Why do nations obey international law

The unequal distribution of scientific and technical expertise may matter as much as the unequal distribution of patents and other IP rights. But that partial answer is only partial. Surely if North Korea can develop the expertise to build a nuclear bomb, then many low- and middle-income countries can develop the expertise to build their own generic pharmaceutical manufacturing facilities and, moreover, all it takes is one or two countries that can then export the drugs more broadly.

Something, beyond lack of knowhow, is stopping low- and middle-income countries from upending the international IP regime. But what? Theories of international relations generate a number of plausible hypotheses. The four leading theoretical approaches in contemporary IR are realism, institutionalism, liberalism, and constructivism. A gross oversimplification of all four is to say that realism focuses on power, institutionalism emphasizes institutions no surprise there , liberalism stresses the individual characteristics of nation-states in particular, domestic politics , and constructivism centers its attention on ideas and norms.

Realists or neorealists , who seek to explain geopolitical outcomes based on the distribution of economic and military capabilities across states, might suggest that low- and middle-income countries generally abide by international IP law because high-income countries make them. For example, the United States is the number two destination of Thai exports and the number three source of Thai imports. Thailand also historically has relied on U. S firms. Thus, one reason why Thailand might not have followed the Plavix announcement with further compulsory licenses is that Thailand feared economic and military retaliation from the United States by military retaliation, I mean a withholding of military assistance and weapons sales rather than an outright attack.

Institutionalists would take a different tack. They see international institutions including treaties and intergovernmental organizations as potential solutions to collective action problems among nation-states. Institutionalists might cast international IP laws such as the Agreement on Trade-Related Aspects of Intellectual Property Rights as well as issue linkages across policy domains as solutions though not necessarily perfect ones to the collective action problem of global knowledge production.

For them, the fact that most nations obey international IP law most of the time would be a function of the incentives that these international institutions create. Lisa Larrimore Ouellette and I have sketched out a theory of international IP law that proceeds largely along institutionalist lines. Therefore, a customary rule is observed not because it has been consented to but because it is believed to be binding and whatever the justification for that belief, its binding force does not depend, and is not felt by those who follow it to depend, on the approval of the individual or the state to which it is addressed.

Alfred Verdross founded the pivotal cause of compliance on what is popularly regarded as the Grotian commonality of interests and values which drives states to honour agreements they enter into. As such, states obey international law because they have a common beneficial interest, which can be attained by obedience to international legal rules.

Perhaps building on this, Brierly refused to predicate reliance on either natural law or positivist consent as sources of legal obligation.

Some authors have also argued that the declaration of friendly relations consensus between nations is what accounts for compliance. For instance, Malcolm Shaw indicates that states do not restrict their behavior to what is legally required but rather pursue a line of conduct purely through a feeling of goodwill and in the hope of reciprocal benefits.

Abraham Chayes and Antonia Chayes take the firm stance that nations are pulled towards compliance not for fear of sanctions but because of the dynamics created by the treaty regimes to which they are part. This view appears to reiterate the argument on the basis of consent that nations obey international law rules because they have consented to those rules through treaties which have imposed upon them the obligation of compliance.

In sharp contrast, Prof. Thomas Franck argues that the key to compliance lies largely in the fairness of international rules themselves. To some extent, I disagree with the postulation by Harold Koh in the sense that he appears to have misapprehended what the whole idea of compliance entails.

This is because his consideration of compliance is conflated with the issue of implementation, whereas the two relate to different things altogether. As Prof. Harold K. Jacobson and Prof. Edith Brown Weiss identify, implementation has to do with the means by which international legal norms are transformed into domestic legal rules, thereby forming a part of the legal system of the state concerned.

On the other hand, compliance has to do primarily with whether states do abide by the terms of international legal norms.

Accordingly, whereas states may obey international legal norms that are incorporated into their system, it does not remove possibilities of obedience to international laws which may not yet be domesticated.

Again, states may obey international legal rules, although they have not been incorporated into the domestic legal system. Put differently, Article 75 2 of the Constitution of Ghana for instance requires that treaties entered into by the Executive be ratified by Parliament through at least one of two means provided thereunder: ratification by an Act of Parliament or a resolution supported by more than half of all members of Parliament. Whereas the latter may sometimes lead to the former, it is not always the case that internalized laws will be complied with.

Conversely, there are also instances where international legal rules are complied with, although they have not gained the effect of law in the domestic legal system. To wit, I refer here to the factor of the self-interest of the state. Yet, the findings suggest Italy has a threefold non-compliance record compared with the UK.

Other data also indicates varying degrees of commonalities. Transparency International maps levels of corruption in a global index and claims the United Kingdom 17 is 55 places ahead of Italy This could be true, but as will be discussed later, there are other variables that influence state behaviour. Likewise, the compliance between weak states also varies. In Africa, Whitaker completed a study on the extent to which Kenya, Tanzania, and Uganda complied with anti-terrorism programs.

Despite these similarities, Whitaker said all three governments demonstrated varying levels of compliance. Domestic factors within the country were key factors. One reason proposed by Simmons is that cases involving small weak countries provide them with little to lose by going through legal processes.

Hence, compliance could relate to factors such as self-interest, regime type, and or the capacity of domestic institutions. Why states comply with international law is often analysed through a combination of three key theories: realism, liberalism, and constructivism. Simply, self-interest is the key factor advanced by realism. For example, Mearsheimer suggests that if states comply with the standard of an international treaty, they do so because it is in their interest even if the treaty did not exist.

However, Morgenthau, another realist, has admitted that during the four hundred years of its existence, international law had in most instances been rigorously observed.

Classical arguments from figures like political philosopher Jean-Jacques Rousseau are often interpreted to describe international law as being an ineffective restraint on international competition. Therefore, self-interest is likely to be a factor for how nations behave. Liberals agree with realists that state interest is central. However, they believe that institutions can help states enforce agreements.

Regime type is crucial to understanding the role of law in interstate relations. However, liberals like Keohane argue that states form agreements to mitigate international anarchy. This hypothesis also supports the democratic peace theory, which argues among other things, that democracies do not go to war against each other. Therefore, regime type is also a factor for how nations behave.

A growing body of research focuses on normative considerations to explain state behaviour. Essentially, states calculate their interests according to what is considered acceptable. Therefore, as international law and abiding by accepted norms are considered acceptable behaviour, states are likely to comply.

These theories offer useful explanations for how states behave. Yet, there are numerous variables that a state must also consider when deciding to follow international law and accepted norms. For example, in international law, the structure of a treaty can be a factor.

Chayes and Chayes explain noncompliance as stemming from the ambiguity in the language of the treaty and actual fairness of the treaty. However, depending on how the treaty was written, that same state could counter argue that it is complying.

All states are sovereign equals. Yet, not all states are the same in terms of wealth, power, capacity, and more. The asymmetry can cause states to act differently against a common treaty. For example, states have ratified the Ottawa Treaty banning landmines.

That is because the treaty adversely affects these states significantly more than other states. On the other hand, a country such as New Zealand has virtually no use for, nor has historically used, or has any significant arms manufacturing. Therefore, the fairness of the treaty affects the US disproportionately than it does New Zealand. However, the US and China have publicly stated that they no longer produce landmines.