Georgetown Journal of International Law
Anna Spain, Using International Dispute Resolution to Address the Compliance Question in International Law, 40 Geo. J. Int'l L. 807 (2009), available at https://scholar.law.colorado.edu/faculty-articles/264.
A fundamental critique of international law is that it fails to ensure compliance and, thus, has limited influence on state behavior. Existing compliance theories consider how interests, norms and legal process impact states. Within the legal process school, theories either narrowly define process as methods that achieve a legal aim or broadly consider diplomatic activities without connecting them to the structural elements of process. Thus, despite the prolific scholarship in this area, understanding of how an international dispute resolution process, such as the Six-Party Talks, influences state behavior, such as North Korea’s actions toward nuclear disarmament, remains limited.
To address this gap, this Article argues for an expanded understanding of legal process theory that considers how and why international dispute resolution affects state behavior. Using an analytical framework that assesses how IDR influences behavioral factors (interests, rights, identity, power) and tools (coercion, persuasion, acculturation, coordination, etc.) this Article establishes the following claims. First, IDR offers an expanded and more intellectually attractive vision of how international legal process affects state behavior. Its assumptions also allow for an accurate predictive theory of how states behave (i.e., that human beings are the driving force behind even state behavior, states are not the only actors that matter and actors do not always make rational, self-interested decisions). Second, IDR creates a permeable culture in which participants are more likely to comply with outcomes because they absorb the norms of problem solving due to process design elements like voluntary participation, structural flexibility and lack of a strict hierarchy. Third, considering compliance as an outcome of process and as a function of process design modifies conceptions of international lawmaking. After addressing some limitations of this study, the Article concludes by discussing normative implications for the discipline of international law.
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