Amenities and Pitfalls of a Reputational Theory of Compliance with International Law

Abstract

AbstractSince there is no coercive power in the international system comparable to that which enforces the laws of a state, the question what motivates states to comply with international law remains among the most perplexing ones in international relations. For a long time, however, scholars have generally avoided the causal question 'why states obey international law'. Nevertheless, recent research agendas in international law and international relations have converged around the issues of norm creation and norm compliance. One influential strand of the compliance scholarship–commonly labelled reputational theory – is at the core of this article. Starting with some general characteristics of compliance with norms, mainly two contemporary theories of compliance with international law are dealt with. First, a variant of rationalist theory, Jack Goldsmith's and Eric Posner's monograph The Limits of International Law, is discussed. It shows that although these two authors seem to have some sympathy for a reputational theory of compliance with international law, they tend to stress the shortcomings of such an approach. To the contrary, Andrew Guzman's work, as exemplified in his article A Compliance-Based Theory of International Law, more readily embraces reputational concerns. It turns out that the essential thesis of a reputational theory is that reputation can alter the equilibrium: it causes future relationships to be affected by today's actions. Accounting for reputational effects, a decision to violate international law will increase today's payoff but reduce tomorrow's. International law succeeds when it alters a state's payoffs in such a way as to achieve compliance with an agreement when, in the absence of such law, states would behave differently. A reputational theory of compliance with international law is particularly well suited for areas such as international financial and economic law, i.e.for situations in which competitive market forces induce compliance with international law mainly because enforcement and monitoring are strong. Reputational incentives, like all incentives, act at the margin.