Compliance is only what states make it out to be. And in most cases, you don’t know what you’ve got until it’s gone.
For the past few decades, the US has relied on deterrence theory to legitimize its overarching authority around the world. Under the deterrence framework, the US has been a compliant member of the world system. But recently, that authority has been under severe question due to the shifting foundation of the world order towards the establishment of international law. It is important that the US begins to adapt its policies around this development or else they will lose the enormous amount of influence that they have on the current world order. Since this particular type of decline is unprecedented in US history, there is no way of predicting exactly what this could entail.
The modern international law regime is one with an incredibly twisted relationship with deterrence theory, and yet some would argue that deterrence has created a relatively more secure system of international governance. Since the US has maintained a monopoly on nuclear weaponry, no one has attempted to wage a nuclear war knowing that they could never amount to the power of US retaliation. It’s a good system and it has been working. But can anyone honestly say that the US is complying with international law and norms on nuclear nonproliferation?
With the recent expansion of the international law regime (noting the establishment of the ICC in particular), the deterrence system may be reaching its expiration date. States are beginning to openly criticize the US for using deterrence theory as an excuse for unfair regulation, or as the Iran put it “nuclear apartheid” (http://cnsnews.com/news/article/patrick-goodenough/iran-says-it-will-not-accept-nuclear-apartheid). Generally speaking, deterrence and international are working towards the same goal of increasing the cost of non-compliance. However, the two systems cannot exist at the same time. The fact that the US is allowed more nuclear capabilities than Iran is contradictory to the international law doctrine since it does not recognize the equal rights and regulations of both states.
Also, as explained in Price and Tannenwald’s article on Norms and Deterrence, much of the logic that supports deterrence theory is becoming outdated as technology develops (http://people.reed.edu/~ahm/Courses/Reed-POL-359-2011-S3_WTW/Syllabus/EReadings/02.1/02.1.Katzenstein1996The-Culture114-152.pdf). Since World War II, there has been a growing public opinion against the use of nuclear and chemical weapons, but there is really much logic explaining why. As mentioned before, there is little sense in how we have decided who deserves nuclear weapons and who does not, which is a principle characteristic of deterrence. The article also pointed out that there is very little that separates chemical weapons from other types of military tactics. They are all equally devastating and yet chemical weapons are considered illegal and more severe. These norms, in and of themselves, are acceptable due to the fact that public opinion is very rarely entirely rational. However, military policy must rely on rationality if it wishes to maintain its legitimacy in the international system.
International law is a much more rational approach to reacting to norms. This idea has been reciprocated by many leaders of the international legal system, including Chief Prosecutor of the ICC Luis Moreno-Ocampo, who claimed that “‘Experience has taught us that such law is the only efficient way to prevent recurrent violence and atrocities.”(http://www.peace-justice-conference.info/download/speech%20moreno.pdf) A law exists or it doesn’t and that is how we can determine the legitimacy of certain military practices. Norms are often the root cause of establishing law, but they only have legitimate authority when they receive multilateral approval. The system of compliance versus noncompliance becomes much more rational when crimes can be distinguished through legal terminology. The unanswered question, however, is will the US move towards an appropriate response to this shift towards international legal authority?