By Eric Vandenbroeck and co-workers

This part of our researchproject (started with the Monte Video Conference see addenda 1), has shown that both legal tradition and state interpretation of international law are important considerations in understanding state decision-making behavior. Largely overlooked in favor of more traditional domestic characteristics, such as military capability, regime type, or level of economic development, the legal tradition of states is key for understanding the approach a state takes to international law.

Perhaps this should come as little surprise, as law is a foundation component of most societies, and accordingly there should be a relationship between the way law is understood within a state and the approach a state takes to law outside its own territory. Interpretation, as well, has much to offer in terms of adding to our understanding of state behavior in the international arena. As the first step towards action in today’s international system, an examination of domestic legal norms and their influence on a state’s interpretation of relevant legal principles is an important a component of state behavior.

Furthermore, using a constructivist framework and constitutive analysis to examine how states arrive at their interpretations of international law provides a more nuanced explanation of the decision-making process than simply accepting rationally calculated interests as state reasons for actions. There are many influences which contribute to the decisions states make, including history, culture, ideas, and interests. None of these alone can provide a complete explanation for the choices states make.

Examining how the historical development of legal tradition has created certain perceptions of the purpose of law and the means available to achieve this purpose, offers a more complete picture of both how states arrive at their interpretations of international law, and why states arrive at different interpretations of the same principles of international law. Moreover, understanding that interests do indeed matter for the decisions that states make, including decisions about how to interpret international law, but at the same time recognizing that interests are constituted by the same legal tradition that shapes perception of the purpose of law, addresses one of the common critiques of traditional international relations theories and the newer theories of constructivism – that explanations are all one or the other.

The case studies conducted in this project consider how legal tradition shapes the interpretation of the international law concerning a number of different norms. In all but one case, expectations were met, as each state’s legal tradition implied a method of interpretation that the state did in fact adopt towards the relevant international legal rules. Interests were certainly present in the state’s decision-making process, and are evident in statements made by government officials representing their state’s point of view. However, in none of the cases were interests clearly the dominant factor influencing the
adoption of a particular method of interpretation. In each case, in fact, interests, as seen through the lens of the legal tradition of the state, were themselves interpreted so as to conform to the range of possible appropriate actions available to that state in accordance with its beliefs about the law. In some cases, this resulted in the adoption of an interpretation that appears contrary to what a traditional interest-based explanation would expect to see, but yet highlights the explanatory power of the constitutive influence of legal tradition. These results open up many possibilities for future research centered on the role of domestic laws and legal tradition in a state’s international relations, and provide the potential for better explanations of state behavior in the international system.

 

Conclusion and Outlook

There were three primary goals of the above research project (one in a series of several).

In terms of the first goal, that of demonstrating the relevance of legal tradition as an component factor in the decision-making process, the study undertaken here has highlighted three key attributes of legal tradition that have the power to influence the state policy concerning international law. Just as consideration of form of legislative system and regime type have been considered as key domestic characteristics which may influence a state’s behavior at the international level, so do characteristics of the legal branch of the government. The positive results of the case studies completed here provide the basis for extensive consideration by scholars in both the law and political science fields, in considering the different attributes of legal tradition, and how they influence state behavior.

The second goal of this particular project, focusing on state interpretation of international law, adds a greater depth of understanding to current work in the field on state treatment of international law. Taking a step back and examining the normative, ideational, and cultural characteristics which are considered by decision-makers when contemplating foreign policy choices under international law, this project has provided insight into a key step in the foreign policy process. Recognizing that not all states understand and accept international law in the same way provides a crucial link in developing a complete picture of how and why states continue to develop and adhere to international law in many different circumstances. Moreover, examining the background characteristics that contribute to state understanding of international law refutes the notion that international law does not matter because all states do not conform to it in the same way. Rather, what this project has demonstrated is that, in fact, most states do abide by international law, however, we change our definition of compliance, taking into consideration the different starting points from which states approach international law. This does not mean, of course, that every approach is correct – as, for example, in the case of those who adopt an unrestricted interpretation of international law and act without regard for the international legal regime. But, it does demonstrate that we need to broaden our understanding of what it means for a state to be part of the international legal system, considering the difference frameworks imposed on state decision-makers by the domestic legal tradition.

The third goal of this particular project most directly addresses the existing literature in the field, and I hope provides a significant contribution to the developing relationship between constructivist work on the reasons for state action and the pivotal influence of a state’s interests. The primary implication of this component of the project is to recognize that interests are important in terms of the decisions states make regarding international law, the meaning they attach to international legal principles, and the ultimate actions they take under those principles. At the same time, however, the case studies demonstrate that interests are by no means the only consideration that informs state policy. In many cases – for example France, Turkey, Cote d’Ivoire, Germany, the U.K., and Australia – there are clearly times that states act in a manner that doesn’t fully support their interests.

Beyond the contributions of this project to our understanding of state policymaking, and the role that domestic law and legal traditions has to play in our study of state behavior at the international system level, there are a number of more general contributions this project makes, both in terms of academic study as well as for policymakers themselves. First, this project provides further justification for the call made by a few in the field for a reintegration of international law and international relations. Here, elements of comparative law, international law, and international relations were combined to provide a more nuanced explanation for the reasons behind state behaviour at the international system level. Considering the attributes each of the fields has to offer makes, we suggest, the explanatory power of the results more robust and contributes to both the theoretical work done by international relations scholars, and the practical work of international and comparative lawyers.

Beyond the realm of academia, this project has the potential to contribute to the foreign policy process, providing additional information that may enhance understanding among states in the international system as to the positions from which each develops their foreign policy. Moreover, this increased understanding may ultimately ameliorate conflict between states, facilitating negotiation and communication, rather than conflict.

Understanding the reasons why states act the way they do increases opportunities for compromise and negotiation among states. Understanding the different legal mechanisms which may constrain policy-makers choices, also has the potential to increase the possibility of discussion and minimize the potential for long-term rifts between states. Understanding that the impetus behind French or German behaviour is a hard-won, historically developed sense of community, and the belief that law is designed to protect the communal good rather than allow for absolute freedom of individual action may increase the acceptance of the states’ positions on the importance of widespread and consistent agreement on the meaning of existing international law.

On the other hand, understanding the individualized purpose of law in the United States, and the long-standing, deeply-held belief in the absolute supremacy of the United States Constitution and its protections, may open up possibilities for negotiation.

Furthermore, understanding that under the U.S. legal tradition alteration of existing law through action is an accepted state of affairs may provide other states with a better understanding of why, for example, the U.S. government was able to adopt a liberal interpretation of the principle of anticipatory intervention.

Finally, understanding that for many countries in the world, law is not manmade and the role and purpose of law in society is something contrary to the Western secularized conception of law, could potentially go a long way to improving understanding between those states whose attributes belong to the common or civil law traditions, and those who legal traditions are grounded in religious beliefs. For policymakers from these traditions, there are simply avenues of action which are not open because they violate the tenets of the state’s religious laws. In such situations, hostile negotiations and strong-arm tactics will not have the desired effect, and may very well lead to increased conflict. A better understanding of this from the beginning – an understanding that a state is simply not stubbornly protecting its interests – may smooth international relations between states. To summarize, in the same way that policy makers and government officials seek to gather information on other states’ political system, economy, population, and military, among other things, in order to better understand one’s neighbours in the international community, it is important to understand the legal constraints in effect, and how these shape the positions that decision-makers take on a given issue.

From this, a number of themes have emerged across the three case studies. These themes not only provide a common thread among the different cases examined to better highlight the importance and relevance of considering legal tradition, but also provide the basis for future on work on the role of legal tradition in international relations, which is described next.

First, it is apparent that the common categorization made by comparative lawyers into civil, common, religious, etc. legal traditions does not adequately identify the myriad of different legal traditions existing today. There are many shades of each of these traditions – for example the different common law traditions in England and the US, born out of different histories – and, in reality, most states in the world today are a mixture of a number of legal traditions. Only the countries of Western Europe and the former British colonies maintain relatively homogenous legal traditions, and even this is changing as a result of, for example, membership in regional organizations such as the European Union.

Therefore, in order to truly understand the importance of legal tradition as an explanatory variable for state policy-making, it is crucial to dig below the surface of the general classifications of legal families, and understand the historical context of each state’s legal tradition, and the specific attributes of each legal tradition which have developed from this history. For example, as described in chapter six, there two current studies, both forthcoming, that examine the influence of legal tradition on state behavior.

While to be commended for their recognition of the importance of considering legal tradition in the field of international relations, both studies focus solely on the general common law families, and thus do not provide a full explanation of how legal tradition shapes behavior. While it is certainly possible to make the general statement that common law states are less likely to adhere to international law than civil law states, this does not fully explain why these differences occur. More importantly, it does not explain why we see differences, sometimes remarkable differences, between states within the same legal family. Only by looking beneath the general classifications developed by comparative lawyers, and focusing on the individual attributes of legal tradition and how they have developed, can we understand the role that legal tradition plays in state behavior in the international system.

A second theme of this work is that variations in historical development of legal tradition can greatly determine the resulting attributes. Specifically, the types of influences which have impacted a state’s legal tradition, and the historical order of these influences, can have a significant effect on the understanding of the role of law within a state and a state’s interpretation of international law. For example, Turkey and Egypt both have influences of Islamic law and civil law. Egypt also has influences of common law. But the timing and historical basis of authority of the different influences will largely determine which tradition dominates as the key factor in creating a society’s understandings about law. In Turkey, the gradual decline of the Islamic tradition, first as a result of relations with the West and second stemming from Ataturk’s revolution, has resulted in a strongly secular state, which under no circumstance accepts Islamic law as a guiding force for interpretation of international law. On the other hand, Egypt experience both a stronger influx of Islam and a lesser influence of the secularized Western legal traditions. This has resulted in the retention of Islamic law as the dominating force in the Egyptian tradition.

Because most legal traditions today are mixed traditions, with elements of a number of different influences present, the timing and relationship between the influences appears to be very important. Those countries which received elements of the French or German traditions into religious or customary traditions have legal tradition attributes and different methods of interpretation of international law than those states which received elements of the English legal tradition. This is apparent in the cases of Cameroon and Cote d’Ivoire. In the latter, the mixture of civil law, customary law and Islamic law has led to a legal tradition unable to support a belief in the rule of law. In the former, however, the mixture of customary law, civil law, and common law has resulted in a stable legal tradition which does influence policy-makers interpretations of international law through understandings of appropriate forms of behaviour and by mitigating the influence of interests.

A third theme to emerge from the case studies in this project is the idea that legal traditions are not static; they are constantly changing and developing. Indeed, significant shifts in the understanding of law can occur. No where is this more evident than in those cases which look at states which have become members of the European Union. The act of joining a regional organization with its own legal powers has had an impact on France, Germany, and the United Kingdom. Indeed, as discussed in chapter six, in the case of the United Kingdom, EU membership has had a profound impact on the way the state views its obligations under certain international laws. In those areas where the U.K. has accepted the authority of the EU to make laws, the understandings of the appropriate behavior under the law, and the reliance on state interests in making decisions about interpretation are very different than in those circumstances where the EU does not have a role in the law.

Although the case studies conducted in this project support the theory that legal tradition shapes the interpretation state policy-makers adopt towards a principle of international law, additional work must be done.

First, we will look at additional case studies, covering a wider array of states and a broader range of international legal principles. But while the case studies conducted in this project included the major legal families, for starters there is no study on countries within the Asian tradition, nor is there examination of the variations combinations of the civil and common law traditions found throughout Latin American. Expansion into also the latter directions however, is important for a number of reasons. Not only will they potentially buoy the positive results of this project, but compiling a larger body of empirical evidence will improve our ability to not only explain how legal tradition matters and how states arrive at their interpretation of international law, but also will potentially increase our ability to predict which attributes of legal tradition will lead to which methods of interpretation of international law.

Another next step will be, to extend examination of the role of legal tradition beyond the interpretation stage, and into the action phase. As mentioned throughout these chapters, the interpretation a state makes of international law is merely the first step in policy formation that leads to subsequent action. Just because a state makes an initial interpretation of its obligations under a principle of interpretation law, does not mean it will subsequently act in conformance with this interpretation. A secondary question to examine then, is what outside factors if any, may alter the effects of legal tradition on a state’s interpretation of international law? Can a state be persuaded away from its initial interpretation? Can it be compelled? And do the effects of persuasion or compulsion vary according to legal tradition?

Moreover, it is possible that in certain instances, a state will ignore the attributes of its legal tradition and make an interpretation contrary to the society’s understanding of the role and purpose of law, and appropriate action under the law. In this circumstance, the question then becomes what happens to the state’s policy makers? Are they punished for acting contrary to the legal tradition? Or, if the action is largely based on state interests, are they forgiven for acting contrary to the law? An example of this situation can be seen in the case of Spain and the international legal principle of anticipatory intervention in self-defense in the case of Iraq in 2003. Spain’s legal tradition is very much like that of France, and maintains similar attributes stemming from similar histories. Spain, however, initially adopted a liberal interpretation of the principle of anticipatory intervention, along the lines of the United States.

This was a contrary interpretation to what would be expected under the theory of legal tradition, but largely in line with what one would expect under traditional international relations theories cantered on interests. In this case, however, the Spanish government was punished for acting contrary to its own legal tradition by being ousted in the next election in favor of a government which promised to accord Spain’s behavior with society’s conception of law and appropriate action under the law.
Another area which will be explored more in-depth is the influence of the European Union on the legal traditions of member states. While the case studies conducted here examine three EU member countries, a more systematic study will be made on the influence membership in the European Union has had on the legal traditions of its member states. An important question arising from consideration of this issue, is whether the legal traditions of EU member states are converging, and if so, whether this convergence has resulted in greater cooperation and harmony? The results of such an in depth study of EU member state legal traditions could provide guidance to developing countries as they continue to build up their own legal traditions. The information gleaned from such a study may also be useful to further cooperation in other international and regional organizational settings where states with different legal traditions are present, such as the Organization of American States, the African Union, and the World Trade Organization.

Finally, another tangential project, and one particularly relevant to the global community today, would be a more in-depth study of the role of the Islamic law tradition in the development of different state legal traditions, and how this affects state behavior.

As discussed, Islamic law has a significant influence on any legal tradition of which it forms a part. However, there are two major sects of Islam (Sunni and Shia), and there are four different schools of Islamic jurisprudence, each of which maintains slightly different attitudes about the sources of Islamic law and the obligations under the law. A more in-depth analysis of the influence of these different branches of Islamic law on a state’s legal tradition and the resulting policy developed by states towards international legal issues, such as human rights, is very relevant for today, particularly as many are trying to draw the Islamic states more closely into the international legal regime.

And finally, while each of the potential avenues of research outlined above centres on qualitative case studies similar to those completed in this project, we plan to gain further support for the importance of legal tradition to the field of international relations through the completion of a broad-based quantitative study. For this we started to collect data for each of the pertinent attributes of legal tradition studies and analysis to further support the points made.

Addenda 1:  With the emancipation of the Latin American states they were standing on an unsure ground and were fearful of European states and the United States mingling into their affairs. Therefore, they needed reassurance that a new era was beginning for them and that they could develop without constantly worrying of other states violating their sovereignty. This was also the time after the world had witnessed the First World War and was developing mechanisms to prevent another war ftom occurring. The preservation of the newly established peace was the main goal of both the U.S. and Latin American countries. Numerous Conferences that were organized on the initiative of Latin American countries and later the United States were aimed at achieving mechanisms for protecting their security, safety and sovereignty. The Sixth and Seventh conference also sought to establish a firm foundation for the doctrine of equality of states which had as its aim to prevent intervention into the affairs of other states.

One of the most significant achievements of the conference was the agreement on non-intervention into the affairs of other states. Montevideo is often quoted and credited for establishing the criteria for statehood and recognition of states. The criterion established at the time was a reflection of general legal criteria that characterized each state. In addition s we have seen, the section on The Rights and Duties of States, article 3, indicates that "political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity."

Interestingly, the course of action taken by the international community with respect to former Yugoslav states was analogous to that of Belgian independence in the 19th century. First they tried to address the issues with all parties involved and then they organized a conference to determine the status of Yugoslavia and resolve the issue of recognition. As was the case of Belgium. the conference determined that the union of Yugoslav republics was no longer possible. With respect to Yugoslavia the decision was made that the country was in the process of dissolution. Similarly to Belgium, even though there were powers such as the United States who at the beginning opposed recognition, Germany as the most powerful European state wholeheartedly supported it and announced its willingness to recognize Croatia before other powers could even assess the situation in the country and decide on the course of action. In the case of Belgium it was France and Britain who recognized Belgium even though many issues have not been resolved and other powers objected to it. In both cases recognition was awarded due to necessity. In the Belgium case it was to preserve peace in Europe and in the case of Yugoslavia it was to stop the fighting and create stability in the region. Interestingly recognition in both instances recognition was extended prior to the approval of the mother state which according to the international law is a case of intervention into the affairs of a state.

One could argue that what has changed with respect to recognition is closely related to the developments in international law. With respect to former Yugoslavia for the first time the international community has formed an ad hoc committee comprised of prominent lawyers to determine the status of Yugoslavia and its seceding republics. The European Community also established the Guidelines for recognition which included respect to the provisions of the Charter of the United Nations, guarantee for the rights of ethnic and national groups and minorities respect for the inviolability of a11 frontiers, acceptance with regard to disarmament and nuclear non-proliferation. These criteria were chosen by the European Community according to the European political standards of statehood.

Yet recognition of former Yugoslav states did not adhere to the Guidelines or the recommendation of the Badinter Commission. Even though Montevideo criteria remain the most referred to document and the only instance of codification in history of statehood, the process of recognition by states never followed it. This is especially evident in the case of Bosnia and Herzegovina which was recognized even though the Badinter Commission recommended otherwise, its territory was being disputed, its Sarajevo government did not control all of its territory, there were two state entities on its territory, and three paramilitary groups which continued to fight for three years after its recognition. Yet the country was recognized mostly because the act was deemed necessary to create stability and stop the fighting in the region. This indicates that even though there is a movement towards following guidelines with respect to recognition, at the end of the day it is the international security that will carry more weight and will take precedence over international law.

Permanent population, territory, government and ability to conduct foreign relations are the four conditions, which have developed into customary international law. These criteria are so basic, that a state would not even be able to function without having the four standards fulfilled. However, fulfillment of the four standards and the existence of statehood does not guarantee recognition. Nor, does recognition create statehood. The determinant of statehood is functionality. By recognizing a new state, the international community is not proclaiming a state but rather it is expressing self-interest in that particular state's being an official member of the community of nations. The ultimate decision whether to recognize an entity can only be determined on case by case basis. One component or criterion of recognition that will always be present is the international security component. The existence and acceptance of an aspiring state into the international community will be weight against the contribution this state will make to the security in the region. If the recognition of a particular state is contested and it is known that the act itself will cause conflict, the entity will likely not receive recognition. Hence, this political aspect of recognition is a reserved right that recognizing states maintain in order to preserve balance and stability.

This however does not mean that the process of recognition is strictly political or that there should not be a normative criterion guiding the process of recognition as was the case in former Yugoslavia. International law plays a prominent role in establishing stability in the world. If recognition is viewed as a dependent variable, the list of independent variables is largely a subject of the world order we live in and the priorities of the international community at the time it receives an application for recognition.

Hence, the European Community's Guidelines for recognition were the independent variables mostly based on conventions and standards of the European states as they stand today. Some of the other independent variables that should be considered on the list of independent variables include democracy and political freedom the new states offers to its citizens and other states, consensus among the populations for the new state, willingness to respect and abide by the international treaties, stability of the regime and the government of the new country, nature of its government and its compatibility with other states, and economic utility to other states. The fact that the European Community decided to form a Badinter Commission composed of prominent international lawyers points to the fact that there is an effort to establish new normativity with respect to recognition. The recommendations that the Commission made with respect to Yugoslavia and the requirement for new states does point out that the international legal decisions do take account of stability which is why there is a definite role of international law with respect to questions of recognition.

There is an independent variable which is essential for recognition without which a nascent state will not be recognized. That variable is international security as interpreted by policy makers of the moment. This variable is the single most important component and it shapes the decision-making regarding recognition. As we have seen in the case of 19th century Belgium, the country was recognized upon the condition of neutrality of Belgium, which was also a guarantee of European security. At the time European security was a matter of interpretation which in the cases of the great powers included their self interest and preservation of the established balance. If Belgian independence did not coincide with the interests of great powers at the time, Belgium would not have been afforded the right of independence. In the case of Yugoslavia, recognition was granted in hope that the act would shift the conflict from civil to international and in that would bring peace while preventing further violence. Recognition achieved just the opposite. It fired a gunshot which started the most brutal race for territorial acquisition driven by both economic and political interests. Therefore, one of the most potent lessons of Yugoslavia is that recognition is not an effective tool for putting out fires and should not be used as such because it can have a reverse affect and add fuel to the burning fire. The study further points to the fact that recognition is not a 'crowning' process or the 'icing on the cake' extended to an entity which deserved recognition. Most importantly, recognition by itself does not create viable states. For example the case of Bosnia and Herzegovina by any international standard did not represent a viable state at the time of recognition. Despite that fact, it was recognized and accepted into the community of states. This was done strictly for political reasons which could not be found or explained through the prism of any political theory or any standard of international law.

From our investigation it is also clear that the way an entity achieved statehood, the source of its desire for statehood and the process it went through does playa role in determining whether an entity will be recognized or not. This component is not stated in Montevideo however as established Montevideo was about non-intervention rather than about statehood and recognition of new states. The most important factor in making the final decision on whether an entity is extended recognition its relevance and impact on the international security. If the recognition of a new entity is deemed to strengthen the security of a region and maintain the balance in the existing system, it will be allowed to join the club of nations. Therefore it is the international security interests tied with economic interests that drive the actions of existing states in deciding whether to extend or decline recognition to a new entity.

Recognition in the 21 st century thus has emerged as a powerful creature of the international community. Its purpose is not to aid the creation of states, nor to display politically based favoritism, but rather to promote the preservation of peace and stability in the international system. The fact is that states emerge independently of recognition. The rights and attributes of sovereignty belong to it independently of recognition. It is recognition however that creates a stable juridical foundation for the relationship between the recognizing state and the one being recognized. Recognition gives a state the right and assurance to exercise attributes of sovereignty and an opportunity develop political, economic and security relations with other states as an equal member of the community of nations. As shown, recognition is not 'all politics', however recognizing states reserve the right to consider political components especially those pertaining to international security and base their final decision on it. This fact makes it rather difficult to write a legal text that will complement the political decision-making and be applicable in all situations. This is why today one cannot speak of duty to recognize as in the cases where recognition of a state impedes or endangers international security, the state will not receive recognition. This is precisely why Montevideo criteria were adopted as ambiguous as it was and why the United States had reservations about the eleven articles that defined criteria for statehood and recognition. Codifying statehood and switching recognition into the realm of international law would be the equivalent of giving up the right to intervene and control international affairs. It would be the analogous to states giving up their reserved political right to extend or withhold recognition, which is not a realistic option. The way the Great Powers established themselves as guarantors of peace in Europe in the 19th century, the same way the leading states of today perceive themselves as responsible for the peace and stability in the world. Recognition today and for the years to come remains a powerful tool available to those states to control the international security and ensure the preservation of peace in the world.

 

State Behaviour in the International System P.1

State Behaviour in the International System P.2

State Behaviour in the International System P.3

State Behaviour in the International System P.4

State Behaviour in the International System P.5

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