Skip to main content Accessibility help
×
Home
Hostname: page-component-857cdc78dc-6cmph Total loading time: 0.27 Render date: 2022-05-16T06:07:51.500Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true }

3 - Interactional law and compliance

law’s hidden power

Published online by Cambridge University Press:  05 July 2013

Jutta Brunnée
Affiliation:
University of Toronto
Stephen J. Toope
Affiliation:
University of British Columbia, Vancouver
Get access

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.

Type
Chapter
Information
Legitimacy and Legality in International Law
An Interactional Account
, pp. 88 - 125
Publisher: Cambridge University Press
Print publication year: 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×