International Law and Foreign Policy
Summary and Keywords
Policymakers regularly face decisions pertaining to the making of international law and compliance with international law. International relations scholars have attempted to explain the broad patterns of state behavior that emerge from such decisions by approaching international lawmaking and international legal compliance from the perspectives of state power, interests, and identity. These explanations reflect the growing interdisciplinary connections between the study of international law and the study of international relations. Although there have been fewer interdisciplinary connections between the study of international law and models of foreign policy decision-making, closer examination of each of the main international relations approaches to international lawmaking and international legal compliance suggests corresponding models of foreign policy decision-making. Further work remains to develop these connections and to incorporate transnational actors and processes into the analysis of foreign policy decision-making. Such work has both scholarly and practical relevance, insofar as foreign policy decision-making takes place in an increasingly legalized international environment even as the existing, post–World War II international order faces increasing challenges from nonliberal states.
Across a range of issue areas, policymakers regularly face decisions pertaining to the making of international law and compliance with international law. International relations scholars have attempted to explain the broad patterns that emerge from such decisions using various theoretical perspectives to specify “the range of likely outcomes of the actions and interactions of states” (Waltz, 1979, p. 71). These explanations reflect the growing interdisciplinary connections between the study of international law and the study of international relations (see, inter alia, Abbott, 1989; Dunoff & Pollack, 2012; Hafner-Burton, Victor, & Lupu, 2012; Slaughter, 1993). By comparison, there have been fewer interdisciplinary connections between the study of international law and models of foreign policy decision-making, which consider “how the different internal structures of states affect their external policies and actions” (Waltz, 1979, p. 122). Nonetheless, much of the existing international relations literature pertaining to international law contains mechanisms that involve (or potentially could involve) domestic foreign policy actors and institutions. Closer examination of each of the main international relations approaches to international lawmaking and international legal compliance suggests corresponding models of foreign policy decision-making and helps to clarify the logic of each approach.
International Lawmaking As Foreign Policy
Lawmaking within the international system is based on state consent. Such consent, which may be explicit (through treaty ratification or accession) or implicit (through compliance with established or emerging norms of customary international law), forms the basis of international legal obligation (Abbott, Keohane, Moravcsik, Slaughter, & Snidal, 2000).
International law serves to enhance the stability and predictability of state interactions. However, states vary in their choices of whether to consent to international law and when and how to create it. International relations scholars have approached these decisions in one of three ways (Hasenclever, Mayer, & Rittberger, 1997). Power-based approaches to international lawmaking consider ways in which international law preserves states’ relative power positions and restrains state actions. Interest-based approaches to international lawmaking consider ways in which international law serves state interests and enables mutual gains. Identity-based approaches to international lawmaking consider ways in which international law reflects and shapes state identities. Different mechanisms within each approach suggest different models of foreign policy decision-making.
State Power and the Making of International Law
Power-based approaches suggest that international lawmaking can be explained in terms of the distribution of state capabilities within the international system. As Young (1989, p. 350) puts it, legal rules “come into existence when those [states] possessing sufficient power take the necessary steps to create them.”
There are two types of power-based approaches to international lawmaking. The first approach treats lawmaking as an expression of state dominance, while the second treats lawmaking as a means of consensual international order. The distinction between these approaches is between external, coercive restraint and internal, prudential restraint (Westra, 2009, pp. 6–7), although both suggest similar roles for domestic legal advisers and similar consequences of domestic interest group access.
International Lawmaking as an Expression of State Dominance
Explanations that treat international lawmaking as an expression of state dominance suggest that powerful states create international law to impose external, coercive restraints on less powerful states (Goldstein, Kahler, Keohane, & Slaughter, 2000, p. 391) as part of an attempt to “maintain their share of world power, or even increase it” (Mearsheimer, 1994–1995, p. 13). According to these explanations, international law “stipulate[s] the ways in which states should cooperate and compete with each other” (Mearsheimer, 1994–1995, p. 8) and restrains the actions of less powerful states via threats of legal countermeasures. Understood in this way, international lawmaking is informational and strategic; powerful states create legal rules to transmit information regarding their preferred outcomes and to elicit such outcomes from less powerful states by altering those states’ cost-benefit calculations (Hasenclever et al., 1997). Legalization of such rules is significant only insofar as it implies coercive enforcement (Finnemore, 2000, p. 703).
These types of explanations suggest that the process of international lawmaking via treaty negotiations will consist primarily of positional bargaining (Spangler, 2003), with powerful states asserting their preferences at the outset of negotiations and seeking through negotiations “to dictate rules of the game” to less powerful states (Krasner, 1991, p. 340; see also Snidal, 1985a, p. 938; Stein, 1982, p. 311). Coercion may underlie seemingly consensual arrangements (Guzman, 2008, pp. 60–61), insofar as powerful states may have “go it alone” power (Gruber, 2000) that would allow them to conclude negotiations separately and leave less powerful states behind, while less powerful states may have a higher “cost of ‘no-agreement’” (Putnam, 1988, p. 442; see also Fearon, 1998) that would make drawn-out negotiations relatively more costly to them.
States that are involved in negotiations will prefer treaties that reflect their relative power positions within the international system; negotiations will be stymied by relative gains concerns if the proposed treaty provisions do not maintain the existing distribution of power (Fearon, 1998, p. 297). The treaties that emerge from negotiations thus will tend to reflect the interests of powerful states. They generally will comprise only shallow agreements (Downs, Rocke, & Barsoon, 1996), insofar as states “choose only to go as deep as they expect they can successfully enforce” (Fearon, 1998, p. 285). States will engage in hard bargaining if they expect a proposed treaty to be enforceable but engage in “nonserious” bargaining if they do not expect a proposed treaty to be enforceable (Fearon, 1998).
The process of customary international lawmaking will be quite similar, insofar as much customary international law is “the result of conscious political action by states . . . rather than the gradual accretion of state practice” (Abbott & Snidal, 2000, p. 426 n. 419). As stated by the International Court of Justice in the North Sea Continental Shelf Cases, the practice of states “whose interests were specially affected” should play an important role in the lawmaking process, though this often means in practice that powerful states play a dominant role in the making of customary law (Byers, 1999, p. 38). As Boyle and Chinkin (2007, p. 28) note, many rules of customary international law “were formulated by a small number of powerful states to uphold their interests.”
Although these explanations suggest that the international lawmaking process will be dominated by powerful states, less powerful states in turn may attempt to use the law to constrain the actions of powerful states (Trachtman, 2016). As Kagan (2002, p. 11) notes, “small powers always fear they will be victims,” while major powers “often fear that rules may constrain them.” Hence, depending on how confident they are that “agreements will track their preferences,” less powerful states may be particularly amenable to legalization “to minimize political conflict . . . [by] sublimat[ing] such conflict into legal arguments” (Abbott & Snidal, 2000, pp. 432–433). As Kahler (2000a, p. 666) notes, however, among powerful states, those “with large legal staffs should be more amenable to legalization” than states with small (or poorly trained) legal staffs, as they may be better able to minimize legal constraints by providing acceptable justifications for arguably illegal actions.
In negotiating or accepting treaties, powerful states are likely to seek advice from domestic legal advisers regarding a level of precision that will communicate their preferences clearly but also apply to a range of varying circumstances and not unduly constrain their own actions. They also may seek “to escape from the strictures of a particular provision by filing reservations, declarations, and other unilateral conditions after an agreement has been negotiated” (Abbott et al., 2000, p. 411). Conversely, less powerful states are likely to seek advice from domestic legal advisers regarding a level of legal precision that will allow flexibility of applications in a range of circumstances (Bouwhuis, 2012), but also meaningfully constrain the actions of powerful states.
To the extent that public opinion affects international lawmaking, these explanations suggest that it will be in the form of boundary conflicts (Putnam, 1988) in which domestic constituencies debate the distribution of benefits that would result from treaty ratification or accession. As Putnam (1988) notes, domestic constituencies can increase a state’s bargaining power by creating a smaller win set, while interest groups and the news media may play a similar role via “politicization” of an issue. Separation of powers within domestic institutions also can reduce the size of the win set, such that “a negotiator may use the implicit threat from his own hawks to maximize his gains” in negotiations (Putnam, 1988, p. 444). Alternatively, negotiators may attempt to overcome unfavorable domestic public opinion or even disagreements within the executive branch by including nonbinding, aspirational language in a treaty text (Westra, 2007, p. 11), although such language ultimately may become binding if it is incorporated into customary international law. The implication of these explanations, then, is that domestic foreign policy actors and institutions affect international lawmaking primarily by affecting decisions regarding the interests of the state and the state’s ability to achieve those interests through bargaining.
International Lawmaking as a Means of Consensual International Order
Explanations that treat international lawmaking as a means of consensual international order emphasize that even powerful states must take into account the interests of less powerful states as a basis for a stable, consensual international order (Bull, 1995; Stein, 1984). As Boyle & Chinkin (2007, p. 30) note, although international lawmaking may be “dictated by the agendas of the powerful, . . . a dissentient state—even the most powerful—cannot assume it will be able to dictate the outcome against the wishes of the majority.”
According to these explanations, legalization of agreed rules is significant insofar as the effectiveness of such rules requires a credible commitment of restraint from powerful states (Westra, 2007) and “legalization is one of the principal methods by which states can increase the credibility of their commitments” (Abbott & Snidal, 2000, p. 426). Legalized arrangements inform states’ expectations by clarifying actions as cooperative or non-cooperative moves and subjecting state actions to scrutiny “under the general rules, principles, and discourse of international law” (Goldstein et al., 2000, p. 387).
Because powerful states must take into account the interests of less powerful states in making international law, they must offer favorable terms to less powerful states, even as they attempt to “lock in” a level of authority that is commensurate with their own relative power advantage within the international system (Ikenberry, 2001). Hence, powerful states accept legal restraints on their foreign policy decision-making in return for acceptance of their relative power advantage and increased stability and predictability of state interaction without the need for costly enforcement (Westra, 2009). As Carr (1946, pp. 178–179, 235–236) suggests, even major powers are willing to accept legal constraints that give “fixity, regularity, and continuity” to the international system, provided that the constraints reflect those states’ relative power positions.
Powerful states may attempt to use leverage to achieve their preferred outcomes in treaty negotiations, but because they also must take into account the concerns of less powerful states, integrative bargaining is likely to accompany positional bargaining (Young, 1989). However, such bargaining may allow domestic interest groups to push for specific treaty exceptions, which may lead to factional conflict among domestic constituencies. This is especially likely “when the costs and/or benefits of a proposed agreement are relatively concentrated” (Putnam, 1988, pp. 443–444). Interest group access also may open up disagreements within the executive branch regarding how much to concede in particular issues (Campbell, 1973; Frieden, 1988), thereby complicating treaty negotiations. Thus, as with the power-based explanations examined previously, the implication of these explanations is that domestic foreign policy actors and institutions affect international lawmaking primarily by affecting decisions regarding the interests of the state and the state’s ability to achieve those interests through bargaining, though such effects will be more readily observable in the bargaining process than in bargaining outcomes.
State Interests and the Making of International Law
In contrast to power-based approaches, interest-based approaches to international lawmaking emphasize mutual gains rather than external or internal restraints on state actions. According to these approaches, rational, self-interested states realize that they are hindered by payoff structures in their efforts to pursue mutual gains (Oye, 1985) and create legalized agreements to stabilize expectations of behavior and incentive cooperation.
There are two types of interest-based approaches to international lawmaking. The first approach treats lawmaking as an efficient means of pursuing gains, while the second treats lawmaking as an emergent means of pursuing gains. The distinction between these approaches is between rational and boundedly rational state actors and, correspondingly, between interest groups and bureaucratic actors participating in a two-level game (Putnam, 1988) and organizational processes affecting foreign policy inputs and outputs (Allison, 1969).
International Lawmaking as an Efficient Means of Pursuing Gains
Explanations that treat international lawmaking as an efficient means of pursuing gains suggest that legal agreements are the result of “rational, purposive interactions among states . . . to solve specific [cooperation] problems” (Koremenos, Lipson, & Snidal, 2001, p. 781). As rational actors, states prefer agreements containing provisions that address the problem conditions that they face (Rittberger, Zangl, & Kruck, 2012).
According to these explanations, treaty negotiations will consist of states seeking optimal institutional solutions for specific problem conditions by making efficient tradeoffs to balance marginal utility among participating states (Guzman, 2008, pp. 129–133; see also Kahler, 2000a, p. 673). Throughout negotiations, states act as “joint problem solvers who seek . . . mutually agreeable solutions to issues of common concern” and “use objective analysis . . . to develop options that meet the[ir] mutual goals” (Carrell & Heavrin, 2007, p. 99). The agreements that result from such negotiations thus can be understood “in terms of the functions a given institution is expected to perform” (Pollack, 1997, p. 102), with states rationally choosing “superior institutional solutions” (Abbott & Snidal, 2000, p. 421).
Legalization of agreed rules is significant insofar as it acknowledges “a special set of default rules or interpretive . . . presumptions contained within the Vienna Convention” (Goldsmith & Posner, 2003, p. 131), which makes it well suited to a range of cooperation problems. Legalized agreements, whether customary law or treaty law, specify states’ legal obligations, establish legal procedures, and provide legal remedies. For problems of coordination, international law offers “certainty and predictability over time” (Guzman, 2008, pp. 27, 126) by creating a “sticky” equilibrium solution “backed by [states’] reputational investment” (Swaine, 2002, p. 599). For problems of collaboration, international law facilitates mechanisms of reciprocity, reputation, and retaliation to produce a stable equilibrium solution (Guzman, 2008, 127–129; Simmons, 2000a; Swaine, 2002). Hard law, either as treaty law or as customary law, can help to create credible commitments by constraining autointerpretation and facilitating enforcement while also helping to reduce transaction costs by allowing for incomplete contracting. Soft law, by contrast, can help to reduce negotiating costs due to concerns of uncertainty or sovereignty by reducing the level of obligation, precision, or delegation of agreed rules (Abbott & Snidal, 2000). Customary international law has an additional benefit, in that it “allows states to reject treaty regulation while claiming the benefits of those parts of an unratified treaty they perceive as desirable” (Boyle & Chinkin, 2007, p. 21).
Domestic interest groups may complicate treaty negotiations and delay or prevent treaty ratification or acceptance of customary international law by capturing a part of the executive branch (Boyle & Chinkin, 2007, p. 20) or by affecting domestic public opinion such that boundary conflicts or factional conflicts occur (Putnam, 1988; see also Bodansky, 2010, p. 165; Swaine, 2002, p. 583). In such circumstances, negotiators might use soft law to facilitate compromise (Abbott & Snidal, 2000; Guzman, 2008, pp. 146–147) or to create flexibility that allows states to compensate domestic interest groups in response to unexpected shocks (Downs & Rocke, 1997). Alternatively, negotiators might design legalized arrangements “to grant domestic actors direct access to international tribunals” (Goldstein et al., 2000, p. 392; see also Keohane, Moravcsik, & Slaughter, 2000, p. 463), although doing so might exacerbate conflict between competing domestic coalitions (Kahler, 2000a, pp. 668, 672). Negotiators also might use nongovernmental organization (NGO) reporting during treaty negotiations to facilitate compromise by bringing the concerns of domestic actors into the negotiating process (Raustiala, 1997). More generally, they may be “willing to accept NGO proposals into treaties . . . [because] they may be convinced there is a sizable political constituency behind the demands . . . [or] may accept the expertise or field experience of a particular organization” (Boyle & Chinkin, 2007, p. 66).
If conflicts between domestic interest groups cannot be overcome, negotiators might choose executive agreements rather than treaties (Lipson, 1991), though by doing so, they sacrifice the credibility of their commitments (Guzman, 2008, p. 146; Kahler, 2000a, p. 672) and fail to tie the hands of their successors (Goldstein et al., 2000, p. 393). Bureaucratic politics also might limit the efficiency of treaty negotiations as bureaucratic actors seek specific provisions that would benefit their positions within the executive branch. Lawyers, for example, might push for hard legalization to ensure their own inclusion in subsequent decision-making (Kahler, 2000a, p. 667). To the extent that domestic foreign policy actors and institutions affect the process of international lawmaking in this way, the state no longer functions as a unitary actor, but rather as a set of rational decision-makers playing a two-level game (Putnam, 1988).
International Lawmaking as an Emergent Means of Pursuing Gains
Explanations that treat international lawmaking as an emergent means of pursuing gains suggest that legalized agreements emerge as boundedly rational state actors seek to address the underlying problem conditions that they face by making rational choices regarding legal provisions, but with those choices constrained by their limited abilities to calculate the likely costs and benefits of alternative arrangements or “even [to] know all the possible institutional alternatives and outcomes with sufficient specificity to enable fully rational decision-making” (Jupille, Mattli, & Snidal, 2013, p. 34). As Jones (1999, p. 302) notes, “[d]ecision-makers [do] not need simply to choose among alternatives[;] they [have] to generate the alternatives in the first place.”
As boundedly rational actors, states’ decisions to accept and implement provisions contained within proposed treaties are based on their estimation of the extent to which acceptance and implementation of those provisions would approximate their interests in comparison to provisions contained within other existing or proposed treaties (if any). They rely on shortcuts to generate the estimated effects of such choices, thereby making the decision-making process more manageable (Jones, 1999, pp. 306, 309; see also Snidal, 1985b, p. 37). States’ preferences are flexible due to their limited “abilities to foresee the consequences . . . which result from the choice of specific [institutional design] options” (Young, 1989, pp. 359–363), and they are likely to reach different conclusions regarding the likely consequences of various combinations of treaty provisions due to the different analytical abilities and types of shortcuts used.
In treating states as boundedly rational actors, these explanations suggest that international lawmaking may be affected by organizational processes and standard operating procedures, which can hinder policy inputs and outputs and result in suboptimal institutional arrangements. As Allison (1969, p. 411) puts it, “governments perceive problems through organizational sensors . . . [and] define alternatives and estimate consequences as organizations process information.” Because the actions of domestic foreign policy organizations must be coordinated, and because each organization may have its own perceptions and priorities, lawmaking in complex problem conditions involving multiple issues is especially likely to be affected by organizational processes that delay treaty negotiations and treaty ratification or acceptance of customary international law. Organizational processes further can hinder the process of customary international lawmaking due to uncertainty of who within the foreign policy–making apparatus of the state “determines an instrument to be law-making.” As Boyle and Chinkin (2007, pp. 35–36) note, “It is no longer the case . . . that such decisions are made by Heads of Government or Ministers of Foreign Affairs” and that there is “increasing frequency with which other officials speak for their states in issues of foreign affairs,” thus complicating the process of customary international lawmaking.
State Identity and the Making of International Law
Rather than examining constraints and opportunities that states face (Keohane, 1997), identity-based approaches emphasize the process of interaction and the role of ideas in the making of international law. There are two types of identity-based approaches to international lawmaking. The first approach treats lawmaking as an expression of shared domestic social purpose while the second treats lawmaking as a constitutive norm of international community. The distinction between these approaches is between transnational and international interactions, although bureaucratic actors play a role in both approaches.
International Lawmaking as an Expression of Shared Domestic Social Purpose
Explanations that treat international lawmaking as an expression of domestic social purpose suggest that international law emerges as a consequence of domestic political bargains (Abbott & Snidal, 2000, p. 451) and transnational legal processes (Koh, 1997). Rules that are common among states “ripen” into international law (Koh, 1997), producing a system of legal rules that defines relationships among states and supports the realization of shared goals. Hence, states’ shared social purpose provides “a permissive environment for the emergence of specific kinds of [rules]” and thereby shapes the “content” of legal agreements (Ruggie, 1982, pp. 382, 398; 1992, p. 594). Legalization of such rules is significant insofar as it reflects a shared domestic political culture premised on the rule of law.
These explanations build upon the jurisprudence of the Policy Science School of international law, which defines international law as consisting of “authoritative decisions . . . for the projection and securing of a future distribution . . . of values.” Because the international system lacks a community of values, international law becomes a means by which like-minded states support the realization of shared values within the international system, with the resulting international order reflecting the internal order of constituent states (McDougal, 1960, pp. 339–340; McDougal & Lasswell, 1959, p. 9).
Liberal theories of international relations develop this logic, treating states as representative entities that are “subject to capture and recapture, construction and reconstruction by coalitions of social actors” and suggesting that this process shapes states’ domestic social purposes (Moravcsik, 1997, pp. 516–518, 525). A shared social purpose among states gives rise to common rules, which define relationships and comprise a system of international law (Barnett, 1997; Nardin, 1983). These rules “reflect the extent of convergence or divergence among preexisting domestic institutions and ideas” (Moravcsik, 1997, p. 530). Thus, “the amount and kind of law which international society will achieve will depend . . . on the degree of homogeneity of the political system and the degree of common or reciprocal interest” (Henkin, 1979, p. 30; see also Kahler, 2000b, p. 561).
According to these explanations, the process of international lawmaking is affected by both domestic and transnational actors, reflecting “the preferences of domestic groups and their mobilization and representation in domestic and transnational political institutions” (Goldstein et al., 2000, p. 392). Slaughter (2004) describes this as a process consisting of domestic regulators, judges, and legislators acting transnationally via horizontal exchange of information and vertical networks of delegation. NGOs also play a role in this process by providing standards that may be incorporated into international and domestic law by foreign policy actors (Ku & Diehl, 2006). Bureaucratic actors might participate in transnational information exchange while engaging in domestic politics, using legal “traditions” to achieve policy ends “rooted in cost-benefit calculus” (Abbott & Snidal, 2000, p. 453). Whatever the particular combination of domestic and transnational processes, ultimately, it is domestic decisions that make international law operative, and these decisions vary according to the “unique features of national legal systems” (Ku & Diehl, 2006, p. 172).
International Lawmaking as a Constitutive Norm of International Community
Explanations that treat international lawmaking as a constitutive norm of international community focus instead on international interactions, suggesting that legal rules are constructed and shaped by state interactions and are based on a “logic of appropriateness” (March & Olsen, 1998). States make international law to clarify their identities and to claim a stake as “players” in the system (Arend, 1998). Law emerges as a “crystallization of state expectations” (Finnemore & Sikkink, 1998, p. 36) and “constitutes relationships as much as it delimits behavior”(Finnemore & Toope, 2001, p. 70). Legalized arrangements thus “coevolve with the worlds in which they act,” such that institutional “stability and change are linked to definitions and redefinitions of the self and the situation” (March & Olsen, 1998, pp. 958–959; see also Cottrell, 2009; Wendt, 1995).
These explanations generally downplay the significance of legalization, suggesting that international rules are significant to the extent that they are legitimate and that “right process” serves as the basis of legitimacy, regardless of legalization (Franck, 1988, p. 706). To the extent that legalization of such rules is significant, it is because of law’s “important expressive function,” which “formally restates social values and norms” (Lutz & Sikkink, 2000, p. 657), and its “consensual basis,” which “legitimizes consequential restraints on sovereignty” (Boyle & Chinkin, 2007, p. 25). Legalization may also be significant insofar as foreign policy actors are socialized to seek legal arrangements. As Finnemore (2000, pp. 703–704) suggests, “as lawyers increasingly staff state bureaucracies dealing with foreign affairs, we would expect legal norms to have a distinctive role in shaping political behavior.”
The role of NGOs in these explanations is primarily one of advocacy (Keck & Sikkink, 1998), facilitating norm emergence and socializing state actors into becoming parties to emerging legal norms. Some NGOs may work with news media in this role “to put pressure on states . . . by exposing intransigence in states’ positions” and may build coalitions among themselves (Boyle & Chinkin, 2007, pp. 65, 81).
International Legal Compliance As Foreign Policy
Foreign policy decision-making affects not only states’ choices of whether to consent to international law and of when and how to create it, but also of whether to comply with international law to which states previously have consented. Each of the explanations examined previously suggests corresponding theoretical mechanisms and foreign policy decision-making models pertaining to international legal compliance.
State Power and Compliance with International Law
Power-based approaches suggest that international legal compliance can be explained in terms of the distribution of capabilities within the international system, either as a response to state dominance or as a means of maintaining international order. As discussed earlier, the distinction between these approaches is between external, coercive restraint and internal, prudential restraint, with domestic foreign policy actors affecting the likelihood of such restraint.
International Legal Compliance as a Response to State Dominance
Explanations that treat international legal compliance as a response to state dominance suggest that powerful states use international law to impose external, coercive restraints on less powerful states and thereby compel them to comply with the law. According to these explanations, international law serves as an instrument of state power (Mearsheimer, 1994–1995). Legal arguments convey preferred outcomes to less powerful states, accompanied by actions or threats of actions that alter those states’ preferred strategies (Hasenclever et al., 1997; Klamberg, 2015). Some critical theorists go so far as to suggest that such arguments are part of an “ideology” of international law that helps to uphold existing power structures (Scott & Withana, 2004, 181). Simultaneously, legal arguments may serve as tools of domestic politics. Krasner (1999, p. 6) suggests that leaders’ domestic roles dominate their “self-conceptualization[s]” such that they will use legal arguments to generate domestic support, while Mearsheimer (2001, p. 23) suggests that leaders use legal arguments to appeal to the “optimism” and “moralism” of domestic audiences, thereby eliciting domestic support for actions taken.
According to these explanations, legal compliance will vary according to the relative power positions of states and the perceived likelihood of enforcement. However, insofar as enforcement “ultimately depends on a willingness by stronger powers to bear the costs of enforcement” (Goldstein et al., 2000, p. 391), foreign policy actors and institutions may introduce additional variations in observed outcomes. Although less powerful states may have small or poorly trained legal staffs, as noted earlier, to the extent they have effective domestic legal advisers, they may be able to avoid coercive enforcement by offering persuasive legal justifications for their actions. This is especially likely if legal disputes are subject to third-party adjudication or multilateral enforcement. Nonetheless, coercion is more a matter of politics than of law, in that powerful states may ignore the rulings of adjudicative bodies, be willing to undertaken enforcement action unilaterally, or both. As Keohane et al. (2000, pp. 474, 477) note, “interstate dispute resolution presents many opportunities for powerful states to set the agenda for the legal process, to introduce political bargaining into decision-making, and to thwart implementation of adverse legal decisions.” Powerful states might even pressure less powerful states to drop a suit before it can be adjudicated.
Decisions regarding legal enforcement also may be affected by bureaucratic politics. Lawyers, for example, might push for acceptance of third-party adjudication, diplomats for multilateral enforcement, and military officers for unilateral enforcement, although as Recchia (2014) has shown, the interests of the latter two might be reversed if diplomats are risk acceptant when considering robust enforcement of international law, while military officers are risk averse when faced with the possibility of costly, unilateral action. Domestic public opinion may also play a role by altering policymakers’ willingness to undertake enforcement action. Hence, as Finnemore (2000, p. 703) notes, “states are notoriously unreliable about using their enforcement powers to secure compliance with international law.”
Because enforcement is uncertain, less powerful states assess the likelihood of enforcement when making decisions regarding compliance with international law, relying on the counsel of domestic legal advisers. These decisions become more complicated if domestic interest groups capture different parts of the executive branch or if public opinion is divided, leading to disagreements regarding the costs and benefits of noncompliance.
International Legal Compliance as a Means of Maintaining International Order
Explanations that treat international legal compliance as a means of maintaining international order suggest that states have an interest in compliance (or at least in maintaining the appearance of compliance) with legal rules because such compliance is necessary to sustain existing systems of international order and to preserve states’ relative power positions within those systems of order. Thus, as Carr (1946) suggests, international legal compliance can help states to achieve their fundamental goal of self-preservation.
According to these explanations, states value existing systems of order to the extent that those systems reflect states’ relative power positions. Less powerful states will comply with legal rules that privilege the interests of powerful states if their own relative power positions also are maintained. Powerful states must anticipate resistance by less powerful states against unrestrained actions that would threaten existing systems of order and those states’ relative power positions within them (Westra, 2007). Although less powerful states cannot coerce powerful states, by resisting them, they can increase the economic and military resources that they must use to achieve their foreign policy goals, especially if such resistance is coordinated (Ikenberry & Kupchan, 1990, p. 286). As Beetham (1991, p. 28) notes, “[w]hen the powerful have to concentrate most of their efforts on maintaining order, they are less able to achieve other goals; their power is to that extent less effective” (see also Fisher, 1961, p. 1135).
Because legal rules subject state actions to the scrutiny of other states, and because arguably illegal actions may suggest that states are no longer committed to existing systems of order, states must offer legal arguments to suggest that their actions are not intended to alter or to overturn the existing systems of order. Legal arguments thus provide justifications for actions that states have taken, which serve as signals of states’ continuing commitment to existing systems of order (Bull, 1995; Hurrell, 1993). Such arguments transmit information regarding states’ commitments and their intentions (Anderson, 1981) as part of their efforts to reduce the anticipated likelihood and severity of resistance from other states in response to arguably illegal actions (Westra, 2007, 2010).
Legal arguments are uniquely suited for signaling states’ commitment to existing systems of international order because they correspond to states’ background expectations (Hurrell, 1993, p. 61; Scott & Lyman, 1968, p. 53) and link past actions to future intentions (Goldsmith & Posner, 2005, p. 183; Swaine, 2002, p. 590; Tago, 2013, p. 173). As Abbott et al. (2000, p. 409) note, “establishing a commitment as a legal rule invokes a particular form of discourse . . . primarily in terms of the text, purpose, and history of rules, their interpretation, admissible exceptions, application to a class of situations, and particular facts.” Although the particular form of argument itself does not send a signal of commitment, if a state fails to offer a legal argument for its actions, then other states are likely to infer that it cannot justify its actions within the accepted range of “possibilities and limits of discourse” (Abbott et al., 2000, p. 409), and hence is not committed to existing systems of order and even may have aggressive intentions. However, by offering legal arguments to account for its actions, a state makes explicit the “obligatory content” of those actions and provides information regarding its future actions (Goldsmith & Posner, 2005, p. 183).
Under customary international law, the range of legal arguments offered by states attests to the difficulty of ascertaining regularities of behavior and of inferring accepted legal obligations. When law is codified in treaty form, the range of legal arguments is narrowed, although some difficulty may remain because treaties contain parameters that stipulate the conditions under which their proscriptions apply. As Stein (1985, p. 464) notes, although “ambiguity of language has replaced the ambiguity of nature or of events [in customary law] as the central problem of international law analysis,” the actual pattern of legal argumentation among states remains much the same, with states offering arguments that contain competing definitions of the treaty provisions (see also James, 1963, p. 213). Nevertheless, legal arguments are not infinitely manipulable, and thus states are likely to seek advice from domestic legal advisers regarding the range of legal interpretation that is likely to be acceptable to other states (Bouwhuis, 2012). They may attempt to include within their arguments claims that are vague and minimally restrictive, framing their arguments “in such a way as not to maximize difficulties for their future” (Hoffmann, 1968, p. 42), but also risking resistance from other states.
In many foreign policy issue areas, “there is no centralized legislature to overturn inappropriate, self-serving interpretations” of legal rules (Abbott et al., 2000, p. 414). Although states may delegate authority to independent agents to settle legal disputes, dispute settlement ultimately is based on reciprocity, which “does not work well when interdependence and power are highly asymmetric” (Keohane et al., 2000, p. 477), as these explanations emphasize. Hence, Carr (1946) concludes that international law is inherently susceptible to abuse by the states that benefit most from it because of their relative power advantage. Ikenberry (2001), however, suggests that compliance by powerful states varies by domestic institutions, such that binding commitments are likely to constrain democratic states due to decision-making transparency and institutional checks.
Policymakers’ decisions regarding actions and possible legal justifications for such actions also may vary according to leadership attributes. Niebuhr (1932, pp. 95, 105) has suggested that international law may serve as a tool of “self-deception” by allowing leaders to justify actions to their own consciences by “disguising” those actions as acceptable under international law, while Shannon (2000, p. 30) notes that this outcome is most likely when legal provisions are imprecisely defined such that actors “can believe they are acting in a socially acceptable way” and thus maintain their “positive self-image.”
State Interests and Compliance with International Law
Interest-based approaches suggest that international legal compliance is a rational response to anarchy. According to these approaches, self-interested states comply with agreed rules to facilitate positive-sum interaction.
There are two types of interest-based approaches to international legal compliance. The first approach treats legal compliance as an efficient means of pursuing gains, while the second treats legal compliance as a necessary means of pursuing gains. The difference, as mentioned earlier, is between rational and boundedly rational state actors.
International Legal Compliance as an Efficient Means of Pursuing Gain
Explanations that treat international legal compliance as an efficient means of pursuing gains suggest that compliance is the product of “sophisticated self-interest,” as states make rational choices to cooperate (Keohane, 1984, p. 13). Legal rules counter states’ tendencies toward inefficient behavior and facilitate their pursuit of mutual gains, clarifying mutual interests, constraining self-serving autointerpretation, and increasing the reputational costs of reneging (Goldstein et al., 2000), thereby altering states’ incentives to cooperate or defect (Keohane, 1997).
For problems of coordination, legal rules reduce uncertainty of expectations by specifying legal obligations for state interaction and by establishing legal procedures for settling disputes. To the extent that obligations are precisely specified, state interactions become more predictable. However, even when obligations are not precisely specified, coordination regarding the precise meaning of legal rules can emerge over time as states offer arguments in accordance with established legal procedures, working out their disagreements according to agreed principles (Abbott & Snidal, 2000). Both binding and nonbinding adjudication by a third party can provide focal points that facilitate coordination (Goldstein et al., 2000). From there, the remaining compliance problem is one of capacity, which varies according to the domestic regulatory structures of states (Chayes & Chayes, 1995; see also the discussion in Guzman, 2008, p. 16).
For problems of collaboration, legal rules facilitate mechanisms of reciprocity, reputation, and retaliation (Guzman, 2008) by specifying legal obligations for state interactions, subjecting state actions to scrutiny under established legal procedures, and providing legal remedies for noncompliance. Legal rules thus clarify “what counts as cooperation” (Goldsmith & Posner, 2005, p. 13), such that states’ subsequent actions serve to enhance their reputations for compliance and reduce the likelihood of tit-for-tat retaliation from other states. As Guzman (2008, pp. 34–35, 76–86) notes, “because states cannot rely on external enforcement, reputation presents one of the few ways to make promises credible” and “as the value of reputation increases, a state is better able to resist the temptation to violate a legal obligation.” Nonetheless, compliance with international law ultimately is a matter of foreign policy decision-making. While states may value a reputation for compliance and wish to be viewed as “good partner[s],” they must weigh reputational costs against nonreputational costs (Guzman, 2008, pp. 34–35, 92). States may attempt to mitigate such costs by clarifying that particular instances of noncompliance are legal countermeasures against defecting states or unusual circumstances in which the costs of compliance are excessive (Posner & Sykes, 2011–2012).
The process of weighing costs and benefits of legal compliance may be affected by bureaucratic politics. As Keohane (1997, p. 497) notes, “it may be desirable [for a state] to have a reputation not only for keeping agreements, but for vigorously pursuing [its] interests, helping [its] friends, and punishing [its] enemies.” Hence, reputational incentives may be in conflict, and when they are, different parts of the executive branch may also be in conflict. Such conflict may be exacerbated if domestic interest groups capture a part of the executive branch (Frieden, 1988), leading to involuntary defection (Putnam, 1988). This tendency might be countered, at least in democratic states, by the domestic audience costs that could be accrued if a state reneges on its commitment (Abbott & Snidal, 2000, p. 428; see also Dai, 2005), though there is limited evidence that this occurs in practice (Simmons, 2000b, pp. 583, 591). A more effective domestic restraint is the extent to which state actions are subject to legal scrutiny under domestic law (Abbott et al., 2000, p. 401), which varies not only in accordance with the independence of domestic legal institutions, but also with the extent to which legal rules are embedded within domestic legal institutions (Keohane et al., 2000), as discussed in the next section.
Domestic foreign policy actors and institutions play another role when legal obligations are not specified precisely. Under customary international law, states’ obligations may be unclear or contested, such that “[n]ational judges increasingly find themselves having to decide what constitutes international law” (Boyle & Chinkin, 2007, p. 36). Even under treaty law, however, there may be uncertainty if a treaty text is “ambiguous or incomplete with respect to the action in question” (Guzman, 2008, p. 93). Under such circumstances, domestic legal advisers play an important role in interpreting and applying legal provisions and estimating the likelihood of reputational sanctions from other states (Hakimi & Cogan, 2016).
Foreign policy decision-making regarding legal compliance also may be affected by the perceived likelihood that other states will be able to observe a particular action that a state might take. To the extent that other states are uncertain of the state’s actions, “the consequences of violation relative to compliance are reduced” (Guzman, 2008, p. 97). Ohlin (2012, p. 930) suggests, however, that insofar as foreign policy decision-making involves “various internal actors . . . [in] public or semipublic debate, the [state’s] ability to act insincerely is comparatively more difficult.” NGOs also may play an important role here by helping to monitor state compliance (Raustiala, 1997) and to “ensure the application of international law through litigation” (Boyle & Chinkin, 2007, pp. 83–85). Nonetheless, as Keohane et al. (2000, p. 463) note, “State officials are often cautious about instigating . . . proceedings against another state, since they must weigh a wide range of cross-cutting concerns, including the diplomatic costs of negotiating an arrangement with the foreign government in question.” To bring a complaint to an international tribunal may require lobbying the bureaucracy or securing a majority in the legislative branch, which turns foreign policy decision-making into a two-level game (Putnam, 1988), as discussed earlier in this article.
International Legal Compliance as a Necessary Means of Pursuing Gains
Explanations that treat international legal compliance as a necessary means of pursuing gains suggest that foreign policy decision-makers are “subject to limitations on their own cognitive abilities, quite apart from the uncertainties inherent in their environments.” International law provides such actors with useful “rules of thumb” that reduce uncertainty regarding other states’ behavior and broadly align with states’ long-term interests (Keohane, 1984, pp. 111, 115–116). As boundedly rational actors, states place greater value on having a workable set of rules than they do on the particular form that those rules take, because patterns of international behavior are too complex to have multiple sets of rules and because renegotiation of agreed rules is difficult. Although some states might benefit more from a different set of rules than they do from the current set of rules, the marginal utility that they might obtain from a different set of rules is insignificant in comparison with the overall utility that they obtain from the social order established by the current set of rules (Kaplan & Katzenbach, 1961). As Keohane (1984, p. 115) puts it, “governments sacrifice the ability to maximize their . . . self-interest by making calculations on each issue as it arises in return for acquiring greater certainty about others’ behavior.” States thus comply with international law out of a “desire to maintain a pattern of beneficial cooperation” (Keohane, 1997, p. 490).
As states accept legal rules and make them part of their established practices, those rules become thinly internalized by them, such that habit supplements short-term interest calculations. States do not take such rules for granted in a manner that reconstitutes their interests. Rather, having concluded that compliance with such rules is valuable “either as an end in itself or as . . . a means to some wider set of values” (Bull, 1995, pp. 63, 131) and that violation of such rules would be costly and undesirable (Voeten, 2005), states may comply even if they do not fully agree with such rules and may continue to do so despite moderate shifts in underlying material conditions (Stein, 1982, p. 322; Voeten, 2005, pp. 548–549). The mere existence of agreed rules does not necessarily mean that those rules will be thinly internalized by states. Hence, most scholars who understand international law in this way implicitly acknowledge a need for institutionalized mechanisms to promote internalization, either iteratively via repeated, rule-based interactions (Ikenberry, 2001, pp. 52–54, 69–72; Stein, 1982, pp. 322–323), or spontaneously via satisfactory outcomes resulting from the emergence of a focal solution (Sugden, 1989; Voeten, 2005, pp. 533, 547, 549–550).
Allison’s (1969, pp. 699–700) organizational process model can provide a conceptual framework for this process of internalization and its varying consequences. As a state accepts legal rules, those rules may become incorporated into the standard operating procedures of various organizations within it. As Allison notes, different organizations may have different propensities for incorporating such rules based on personnel, organizational structures, and interest group pressures. The resulting variation in the extent to which legal rules are incorporated into the standard operating procedures of various government organizations can help to explain variation in legal compliance of the policy outputs of states.
State Identity and Compliance with International Law
Identity-based approaches suggest that international legal compliance can be explained in terms of state identity, either as an expression of domestic social purpose or as a requirement of membership in an international community. Both approaches emphasize deep internalization of rules. The distinction between them is between mechanisms of persuasion and socialization and, correspondingly, between domestic political institutions and actors.
International Legal Compliance as an Expression of Shared Domestic Social Purpose
Explanations of international legal compliance as an expression of shared domestic social purpose suggest that states comply with international law to the extent that it corresponds to their domestic social identities and has been internalized by being incorporated into their domestic legal systems (Henkin, 1979, p. 60). Koh (1997, p. 2654) characterizes this as a process in which international law becomes “entrenched” in states’ domestic decision-making processes “through executive action, legislation, and judicial decisions,” such that their foreign policy decision-making becomes “enmeshed” with it (see also Goldstein et al., 2000, p. 393). Domestic law then reflects it and policymakers gradually absorb it. Domestic legal processes change states’ policy preferences such that state actions are guided and constrained by legal rules, which reflect “an array of domestic expectations” (Andrews, 1975, p. 523).
Liberal theorists argue that the process of internalizing legal rules is more effective in liberal states than in nonliberal states because liberal states have domestic political cultures that are premised on the rule of law. Keohane et al. (2000, pp. 478–479) suggest that “liberal democracies are particularly respectful of the rule of law and most open to individual access to judicial systems,” while Slaughter (1995) concludes that relations among liberal states are uniquely conditioned by domestic and international law. Henkin (1979, p. 47) suggests that within such states, proposed actions that might violate international law “would be sent to the office of the Legal Adviser for clearance” and, if noncompliant, “would be stopped and modified there.”
Other variations in domestic institutions, however, can lead to variations in international legal compliance. Henkin (1979), for example, distinguishes among various liberal states by arguing that the penetration of international law into domestic legal systems is most effective in states with federal systems or separation of powers, which provide checks on abuses of government. He notes, however, that separation of powers may lead to violations of international law if there are conflicts between the legislative and executive branches. He also distinguishes states having written constitutions, which emphasize the rule of law. Kahler (2000a, pp. 675–676) develops this distinction by suggesting that “under a rule-of-law regime, domestic compliance constituencies will . . . increase the probability of government compliance.” However, he notes that, even within such states, policymakers must have political strategies to overcome domestic interest groups opposed to compliance and suggests that such strategies are more likely to be effective if legal rules are precise enough “to produce a focal point around which mobilized compliance communities can emerge” (see also Koh, 2016).
Many of these scholars also incorporate transnational interactions into their explanations. Moravcsik (1997, pp. 516–518), for example, suggests that “the relationship between states and the surrounding domestic and transnational society in which they are embedded critically shapes state behavior by influencing the social purposes underlying state preferences,” while Koh (1997, p. 2655) suggests that the “key factor” in explaining legal compliance is repeated participation in a “transnational legal process.” Transnational actors may complement domestic political processes by helping to persuade states that international legal rules correspond to their domestic social identities (Klamberg, 2015) and to incorporate such rules into their domestic legal systems (Ku & Diehl, 2006). Specifically, transnational actors can introduce international rules into domestic policy debates and pressure states to adopt them into their domestic political institutions (Cortell & Davis, 1996; Payne, 2001; Price, 1998).
International Legal Compliance as a Requirement of Membership in an International Community
Explanations that treat international legal compliance as a requirement of membership in an international community propose an alternative explanation based on a “rapidly evolving normative consensus” among states (Kahler, 2000a, p. 678). As Finnemore and Sikkink (1998) describe, once transnational actors have persuaded a “critical mass” of state leaders to accept a set of legal rules, there may be a tipping point at which a sufficient number of states accept it, such that it redefines appropriate behavior for states that identify themselves as members of a community. Other states may become socialized into the community through “social sanctions and rewards such as shaming and back patting” (Klamberg, 2015, pp. 28, 29).
According to these explanations, legal rules give meaning to state practices (Coplin, 1965; Kocs, 1994; Reus-Smit, 1997) and provide a standard for assessing the legitimacy of state behavior by providing communally accepted standards of obligation. The resulting pattern of rule compliance creates pressure for states to demonstrate that they are members of the community by conforming their actions to the legitimate standards of the community (Finnemore & Toope, 2001) and justifying their actions using such standards. As Arend (1998, pp. 144–145) puts it, “international law provides language for diplomacy” and “gives normative value to actions and claims made by international actors.”
States invoking legal rules to justify their actions gradually acknowledge that such rules must be part of their decision-making processes. Eventually, they begin to take such rules for granted as an “imperative that directly motivates their goals and behaviors” (Schimmelfennig, 2001, p. 63). As they do, their interests become reconstituted such that legal compliance becomes motivated by an “internal sense of rightness and obligation” (Hurd, 2007, p. 30) and understood to be a “concomitant of membership” in an international community (Franck, 1990, pp. 196–204). Hence, international law “constitutes relationships as much as it delimits acceptable behavior,” altering the calculations of states by changing their intersubjective understandings (Finnemore & Toope, 2001, p. 745). States are more likely to accept and internalize legal rules that they perceive as legitimate insofar as they have come into existence in accordance with right process (Franck, 1990, pp. 16, 196–204), based on deliberation and argumentation (Johnstone, 2003; Risse, 2000). States might internalize even nonlegal rules if such rules are perceived as legitimate.
To the extent that states accept international law as “legitimate and binding . . . they organize their foreign policy-making procedures in such a way as to take account of international legal obligations, and establish internal mechanisms to verify their own compliance” (Kocs, 1994, p. 540). Lutz and Sikkink (2000, p. 639) suggest that compliance with such obligations is most likely to occur when foreign policy decision-making is centralized among a small number of actors who are responsive to external normative pressures. As Mazarr (2007, p. 11) notes, however, within states in which foreign policy decision-making is decentralized, there may exist “policy communities” of individuals whose views “emerge as the product of . . . interactions, research, debate, and mutual conformity pressures.” The existence of such communities within the state may lead to competing processes of socialization inside and outside the state, such that a state might accept international law but not implement it domestically if policymakers believe that such law does not fit the particular needs of the state (Goodman & Jinks, 2004, p. 651). These explanations suggest, however, that policymakers also are embedded in a broader community. As Johnstone (2003) argues, domestic legal advisers in particular are part of an interpretive community that extends beyond the borders of the state. Such a community, which consists of an inner circle of actors responsible for the formulation of legal arguments and justification and an outer circle of legal professionals engaged in related activities, sets the acceptable bounds for legal arguments offered by participants within it. Actors who exceed these bounds no longer will be regarded as relevant members of the community. Hence, socialization affects both states and foreign policy actors within their respective communities, and these communities may be competing or overlapping.
This article briefly has examined international lawmaking and legal compliance, sketching out possible connections between international relations approaches and corresponding models of foreign policy decision-making. Further work remains to develop these connections. For scholars working within the field of international relations, work is needed to move beyond system- and state-level analysis and to consider more carefully how foreign policy decision-making affects processes of international lawmaking and legal compliance. For scholars working in the field of foreign policy analysis, work is needed to move beyond individual-level, psychological approaches to foreign policy decision-making and to consider more carefully how policymakers within domestic and international structures make decisions regarding international lawmaking and legal compliance. Further work also remains to incorporate transnational actors and processes into the analysis of foreign policy decision-making. Such work has both scholarly and practical relevance insofar as foreign policy decision-making takes place in an increasingly legalized environment (Goldstein et al., 2000, p. 385), even as the post–World War II international order faces increasing challenges from nonliberal states. These trends raise pertinent questions pertaining to international lawmaking and international legal compliance as post–Cold War foreign policy issues.
For research assistance and support, the author thanks Benjamin Ridder and the Calvin College CCCS Writing Nook.
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