Internalization of International Law
Summary and Keywords
The internalization of international law is defined as “the process by which nations incorporate international law concepts into domestic practice." While ratifying an international treaty or accepting a principle of customary international law technically binds a state to follow the rule, it is widely understood that, for international law to be implemented correctly, it must be internalized domestically because actors must have some binding sense of obligation to the law before it becomes viewed as the appropriate standard of behavior. The internalization of international law into domestic law can involve formal international laws such as the provisions of a treaty. Internalization can also refer to the incorporation of broader international norms, whether or not codified in written form, into the normative structure of the state. A wide range of factors can either facilitate or hinder the internalization of international law. Institutional factors include whether a state of monist or dualist. In a monist state, a principle of international law becomes part of the domestic law of the state and can be applied by state courts and relied on by citizens after ratification or governmental acceptance. In a dualist state, additional domestic action is required in order to make the international law part of the domestic law. Other factors that affect internalization include cultural and normative factors, and nonstate actors such as nongovernmental organizations.
Introduction: What is Internalization?
The internalization of international law into the domestic law of a state is a subject which has not received widespread attention from scholars of international relations, though it is a key component of our understanding of the role that international law plays in shaping state behavior. More extensively considered within the international law literature, the internalization of international law into a state’s domestic law is a key component by which international law becomes obligatory. An international legal principle agreed upon by states at the international system level requires some mechanism by which the legal norms become integrated into the understanding of what is the appropriate and lawful behavior at the domestic level. As domestic law is grounded in culturally relevant legal norms and institutions – for example, grounded in the US Constitution in the United States – so must international law become grounded in order to reach the level of opinio juris sive necessitatis, or obligation, which is necessary to shape state action. Moreover, as international law has broadened its scope to an increasing number of subjects and to an increasing number of actors, understanding the impact that internalization of international law into domestic law may have on behavior furthers our understanding of the guiding force of international law and the effect international law has, not only on states, but on nonstate actors operating within a state.
Given the somewhat limited and often indirect treatment that the internalization of international law has received within the international relations literature to date, this essay seeks to achieve a number of goals. First, it provides definitions for the concepts of internalization and international law, and discusses the importance of understanding how international law is internalized for our broader understanding of international relations, primarily the role of internalization in solidifying acceptance of international legal rules and facilitating state compliance with international law. Second, it examines how the internalization of international law has been incorporated into several of the main theoretical approaches in international relations. Third, it considers the process of internalization itself and the institutional and normative factors that facilitate internalization of international law into domestic law. Finally, it briefly addresses some of the key questions that remain to be addressed on this subject and what examination of these questions may be able to illuminate in terms of state and nonstate actors’ behavior towards international law.
Internalization: Integral to Compliance
Definitions: Internalization and International Law
The internalization of international law is defined as “the process by which nations incorporate international law concepts into domestic practice” (Cleveland 2001). International law, of course, is created and agreed to by states at the international system level. While ratifying an international treaty or accepting a principle of customary international law technically binds a state to follow the rule, it is widely understood that, for international law to be implemented correctly, it must be internalized domestically (Koh 1997; Cohen 2005). This is because actors, whether elites working in the government or individual citizens, must have some binding sense of obligation to the law before it becomes viewed as the appropriate standard of behavior (see March and Olson 1998 on the “logic of appropriateness”). This is true at the domestic level as well as at the international level. For example, in the United States, law which is passed by Congress must be viewed as constitutionally valid in order for it to be accepted as law. If a law or regulation is perceived as being in violation of the US Constitution, under our domestic system of law, that law is held in suspicion until either upheld or struck down by a court. In other countries, law may not be considered valid until it receives the approval of a religious council. In either case, though, the point remains the same: law requires internalization and grounding in societal culture in order for it to be held as binding. Moreover, internalization provides enforcement mechanisms to ensure the law is followed. If a law is not recognized as binding or as mandating the appropriate standards of behavior, then there is less chance that the law will be seen as binding and a greater likelihood the rule will not be followed out of a sense of obligation. This becomes more important at the international system level, where enforcement mechanisms are even less concrete.
The internalization of international law into domestic law can involve formal international laws such as the provisions of a treaty. Internalization can also refer to the incorporation of broader international norms, whether or not codified in written form, into the normative structure of the state. For internalization to be successful, therefore, it is important to consider the type of international law or international norm at issue, as well as the legal, political, social, and cultural aspects of states which may facilitate or hinder the internalization process (Finnemore and Sikkink 1998; Rosenblum 2006).
International law is defined somewhat differently by international lawyers and international relations theorists. For international lawyers, international law can be defined as “the body of rules and principles of action which are binding upon civilized states in their relations with one another” (Wood 2000:142, quoting Brierly 1963). This definition of international law is further specified in Article 38 of the Statute of the International Court of Justice, which lists the following as binding international law:
• international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
• international custom, as evidence of a general practice accepted as law;
• the general principles of law recognized by civilized nations;
• subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
For international lawyers, therefore, what encompass international law are very specific sources considered binding rules, whether in the form of a treaty or a customary principle of international law.
The field of international relations has approached the definition of what constitutes international law in a somewhat different manner. First, within international relations, “international norms” is a more commonly used phrase than international law. International norms have been defined in a number of ways. Finnemore and Sikkink (1998:891) define a norm as “a standard of appropriate behavior for actors with a given identity.” Raymond (1997) pieces together a definition that says norms can be considered “shared understandings of standards for behavior” (Klotz 1995:14) “that guide human behavior” (Jensen and Miller 1997:86) by “indicat[ing] how states should behave” (Barnett 1995:38). And March and Olsen, adopting a more sociological perspective, define norms as institutions, stating they are “a relatively stable collection of practices and rules defining appropriate behavior for specific groups of actors in specific situations” (1998:948).
In addition to slightly varying definitions of norms, it is also generally recognized that there have been a number of different types of norms outlined in various works. For example, some discuss regulative norms, which constrain behavior, and constitutive norms, which create new actors or interests or forms of action (Finnemore and Sikkink 1998). There is also the division of international norms into hard and soft norms (Abbott and Snidal 2001). Hard norms are more akin to the legal definition of international law and are defined as legally binding obligations that are precise and provide mechanisms or authority for implementation and interpretation (ibid.). Soft norms, on the other hand, are more akin to the broader category of international norms and can be defined as those norms which fall short on one or more of the three requirements of hard law: precision, obligation, or delegation (ibid.). International lawyers tend to disagree that international law can be divided in this manner and reject the term “soft law” (Raustiala 2005). Whether the term is international law or international norms, however, it is held that “at the margin norms and rules cannot be sharply distinguished from each other [and] it is difficult if not impossible to tell the difference between an ‘implicit rule’ of broad significance and a well-understood, relatively specific operating principle” (Keohane 1984:59). Therefore, the remainder of this essay will use the terms “international law” and “international norms” interchangeably to indicate those rules codified at the international system level which then may be internalized by states domestically.
Whichever definition of international law or international norms you adopt, one of the first questions which the literature has addressed is how norms are created. While there have been a number of theories concerning the development and emergence of international law, one of the most widely recognized in the current international relations literature is the theory of norm emergence put forward by Finnemore and Sikkink (1998). In this theory, new concepts for international norms or international law emerge through a norm entrepreneur. A norm entrepreneur is a person, group of persons, institution, or state which has strong notions about appropriate or desirable behavior in their communities (Finnemore and Sikkink 1998). After the norm emerges and is advocated by the norm entrepreneur it becomes more widely recognized by decision makers until it reaches a tipping point where the norm achieves recognition. From this point, there is a cascade of recognition and acceptance of the norm into the general population. Finally, the norm becomes widely accepted and deeply ingrained enough that it is accepted as the appropriate standard of behavior (Finnemore and Sikkink 1998). (This process is discussed in more detail in the section on the process of internalization below.)
While this process has been generally demonstrated to apply across states in terms of norm emergence, recognition, and general acceptance, the final part of Finnemore and Sikkink’s theory, norm internalization, has not yet received substantial study by the field. This area is ripe for study, however, as it is evident that the internalization of international law varies across states, occurring more rapidly in some states than others. Factors such as whether the state adopts a monist or a dualist position toward international law, the role of the different branches of government in the internalization process, the cultural or societal attitudes toward international law, and the domestic internalization of foreign law all may affect the internalization of international law within an individual state. These variations in the process of internalization may, correspondingly, result in a greater role for international law in shaping the behavior of some states than others.
The Importance of Understanding Internalization
It is important, therefore, to consider the internalization of international law as a key factor in understanding the influence of norms on state behavior. The incorporation of international law into the domestic understandings and structure of a state is necessary in order for these rules to act as influences on state and substate actors. If international law is only recognized at the international level, its influence on the behavior of state and substate actors is likely to be minimal. Rules and norms become binding when they become part of the fabric of a society and when they are considered obligatory. Internalization of internationally drafted and ratified rules into the different domestic systems is a necessary step to achieve this (Henkin 1979; Finnemore and Sikkink 1998).
Understanding how international law is internalized within a state, therefore, is a key component of understanding the role that international law plays in shaping the behavior of both states and nonstate actors. Internalization is a necessary component of making international law authoritative for both state and nonstate actors. International law can only gain true force if states internalize the international norms that make up international law (Rosenblum 2006). As stated by Koh (1997:2659), “only once states internalize international law do they establish internally binding domestic legal obligations.” Internalization of international law into domestic law is, therefore, interrelated to the body of literature on compliance with international law. Within the field of international relations, there has been a significant amount of research done on state compliance with international law and under what circumstances compliance is more or less likely (Simmons 1998; Koh 2005). It must be recognized, however, that compliance occurs more often when states feel obligated to comply. The internalization of international law into the fabric of domestic law significantly increases the likelihood that states feel obligated to comply. This occurs for two primary reasons.
First, internalizing international law into the fabric of domestic law makes the tenets of international law punishable through domestic legal mechanisms. It is recognized that one of the more difficult aspects of international law in and of itself is that there are few concrete enforcement and punishment mechanisms at the international system level which mimic those at the domestic level. Many international treaties do have penalties for noncompliance, and there are a number of international courts and other adjudication forums, but none of these have the same enforcement abilities as those that exist within a domestic system. Internalizing international law into domestic law makes the international legal rules part of the domestic law, and therefore violations of these rules are violations of domestic law and are thus subject to the same enforcement and adjudication mechanisms as all other domestic law.
A second reason why the internalization of international law is important for increasing the likelihood of state compliance with international law is that once international law becomes part of the domestic fabric of law, the potential for reputational damage for noncompliance with these rules is increased, not only internationally but domestically as well. Reputation has been found to be a key motivating factor behind state compliance with international rules (Simmons 1998, 2000; Downs and Jones 2002). Most international relations studies have demonstrated this connection at the international system level; states want to have a good reputation among other states so they comply with international law. But reputational concerns can matter domestically as well. Particularly in democracies, if international law has been woven into the fabric of domestic law and is considered binding, the consequences to elected leaders of violating these rules are potentially significant: much more so than if the international norms are not internalized. The internalization process increases both the sense of legal obligation and recognition of the international legal principles as binding, as well as the costs to governments if these binding norms are not upheld.
Theoretical Approaches to Internalization
Despite the importance of internalization of international law into domestic law for understanding the true impact of international norms on the behavior of state and substate actors, there has not been extensive research conducted on this subject within the field of international relations (Bianchi 2004). While this has begun to shift in the past decade as the study of international law, compliance, and norm internalization generally has become more widely considered within the field, discussion of the internalization of international law into the domestic law of a state is an issue area which has been more widely addressed within the field of international law than in international relations. The reasons for this could be many, but some have identified the fact that investigating how international law is internalized among different states often requires extensive knowledge of domestic systems, structures, constitutions, and laws, which makes state-by-state analysis difficult for nonspecialists. Among international relations scholars, the attention given to the importance of international law, and thus consideration of the mechanisms of internalization of international law, vary by theoretical approach (Rosenblum 2006). While different strains of literature within each approach may vary slightly, the primary treatment of the main theoretical approaches in the field of international relations are discussed in the following paragraphs.
Realism, which can be divided into classical realism, neorealism, and neoclassical realism, generally pays little attention to international law generally, let alone factors that influence the internationalization of international norms. This, however, does vary slightly among the different strains of realism. Classical realists such as Morgenthau and Carr recognized the existence of international law, and indeed accepted that international law had the ability to influence state behavior by providing a moral compass that underlined state action (Carr 1946; Morgenthau 1985). Classical realism, however, still held that international law was primarily a construct of the power relationship among states and did not consider whether and how the internalization of international law might matter. Neorealism, developed in the 1970s, pays even less attention to the role of international law on state behavior and whether, how, and to what effect the internalization of international law influences such behavior. Neorealism maintains that international law is merely a tool that states use to further their own interests and power position relative to other states (Goldsmith and Posner 2005). Since for neorealists international law has no independent binding authority, the questions over whether international law becomes internalized, how it becomes internalized, and whether this ultimately matters for shaping state behavior are not part of the neorealist research agenda. Neorealism focuses on international system level factors and the power relations among states, and does not consider the variations in domestic institutions and culture which may influence state responses to international law.
Neoclassical realists, on the other hand, do take domestic institutional structure into account when considering what shapes state action. While accepting the primary neorealist tenet that relative material power capabilities establish the basic parameters of a state’s actions, they recognize that the perceptions of these capabilities by decision makers and their freedom to act may be influenced by domestic factors (Rose 1998). While no work has been done by neoclassical realists to date on the role that internalization of international law might play in framing perceptions that state decision makers have of their power capabilities vis-à-vis other states, this type of research is seemingly within the realm of possibility for neoclassical realism in a way that it has not been for earlier strains of the realist theoretical approach (Rose 1998).
Neoliberal institutionalism adopts the primary assumptions of neorealism, assuming an anarchic international system in which states are rational actors concerned with their relative power position (Keohane 1998). Neoliberal institutionalism also recognizes, however, that international institutions, which have increased greatly in number over the past several decades, influence state decisions through the reduction of transaction costs (ibid.). While not discussing international law and its internalization specifically, the recognition of transaction costs, whether reputational costs or a sense of legitimacy of state action, has the potential to implicitly consider internalization because it is internalization that creates the sense of legal obligation, which forms the foundations of concerns over reputation and legitimacy of action. No explicit study of this relationship between internalization and the effects of international institutions on state behavior has yet been conducted by neoliberal institutionalists. One limiting factor is that many neoliberal institutionalist theories, like neorealism, focus predominantly on system level factors, thereby bypassing any study of the domestic factors that may influence state behavior, such as internalization.
Liberal theory, on the other hand, focuses explicitly on domestic factors that influence decision making, and therefore is ripe for considering the influence of domestic factors on internalization of international law and how this might influence state behavior. Liberalism argues that state behavior has its origins in domestic politics (Rose 1998). Liberal theory explicitly examines the relationship of states to the domestic and transnational social context in which they are embedded and recognizes that this relationship has an impact on state behavior in the international system (Moravcsik 1997). While, again, no study has, up to now, examined how preferences impact the internalization of international law, or how the internalization of international law shapes decision makers’ preferences, liberal theory, because of its focus on domestic factors, has the possibility of engaging in this kind of research. As suggested throughout this essay, the extent to which international law is internalized within the domestic system of individual states has a significant impact on the decisions that states make. How these preferences are shaped is a core question of the liberal theoretical approach.
Finally, like liberal theory, constructivism allows for a potentially greater consideration of the internalization of international law than the other theoretical approaches. The process of norm internalization stems in great part from the constructivist literature by recognizing that only through internalization into the domestic society will norms be truly binding. Moreover, constructivism allows for the consideration of the cultural and societal aspects of internalization that may shape the extent to which a state feels bound by international law. Constructivists focus on the creation of state identity, which in turn shapes state action, which then can reconfigure understandings of identity. Recognition that state identity is shaped by the cultural and institutional context within which states act, and thus shapes their actions, including the internalization of international law, is a cornerstone of the constructivist approach (Katzenstein 1996).
International legal scholarship views internalization in a slightly different manner than international relations theories. Given the practical importance international lawyers and legal scholars attach to law maintaining a useful nature, it is considered an essential part of the formation of new international legal rules that they be incorporated into the domestic laws of states. Only through this action can these international rules be considered binding. Indeed, many treaties drafted today contain specific provisions which require affirmative action on the part of states to enact domestic legislation incorporating the treaty provisions into domestic law so that they may not only guide action, but also provide concrete remedies should their provisions not be followed. For example, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3, requires that state parties enact domestic legislation prohibiting refoulement in a situation of likely torture. Another example can be seen in the Kyoto Protocol, which requires Annex I countries to implement specific reductions targets and other environmental protections within their domestic laws.
The Process of Internalization: Institutional and Normative Influences
Institutional Factors Affecting Internalization
Monism versus Dualism
Whether a state adopts a monist or dualist position toward international law can significantly influence how easily international law is internalized into the domestic system. A monist state is one in which, after ratification or governmental acceptance of a principle of international law, that law automatically becomes part of the domestic law of the state and can be applied by state courts and relied on by citizens of that state. No further domestic action is required to make the international law binding. While the extent of monism may vary somewhat, the following states are all generally classified as monist states: The Netherlands, Japan, Mexico, Portugal, Spain, and Switzerland (UNIDROIT 2006:3; Leigh and Blakeslee 1995). This does not mean that in a monist state ratification of an international treaty, for example, automatically integrates the international law into the domestic societal perceptions of law, since the norm internalization process still must occur. What it does mean, however, is that the internalization process may be facilitated by the absence of additional layers of institutional involvement before the norm has a chance to cascade into the societal consciousness. Thus, the likelihood of internalization is improved.
A dualist state, on the other hand, is one in which additional domestic action is required in order to make the international law part of the domestic law. Often this takes the form of legislation that incorporates the international law into the domestic legal system, but it could also require an executive decree or even a public referendum if a state’s domestic laws so require. One of the key hurdles which must be overcome in a dualist system is that there are additional political entities brought into the legal process, and the more players you have, the more difficult it is for the international law to become part of the domestic legal system. Examples of dualist states include Canada, the United Kingdom, Australia, Italy, and Germany (UNIDROIT 2006:4; Leigh and Blakeslee 1995).
Many states, however, are not clearly monist or dualist and may retain elements of both approaches to the internalization of international law. The United States Constitution, for example, appears to indicate that the US is a monist state by declaring that treaties are the supreme law of the land (US Constitution, Article VI). In practice, however, the United States acts primarily as a dualist state. In providing advice and consent, the US Senate often declares treaties non-self-executing, which means that in order for the provisions of the treaty to be applicable to US citizens and the US government domestically, legislation must be passed by Congress implementing the provisions of the treaty into US domestic law. Generally, only once this occurs may the provisions of the international treaty be relied on in a suit before domestic US courts. This contributes to the delay in internalization of international legal principles which often occurs in the United States. A similar process occurs in Canada, where international customary norms are held to be automatically internalized under historical provisions of the common law, but where international treaty provisions must be “transformed into the domestic legal order through implementing legislation or another domestic law-making process” (LeBel and Gonsalves 2006:4).
The countries of the European Union (EU) provide an additional example of the role that monism and dualism play in the internalization of international law. Individual member states of the EU each have monist or dualist positions ingrained in their domestic legal structures. For example, France, the Netherlands, and Spain all lean toward monism; Italy, Germany, and the UK are dualist. Upon joining the European Union, however, each member state agrees to essentially act as a monist state in relation to European Union law. Particularly in the case of EU regulations, EU law is held to be immediately applicable in member states without further action on the part of domestic legislatures. Moreover, because the European Union has begun to legislate at the regional level on a number of subjects that are traditional topics of international treaties – such as human rights and the environment – this has allowed even dualist states that are members of the EU to more easily internalize certain international legal provisions into their domestic systems.
Legal System and Institutional Design
While significant in the internalization process of international law, whether a state maintains a monist or dualist system is not the only factor which determines the ease with which international law is internalized. Monism or dualism works in conjunction with other institutional and cultural factors within each state. For example, most dictatorships may be viewed as monist because an authoritarian leader’s accession to a treaty is usually enough to indicate the state is bound by that treaty. In the absence of a functioning and free domestic legal system, however, the practical implications of the state’s monist structure are minimized. On the other hand, many long-standing democracies, like the United States, Canada, and Australia, are dualist, but have relatively strong records on international law compliance, despite the hurdles of internalization. Regime type, therefore, in addition to monism or dualism, influences internalization of international law.
A number of other institutional characteristics affect the internalization of international law, including the separation of powers and the role of the courts within the domestic system. This examination of the different institutions and legal systems within a state which may influence internalization can draw significantly on the comparative law literature (Glendon et al. 1994). While this literature does not address the question of internalization specifically, it does consider the differences in domestic legal institutions and how this results in different perspectives on international law generally (Zartner Falstrom 2006; Mitchell and Powell 2007). The relationship between branches of government, the regime type of a state government, and the role of the judiciary in creating and implementing law can all have a significant impact on the process of internalization of international law into the domestic legal system, and in turn, on the extent to which states comply with international law.
The separation of powers within a state can have an impact on internalization in much the same way that a monist or dualist approach may have an impact. The greater the number of actors which must be involved in the internalization of international law within a state, the less likely it is that the law will be successfully internalized to the point of becoming a legal obligation which shapes state and nonstate action. For example, in the United States, where internalization of international treaties provisions requires action on the part of at least two branches of government (the executive branch and the legislative branch), the process is significantly more political and takes longer than in states where any internalizing action is solely within the purview of one branch of government (Diehl et al. 2003). Therefore, even if state leaders accept an international legal principle at the international system level, convincing domestic constituencies that this law is valid and should be incorporated into domestic law may prove difficult. The larger the number of domestic constituencies which must be convinced to internalize the international law, the more unlikely it is that such internalization will occur (ibid.).
Overall institutional similarity between domestic and international law may also play a role in facilitating or hindering internalization of international law into domestic law. Research has shown that those states where there is institutional similarity between the structures of domestic law and the structures of international law are more likely to accept international law as valid and binding (Zartner Falstrom 2006; Mitchell and Powell 2007). In states where the judicial branch has substantive power to make and interpret law, the internalization of international law may be hindered because the judiciary at the international level is not responsible for law making, only law application (Bianchi 2004). For example, states like the United States, which follow the concept of precedent or stare decisis, may have greater difficulty internalizing international law than states that do not adhere to this concept because international law does recognize the principle of precedent (Mitchell and Powell 2007; Simmons 2009).
As mentioned briefly above, regime type also has the potential to play a role in the facilitation or hindrance of the internalization of international law into the domestic law of a state. The example introduced earlier shows how a dictatorship or authoritarian state may be considered monist in nature and may not have many domestic constituencies which need to accept international legal provisions. However, given the nature of an authoritarian regime, this does not necessarily mean that the principle of international law has actually been internalized. In this vein, regime type is a key component of understanding the role of law in interstate relations (Simmons 1999). While this may have something to do with the concentration of power in a dictatorship versus a democracy, it more likely is a response to shared values and comfort with international law. Those regimes which are based on the rule of law, which uphold values supporting human rights or peaceful resolution of disputes, and which prefer cooperation to conflict to solve disputes are more likely to recognize international law as valid and more easily internalize its principles than those states which are not grounded on these characteristics (Simmons 1999).
Normative Processes and Nonstate Actors Affecting Internalization
The institutional design of a state is not the only factor to consider, however, when examining how international law is internalized within a state. Cultural and normative factors will also play a role, as will nonstate actors such as nongovernmental organizations.
Norm Internalization and Legitimacy
In addition to the institutional structure affecting the internalization of international law, the process by which norms are internalized has a significant effect. Perhaps the leading theory on the norm emergence and internalization process is that put forth by Finnemore and Sikkink, in which they describe a three-step process of norm emergence, norm acceptance, and norm cascade (1998:895). Normative concepts are introduced by norm entrepreneurs who attempt to convince a critical mass of states or individuals to embrace the new norms as binding (ibid.). Eventually, when there is a critical mass persuaded by the norm entrepreneur to embrace the emerging norm, a tipping point is reached as more and more states or individuals accept the norm. States may accept a new norm for a number of reasons, including pressure for conformity, desire to enhance international legitimation, and the desire of state leaders to enhance their self-esteem (ibid.). This then leads to a norm cascade facilitating norm internalization within a state or community where the norm acquires an obligatory quality, becoming part of the social fabric.
Finnemore and Sikkink recognize, however, that this process may vary among states as it can be influenced by different social processes, as well as different actors, motives, and mechanisms of influence such as those institutional and cultural factors described here (1998:894–5). Internalized norms then become the prevailing standard of appropriateness for behavior against which new norms then emerge. A similar norm internalization process has been put forward by Koh (1998), confirming Goodman and Jinks’s (2003) theory that social mechanisms are crucial for understanding norm internalization, including the internalization of international law into domestic law.
Culture and Legal Tradition
There is also a cultural aspect to the internalization of international law into domestic law. A number of international law scholars have recognized the interconnectivity of domestic legal culture and behavior of states toward international law (Charney 1997; Koch 2003; Jouannet 2006; Powell and Wiegand 2009). As stated by Ratner (2006:23): “Internalization can only occur with local legitimation and support.” Local legal systems, however, are vastly different from one another in terms of the legal culture they adhere to and the beliefs in the role of law for society that they accept. This means that internalization will take on different forms and require different processes in different states.
Certain cultural attributes, for example, are more accepting of outside influence than others, and thus more easily internalize international law into the domestic law. Western legal traditions – the common law and civil law traditions, for example – have more in common with international law and its focus on secular creation and written rules as well as similar ideas about rights and freedoms. Therefore, many Western states are more likely to accept and incorporate international law into their domestic legal systems. This is because understanding international legal rules is easier when the format, substance, and ideas behind the international rules closely mimic the state’s own domestic law.
On the other hand, other legal traditions have very different conceptions of law, how law should be created, and the role of law in society, which do not so closely mimic today’s international legal rules. This can make internalization of international law more difficult. For example, states whose legal traditions are founded on religious legal traditions often have very different societal understandings of law and do not accept external law created by nonreligious authorities that may contradict their religious beliefs. In these circumstances, it can be difficult to internalize international law until a way is found for the international legal rules to be in conformance with the domestic religious legal tradition. This has been an ongoing issue, for example, with states in which the legal system is based on Sharia law. Many of the provisions of some of the international treaties on women’s rights, for example, are seen as being contrary to Islamic teachings in some states. This greatly hinders internalization of those treaty provisions, even should the state ratify the treaty. This issue is not limited to religious systems, however. Communist states, for example, refused throughout the Cold War to ratify the International Covenant on Civil and Political Rights because the treaty’s provisions were contrary to the communist ideology.
Nonstate Actors and Their Influence
Another component that may affect the ease with which international law is internalized into the domestic law of the state is the role that nongovernmental organizations and interest groups may play in the internalization process. The level of involvement of nonstate actors will also vary across states, being affected by regime type, domestic law, and societal support for NGO activities. It has been found, though, that the incorporation of international norms into the domestic fabric of a state may greatly be facilitated when there are nonstate actors on the ground promoting such internalization (Risse et al. 1999). If domestic interest groups, NGOs, or other nonstate actors are opposed to a particular international norm because they feel, for example, it is contrary to their interests or their values, their active opposition to such internalization can significantly reduce the likelihood the international law will successfully be internalized (Diehl et al. 2003). For example, “labor and manufacturing groups in the United States have sought to weaken the adoption of domestic regulatory mechanisms that give effect to international environmental agreements” (2003:61). Therefore, in those states where there is active NGO participation in the norm emergence and internalization process, the domestic internalization process is greatly facilitated when NGOs support the international legal principles the state has accepted.
Analysis and Direction for Future Research
As this brief discussion of the internalization of international law indicates, there are a wide variety of factors which can facilitate or hinder the internalization of international law into domestic law. As also indicated above, however, much of the existing research on this issue stems from the international law literature and, while helpful for outlining the specific mechanisms that might exist within individual states, does not provide an empirically rigorous body of research on internalization overall (Diehl et al. 2003). There is, therefore, significant opportunity for additional research on the topic of the internalization of international law into domestic law. Given the importance of this subject for our overall understanding of the power of international law to shape the behavior of state and nonstate actors, continuing to develop work in this area is important.
Which Norms Will Be Internalized?
As in the case with the compliance literature, one of the key questions that needs more thorough examination is which norms will be internalized. As indicated above, widespread agreement among both international lawyers and international relations scholars is that internalization is a key component of solidifying the obligatory nature of international law and ensuring compliance. However, despite Louis Henkin’s (1979) oft-repeated statement that most states comply with most international law most of the time, some recent empirical studies have questioned whether this is true for all norms. One of the most prominent is by international legal scholar Oona Hathaway (2002), whose empirical study of compliance with international human rights agreements found that compliance may actually decrease with treaty ratification. What Hathaway does not address, however, is whether, upon ratification, the states in her study internalized the international law at issue or not. Moreover, she doesn’t consider whether some norms are internalized, and thus complied with, more frequently and extensively than others.
As described above, there are different kinds of international law. Whether you prefer the legalistic divisions between treaties, custom, etc. found in the Statute of the International Court of Justice or the hard and soft law division, there are clearly different kinds of international law. One question, therefore, which remains to be addressed, is whether the form of the international legal principle at issue matters. For example, are treaties more likely to be internalized than customary principles? Moreover, it is important to consider the subject matter of the international law. Are some legal rules more likely to be internalized because they cover international environmental law as opposed to other rules on international human rights law which are very difficult to internalize? A study across different types of norms may help us identify if there are certain areas where states consistently have difficulty internalizing, and thus complying with, certain types of international law.
Institutional and Normative Factors Influencing Internalization
In considering which norms will be internalized, it is also important to consider the institutional aspects of internalization as well as the cultural characteristics of each state which may or may not facilitate internalization. While it has long been recognized that different states will deal with international law differently (Henkin 1979), recently a number of scholars have explored the effect of different institutional mechanisms or legal systems on internalization (Zartner Falstrom 2006; Mitchell and Powell 2007; Powell and Weigand 2009). Studies which delve into more detail about which institutional and normative characteristics may contribute to or hinder internalization could contribute a great deal to our understanding of internalization. For example, how much does religion play a role in the internalization process? In states with a legal tradition founded on religious law, are we more or less likely to see internalization of international legal principles? How about societies with tightly held constitutional principles, such as in the US: can that affect the internalization process? These are all questions which remain to be addressed.
How Do Domestic Politics Influence Internalization?
As much of the work thus far on the internalization of international law into the domestic law of a state has come from international legal scholarship as opposed to international relations scholarship, there has not been extensive analysis of the role that politics may play in the internalization process. Since internalization of international law is, ultimately, a domestic action, the role of domestic politics is likely a key factor in every stage of the internalization process. Some of these questions have tangentially been addressed, as identified in the works cited above. For example, consideration of the difference between democracies and authoritarian governments has generally held that democracies are more likely to internalize international legal norms largely due to shared values between democratic legal principles and international law. However, questions remain as to whether this holds true for all international law, or whether we are more likely to see this pattern emerge for certain types of legal principles – such as human rights laws – and whether we are more likely to see internalization occur for bilateral treaties over multilateral treaties or customary forms of international law. Moreover, considerations such as the role of interest groups, civil society, and even local judiciaries on the internalization of international law into the domestic systems of a state have not been made in a rigorous manner. Assessment of veto players, political party control, and power and interests all could be studied in terms of their influence on the internalization of international law into the domestic legal system.
Abbott, K.W., and Snidal, D. (2001) Hard Law and Soft Law in International Governance. In J. Goldstein, M. Kahler, R.O. Keohane, and A.-M. Slaughter (eds.) Legalization and World Politics. Cambridge: MIT Press, pp. 37–73.Find this resource:
Barnett, M.N. (1995) The United Nations and Global Security: The Norm Is Mightier than the Sword. Ethics and International Affairs 9, 37–54.Find this resource:
Bianchi, A. (2004) International Law and US Courts: The Myth of Lohengrin Revisited. European Journal of International Law 15, 751–81.Find this resource:
Brierly, J.L. (1963) The Law of Nations: An Introduction to the International Law of Peace, 6th edn. Oxford: Oxford University Press.Find this resource:
Carr, E.H. (1946) The Twenty Years’ Crisis: 1919–1939: An Introduction to the Study of International Relations, 2nd edn. London: Macmillan.Find this resource:
Charney, J.I. (1997) Third Party Dispute Settlement and International Law. Columbia Journal of Transnational Law 36, 65–89.Find this resource:
Cleveland, S. (2001) Norm Internalization and U.S. Economic Sanctions. Yale Journal of International Law 26, 1–74.Find this resource:
Cohen, A. (2005) Bureaucratic Internalization: Domestic Governmental Agencies and the Legitimization of International Law. Georgetown Journal of International Law 36, 1079–1144.Find this resource:
Diehl, P.F., Ku, C., and Zamora, D. (2003) The Dynamics of International Law: The Interaction of Normative and Operating Systems. International Organization 57, 43–75.Find this resource:
Downs, G.W., and Jones, M.A. (2002) Rational Choice and International Law: Reputation, Compliance and International Law. Journal of Legal Studies 31, 95–114.Find this resource:
Finnemore, M., and Sikkink, K. (1998) International Norm Dynamics and Political Change. International Organization 52, 887–917.Find this resource:
Glendon, M.A., Gordon, M.W., and Osakwe, C. (1992) Comparative Legal Traditions. St. Paul: West Publishing.Find this resource:
Goldsmith, J., and Posner, E. (2005) The Limits of International Law. New York: Oxford University Press.Find this resource:
Goodman, R., and Jinks, D. (2003) Measuring the Effects of Human Rights Treaties. European Journal of International Law 14, 171–83.Find this resource:
Hathaway, O. (2002) Do Human Rights Treaties Make a Difference? Yale Law Journal 111, 1935–2015.Find this resource:
Henkin, L. (1979) How Nations Behave. New York: Oxford University Press.Find this resource:
International Institution for the Unification of Private Law (UNIDROIT) (2006) Report of Ad Hoc Working Group on Legislative Techniques for the Implementation of the Preliminary Draft Convention on Harmonised Substantive Rules Regarding Intermediated Securities. At www.unidroit.org/english/documents/2006/study78/s-78-026-e.pdf, accessed Aug. 24, 2009.
Jensen, L., and Miller, L.H. (1997) Global Challenge: Change and Continuity in World Politics. Fort Worth: Harcourt Brace.Find this resource:
Jouannet, E. (2006) French and American Perspectives on International Law: Legal Cultures and International Law. Maine Law Review 58, 293–336.Find this resource:
Katzenstein, P.J. (1996) Introduction: Alternative Perspectives on National Security. In P.J. Katzenstein (ed.) The Culture of National Security: Norms and Identity in World Politics. New York: Columbia University Press, pp. 1–32.Find this resource:
Keohane, R.O. (1984) After Hegemony: Cooperation and Discord in the World Political Economy. Princeton: Princeton University Press.Find this resource:
Keohane, R.O. (1998) International Institutions: Can Interdependence Work? Foreign Policy 110, 82–96.Find this resource:
Klotz, A. (1995) Norms in International Relations: The Struggle against Apartheid. Ithaca: Cornell University Press.Find this resource:
Koch, C.H. (2003) Envisioning a Global Legal Culture. Michigan Journal of International Law 25, 1–77.Find this resource:
Koh, H.H. (1997) Why Do Nations Obey International Law? Yale Law Journal 106, 2599–659.Find this resource:
Koh, H.H. (1998) The 1998 Frankel Lecture: Bringing International Law Home. Houston Law Review 35, 623–81.Find this resource:
Koh, H.H. (2005) Internalization Through Socialization. Duke Law Journal 54, 975–82.Find this resource:
LeBel, L., Honourable Justice Mr., and Gonsalves, A. (2006) Comments on the Integration of International Law into the Canadian Legal System. International Law and Litigation for U.S. Judges, Federal Judicial Center, American Society of International Law. At www.fjc.gov/public/pdf.nsf/lookup/Intl0616.pdf/$file/Intl0616.pdf, accessed Jul. 28, 2009.Find this resource:
Leigh, M., and Blakeslee, M.R. (eds.) (1995) National Treaty Law and Practice. Washington: American Society of International Law.Find this resource:
March, J.G., and Olsen, J.P. (1998) The Institutional Dynamics of International Political Orders. International Organization 52 (4), 943–69.Find this resource:
Mitchell, S.McL., and Powell, E.J. (2007) The International Court of Justice and the World’s Three Legal Traditions. Journal of Politics 69, 397–416.Find this resource:
Moravcsik, A. (1997) Taking Preferences Seriously: A Liberal Theory of International Politics. International Organization 51 (4), 513–53.Find this resource:
Morgenthau, H. (1985) Politics among Nations: The Struggle for Power and Peace, 6th edn. New York: Knopf.Find this resource:
Powell, E.J., and Wiegand, K.E. (2009) Legal Systems and the Peaceful Resolution of Territorial Disputes. Conflict Management and Peace Science 26 (5), 1–22.Find this resource:
Ratner, S. (2000) Does International Law Matter in Preventing Ethnic Conflict? New York University Journal of International Law and Politics 32, 591–680.Find this resource:
Raustiala, K. (2005) Form and Substance in International Agreements. American Journal of International Law 99, 581–614.Find this resource:
Raymond, G. (1997) Problems and Prospects in the Study of International Norms. Mershon International Studies Review 41, 205–45.Find this resource:
Risse, T., Ropp, S.C., and Sikkink, K. (1999) The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press.Find this resource:
Rose, G. (1998) Neoclassical Realism and Theories of Foreign Policy. World Politics 51 (1), 144–72.Find this resource:
Rosenblum, D. (2006) Internalizing Gender: International Goals, Comparative Realities. Pace University School of Law Faculty Publications. Posted at Digital Commons. At http:/digitalcommons.pace.edu/lawfaculty/55, accessed Aug. 19, 2009.Find this resource:
Simmons, B. (1998) Compliance with International Agreements. American Journal of Political Science 1, 75–93.Find this resource:
Simmons, B. (1999) See You in Court? The Appeal to Quasi-judicial Legal Processes in the Settlement of Territorial Disputes. In P.F. Diehl (ed.) A Road Map to War: Territorial Dimensions of International Conflict. Nashville: Vanderbilt University Press, pp. 205–37.Find this resource:
Simmons, B. (2000) International Law and State Behavior: Commitment and Compliance in International Monetary Affairs. American Political Science Review 94 (4), 819–36.Find this resource:
Simmons, B. (2009) Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge: Cambridge University Press.Find this resource:
Wood, D. (2000) Diffusion and Focus in International Law Scholarship. Chicago Journal of International Law 1, 141–48.Find this resource:
Zartner Falstrom, D. (2006) Thought versus Action: the Influence of Legal Tradition on French and American Approaches to International Law. Maine Law Review 58, 338–76.Find this resource:
Links to Digital Materials
University of Chicago, Foreign Law: Legal Research Resources. At http:/www2.lib.uchicago.edu/∼llou/foreignlaw.html, accessed Aug. 19, 2009. An online resource which provides information on the legal systems of different states. A good place to find the texts of international and domestic legal documents.
University of Ottawa, World Legal Systems. At www.droitcivil.uottawa.ca/world-legal-systems/eng-monde.html, accessed Aug. 19, 2009. A good, basic resource which classifies states by legal tradition and provides basic statistics.
University of Washington School of Law, Legal and Judicial Systems in Countries Around the World. At http:/lib.law.washington.edu/ref/worldsys.html, accessed Aug. 19, 2009. An online resource which provides information on the legal traditions of different states and the different institutional characteristics that might influence the internalization of international law.