International legal compliance as a rational act: theoretical extensions and Chinese realities.

ABSTRACT

The issue of rule conformity in the international arena has attracted considerable academic interest and has generated substantial controversy in recent years. Competing schools of thought have been brought to bear on the subject. The rationalist perspective has remained in the foreground, branching out in new analytical directions. However, as China's rich and noteworthy experience illustrates, this approach does not fully reflect conceptual developments in other scientific disciplines and may be in need of further theoretical broadening and deepening.

I.    Introduction                                              634
II.   Toward a Broader Analytical Framework,                    638
      A Traditional Foundations                                 638
      B. The Relevance of Procedures                            640
      C. Rethinking the Determinants of Human Behavior          640
      D. Beyond the Drivers of Human Action                     643
      E. Adaptation as an Alternative                           644
      F. Expanding the Bases of Adaptation                      649
III.  EMPIRICAL ILLSTRATIONS                                    653
      A Methodological Preamble                                 653
      B. Theoretical Antecedents                                656
      C. Not Self-Interest Alone                                661
      D. Adaptation with Chinese Characteristics                669
IV.   Conclusion                                                675

I. INTRODUCTION

In his masterful analytical survey of the evolution of international legal behavior, Harold Koh has identified four distinct schools of thought regarding the factors that prompt nations to obey international law. (1) The first has Austinian roots and is positivistic realist in its orientation, assuming that compliance never manifests itself because international legal constraints do not qualify as law in the full sense of the term. (2) The second rests on Hobbesian rationalist or utilitarian foundations, acknowledging that adherence to international legal rules does occur at times but in circumstances where it serves the national interest. (3) The third has Kantian underpinnings, viewing compliance as a common phenomenon, inspired by ethical and moral considerations derived from liberal principles of justice and natural law. (4) The fourth may be traced to some process based Benthamian propositions, ascribing the propensity to obey international law to the encouragement and influence of actors with whom the nation is formally and informally engaged over a significant period of time. (5)

Such conceptual approaches, although essentially divergent, partly overlap and selectively share certain pivotal assumptions with respect to the drivers of State action in the international arena. Subsequent attempts at categorization have thus been oriented toward identifying common threads and generating broader clusters. The basis of the resulting classifications has not always been explicit, but the implicit logic has typically been apparent. Two theoretical issues have continuously resurfaced in the relevant academic literature. First, what motivates States to comply with, or disregard, international law? Second, what degree of cohesion should one attribute to the often loosely connected and possibly even conflicted group of agents acting on behalf of the State?

The question of motives has elicited responses that may be placed along a continuum ranging from rationalist or positive to normative or, alternatively, from instrumentalist to non-instrumentalist. The underlying premise at one end of the intellectual spectrum is that States are primarily propelled by self-interest, as the agents who represent them define subject to democratic or other structural constraints. While this need not be the case, the proposition tends to be couched in objective, scientific terms. The opposite argument, found at the other end of the continuum is that the willingness (rather than reluctance) to adhere to international legal rules stems from less parochial, loftier considerations. Again, there are exceptions to the pattern, but it is not unusual for the claim to be expressed in a subjective, moral form. (6)

The subject of cohesion is a source of controversy because members of various camps, not necessarily just of the rationalist variety, conveniently posit that the State is a unitary actor. The corollary is that the policy-making-establishment displays homogenous preferences, is tightly organized, processes information in a uniform fashion, and cannot easily be deflected from its chosen path. This portrayal may not closely correspond to the complex political picture observed at ground level, particularly on the domestic front. Some researchers consequently adopt less restrictive, more elaborate models, paying especially careful attention to institutional intricacies at home that impinge on external State behavior. (7)

Scholarly opinion regarding the merits and demerits of the competing analytical perspectives regarding compliance with international law remains sharply divided, but perhaps asymmetrically so. Rationalist approaches seem to bear the brunt of the criticism, albeit to varying degrees because they differ in several respects. This is due to the fact that the core versions may oversimplify reality to a greater extent than the alternative formulations. Such versions may overlook values altogether or potentially distort them by confining the selection to merely those lying in the material realm, however conceptualized. They may be more parsimonious and transparent than the multi-dimensional and value-rich constructs, yet their sheer narrowness and apparent lack of an ethical compass continue to provoke the ire of unsympathetic commentators. (8)

The notion that fact and value may be neatly separated or that a clear distinction should be drawn between what is (which may be ascertained by scientific means or rigorous reasoning) and what ought to be (a product of a judgment that is a culmination of social opinion-formation processes) has deep roots in Western moral philosophy. (9) However, it has not gone unchallenged in academic circles. (10) The implication is that if rationalists seek shelter in the purely factual domain, or if their detractors see them as embracing this position, the strategy or contention may rest on shaky foundations. The rationalist or positive normative dichotomy may be valid only if looked at through lenses that reflect relative, as distinct from absolute, differences. Facts and values may be observed on both sides of the theoretical divide. (11)

Indeed, rationalism is not devoid of moral underpinnings. Classical utilitarianism has, after all, been the leading ethical school of thought for the past century. Libertarianism, which is of a more recent vintage as a full-fledged branch of moral philosophy, has also exerted considerable influence on the development of social norms. (12) Both approaches have permeated many academic disciplines, including those with a pronounced practical focus (e.g., economics, particularly the public finance sector and welfare components), and have shaped the evolution of public policy in key spheres of government activity and inactivity. They tend to be instinctively associated with the writings of Adam Smith, who is widely but possibly wrongly perceived as the originator of the idea of "economic man":

  It is not from the benevolence of the butcher, the brewer, or the
  Baker that we expect our dinner, but from their regard to their own
  interest. We address ourselves, not to their humanity but to their
  self-love, and never talk to them of our own necessities but of
  their advantages. (13)

As this often misconstrued statement indicates, utilitarians do not refrain from engaging in evaluation, which typically consists of three distinct components. The first is "consequentialism," or the belief that all choices (of actions, institutions, rules, and so forth) must be assessed in terms of the results they generate (i.e., consequences). (14) The second is "welfarism," which specifies that judgments of states of affairs should reflect the utilities in the respective states (when welfarism is combined with consequentialism, an inference is made that every choice must be evaluated according to the utilities it produces). (15) The third is usum-ranking," which requires that the utilities of different parties be summed up to obtain their aggregate merit. (16) These three components yield the classic utilitarian formula whereby every choice is assessed on the basis of the sum total of utilities generated via that choice. (17)

Decisions that follow this exact pattern are deemed to be just, rather than merely efficient, even if that vital distinction is largely semantic. (18) Thus, from a utilitarian perspective, injustice consists in aggregate loss of utility compared with what could have been realized otherwise. The corollary is that an unjust community is one whose members are substantially less happy and fulfilled collectively than they might have been. (19) This is not without merit: the results of social choices are methodically examined and judged and the impact on the well-being of the affected parties is systematically incorporated into the evaluative framework. (20)

Ethical credentials should not be equated with moral invulnerability. Utilitarian calculus omits genuine distributional considerations. (21) By the same token, it is generally oblivious to freedoms, rights, and other non-utility related goals. In addition, it is indifferent to human adaptation and human conditioning--since happiness and fulfillment adjust to changing circumstances, utilitarian logic may be harsh on those who are chronically deprived, in that they tend to come to terms with their predicament, channeling all their energies toward survival, exercising no effective voice, and dramatically lowering their expectations. (22) Still, a flawed ethical system cannot be denied its legitimate moral status.

Libertarians may be even more explicit in their quest for normative prescriptions to underpin social governance. In the ethically demanding work that epitomizes this philosophical genre, it is cogently argued that the "entitlements" people enjoy through the exercise of certain rights, notably those embedded in libertarian principles, cannot generally be overridden because of their results, no matter how unpalatable these may be (a very exceptional exemption is reserved for catastrophic moral horrors," without being carefully articulated and integrated into the overall theoretical

It is apparent that this consequence-independent conception of political priority displays considerable insensitivity to the substantive freedoms that people end up enjoying or not enjoying. It is ethically problematic to embrace seemingly robust procedural rules without paying attention to results, when the latter may have painful and, thus, unacceptable consequences for the lives of those involved. (24) Again, however, the inference to be drawn is not that rationalism, in one form or another, may fall short of furnishing a solid moral foundation, but that it may be inappropriate to portray rationalism as a purely positive intellectual undertaking that lacks a meaningful normative dimension.

That said, one may explore the rationalist approach as an analytical system predicated on certain behavioral assumptions, provided the positive-normative dichotomy is not viewed as an inelastic configuration. (25) The purpose of this Article is to examine whether rationalism may be broadened in order to enhance its effectiveness as a conceptual tool, which can be relied upon to dissect international legal compliance. The approach adopted consists of an examination of the relevant theoretical literature, originating predominantly in economics, and an empirical assessment of the competing strands through a selective scrutiny of the practices of a large country that has historically positioned itself on the global periphery, the People's Republic of China ("PRC"). No attempt is made to present any improved variant of rationalism as having greater explanatory powers than the alternatives or bridge the gap between this school of thought and the competing paradigms.

II. TOWARD A BROADLR ANALYTICAL FRAMEWORK

A. Traditional Foundations

Strictly speaking, at least in the epistemological sense of the term, rationalism refers to any view that invokes reason as a source of knowledge or justification. (26)Rationalism is commonly contrasted with empiricism, which postulates that knowledge is derived from experience, but the two perspectives are not necessarily mutually exclusive. (27) Rationalist writings extend over a wide philosophical range. One offshoot, political rationalism, falls somewhere between realism and internationalism, in that political rationalism contends that the world order is not as anarchic as hypothesized by the former, yet not as fundamentally stable as suggested by the latter. (28)

International lawyers generally do not aspire to make meaningful contributions to the philosophy of knowledge, and any illumination they do provide is mostly indirect in nature. Indeed, some of the research in this area may have weak rationalist underpinnings, assertions to the contrary notwithstanding. Fortunately, rationalism is a broad and elastic school of thought that may, within limits, accommodate different conceptual strands: central and peripheral, convergent and divergent. International legal scholarship reflects this diversity and flexibility when addressing State compliance and related issues. (29)

Thus, in one comprehensive survey of the theoretical literature, three distinct approaches (realism, institutionalism, and liberalism) are identified with the rationalist tradition. The underlying logic is that these three approaches regard States' attitudes toward international law as essentially the product of self-interest. There is also a tendency to assume, for analytical purposes, that States are homogenous entities, but the unitary actor premise is not universally shared (liberalism departs from the consensus in this respect by opting for a highly heterogeneous configuration, mirroring the complexity of domestic politics in polyarchical settings). (30)

Other permutations are possible since, as indicated, this is not a rigidly delineated territory, but one with elastic internal and external boundaries. A decision regarding inclusion and position in the cluster hinges on the criteria employed. An adherence in some form to Hobbesian or utilitarian principles remains the most prominent yardstick. This constitutes the point of departure, explicitly or implicitly, for rationalist conceptions of international legal behavior. Even so, this departure is not always readily recognizable when the intellectual journey enters more mature phases. In this case, and in other academic domains, welfarism serves as a descriptive, positive, and normative tool. States and actors in the international arena generally are viewed as self-oriented utility maximizers.

B. The Relevance of Procedures

Welfare economics, whether in its positive or normative form, is no longer exclusively concerned with outcomes. Processes are deemed increasingly relevant in this context. Indeed, libertarianism leans decisively toward that side of the picture, (31) and utilitarian theories of justice accord attention to both. (32) The notion that processes may serve as a source of happiness or fulfillment is now generally accepted by economists. (33) An understandable paradox occurs in the field of international law. Normatively inclined students of compliance are more likely to embrace processes consciously or subconsciously than their rationalist counterparts. This notwithstanding, the idea of procedural or process utility may be added to the latter's analytical toolbox.

The assumption that agents pursue self-interest with dogged determination is the cornerstone of the neoclassical economic model that underpins rationalist formulations in the international legal domain. Initially, the focus was on happiness (or mental satisfaction, pleasure, and so forth), but it has subsequently shifted to the fulfillment of desire (or some kind of representation of an agent's choice behavior) (34) It remains controversial whether utility maximization is invariably a selfish act. There are many critics, both outside and within economics, who argue that utility maximization inevitably is selfish and that the neoclassical model grossly distorts motivational patterns. (35)

C. Rethinking the Determinants of Human Behavior

Besides offering misgivings, the critics have proposed specific alternatives to the homo economicus, or economic man, construct. Thus, homo communicant is a type that engages in a search for the substantive "right" by offering arguments in public and by entering into a dialogue with other parties whose preferences he hopes to alter via superior reasoning. (36) Homo equals, on the other hand, is eager to reduce inequality. (37) Similarly, homo parochius consistently splits the world into insiders and outsiders. (38) Finally, homo reciprocans displays a propensity to cooperate and share with others who exhibit such tendencies--even at a personal cost--and a willingness to take punitive action against those who violate cooperative and complementary social norms, even if this has adverse personal consequences. (39)

Non-mainstream economists underscore the prevalence of the fifth type. (40) They marshal evidence, primarily from socio-psychological experimental settings, supporting the contention that the homo reciprocans model is firmly grounded in reality. (41) The empirical work economists have conducted in this area strongly suggests that rules of reciprocity are consistently observed in public goods and ultimatum games. (42) In games that fall into the former category, homo reciprocans' characteristics manifest themselves visibly, but interestingly to varying degrees, in that the participants ("norm-using players," "conditional cooperators," and "willing punishers") do not engage in reciprocal acts in a uniform fashion. (43)

The trust that builds up in ongoing social relationships may be a potent force. For example, social scientists have noted that trust may induce cooperation in games where the Nash equilibrium (44) is defection. (45) In such circumstances, it is apparently common for those involved to forgo the gains of (sudden) defections if there is enough trust in the participants' willingness to cooperate. (46) Again, the picture is not undifferentiated. Some types or subtypes are more trustworthy than others. Some have been able to establish a reputation of trustworthiness while others are viewed as less honest. This seems to influence patterns of cooperation and reciprocity. (47)

The new conceptualizations of human decision-making have not permeated all relevant academic disciplines to the same extent. Collective entities, such as States, may display different behavioral characteristics than individuals who are featured in revamped microeconomic theories and supporting socio-psychological experiments. (48) The revisionist challenge to the neoclassical notion that self-interest is the exclusive or--less restrictively--the principal determinant of human action has nevertheless been considerable both in and outside the field of economics. Some economists have gone as far as suggesting that this neoclassical notion should be abandoned altogether or, better still, properly reinterpreted as being …