The answer to the question 'Why States obey International Law?'
perplexed many theorists because the persuasive nature of international law
itself has been questioned several times in different domains. Like most laws,
international rules are rarely enforced but usually obeyed.
1 Indeed, the very way that the compliance question has been treated over the
years as, in turn, a religious, moral, philosophical, political science,
process, and now empirical question, itself provides a fascinating window into
how internationalists have chosen to think about the role and function of
2 Inspite of such criticism, today, international law becomes an important part
of the running systems across the entire world because it interconnects
boundaries and provides a platform for putting forward their ideas, thoughts,
and faith. It sets out certain rules and norms for governing this relationship
globally. If such a law would have been absent in this globalised world then a
state of mayhem would occur.
In common speech and the speech of politicians and diplomats, states are
corporate agents that have intentions, interests, and obligations; they can
declare war, make promises, and form alliances; they can grow, shrink, divide,
and merge. 3 But the question, however, arises of whether the should State
comply with international law. if yes, then how? if not, then why?
An act of consent is not a sufficient condition for creating an obligation: A
promise, which is an act of consent, is not a legal obligation.4 What is
necessary for an act of consent to create a legal obligation is the satisfaction
of additional formalities which themselves are not the creation of the parties.5
These formalities are provided externally by domestic or international law and
are not the result of consent by individuals (in domestic law) or the state (in
Harold Koh has identified 'why states obey International law?' He argues that
Franck's Fairness approach and Chayeses' Managerial approach are traditional and
in modern times with the evolvement of international law, the reason behind its
compliance by the States has also taken a
sharp turn. He basically supports Transnational Legal Process which shall be
Interpretation Of Global Norms Leads To Internalisation: Harold Koh argues that when States start communicating with each other and
global norms that are being implemented then by this the parties internalise
the new interpretation of the international norm into each other's internal
normative system. This results in the revival of a new internal value set
which becomes a basis for further transactional interests and reconstitutes
the identities of the parties as well.
Interest And Identity Of The States: The international norms that are set often find their way into domestic
laws. The States accept such norms because it reshapes their identity of it
and also serves their self-interest. In the words of Harold Koh, such norms
aid in linking the state interest, national identity and international
Interaction, Interpretation And Internalisation: As the different actors of different States interact with each other with
the help of International organisations, business entities, and
transnational entrepreneurs, it leads to more acceptance of international
law. According to Harold Koh, these organisation aids in internalising and
interpreting the norms which lead to obeyance of it.
Transparency: States start obeying international laws to keep transparency as these laws
have opened the boundaries and nothing can be kept a secret. Hence, to keep
its domestic affairs transparent and as well keep track of other states'
territory activities, States automatically obey international laws. They
understood compliance with international law to result almost entirely from
the functional benefits such compliance provides.7
The justifications mentioned above have evolved over different periods. It
started when international laws were not even recognised and now has reached a
stage where we are talking about why States obey them. The evolution as
mentioned by Harold Koh is discussed further.
- Ancient and Primitive International Law:
In this period, international law was considered a part of a
semi-theological reference. Only treaty law had legal force because it was
considered a sacrament.In the medieval period, there was no difference
between municipal and international law. Hence, there was no deliberation on
why states should obey international law.
- Traditional International Law:
The concept of transborder obligations led to a shift in the meaning of
international law. Customs and State practices came to be the primary
sources of law. But there was no strict rule to comply with it. In this
period no was one concerned whether States obey the law or not but the
important focus was on what national rulers would do.
- The Dualistic Era:
From Natural Law to Positivism: Here, international law had started to be
viewed as man-made laws. There were four views. Firstly, Jeremy Bentham
coined the phrase "inter-national law." He initiated the era of dualistic
theory where compliance with domestic and international law diverged. This
period bought up the question that why States obey. Secondly, John Austin
declared international law, not a law because they are not enforced by
sovereign coercion. Thirdly, Hobbesian utilitarian and rationalistic starnad
which acknowledged that States sometimes follow international law. Fourthly,
liberal Kantians stated States only obey international law when it served
their self-interest. The first World War interrupted this momentum and
forced scholars to reflect on the new legal order that emerged from the
Treaty of Versailles. This led the community to promote compliance with
- The era of Institutions:
In the wake of World War II, the importance of independent Institutions
governed by multi-lateral treaties was realised. Hence, many institutions
were established like the United Nations, the General Agreements on Tariffs
and Trade and others. The difference between public and private law was
identified. The theory by John Austin was rejected. Few scholars attempted
to answer 'why States obey?' It was seen in Louis Henkin's "How Nations
Behave" in 1968.19 Two schools emerged in this era ie The New Haven School
which viewed international law as a set of normative values and the second
was the International Legal Process School for which international law was a
set of rules promulgated by a pluralistic community of States. But both were
unclear about why States should obey international law.
- Interdependence and Transnationalism:
By this era, the importance of international law was recognised and regular
interactions of States were seen. The major theoretical work on compliance
in this era was done by political scientists Robert Keohane, Robert Axelrod
and Oran Young. Different schools emerged to answer the question of Why
States should obey international law? The term Transnational legal process
was coined by Steiner and Vagt's casebook wherein internalisation,
interpretation, and interaction would lead to compliance. The rationalists
said it is necessary to comply because of the functional benefits. Another
theory stated that international law is obeyed "because they perceive the
rule and its institutional penumbra to have a high degree of legitimacy."
- After the Cold War:
The New World Order: International law now comprises a complex blend of
customary, positive, declarative and soft law which seeks not simply to
ratify existing practice, but to elevate it. Three compliance literation was
introduced. First, to fulfill self interests;
Second, to make a national identity; Third, to constructive rules and norms.
Therefore, we saw how the justifications evolved through the various period.
It would not be wrong to say that the question is still evolving and would
continue to do so. The new theories would enlighten many. These trends have
restructured the planetary stage on which international law performs, making way
for what Franck calls "the post-ontological era" of mature and complex
- Hans J. Morgenthau, 'Politics Among Nations: The Struggle for Power and
Peace' (1954) SAGE 249
- Harold Hongju Koh, 'Why Do Nations Obey International Law?' (1994) 106
The Yale Law Journal 2599.
- Eric A. Posner, 'Do States Have a Moral Obligation to Obey International
Law?' (2003) 55 Standford Law Review
- Edward Hallet Carr, The Twnety Years' Crisis 1919-1939 (3th edn, Harper
and Row 1964).
- Robert O. Keohane, Jr., International Institutions: Two Approaches
(Oxford University Press 1988).
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