Constructing Contested Compliance: Advancing a Theory of Rhetorical Compliance in International Law

Brief Abstract:

What does it mean to comply with international law? While the role and effect of international law on politics has received considerable attention, this question remains central to understanding its effect. While most scholarship takes the position that compliance is a matter of behavior – an actors fulfill or fails its obligations discreetly through its actions – this dissertation argues that compliance cannot be understood as a binary condition and that rhetoric is at least as important, if not more important, than behavior in determining the meaning of compliance. Drawing on theories of rhetoric and argumentation, this dissertation advances a new theory of compliance with international law, one which highlights the indeterminacy of many legal rules and the ways that actors create and contest this contested middle ground through the use of rhetoric and argumentation. By claiming compliance and contesting the compliance claims of others, actors shape the meaning of compliance through strategic use of legal arguments. This dissertation applies a mixed methods approach to explore how actors create meanings of compliance, how these meanings are open to interpretation, and how rhetoric and argumentation is used to contest these interpretations.

 

Extended Abstract:

What does it mean to comply with international law? Countries routinely violate human rights, undermine trade agreements, or even violate fundamental laws on the use of force - all while justifying these violations in the language of compliance - and often finding support for such claims. Does this mean that international law is meaningless? If various actors can each defend their actions with international law, how do actors decide what behaviors are compliant? Why are some behaviors seen as plainly compliant or non-compliant while others are subject to intense debate? Drawing on theories of rhetoric and argumentation, I argue that compliance is a spectrum where many behaviors may be arguably compliant at any given time, but that this spectrum is open to construction – through contestation – by states and other actors.

International relations theories, typically, see compliance as a behavior aligning with a rule. Compliance, then, is behavioral and often binary – an actor either complies or does not. In contrast, I emphasize how legal meanings are created, focusing on historical and ongoing processes of contestation, showing that compliance is a process of rhetoric, not an outcome of behavior, whose meanings may change over time. Drawing on theories of rhetoric and argumentation, I show how actors create these meanings and how they are often contested, as claims of compliance and noncompliance may, simultaneously, be possible for certain behaviors. In short, compliance is a spectrum - not a binary condition.

To examine these processes, I combine qualitative and quantitative methodologies across a set of case studies. First, I combine quantitative text analysis and word-embeddings with qualitative process tracing to show how legal meaning was created in the drafting of the 1949 Geneva Conventions, an analysis that spans 15 years of diplomatic negotiations, during which actors’ arguments changed the meanings of legal terms in the treaty, changing the spectrum of compliance, creating legal rules which – by and large – were more protective of those most at-risk during wartime. 

 

Next, I examine how actors contest compliance within the Universal Periodic Review, a United Nations mechanism where all countries’ human rights practices are reviewed. Leveraging a unique dataset of more than 57,000 statements, I measure how actors employ different types of legal claims when contesting their compliance with international law. This is combined with in-depth interviews with individuals involved in the UPR process from states, NGOs, and within the United Nations system. 

Finally, I apply qualitative discourse analysis to statements made in response to the 2018 airstrikes by the United States, United Kingdom, and France against Syria. I trace compliance arguments as they unfold, showing how actors portray actions as compliant and how others contest these claims. This demonstrates how compliance arguments - not behavior - creates the meaning of compliance and how the success or failure of these arguments fundamentally decide what it means to comply with the law.

Focusing on the role of contestation in creating legal meaning, this project challenges dominant theories of compliance. By highlighting how legal rules are complex and multifaceted products of social interaction and challenging approaches of compliance as a behavioral phenomenon by emphasizing the unsettled, and often contradictory, meanings of compliance this project addresses questions central to the meaning of law and behavior in international relations. Put directly, by querying what compliance is, this project deepens our understanding of what law is, highlighting its use as a language that may constrain or empower, often simultaneously, with meaningful real-world effects on the effectiveness of human rights, the protection of civilians in wartime, and even the decision by states to use military force.

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© 2018 by Kyle Rapp