10, 1983). 10. Law of the Sea Convention, pt. XI (establishing a legal regime for the mining of deep seabed nodules). 11. Using the term compliance, Chayes and Chayes clearly recognize this problem: Compliance is not an on-off phenomenon. For a straightforward prohibitory norm like a highway speed limit, it is in principle a simple matter to determine whether any particular driver is in compliance.
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