Why do states obey international law

He identified the doctrine of the natural or fundamental rights of states as well as the doctrine of consent. The supporters of the doctrine of the fundamental rights of states argued that this doctrine is a necessary corollary of the doctrine of the state of nature in which men were supposed to have lived before they formed themselves into political communities or states.

Now, states having formed themselves into a superstate are still supposed to adhere to this doctrine by living in such a condition.

This therefore requires of states to obey international legal rules just as humans were to obey national laws. The doctrine of consent as identified by Brierly posits that international law is the sum of rules by which states have consented to be bound, and nothing can be law to which they have not consented.

This consent, according to those who subscribe to this view, may be given expressly in the case of a treaty or impliedly by acquiescence to a customary rule. Having expressed themselves to be bound by these rules, therefore, common sense requires of states to obey these rules which they have themselves created or consented to. However, Brierly contends that the assumption that international law consists of nothing save what states have consented is an inadequate account of the system as it can be seen in operation.

He argues further that even if it is a complete account of the contents of the law it would fail to explain why the law is binding. Also, he expressed the view that the doctrine of implied consent of states is not a philosophically sound explanation of customary law, domestic or international. 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. 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. Liberals would break open the black box of the nation-state and look inside. They would shift our focus to actors at the domestic level whose preferences determine the behavior of nation-states in international fora.

For them, the question might be: Who are the interest groups within low- and middle-income countries that benefit when those countries obey international IP law?

For example, it might be that powerful firms, factions, and families within those countries gain from trade with high-income OECD countries but bear only a small portion of the cost of IP. The decision of low- and middle-income countries to abide by international IP law most of the time may reflect a privileging of some interest groups over others—a privileging that can be explained only by examining domestic political institutions and alignments.

In that case, UNESCO officials and consultants spread the belief that the promotion of science through a national-level bureaucracy was part of what it means to be a responsible nation-state.

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