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10 Nnamdi Azikiwe U. J. Int'l L. & Juris. 1 (2019)

handle is hein.journals/naujilj10 and id is 1 raw text is: NAUJILJ 10 (1) 2019 WHY STATES COMPLY WITH DECISIONS OF INTERNATIONAL HUMAN RIGHTS TRIBUNALS: A REVIEW OF THE PRINCIPAL THEORIES AND PERSPECTIVES* Abstract As the legalisation of international politics gain momentum through growing adoption of multilateral treaties and proliferation of intergovernmental institutions especially administrative and judicial mechanisms for the protection of human rights, one area offocus for scholars ought to be the incentives for states to comply with the norms and standards set by these many bodies. This paper takes the reader down memory lane by reviewing the various theories and perspectives of leading scholars on why states comply with international law with particular focus in the concluding part on why states comply with decisions of international human rights bodies. The paper concludes that while most scholars generally agree that state compliance is driven by instrumental or normative considerations or both, it remains largely contested which of these broad theories account for most acts of compliance by state actors. The paper argues the need for further research specific to each international and regional human rights system as the factors that drive states towards compliance differ from state to state and region to region. Keywords: Theories, State Compliance, International Law, Human Rights Tribunals 1. Introduction International law compliance is generally acknowledged as one of the fastest growing sub-fields of international legal scholarship. However, not many realise that human rights judgment compliance is gradually gaining momentum as the fastest growing sub-division of international law compliance.1 The interest in why states comply with international law may be as old as international law itself. In fact, some scholars have claimed that state compliance may be relied upon as a primary test of the adequacy of international law.2 Oette, for example, argues that compliance and enforcement constitute 'a litmus test for the effectiveness of the international human rights system.'3 Using compliance as a test of the effectiveness of international law and judgments of international human rights tribunals (IHRTs) implies that without a theory of international law compliance, it is impossible to assess the effectiveness of international law and IHRTs. Effectiveness, for this purpose, is defined as the extent or degree to which international law induces the desired change at the domestic level.4 Notwithstanding its importance to the enforcement of international norms, the weight of state compliance as the ultimate goal of international law has been criticized. Howse and Teitel, for example, argued that too much focus on compliance 'obfuscates the character of international legal nonnativity', and the concept of compliance, especially viewed as rule observance, is inadequate for understanding how international law has normative effects.5 The need to reach beyond the compliance optic, *Victor 0. AYENI, PhD, Lecturer, Faculty of Law, Adekunle Ajasin University, Akungba-Akoko, Ondo State. Email: victorayeni7@gmail.com. Phone: +2347066711568. The analysis and arguments in this paper draws from a doctoral thesis completed by the author at the Centre for Human Rights, University of Pretoria, South Africa. 1 R Howse & R Teitel, 'Beyond Compliance: Rethinking Why International Law Really Matters' (2010) 174 New York University Public Law and Legal Theory Working Papers, p.2. For an annotated bibliography of the major works on compliance with international law, see WC Bradford, 'International Legal Compliance: An Annotated Bibliography' (2004) 30 North Carolina Journal of International Law and Commercial Regulation, pp.379-423. 2 See, for instance, AT Guzman, 'A Compliance-Based Theory of International Law' (2002) 90 California Law Review, p.1826; OA Hathaway, 'Between Power and Principle: An Integrated Theory of International Law' (2005) The University of Chicago Law Review, p.473; S Baradaran, M Findley, D Nielson & JC Sharman, 'Does International Law Matter?' (2013) 97 Minnesota Law Review, p.743. I L Oette, 'Bringing the Enforcement Gap: Compliance of States Parties with Decisions of Human Rights Treaty Body' (2010) 16 Interights Bulletin, p.51. 4 See R Murray & D Long, The Implementation of the Findings of the African Commission on Human andPeoples' Rights (Cambridge: Cambridge University Press, 2015) p.29; K Raustiala, 'Compliance and Effectiveness in International Regulatory Cooperation' (2000) 32 Case Western Reserve Journal of International Law, pp.393- 394. ' R Howse & R Teitel (n. 1) p.2. Page 1 1

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