Why do Nations follow International Law?

“Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” – Prof. Louis Henkin [1].

With the many conceptualizations of international law, the one by the early positivists appears to be the most reasonable and accepted. It rejects the notion of international law being a natural law amongst nations through customs and treaties and classifies it as a construct of man-made law that is made up of a combination of treaties, customs, and agreements between nations. Thus, giving that the above is between nations, it provides the required context to Jeremy Bentham’s term of “inter-national law” [2]. However, international law has received its fair share of criticism, particularly by H.L.A Hart who states that it is not good law as it does not have a universally accepted code and practice and lacks commonplace and system of adjudication. Hart states that international law has two components, viz; to create legal obligations and their respective conditions that states may conform only when they consent and/or comply with at the applicable conventions.

Quite rarely we see states “obeying” international law in its conventional sense. If there is the internationalization of said law, it is almost always suitably modified for that nation’s domestic legal practices. Regardless of their social, economic, and political influence, nations prefer to justify their actions be it in:

Support of international law through:

Leading the initiative in its creation or change; or

Consenting/committing it by treaty/international agreement signing; or

Internalization by ratifying the treaty/international law with desired changes, flexibility, and exit clauses; or

Being bound through behavior that is acting towards the purpose of such agreement.

OR

Violation/Oppose international law through:

Non-attendance of convention; or

Voting against/vetoing proposed law; or

Violation of universal/international law; or

Withdrawal of support to undermine it; or

Lobbying support of fellow nations to change/dilute it.

Keeping the above in mind, states are compelled to justify their actions according to legal rules and accepted norms because:

If not for a unilateral moral duty, states that have a moral duty towards other states do not violate international law and/or their agreement with such states. If not for morality, it can be for maintaining community relations or solidarity.

States are agents of their citizens for their safety, welfare, and development. States should make their citizens aware of their actions through justifications to ensure continued support.

Even with the difference in legal systems across these States, a universally accepted legal principle of passing reasoned orders apply. International law is an aspect of international relations which is not only a device used to communicate, collaborate, and capitalize on various opportunities but also required in time of crises to navigate with the help of international assistance, amongst other geopolitical reasons, states do not want to hamper their ally/aid structure by arbitrary/unexplained actions that may lead to sanctions or overall global distrust which is why reasoned orders are issued and actions are conducted to ensure a level of transparency to avoid backlash and attempt to keep the status quo/garner more support in a state’s aid/ally group. In addition to the above, states are also of the notion that continued compliance from their end would encourage other states to revert with compliance and transparency through reasoned orders and justifications.

Koh [3] further elaborates on the above by first identifying four strands of legal thinking/theories that shed light on the relationship between nations and international compliance:

Austinian/Positivist/Realist: Nations never “obey” law as international law is not law.

Hobbesian/Utilitarian: Nations follow international law till the time it serves their self-interest.

Kantian: Nations “obey” law out of a sense of moral and ethical obligation derived from natural law and justice.

Bentham: Nations “obey” international law from the lobbying/peer pressuring of other nations with whom they are engaged in lengthy legal processes.

In addition to the above Koh analyzes the two following approaches to compliance:

Chayeses’ Managerial Approach [4]: International law is regulated through treaties and nations seek to promote compliance of these treaties by way of cooperation through justification, discourse, and persuasion [5]. This compliance stems not from the risk of international deterrents like tariffs and sanctions but a loss of reputation amongst member nations.

Franck’s Fairness [6]: International law is more of a process of discourse, reasoning, and negotiation rather than a system of rules. This process coupled with each nation’s subjective test of the fairness of these rules affects their decision to comply with them.

Koh stated that regardless of the number and variations of legal thinking and theories, they all arrive at the iterative process of transnational law-making which involves interaction between the nations, the mutual interpretation, and internalization of international law that appears to be fair to a nation, which has also been referred to by Hart by calling it “internal acceptance” and suitably modifying it to fit their domestic legal practices.

The commonality to nations almost following almost all international law almost always comes down to:

Communication between nations.

Nations gauging each other’s level of comfort, negotiate to ensure there’s mutual consideration of effort and compliance.

Nations internally testing the fairness of the law in question and prospecting riders, amendments, qualified adoptions, etc.

[1] How Nations Behave, 2nd edn, 1979, 47.

[2] Jeremy Bentham, An Introduction to the Principles of Morals & Legislation, 1780, at page 296-7.

[3] Dr. Harold Koh, Why Do Nations Obey International Law? 1997 Yale L.J 2599.

[4] Abram & Antonia Chayes, Compliance without Enforcement: State Behaviour under Regulatory Treaties, Negotiation Journal, Plenum Publishing Corporation, 1991.

[5] See id, at 109-11.

[6] Thomas Franck, Fairness in International Law & Institutions, Oxford University Press, 1998.

Art: "The Signing of Peace in the Hall of Mirrors" by William Orpen.