Reputational Capital and the International Criminal Court

by Roger Alford

Guzman’s book is an extremely useful addition to the literature, offering a rational choice explanation for compliance with international law. I think his three Rs of compliance (retaliation, reciprocity, and reputation) accurately reflect the best arguments for why states comply with international law.

But as I was reading the book I was struck by the fact that none of the three Rs really applies with respect to certain multilateral treaties, such as the Rome Statute establishing the International Criminal Court. As you indicate, reciprocity and retaliation are not particularly effective tools in the multilateral context, (pp. 64-68), and there is no reason to think they would be in the specific context of the ICC.

As for reputational sanction, for most states there is a reputational payoff in joining and complying with the ICC, with little to no cost. For the overwhelming majority of states, it is a cost-free treaty because there are no nonreputational payoffs for non-compliance. The only states for which reputational sanction is even possible are those states willing to commit military forces to promote international peace and security. (Rogue states presumably care little about reputational harm). For those states, there is the constant risk that if it signs onto the Rome Statute and engages in any conduct that arguably is a violation, it will have a reputational cost. The calculus may be that it is better to avoid the obligation than suffer the possibility of reputational harm.

You suggest that a sensible model of reputation building cannot lead to the conclusion that Bolivia, a landlocked country, can improve its reputation simply by committing to keep its ports open. (p. 74). But that is exactly the situation for the overwhelming majority of states who have signed the Rome Statute. They enjoy a reputational payoff simply by adhering to and complying with a treaty that costs them nothing.

How so? Reputation is relative, and states sitting on the sidelines enjoy a reputational enhancement for signing onto the Rome Statute as they watch the reputation of states in the theater of conflict diminish for failing to sign. Thus, reputational harm applies not only for violating international law, but also for refusing to be bound by it. Conversely, there is a reputational payoff for consenting to be bound to a high profile, cost-free treaty.

Rather then the reputation of the United States enhanced for its willingness to commit forces abroad to maintain international peace and security and provide collective self-defense, its reputation for compliance with international law is diminished simply for refusing to abide by rules that functionally apply to only a very select group of states. (I of course am not talking about the separate reputational harm to the United States for its misuse of military force, in some cases in violation of international law).

I know that reputation is multi-faceted, and you are focusing on the reputation for compliance with international law. But it seems that the reputation for adherence and compliance to international law are closely connected, or at least more closely connected than you suggest in your book.

http://opiniojuris.org/2008/02/11/reputational-capital-and-the-international-criminal-court/

One Response

  1. Even if the treaty changed nothing about what a country was doing and was costless, reputation interest could lead to signing on with the treaty as the treaty language may be a clearer expression of the obligations complied with then background state practice. Compare Customary IHL and the Geneva Conventions. Trying to think of New York Convention on foreign arbitral awards examples also over the past twenty years. It is not a treaty but maybe the adoption of the UNCITRAL Model Law in Germany and Provinces in Canada and US states is an analogy. Essentially pro-arbitration jurisprudence but a law that makes it clearer that the place is pro-arbitration is of interest to enhance the reputation as a place of arbitration in the New York Convention regime. Sort of like the English Arbitration Act.

    Best,

    Ben

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