Doubts on Doubts: Part Two

6 September 2014, 1424 EDT


In part one, I shared my views on whether international law is really law. As promised, this post cuts into the conversation on whether international law matters.

Violations of international law lead many to question its effectiveness. Non-compliance especially by powerful states reinforces the instrumentalist view which characterizes international law as a strategic instrument of statecraft. States make laws that serve their material interests. Compliance takes place as long as it is convenient.

I am not going to downplay the negative implications of non-compliance for the international social order. But violations are only part of the picture. There are also cases of costly compliance.  IL scholars Jutta Brunnee and Stephen Toope’s book, for example, shows that compliance also takes place because states feel an internalized sense of legal obligation to comply. My own work demonstrates that while some politicians are instrumental compliers calculating the costs and benefits of compliance, others are dutiful compliers motivated by a sense of legal obligation. Derek Beach shows that some EU members have complied with the rulings of the ECJ even though compliance was costly. Of course, Thomas Frank and others have long pointed to instances of costly compliance. Violations of international law make the news. Costly compliance often doesn’t. To have a fuller picture on the effectiveness of international law, we should also look at the “dog that didn’t bark in the night.”

Further, it is critical to appreciate those functions of international law other than the binding function.  Focusing on the binding function of law alone impedes a full understanding of the ways in which international law shapes state behavior. International law also has an expressive function. The expressive function of law refers to its ability to change the social meaning of a given behavior. International law expresses what is expected of “good members” of the international community or of a “good partner” in a bilateral relationship. It communicates which norms and values are  that tied to a virtuous state identity. There are at least three ways in which the expressive function of international law can affect state behavior. By expressing what is right and what is wrong, international law can reconstitute state preferences. By articulating what good members of the international community should do, the law can increase the social and reputational costs of violating shared norms. And finally, the expressive function of law allows state and non-state actors to punish violators or at least forcefully demand an explanation. Drawing insights from domestic theories of expressive law, Michael Stein and Alex Geisinger have offered a theory of expressive international law that is worth exploring.

International law also has a communicative function as Kratochwill, among others, has observed. International law provides a normative framework that serves as a point of reference for states, conditioning their communication. It shapes the “public talk”, in Jennifer Mitzen’s words, among states, international organizations, and publics, and therefore is a crucial part of the international public sphere. Law creates a common language and a set of procedures that structure interstate diplomacy.

Is all this an effort to “save” international law to echo Andrew Guzman? I don’t think so. But is an effort to be fair to international law. More on international law coming soon…


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