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19 Aust. YBIL 35 (1998)
Beyond "Compliance": Reconceiving the International Law-Foreign Policy Dynamic

handle is hein.journals/ayil19 and id is 39 raw text is: Beyond Compliance: Reconceiving the International Law-Foreign Policy Dynamic Shirley Scott* One of the issues central to assessing the political efficacy of international law is the nature of the relationship between international law and policy at the State level. Do questions of international law play an integral part in the formation and implementation of foreign policy or are legal advisers rarely consulted and their advice not usually heeded when major decisions are made? The role of international law in the formation and conduct of foreign policy is usually addressed in studies of compliance, the implicit goal of which is to ascertain how best to promote compliance with international law.1 This article uses case studies of the role played by international law in the formation and conduct of Australian foreign policy regarding marine resource issues between 1930 and 1960 to demonstrate the limitations of any explanation of the foreign policy-international law relationship grounded in the concept of compliance. Drawing on a theorisation of international law as ideology, it suggests that we need to move beyond the compliance concept if we are to reach the best possible understanding of the international law-foreign policy dynamic. International Law and Foreign Policy Views as to the importance of international law for the making, and outcomes, of foreign policy decisions differ widely, reflecting broad theoretical traditions. The vast majority of international lawyers would accept the legal positivist assumption that decision-makers should take international law into account Lecturer in International Relations, School of Political Science, University of New South Wales, Sydney. This is a modified version of a paper presented at Wealth, Security and Survival: Implementation, Compliance and Enforcement in International Law, a conference organised jointly by the Australian and New Zealand Society of International Law and the New Zealand Branch of the International Law Association, held at the Law School, Victoria University of Wellington, 8-10 July 1999. 1 There is a considerable body of literature on compliance with international law, produced both by scholars of international law and of international politics. Some of the 'classic' contributions include: L Henkin, How Nations Behave: Law and Foreign Policy (1968) and R Fisher, Improving Compliance with International Law (1981). Influential in recent years have been T Franck, The Power of Legitimacy among Nations (1990) and A and AH Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1995). A substantial amount of recent literature on compliance focuses on international environmental law: see eg, J Cameron, J Werksman and P Roderick (eds) Improving Compliance with International Environmental Law (1996) and E Brown Weiss and HK Jacobson, Engaging Countries: Strengthening Compliance with International Environmental Accords (1998).

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