Persuading to Comply: On the Deployment and Avoidance of Legal Argumentation

Abstract

For those international actors seeking to promote respect for international law, persuasion -- the process of social interaction whereby one actor seeks to convince another to believe or do something through principled rational arguments and interactions, without any overt coercion -- is at the core of the enterprise. Yet the scholarship in international law and international relations is woefully thin on the content of such a communication of persuasion, and, in particular, on the role of legal argumentation. This paper constructs a theoretical model for determining when and how international actors deploy legal argumentation in contrast to other arguments that might convince a violating entity to comply. A compliance strategy can invoke a range of law, along several dimensions, and the choices regarding the argumentation to use are highly contextual. This reality contrasts with static or uni-dimensional approaches to persuasion and the role of law assumed by most scholarship on compliance. The paper first identifies the shortcomings of the debates within international law and relations on persuasion. It then offers a basic framework of factors that influence the choices of an entity seeking to effect compliance to use legal arguments (inputs), and proposes a set of modalities regarding the content of the resulting legal argumentation (outputs). These outputs consist of a legal argument's publicity, density, directness, and tone. After applying this model to one institution, the International Committee of the Red Cross, it suggest ways to generalize this rubric to others. The essay concludes with some thoughts about the priorities for international law and its advocates in terms of an effective persuasive process. It argues that efforts by international lawyers to seek internalization of norms ask for too much, and that nonlegal argumentation may often be the best way to achieve compliance with legal norms.