Wednesday, January 26, 2005

Self-Interest and Compliance

Julian’s remark that Australia withdrawing from the compulsory jurisdiction of the ICJ is an example that the U.S. is not the only state that acts in a self-interested manner begs the question that is really interesting: why do states that act out of self-interest still choose to comply with the decisions of international tribunals at all?

Theories of compliance can fill a bookshelf, and debates on the topic will not soon end, but my answer here will be a brief gut-reaction. (By the way, an excellent introduction to this field of scholarship is William Bradford’s annotated bibliography on international law and compliance.) As to why states comply in the face of self-interest, my best guess is that there are at least two different compliance mechanisms that operate in countries that have separate and independent executives and judiciaries. (And I note that I do think the domestic structures of states affect their proclivity to comply to international law, but I'll leave that for another post.)

The first method of compliance concerns executive decision-making. Here the tendency, as in the case of Australia, is to weigh the costs of non-compliance versus the costs of compliance. Not submitting to an ICJ ruling on East Timor is likely to lead to few consequences; taking part in the case and losing may lead to significant embarrassment in an area that is especially sensitive. Thus, the executive decides not to comply. By contrast, take the United States’ decision to comply with the WTO ruling that the U.S. tax code had unfair provisions concerning the tax status of foreign subsidiaries of U.S. companies. The President (and Congress) either had to seek changes to the tax code or face sanctions through the WTO system. The President (and Congress) chose to change the tax code. The cost of non-compliance—trade sanctions with potentially significant economic effects—outweighed the cost of compliance—some companies being upset.

These are the "hard cases" when it comes to compliance with international law because the mode of reasoning and decision-making is not primarily legal, but political (or diplomatic). In this form of decision making, the question of compliance is driven by an analysis of power: which is more daunting-- the cost if I do not comply or if I do comply? To survive such a query, international legal mechanisms need to exhibit credible means of enforcement (trade sanctions, diplomatic ostracization, etc).

But this is not the whole story on compliance. Another mechanism driving compliance is the effect of decision-making by national judiciaries. Best set out in Harold Koh’s version of Transnational Legal Process, this argues that the process of adjudicating and interpreting international norms in domestic courts and other domestic fora leads to an internalization of those norms in the domestic legal and political culture of a state. Of particualr interest here, Anne-Marie Slaughter has analyzed how domestic and international judiciaries interact. In a recent paper co-authored with Larry Helfer, Slaughter and Helfer showed how the interaction of domestic and international tribunals can lead to more effective "supranational" tribunals (tribunals such as the European Court of Human Rights that allow litigation between a states and indivduals).

In these cases, the decision-makers, usually judges, apply a more legalistic mode of reasoning. Whether they choose, for example, to write decisions that comply with international obligations is based not so much on the effective threat of sanction but on the internalization of those norms into the judiciary itself (of course, internalization of such norms by the executive would also assist compliance).

So, why is it that we see compliance by states that we know tend to act out of self-interest? Maybe because sometimes they view it in their self-interest to comply and sometimes because their decision-makers have been acculturated to believe it is the normatively "right" thing to do. And, I am sure there are many other reasons states may choose to comply or not to comply. I set these out, though, as two independent mechanisms promoting compliance.