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By word, not deed: advancing a theory of rhetorical compliance in international law

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By word, not deed: advancing a theory of rhetorical compliance in international law

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Content Copyright 2022 Kyle Rapp

By Word, Not Deed:

Advancing a Theory of Rhetorical Compliance in International Law

by

Kyle Rapp

A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILSOPHY
(POLITICAL SCIENCE AND INTERNATIONAL RELATIONS)

August 2022

ii

Acknowledgements

Writing a dissertation is, to put it simply, a challenging affair. It is also an affair that, while often
solitary in its execution, depends on community and I consider myself incredibly fortunate for
the fantastic community that has assisted, supported, and encouraged me throughout this process.

First, I owe an immense debt to my excellent committee. Good advisement is an incredible thing
and I have been fortunate to benefit from the help of three fantastic scholars. Patrick James, who
always offered enthusiastic support and feedback while challenging me to consider perspectives
from across international relations. Sofia Gruskin, who was always willing to offer an
introduction or help me make a connection while providing fantastic insights into law and policy.
Finally, I have been benefited from the ongoing mentorship and guidance of my fantastic advisor
– Wayne Sandholtz – whose encouragement, feedback, and support was integral to making this
all possible.

As well as my committee, I would like to thank the USC Political Science and International
Relations community. In particular, I would like to thank Kelebogile Zvobgo for helping guide
me through the process of starting the PhD and being an incredible source of support throughout
the project, Edward Gonzalez for always being willing to trade drafts or talk through theoretical
puzzles, and Paul Orner for endless help with R Studio and an excellent friendship that extends
far beyond that. To the rest of the 2017 USC POIR cohort – thank you all for your friendship and
for creating a cohort atmosphere that combined academic excellent with genuine kindness and
fun. Similarly, to POIR graduate program, students and faculty, who created an productive
environment for research and learning – in classes, workshops, and casual conversations in the
Data Science Lab.

To everyone at the Amsterdam Center for International Law – thank you for providing an
excellent environment to work on the third chapter of this project. In particular, I would like to
thank Ingo Venzke and Geraldo Vidigal, as well as my fellow Visiting Research Fellows –
Sabrina Schäfer, Roland Klein, Merve Sizer, Michal Swarabowicz and Rita Guerreiro Teixeira
as well as everyone who participated in the Research Luncheon. Your comments contributed
immensely to the depth of this project, providing valuable insights from law and legal studies.

This project has further benefited from feedback and advice from countless conferences,
workshops, and seminars. To everyone who has read a draft of a paper, listened to a conference
presentation, or chatted about ideas over a coffee – thank you. This project is richer for your
involvement. I would like to recognize in particular the USC Center for International Studies
which provided, at various times, research funding and feedback opportunities. Similarly, I am
fortunate to have participated in the Institute for Qualitative and Multi-Method Research (IQMR)
and the Essex Summer School in Social Science Data Analysis and this project has benefit
immensely from the skills I developed in both programs.

I would not have been able to write this project without the support and guidance of those who
taught and mentored me before the start of my PhD program, as well. I owe a debt of gratitude to
the School of Politics and International Relations at University College Dublin, where I first
began to think of myself as a political science. I would like to thank Alexander Dukalskis in
iii

particular for his mentorship throughout the graduate school application process and in guiding
me through my MSc thesis, the theory of which greatly informed the work that I am presenting
here. I also owe a thank you to Matthew Moore and R. J. Stansbury for their guidance and
teaching at Roberts Wesleyan College which helped to spark my interest in political science and
international relations.

While it may seem like an odd acknowledgment, I also cannot deny that this dissertation would
not have come together in this way without political science Twitter. As a way of meeting
colleagues and collaborators or to connect with graduate students and faculty at other
universities, those digital connections have been central to my graduate school and dissertation
writing experiences.

Finally, I owe a debt of gratitude and thanks to many people outside of political science for their
friendship, love, and encouragement throughout this project and throughout years of graduate
study. To my family, for encouraging me and celebrating with me even when I wasn’t fully able
to explain what my research was about or what academic publishing is like. To Carissa – my
incredible fiancé and soon-to-be wife for supporting and encouraging me through failures and
successes, for listening to my late night research rants and ramblings – especially when COVID
meant that our small studio apartment also because an office and classroom, and for always
helping me stay grounded and aware. And, of course, a special thank you to Mr. Scruffles, the
best furry Lab Manager a graduate student could ever hope to work alongside.

P.S. – Music has also been central to this process, providing – at different times – comfort,
encouragement, distraction, or the soundtrack for celebrations. I do not know if a dissertation
acknowledgements playlist is considered normal or appropriate, but here is one anyways where
each song was chosen for its personal connection to this project.

https://open.spotify.com/playlist/4T6LjzFMYkksmN7BGo8iTI?si=99a5ddb6a8e448d8

iv

Table of Contents

Acknowledgements ii
List of Tables vi
List of Figures vii
Abbreviations ix
Abstract x

Chapter 1 - By Word, Not Deed 1
Introduction 1
International Legal Compliance in International Relations 6
Theories of Compliance 7
How Do We Understand Compliance 7
How Do We Measure Compliance 12
Theories of Rhetoric 13
Cheap Talk 13
Persuasion 14
Coercion 16
A Theory of Rhetorical Compliance 20
Law as a Tool, Not Restraint 21
This Dissertation 23

Chapter 2 - A Theory of Rhetorical Compliance 29
Introduction 29
Compliance as a Scope 32
Contested by Whom? 35
States 36
International Organizations 38
(International) Non-Governmental Organizations 40
Mechanism 42
Arguing in the Court of Public Opinion – The Role of the Public 50
Words, Not Deeds: Implications of Rhetorical Compliance 52

Chapter 3- Constructing Compliance: Drafting the 1949 Geneva Conventions 56
Introduction 56
Getting to Geneva: A Brief Overview of the Drafting of the 1949 Geneva
Conventions
60
Constructing Compliance in Treating Drafting 63
Methodology & Data 67
Situating Geneva – 50 Years of Change 72
Hostage Taking: Constructing an Absolute Prohibition from a Weak Ban 79
Constructing Compliance: Claims of Legality and Morality 82
Discussion 87
Conclusions 89

Chapter 4 – Contesting Compliance: Legal Rhetoric and the Universal Periodic Review 93
v

Introduction 93
The Universal Periodic Review 96
Contesting Compliance Claims 100
Theory and Expectations 103
Data and Methodology 106
Coding Legal Recommendations 110
Analysis 112
Discussion 121
Conclusions 123

Chapter 5 – Claiming – and Constructing – Compliance: Use of Force Justifications and
the Functioning of Compliance Contests
127
Introduction 127
Legal Justifications for Military Force 130
Theory 133
Case Justification and Methods 137
The Syrian Civil War 143
The Syrian Civil War and the 2018 Coalition Strikes in Syria 143
Coalition Compliance Claims 147
Compliance Contestations 149
The Compliance Contest 153
Tentative Compliance? 157
The Kosovo War 160
1999 NATO Intervention in Kosovo 160
NATO’s Compliance Claims 162
Compliance Contestations 165
Compliance Contest 166
Tentative (Non)Compliance? 169
Analysis 171
Conclusions 174

Chapter 6 – Words and Deeds: Rhetoric, Compliance, and the Nature of International
Law
176
Revisiting Rhetorical Compliance 176
Summarizing the Argument 178
Implications for International Relations and International Law 180
Future Work 184
Closing Thoughts 187

Bibliography 189

Appendices 221
Appendix 1 – Chapter 3 221
Appendix 2 – Chapter 4 222
vi

List of Tables

Table 1: Types of Argumentative Outcomes 20
Table 2: Nearest Neighbor for Hostage Taking 81
Table 3: Types of Claims Related to Hostage Taking 84
Table 4: Demandingness of Recommendations 106
Table 5: Responses 113
Table 6: General Legal Coding 113
Table 7: Ternary Legal Coding 113
Table 8: Logistic Regression, All Recommendations 114
Table 9: Logistic Regression, Category 5 Recommendations 119

vii

List of Figures

Figure 1: Illustration of a Changing Compliance Spectrum 34
Figure 2: A Visual Theory of Compliance 46
Figure 3: Cluster Dendrogram of the 1899/1907 Hague Conventions and the 1949
Geneva Conventions
73
Figure 4: Relative Frequency Analysis of the 1899/1907 Hague Conventions and 1949
Geneva Conventions
75
Figure 5: Related Keywords – Civilian 76
Figure 6: Related Keywords – Prohibition 78
Figure 7: Probability of Acceptance, Binary Legal Coding (Model 7) 116
Figure 8: Probability of Acceptance, Ternary Legal Coding (Model 8) 117
Figure 9: Probability of Acceptance, Binary Legal Coding Cat 5 (Model 3) 118
Figure 10: Probability of Acceptance, Ternary Legal Coding Cat 5 (Model 4) 119

viii

Abbreviations

CIL Customary International Law
FRY Federal Republic of Yugoslavia
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social, and Cultural Rights
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the Former Yugoslavia
IGO International Governmental Organizations
IL International Law
ILC International Law Commission
KLA Kosovo Liberation Army
NATO North Atlantic Treaty Organization
NGO Non-Governmental Organization
NHRI National Human Rights Institution
OAF Operation Allied Force
SuR State Under Review
UN United Nations
UNGA United Nations General Assembly
UNHRC United Nations Human Rights Council
UNSC United Nations Security Council
UPR Universal Periodic Review

ix

Abstract

What does it mean to comply with international law? While the role and effect of international
law on politics has received considerable attention, this question remains central to
understanding its effect. While most scholarship takes the position that compliance is a matter of
behavior – an actor fulfills or fails its obligations discreetly through its actions – this dissertation
argues that compliance cannot be understood as a binary condition and that rhetoric is at least as
important, if not more important, than behavior in determining the meaning of compliance.
Drawing on theories of rhetoric and argumentation, this dissertation advances a new theory of
compliance with international law, one which highlights the indeterminacy of many legal rules
and the ways that actors create and contest this contested middle ground through the use of
rhetoric and argumentation. By claiming compliance and contesting the compliance claims of
others, actors shape the meaning of compliance through the strategic use of legal arguments. This
dissertation applies a mixed-methods approach to explore how actors create meanings of
compliance, how these meanings are open to interpretation, and how rhetoric and argumentation
are used to contest these interpretations.

1

Chapter 1
By Word, Not Deed
Introduction
What does it mean to comply with international law? At first glance, this appears to be a
simple question. One complies with – or obeys – international law (IL) by aligning their behavior
to match its requirements. Indeed, this is the common definition of compliance in international
relations and IL – the “conformity of behavior to rules.”
1
But what does it mean for a behavior to
conform to a rule? Typically, it is assumed that behaviors are either compliant (acceptable) or
non-compliant (unacceptable). For example, if a state has ratified a human rights treaty
compliance would require respecting the rights included in it. Noncompliance, then, would result
from violating those rights. Indeed, this is the approach taken by much of the scholarship on
compliance.
However, this ‘behavioralist’ understanding of compliance, which compares an action to
a fixed legal standard and sees compliance as a binary of compliance or noncompliance, is
insufficient as it ignores the fundamentally contestable nature of many – if not most – legal
standards. Instead, compliance – especially in IL – is a product of rhetoric and argumentation, a
process that allows actors to create a contested middle ground where multiple actions may be
justified as compliant or noncompliant. As an example, while war for the express purpose of
territorial conquest violates the IL on the use of force, what about the use of force to prevent an
ongoing genocide? Whether humanitarian intervention complies with or breaches international
law is far from settled. What matters is how actors use arguments to construct claims of
compliance – arguing that their actions align with the law – and how other actors contest – or

1
Beth Simmons, “Compliance with International Agreements,” Annual Review of Political Science 1, no. 1 (June
1998): 78, https://doi.org/10.1146/annurev.polisci.1.1.75.
2

respond to – these claims. These arguments determine if, in a particular case, an act may be
accepted as compliant by at least some actors.
Recognizing this fact of law – that it is often open to interpretation, due to its "open
texture"
2
– is necessary for a full accounting of what compliance means. Any law, no matter how
narrowly defined, depends on interpretation. This scope, or penumbra of uncertainty, may vary
widely between laws depending on their content and language, but it is within this that “the
judge must choose.”
3
Indeed, interpretation is how judges in a domestic case come to determine
if a has been complied with through the process of judicial discretion, a recognized process in
domestic law.
4
As Fairman noted almost a century ago, when discussing the United States
Constitution, “In spite of all the talk of its ‘true meaning and intent’ the only meaning that counts
is that given to it by the Judges.”
5
Law only has meaning, then, in its application and
interpretation – without a process to decide what the law means, when it is applied, it cannot
function. In domestic cases, then, focusing on behavior as the determinant of compliance may
make some sense as courts may provide an authoritative determination of what the law requires
in cases where its precepts are broad or opaque, establishing a clear behavioral requirement
whose fulfillment we may then analyze.
6
Internationally, these conditions may be met in some
situations as well, where compliance may mean fulfilling the requirements of an authoritative
tribunal or court. In these cases, it may be clear(er) if a behavior complies with the law since

2
H.L.A Hart, The Concept of Law, 2nd ed., Clarendon Law Series (Oxford: Oxford University Press, 1994), 109,
204.
3
Ibid., 12.
4
Ibid., 272–76.
5
Charles Fairman, “The Interpretation of Treaties,” Transactions of the Grotius Society 20 (1934): 125.
6
It is important to note, however, that Court’s do not ‘end’ the process of contestation. A Court’s decision still
requires interpretation, and its decision only weighs on future cases through processes of interpretation. That is,
Courts may limit the scope of compliance – making it easier or harder to justify certain behaviors – but they cannot
close down the entire realm of contestation. Instead, their decisions may become sites of future contestation, or be
used as tools in future compliance contests, with actors drawing on those references to justify their behaviors.
3

there is a body whose express purpose is to interpret the rules. However, even in these cases,
there is still interpretation. While a judicial decision may clarify the nature of the law and what it
requires, the text of the judgment itself is still that – a text – which may be interpreted and
contested.
But what about the many situations in IL where behaviors are not subject to authoritative
adjudication, when there is no court to interpret what the law requires? In those cases the “open
texture of the law”
7
is left just that – open, its ambiguity left unresolved. Indeed, this ambiguity
is “intrinsic to the structure and practice of international law.”
8
But for claims of compliance or
noncompliance, there must be a way to resolve this or at least attempt to. Indeed, the law is not
left "open" but instead the quasi-legislative power of interpretation – by the very actors who
made the law and are subject to it – works to close it.
9
Approaches that try to narrowly categorize
behavior as compliant or noncompliant, without accounting for the open texture of the law or its
penumbra of uncertainty, fail to address the complex and often unclear nature of legal
requirements, falsely assuming that behavioral expectations are clear and that they provide a
standard for measuring compliance.
There are at least three distinct reasons why it is necessary to recognize the rhetorical
nature of compliance in IL. The first is that, while in some cases there may be authoritative
standards for determining compliance, many cases depend on how actors apply and use the
language of law to interpret its text in their favor. Over time, this may even shape the
authoritative standards of compliance, narrowing the range of uncertainty in the law – or
increasing it, depending on how the law is interpreted. As such, actors construct the meaning of

7
Hart, The Concept of Law, 204.
8
Anne Orford, International Law and the Politics of History (Cambridge: Cambridge University Press, 2021), 178.
9
Hart, The Concept of Law, 96–99.
4

compliance through how they contest behaviors as being compliant or noncompliant. Focusing
on the rhetorical nature of compliance helps us understand how legal meaning develops and
changes and how standards of appropriateness change over time.
Secondly, recognizing the open and interpretable nature of IL illuminates how and why
actors use legal claims, references, and arguments in international relations. These claims may
reflect honest beliefs about the nature of the law, but they may also be used strategically to create
meanings of compliance that best suit an actor’s preferences. More fully realizing the
interpretable nature of IL may allow for deeper understandings of these strategic processes,
highlighting how and why states make legal claims and why the legality of certain behaviors
may remain opaque over time. Actors do not just speak about law because it is strategically
helpful in the moment– although it often is – but because they also hope to shape how the law is
applied and interpreted in the future. In short, when invoking and contesting the law, actors are
engaged in an ongoing process of lawmaking.
Finally, recognizing that many legal standards are contested raises theoretical and
methodological questions for how compliance is studied in international relations. If behavior
cannot be used to determine compliance – at least not without closer attention to the rhetoric
used to justify the behavior and how these claims were accepted – what challenges might this
pose for studies making use of binary measures or conceptions of compliance in international
relations? Even more nuanced measures that apply strictly behavioral concepts as reflecting
compliance or noncompliance – like, for example, human rights research which uses practices to
reflect compliance – may oversimply the meaning of compliance by ignoring how 'non-
compliant' practices may, in fact, be made compliant through rhetoric – like, for example, claims
of derogations or emergency measures. Focusing on the rhetorical nature of compliance, in
5

contrast, calls our attention to a more fluid understanding of the law. We are reminded that
behaviors may fulfill the letter of the law without fulfilling the spirit and that compliance often
cannot be the gold standard of improvement. Methodologically, this challenges behavioral
measures of compliance, raising two important questions – what are we measuring when we
measure behavior and how can we measure compliance? To the first question, I argue that while
we are measuring behavioral changes, these changes may tell us little about the legality of the
behavior or the role of law. Measuring a change in a behavior – for example, a human rights
practice – does not necessarily tell us if a human rights law is being complied with. An actor may
be able to justify their stagnant behaviors as compliant, framing the steady behavior as fulfilling
a plausible interpretation of what the law requires. Indeed, it may even be possible to justify a
worsening human rights situation as fully compliant with an actor’s legal obligations, for
example by invoking claims of emergency and necessity to derogate from an obligation. A
strictly behavior focus cannot account for this. To the second, I do not offer a firm answer –
doing so is beyond the scope of this dissertation – but would call attention to the growth of
language and rhetorical studies in international relations as a fruitful avenue for more
meaningfully measuring compliance, by focusing on how it is created through claims and
counterclaims.
So then, if compliance is not a binary condition – or even a strictly behavioral one – how
should it be understood? To this end, I propose a dynamic model of compliance as the range of
actions that may be justified as 'compliant' at a given moment. Actors – through rhetorical claims
and social interactions – construct and redefine this range of ‘compliant’ actions. This is because,
through ongoing rhetorical contests, actors can move the bounds of compliant behavior, either by
narrowing the range and forbidding some actions or by extending the range to make other
6

behaviors compliant. Put another way – without 'judges' in international relations, it often comes
down to a range of actors – political and legal – to expand or constrict the law’s “penumbra of
uncertainty”
10
through rhetorical contestation and social interactions.
11
This approach focuses on
“international law as an argumentative process”
12
where its meaning and effect are determined by
how it is used and contested by a range of politically motivated actors.
International Legal Compliance in International Relations
This project begins with a brief review of the research on international legal compliance,
in particular theoretical work on how compliance is understood and what it is taken to mean.
However, there is also a brief discussion on the empirics of compliance. In particular, recent
work has paid significant attention to how we may measure compliance in international relations.
While this scholarship may offer useful insights into state behavior, I argue that it emphasizes the
shortcomings in current theories of compliance. Finally, there is a brief discussion of the nature
of law – as either a constraint or an empowering tool used to justify action.
After that, given the rhetorical nature of compliance – as a status that is constructed and
created by actors – there is a brief overview of the literature on rhetoric and argumentation in
international relations. In particular, I identify three main schools of thought – cheap talk,
persuasion, and coercion, before situating this theory of rhetorical compliance within the
rhetorical coercion tradition.

10
Ibid., 12.
11
Wayne Sandholtz, Prohibiting Plunder: How Norms Change (Oxford: Oxford University Press, 2007), chap. 1.
12
Orford, International Law and the Politics of History, 182.
7

Theories of Compliance
How do we understand compliance?
As previously noted, dominant theories of compliance in international relations focus on
the idea of a behavior conforming with a rule. Noncompliance, then, is the opposite – when an
actor's behavior deviates from what a rule prescribes.
13
The mechanisms behind the behavioralist
understanding of compliance may then fall into one of four camps – the realist, rationalist or
institutionalist, domestic regime type, and the normative.
14
While these different approaches
agree on the meaning of compliance, they vary in what they see as the reasons why actors
comply.
The realist approach emphasizes strategic interaction between actors who are focused on
costs and benefits. As such, actors are assumed to be focused on maximizing their benefits and
reducing their costs, and negotiate international legal structures that they believe will help them
achieve this.
15
Compliance with these laws, then, is a statement of their material value. Actors
‘comply’ with the law insofar as it is to their benefit. So, while “almost all nations observe
almost all of their obligations almost all of the time,” this is not a reflection of some belief in the
law’s rightness or oughtness but is instead a result of the law reflecting what actors desired
anyways.
16
All state action, and in these approaches the focus is overwhelmingly the state, is
driven by the overriding concern of the ‘national interest.’
17

13
Oran Young, Compliance and Public Authority: A Theory with International Applications (Washington, D.C.:
Resources for the Future and Johns Hopkins University Press, 1979), 104–5.
14
Markus Burgstaller, Theories of Compliance with International Law (Leiden, Netherlands: Brill, 2004), 95;
Simmons, “Compliance with International Agreements,” June 1998, 76.
15
Burgstaller, Theories of Compliance with International Law, 96–99.
16
Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed. (New York, NY: Council on Foreign
Relations, 1979), 47.
17
Burgstaller, Theories of Compliance with International Law, 96.
8

The rationalist approach, in contrast, sees a greater possibility of inter-state compliance
and theorizes that states may come together to create institutions that may improve cooperation
and alter incentives. In this way, rationalist approaches share the same underlying assumption of
state behavior – the focus on the national interest – as realist approaches.
18
States continue
complying with their institutional commitments because they expect that violating them would
increase costs in the future, meaning that continue compliance is in their best interests.
19
The fact
that so much of this takes place in the rhetoric of law and compliance may reflect law’s status as
an ‘obligatory language,’ useful for coordination but reflecting no genuine agreement with the
law in question.
20
This approach has led to a fruitful research program studying how actors create
institutions to address cooperation problems and what makes actors more or less likely to
‘comply’ with these institutions.
21
Central to this understanding is the idea of reputation – actors
maintain institutions and uphold agreements because reneging would harm their reputation and
increase future costs.
22

This focus on reputation may even result in, according to these theories, a ‘bad faith
compliance’ where actors behave in a way that is supposed to falsely look like compliance while,

18
Simmons, “Compliance with International Agreements,” June 1998, 80.
19
Robert Keohane, “Rational Choice Theory and International Law: Insights and Limitations,” The Journal of Legal
Studies 31, no. S1 (January 2002): S307–19, https://doi.org/10.1086/340089; Robert Keohane, After Hegemony:
Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984).
20
Jack L. Goldsmith and Eric A. Posner, “Moral and Legal Rhetoric in International Relations: A Rational Choice
Perspective,” The Journal of Legal Studies 31, no. S1 (January 2002): S115–39, https://doi.org/10.1086/340087.
21
Barbara Koremenos, The Continent of International Law (Cambridge: Cambridge University Press, 2016);
Barbara Koremenos, “The Continent of International Law,” Journal of Conflict Resolution 57, no. 4 (August 2013):
653–81, https://doi.org/10.1177/0022002712448904; Barbara Koremenos, Charles Lipson, and Duncan Snidal, “The
Rational Design of International Institutions,” International Organization 55, no. 4 (2001): 761–99,
https://doi.org/10.1162/002081801317193592; Andrew Guzman, How International Law Works: A Rational Choice
Theory (Oxford: Oxford University Press, 2008).
22
Guzman, How International Law Works: A Rational Choice Theory; Koremenos, The Continent of International
Law, 2016; Beth Simmons, “International Law and State Behavior: Commitment and Compliance in International
Monetary Affairs,” American Political Science Review 94, no. 4 (December 2000): 819–35,
https://doi.org/10.2307/2586210.
9

in reality, being a violation.
23
This understanding focuses on an idea of the 'spirit of the law' and
that this bad faith compliance, while arguably fulfilling the textual purpose of the law, violates
some deeper meaning. As such, it may result in a "false positive" where non-compliant behavior
may be taken as compliant.
24
While this approach to problematizing compliance is helpful in that
it challenges the idea of binary compliance, I argue that what might be considered 'bad faith
compliance' is instead contested compliance, reflecting an area of the law where some claims of
compliance may be criticized by some actors while retaining support from another group of
actors. Furthermore, this condition often does not occur by accident but is the deliberate result of
social contests in the lawmaking and law-using processes.
Domestic regime theories of compliance argue that the nature of democratic states makes
them more likely to comply with international law. This may result from international standards
becoming incorporated into domestic law, increasing pressure on government actors.
25

International law may also pressure or motivate domestic groups to push for greater compliance.
For example, significant areas of research have focused on the role of NGOs in pressuring states
to fulfill international obligations.
26
In keeping with the realist and rationalist approaches that

23
Zoltán Búzás, “Evading International Law: How Agents Comply with the Letter of the Law but Violate Its
Purpose,” European Journal of International Relations 23, no. 4 (2017): 857–83.
24
Ibid., 858.
25
Xinyuan Dai, “Why Comply? The Domestic Constituency Mechanism,” International Organization 59, no. 02
(April 2005): 363–98, https://doi.org/10.1017/S0020818305050125; Zachary Elkins, Tom Ginsburg, and Beth
Simmons, “Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice,”
Harvard International Law Journal 54, no. 1 (2013): 61–95; Beth Simmons, Mobilizing for Human Rights:
International Law in Domestic Politics (Cambridge, UK: Cambridge University Press, 2009).
26
Margaret E. Keck and Kathryn Sikkink, “Transnational Advocacy Networks in International and Regional
Politics,” International Social Science Journal 51, no. 159 (March 1999): 89–101, https://doi.org/10.1111/1468-
2451.00179; Thomas Risse, Steve Ropp, and Kathryn Sikkink, The Power of Human Rights: International Norms
and Domestic Change (Cambridge, UK: Cambridge University Press, 1999); Courtney Hillebrecht, “The Domestic
Mechanisms of Compliance with International Human Rights Law: Case Studies from the Inter- American Human
Rights System,” Human Rights Quarterly 34 (2012): 959–85; Andrew P. Cortell and James W. Davis, “How Do
International Institutions Matter? The Domestic Impact of International Rules and Norms,” International Studies
Quarterly 40, no. 4 (December 1996): 451, https://doi.org/10.2307/2600887.
10

were previously discussed, this school of thought hinges on the same broad idea of what
compliance is, which is to say a matter of behaviors aligning with a standard.
Finally, normative approaches to compliance theorize that normative concerns – concerns
over the appropriateness of an action – may directly shape an actor's preferences.
27
As such,
compliance is driven by a sense of moral or ethical obligation, an ‘oughtness’ associated with the
standard.
28
Actors voluntarily comply with the law when it becomes legitimate as doing so is
central to their identity.
29
Given the role of legitimacy in compliance, normative work on
international legal compliance often focuses on studying how standards become created and
legitimized.
30
As will be discussed more later, these approaches to compliance draw heavily on
scholarship that examines persuasion and socialization as the ways by which actors become
convinced about the legitimacy of a law, which points the way towards an understanding of the
importance of language and contestation in understanding compliance.
Expanding on these approaches to understanding why actors comply with international
law, some scholars have called for a behavioralist turn. It is important to note that this is not –
strictly speaking – the same as the behavioralist focus to international law that was previously
discussed here, although it does share many of the same assumptions. The proposed behavioralist
turn to international legal scholarship argues that scholars should focus on why actors behave the
way that they do in deciding to comply with international law. The focus, then, is explicitly on

27
Simmons, “Compliance with International Agreements,” June 1998, 85.
28
Burgstaller, Theories of Compliance with International Law, 103.
29
Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change,” International
Organization 52, no. 4 (1998): 887–917.
30
Wayne Sandholtz and Kendall Stiles, International Norms and Cycles of Change (Oxford: Oxford University
Press, 2009); Sandholtz, Prohibiting Plunder: How Norms Change; Brian Greenhill, “The Company You Keep:
International Socialization and the Diffusion of Human Rights Norms,” International Studies Quarterly 54, no. 1
(March 2010): 127–45, https://doi.org/10.1111/j.1468-2478.2009.00580.x.
11

understanding “how and why states decide to comply with international law.”
31
As such, this
approach has much to offer for synthesizing how the factors identified by the aforementioned
theories of compliance are interpreted and applied by actors.
How, for example, are the material costs of noncompliance calculated? How are norms of
appropriateness understood in the moment and what does this mean for the decision-making
process? Furthermore, this approach calls particular attention to the cognitive processes that
underpin compliance decisions, an important point for future consideration in international law
scholarship.
32
Duroy, for example, notes the importance of perceptions of accountability in
shaping the decision to comply with international law. Focusing on international legal
compliance in intelligence activities, she demonstrates that increasing the likelihood of effective
accountability increases the likelihood of compliance with the law.
33
However, while this
approach does raise interesting and promising questions for future research, it does not avoid the
broader concerns about behavioral focuses of compliance identified in this project. These
approaches still treat compliance as something that is done – an actor ultimately chooses to
engage in a compliant or noncompliant act – and focuses instead on how that decision is made.
In this way, this approach like the others previously discussed, still takes for granted an
assumption that behaviors are compliant on their own, overlooking the processes by which acts
are made compliant or noncompliant.

31
Daniel Peat, “Perception and Process: Towards a Behavioural Theory of Compliance,” Journal of International
Dispute Settlement First View (2021): 30.
32
Daniel Peat, Veronika Fikfak, and Eva van der Zee, “Behavioural Compliance Theory,” Journal of International
Dispute Settlement First View (2021): 7–8.
33
Sophie Duroy, “State Compliance with International Law in Intelligence Matters: A Behavioural Approach,”
Journal of International Dispute Settlement First View (2021): 1–27.
12

How do we measure compliance?
How we theorize compliance has tremendous implications for how we measure it, which,
in turn, shapes how we develop, revise, and update our theoretical understandings of the
relationship between international politics and law. Broadly speaking, quantitative empirical
work measuring international law compliance has focused on developing indicators –
quantitative measurements of behavior intended to show if an actor is meeting their obligations.
34

These measures, while useful for measuring changes in an actor's behavior, are only acceptable
as measurements of compliance if we assume that compliance must be reflected in behavior in a
set way. For example, recent work on the methodology of human rights measurement has
focused on clarifying "respect for human rights" as the measurement of compliance.
35

While this is no doubt a useful and important measurement for studying human rights,
providing important insights into human rights practices worldwide, the question must be asked
if it is useful for measuring compliance? Is it possible for an actor to fulfill their legal obligations
under a treaty without their rights behavior improving? Possibly, especially given the nature of
treaty design and the fact that actors may differentiate their obligations through the use of
reservations and other mechanisms.
36
This becomes even more complicated if compliance is
taken to be anything other than a binary measure. Young, whose definition of compliance serves
as the cornerstone of compliance research in international relations, notes that while compliance

34
AnnJanette Rosga and Margaret L. Satterthwaite, “The Trust in Indicators: Measuring Human Rights,” Berkeley
Journal of International Law 27, no. 2 (2008): 253–315; Christopher J. Fariss and Geoff Dancy, “Measuring the
Impact of Human Rights: Conceptual and Methodological Debates,” Annual Review of Law and Social Science 13,
no. 1 (October 13, 2017): 273–94, https://doi.org/10.1146/annurev-lawsocsci-110316-113333.
35
Christopher J. Fariss, “The Changing Standard of Accountability and the Positive Relationship between Human
Rights Treaty Ratification and Compliance,” British Journal of Political Science 48, no. 1 (January 2018): 266,
https://doi.org/10.1017/S000712341500054X.
36
Daniel W. Hill, “Avoiding Obligation: Reservations to Human Rights Treaties,” Journal of Conflict Resolution
60, no. 6 (September 2016): 1129–58, https://doi.org/10.1177/0022002714567947; Eric Neumayer, “Qualified
Ratification: Explaining Reservations to International Human Rights Treaties,” The Journal of Legal Studies 36, no.
2 (June 2007): 397–429, https://doi.org/10.1086/511894.
13

may often be more than a binary, treating it as one is important for simplicity and analysis.
37

While this may true, in the roughest sense, and while such simplification may offer a particular
value in specific circumstances, the simplification loses too much information and is still based
on a flawed behavior-focused understanding of compliance, to help us truly understand IL: and
its role – particularly its uses and relationship to power – in international relations.
38

Theories of Rhetoric
In contrast to the theories discussed above, I argue that compliance is principally a matter
of actors constructing and contesting compliance claims. As such, it is important to consider the
role of rhetoric in international relations as rhetoric – how actors create and use language to
achieve their desired policy outcomes. In particular, I highlight three understandings of rhetoric
in international relations – rhetoric as a form of ‘cheap talk,’ rhetoric as a tool of persuasion, and
rhetoric as a method of coercion – drawing on these to create a theory of rhetorical compliance.
Cheap Talk
For many, rhetoric in international relations may be “epiphenomenal,” little more than a
costless way to discuss the realities of material power.
39
In these rationalist approaches, rhetoric
may be understood as a coordination device, allowing actors to reveal enough information to
make an agreement possible.
40
In this understanding, rhetoric itself does not have an effect on
how an actor behaves. Actors are not persuaded by another's statement, nor does it pressure them
into acting a certain way. Instead, material factors remain the principal concern, and rhetoric is

37
Young, Compliance and Public Authority: A Theory with International Applications, 104–5.
38
Robert Howse and Ruti Teitel, “Beyond Compliance: Rethinking Why International Law Really Matters,” Global
Policy 1, no. 2 (May 2010): 127–36, https://doi.org/10.1111/j.1758-5899.2010.00035.x.
39
Ronald R. Krebs and Patrick Thaddeus Jackson, “Twisting Tongues and Twisting Arms: The Power of Political
Rhetoric,” European Journal of International Relations 13, no. 1 (March 2007): 37,
https://doi.org/10.1177/1354066107074284.
40
Goldsmith and Posner, “Moral and Legal Rhetoric in International Relations”; Krebs and Jackson, “Twisting
Tongues and Twisting Arms,” March 2007, 37.
14

just a way to make their role clearer. Other rationalist understandings highlight audience costs –
the idea that talk may not be 'cheap' if the speaker incurs a cost when reneging on a previous
commitment.
41
Political psychology has further developed on this, demonstrating the importance
of rhetoric in framing in debates and how this may shape opinion by creating expectations and
raising audience costs.
42

However, these approaches to rhetoric suffer from one shared shortcoming,
underemphasizing the dynamic processes involved in rhetoric. Instead, rationalist approaches
tend to focus on the targets of the rhetoric – on the audience of a policy debate, for example, and
how their opinion may be shifted. While this is important, it minimizes the role of rhetoric itself
and largely fails to explain the use of rhetoric.
43
At the same time, these approaches may call our
attention to some of the mechanics of rhetorical compliance – in particular the role of framing
and audiences in rhetorical contests.
Persuasion
In contrast, constructivist approaches to understanding the role of rhetoric in international
relations have highlighted the causal status of rhetoric. In particular, these approaches understand
rhetoric as a tool of persuasion and consensus-building and as a way norms emerge and spread.
44

Persuasion-based understandings of rhetoric then, focus on its ability to challenge validity claims
associated with a statement in order to reach what is called a “communicative consensus” on the

41
James D. Fearon, “Domestic Political Audiences and the Escalation of International Disputes.,” American
Political Science Review 88, no. 03 (1994): 577–92, https://doi.org/10.2307/2944796; Anne Sartori, “The Might of
the Pen: A Reputational Theory of Communication in International Disputes,” International Organization 56, no. 1
(2002): 121–49.
42
James Druckman, “The Implications of Framing Effects for Citizen Competence,” Political Behavior 23, no. 3
(2001): 225–56.
43
Krebs and Jackson, “Twisting Tongues and Twisting Arms,” March 2007, 38.
44
Finnemore and Sikkink, “International Norm Dynamics and Political Change.”
15

meanings and justifications under debate.
45
As such, persuasion is central to the role of rhetoric.
Arguing becomes a way for actors to change each other’s preferences on a topic, convincing
them to alter their previous position.
46
Since rhetoric is, in these understandings, capable of
persuading, it has a role beyond that of material power. Importantly, these approaches to rhetoric
note the ability of materially less powerful states to ‘win’ arguments, even against more
materially powerful opponents by crafting powerful arguments that invoke socially legitimized
references.
47

For this to work, there is an assumption that arguments are made with at least some
degree of sincerity.
48
In this way, these understandings draw on Habermas’ theory of
communicative action, which understands speech as an open dialogue predicated on an honest
pursuit of the truth.
49
This assumption is based on four validity claims: that discourse is
comprehensible, true, has a normative foundation, and is a sincere representation of the speaker’s
beliefs.
50
While Habermas recognizes that rhetoric may be used to pursue narrow policy-specific
goals,
51
he theorizes that actors can set aside material differences and enter into an "ideal speech
situation." In this situation, the best argument prevails as material factors are no longer a

45
Thomas Risse, “‘Let’s Argue!’: Communicative Action in World Politics,” International Organization 54, no. 1
(January 10, 2000): 7, https://doi.org/10.1162/002081800551109; Corneliu Bjola, “Legitimating the Use of Force in
International Politics: A Communicative Action Perspective,” European Journal of International Relations 11, no. 2
(June 2005): 266–303, https://doi.org/10.1177/1354066105052968.
46
Nicole Deitelhoff, “The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case,”
International Organization 63, no. 01 (January 2009): 33, https://doi.org/10.1017/S002081830909002X; Christian
Grobe, “The Power of Words: Argumentative Persuasion in International Negotiations,” European Journal of
International Relations 16, no. 1 (March 2010): 5–29, https://doi.org/10.1177/1354066109343989.
47
Deitelhoff, “The Discursive Process of Legalization,” January 2009.
48
Alastair Iain Johnston, “Treating International Institutions as Social Environments,” International Studies
Quarterly 45, no. 4 (December 2001): 487–515, https://doi.org/10.1111/0020-8833.00212; Rodger Payne,
“Persuasion, Frames and Norm Construction,” European Journal of International Relations 7, no. 1 (2001): 37–61.
49
Jurgen Habermas, The Theory of Communicative Action, trans. Thomas McCarthy, vol. 1, 2 vols. (Boston: Beacon
Press, 1984).
50
William Outhwaite, Habermas: A Critical Introduction (Cambridge, UK: Polity Press, 1994), 40–41.
51
Krebs and Jackson, “Twisting Tongues and Twisting Arms,” March 2007, 39.
16

concern, and actors are instead motivated by a sincere desire to reach the optimal outcome.
52
This
understanding of rhetoric as a tool of sincere engagement and persuasion is prominent in much
of the constructivist literature on the role of rhetoric and argumentation.
53

This may be a helpful assumption in some cases but its validity in many areas of
international politics may be questioned. Actors do not always engage in arguments faithfully.
They may employ references or claims for self-serving or insincere reasons if they believe that
such claims are likely to win their desired outcome. So, while communicative action theories
rightly note rhetoric’s causal status, important questions may be raised about its applicability in
many political – and legal – arenas.
Coercion
The third approach to rhetoric in international relations balances between the bargaining
of strategic action and rationalist understandings and the persuasion and truth-seeking of
communicative action derived theories.
54
These theories fall broadly into the category of
‘rhetorical action,’ or “the strategic use of norm-based arguments.”
55
Actors draw on norms to

52
Outhwaite, Habermas: A Critical Introduction, 40–41.
53
Deitelhoff, “The Discursive Process of Legalization,” January 2009; Nicole Deitelhoff and Harald Müller,
“Theoretical Paradise: Empirically Lost? Arguing with Habermas,” Review of International Studies 31, no. 1 (2005):
167–79; Grobe, “The Power of Words”; Ian Johnstone, “Security Council Deliberations: The Power of the Better
Argument,” European Journal of International Law 14, no. 3 (2003): 437–80; Ben D. Mor, “Credibility Talk in
Public Diplomacy,” Review of International Studies 38, no. 02 (April 2012): 393–422,
https://doi.org/10.1017/S0260210511000489; Payne, “Persuasion, Frames and Norm Construction”; Risse, “Let’s
Argue!,” January 10, 2000; Cornelia Ulbert and Thomas Risse, “Deliberately Changing the Discourse: What Does
Make Arguing Effective?,” Acta Politica 40, no. 3 (September 2005): 351–67,
https://doi.org/10.1057/palgrave.ap.5500117.
54
Jean-Frédéric Morin and E. Richard Gold, “Consensus-Seeking, Distrust and Rhetorical Entrapment: The WTO
Decision on Access to Medicines,” European Journal of International Relations 16, no. 4 (December 2010): 566,
https://doi.org/10.1177/1354066110366054.
55
Frank Schimmelfennig, “The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement
of the European Union,” International Organization 55, no. 1 (March 1, 2001): 62,
https://doi.org/10.1162/002081801551414; Jack Holland and Mike Aaronson, “Dominance through Coercion:
Strategic Rhetorical Balancing and the Tactics of Justification in Afghanistan and Libya,” Journal of Intervention
and Statebuilding 8, no. 1 (January 2, 2014): 1–20, https://doi.org/10.1080/17502977.2013.856126; Krebs and
Jackson, “Twisting Tongues and Twisting Arms,” March 2007; Kyle Rapp, “Law and Contestation in International
Negotiations,” Review of International Studies 46, no. 5 (2020): 672–90,
https://doi.org/10.1017/S0260210520000303.
17

create arguments in favor of their policies with the goal of leaving opponents unable to make a
legitimate response. This is done by creating an argument, made of frames and implications,
which is acceptable to the relevant public – consisting of the constituencies relevant to the
debate
56
– and draws on norms that the opponent has also, at least tacitly, agreed to. The use of
shared norms to underpin the argument makes it harder for the opponent to disagree as doing so
would undermine their legitimacy in the eyes of the public.
57

Framing, the process of creating the characterizations and terms that structure the
argument, is central to much of this process. Frames serve to interpret and outline appropriate
behavior in the argument, determining what arguments are acceptable and what implications may
be made.
58
Implications follow from frames and are the 'next steps' or what the actor contends
should be the result of the argument.
59
Given the strategic use of rhetoric, actors may use frames
and implications to appeal to particular audiences or actors.
60
This contrasts with the previous

56
The public may differ from argument to argument, depending on the topic being debated. In the context of this
dissertation, the relevant public for a claim of legal compliance may first be other diplomats and state foreign
officials. The next circle of the relevant public may be representatives from IGOs and NGOs who are involved in the
legal area in question. Academics, analysts, and relevant professional communities – for example, the International
Commission of Jurists – may be another outer layer of the public. Finally, mass publics may play a role in certain
cases, although their influence may be muted.
57
Schimmelfennig, “The Community Trap,” March 1, 2001, 63–68; Holland and Aaronson, “Dominance through
Coercion,” January 2, 2014, 3; Krebs and Jackson, “Twisting Tongues and Twisting Arms,” March 2007, 42;
Fernando G. Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force: Revisiting Kosovo,”
International Organization, May 10, 2018, 3, https://doi.org/10.1017/S0020818318000152; Rapp, “Law and
Contestation in International Negotiations,” 8; Kyle Rapp, “Justifying Force: International Law, Foreign Policy
Decision-Making, and the Use of Force,” European Journal of International Relations, February 16, 2022, 2–4,
https://doi.org/10.1177/13540661221077162; Adam Bower, Norms without the Great Powers: International Law
and Changing Social Standards in World Politics (Oxford: Oxford University Press, 2017); Stacie E. Goddard,
“When Right Makes Might: How Prussia Overturned the European Balance of Power,” International Security 33,
no. 3 (2008): 110–42.
58
Robert D. Benford and David A. Snow, “Framing Processes and Social Movements: An Overview and
Assessment,” Annual Review of Sociology 26, no. 1 (August 2000): 628, 611,
https://doi.org/10.1146/annurev.soc.26.1.611; Lee J.M. Seymour, “Let’s Bullshit! Arguing, Bargaining and
Dissembling over Darfur,” European Journal of International Relations 20, no. 3 (September 2014): 571–95,
https://doi.org/10.1177/1354066113476118; Pascal Vennesson, “War under Transnational Surveillance: Framing
Ambiguity and the Politics of Shame,” Review of International Studies 40, no. 1 (January 2014): 25–51,
https://doi.org/10.1017/S0260210513000089; Payne, “Persuasion, Frames and Norm Construction.”
59
Krebs and Jackson, “Twisting Tongues and Twisting Arms,” March 2007, 43.
60
Ibid., 44–45; Payne, “Persuasion, Frames and Norm Construction,” 45–46.
18

theories of rhetoric. While communicative action theories assume sincerity, rhetorical action
approaches do not assume that actors may only use rhetoric that they believe. While an actor
may sincerely believe the claims they make, this is not necessary – what matters is that the
claims are legitimate, or socially acceptable, to the relevant audiences. As long as this is the case,
regardless of if the actor themself genuinely believe in the norms, they may still be used to
structure the grounds of an argument, in an attempt to put forward a socially acceptable and
rhetorically powerful argument.
61

By the same token, other actors may respond to an argument's frames or implications
using whatever rhetoric is legitimate and socially acceptable, even if they do not necessarily
agree with it on an ideational level. To do this, actors will frequently draw on rhetorical
commonplaces – shared topoi – or themes – which may be used to create new arguments and
responses. These commonplaces are useful since they represent generally agreed upon normative
claims, making it easier for the actor to claim that their argument is appropriate in the given
environment. Eventually, an respondent may be left without any more legitimate responses to
draw on. A claimant has instead argued them into a corner – there is no acceptable argument left
to be made, forcing them to concede to at least some degree.
62
Unlike in communicative
approaches like those drawing on Habermas, in this case, it does not matter if the argument
persuades the opponent.
63
While an argument may persuade an opponent, what matters is that it
closes off the opponent’s ability to make counter-arguments. This, in turn, leaves them unable to

61
Payne, “Persuasion, Frames and Norm Construction.”
62
Holland and Aaronson, “Dominance through Coercion,” January 2, 2014, 3; Krebs and Jackson, “Twisting
Tongues and Twisting Arms,” March 2007, 42; Schimmelfennig, “The Community Trap,” March 1, 2001, 62–66;
Goddard, “When Right Makes Might: How Prussia Overturned the European Balance of Power.”
63
Adam Bower, “Arguing with Law: Strategic Legal Argumentation, US Diplomacy, and Debates over the
International Criminal Court,” Review of International Studies 41, no. 02 (April 2015): 341,
https://doi.org/10.1017/S0260210514000217; Rapp, “Law and Contestation in International Negotiations”; Bower,
Norms without the Great Powers: International Law and Changing Social Standards in World Politics, 2017.
19

pursue their preferred policy – the one they were arguing for – without incurring significant
reputational costs.
64

This entrapment is possible because of the social aspect of argumentation; actors are
limited to claims that the public will accept as legitimate. The public in this case serves as an
interpretive community, judging the soundness of the arguments and the acceptability of its
underlying claims, refusing arguments that are incongruent with the debate.
65
While it is possible
for actors to bring new concepts into the argument, rather than drawing on rhetorical
commonplaces and existing standards, this requires significant effort as the actor must convince
their audience that the concept is appropriate. As such, actors will generally draw on existing
rhetorical standards as the goal remains to create a publicly acceptable argument that may deny
opponents' responses.
66
Rhetorical commonplaces provide an easier way to ensure that the
argument is publicly acceptable.
67

However, not all arguments end the same way. In cases where the claimant and
opposition agree on both frames and implications – where one side is forced to fully accept the
opposing argument – the outcome is stable. If the frames remain contested, though – if neither
side is able to fully defeat the opponent's foundational claims – there may be a temporary respite

64
Margarita H. Petrova, “Rhetorical Entrapment and Normative Enticement: How the United Kingdom Turned
From Spoiler Into Champion of the Cluster Munition Ban,” International Studies Quarterly 60, no. 3 (September
2016): 389–90, https://doi.org/10.1093/isq/sqv013; Schimmelfennig, “The Community Trap,” March 1, 2001, 64–
65.
65
Ian Johnstone, The Power of Deliberation: International Law, Politics and Organizations (Oxford: Oxford
University Press, 2011), 34; Ian Johnstone, “The Power of Interpretive Communities,” in Power in Global
Governance, ed. Michael Barnett and Raymond Duvall (Cambridge, UK: Cambridge University Press, 2005), 185–
204.
66
Future research may examine more deeply how commonplaces are created – how do actors structure arguments in
a way that leads to the acceptance and legitimation of new commonplaces? One approach, that is tangentially
considered in this project, is that new commonplaces may be ‘made appropriate’ when they are used alongside
previously accepted standards. Over time, these standards may become legitimate on their own, having been
accepted frequently enough by powerful enough members of the public. This may be thought of as a process of
laundering – new ideas are ‘made appropriate’ by being mixed amongst previously accepted (or ‘clean’) standards.
67
Bower, “Arguing with Law,” April 2015, 338; Nuñez-Mietz, “Legalization and the Legitimation of the Use of
Force,” May 10, 2018, 3–5.
20

if they instead agree on the implications. This may result in a short-term behavioral change
although both sides remain fundamentally at odds as to why that behavior was appropriate and a
framing issue may resume. Actors may converge on the frames – accepting the same underlying
principles of the debate – but disagree on what the implications are. This may result in a
narrower, policy-focused, debate. This may be common in international law debates, for
example, if we take the example of two sides agreeing that a treaty prohibits torture but instead
arguing over whether a certain set of actions constitute torture. Finally, actors may fail to agree
on either the frames or implications. In this case, there is a fundamental disagreement on the
debate itself and opposing sides will likely continue to talk past each other.
68
This range of
outcomes is displayed in Table 1.
Table 1: Types of Argumentative Outcomes
Implications
Accepted
Implications
Rejected
Frames
Accepted
Stable Outcome Policy Debate
Frames
Rejected
Short Term Stability Framing Contest

A Theory of Rhetorical Compliance
It is this understanding of rhetoric – as a resource that actors may strategically employ to
advance their policy options through coercive argumentation – that informs the theory of
contested compliance. While standard theories of compliance focus on behavior, I argue instead
that compliance is often more concerned with an actor's ability to rhetorically justify their
behavior as appropriate. Actors draw on different sources of rhetoric to construct a claim that
their behavior complies with the law. Opponents may challenge these claims, contesting the

68
Donald Schon and Martin Rein, Frame Reflection: Toward the Resolution of Intractable Policy Controversies
(New York, NY: Basic Books, 1994).
21

constructed compliance, questioning the frames or implications, and alleging that the behavior is
a violation. Actors may then engage in a process of rhetorical contestation, both trying to entrap
the other and establish the behavior as compliant or not.
However, as was discussed above, this process does not always result in a stable
outcome. While it may – while one side may be soundly defeated, establishing the behavior as
either fully compliant or non-compliant – it is far more likely that the claim will remain
contested. If a stable outcome is reached, this will reshape the scope of contested compliance in
the future, narrowing or broadening the range of contestable behaviors. If a stable outcome is not
reached, then the action may be contested again in the future, by the same or different actors who
are able to draw on the previous argument to help legitimate their claims.
Law as a Tool, Not a Restraint
Finally, it is worth taking a moment to discuss the literature on how international law
matters as a tool of justification and policymaking, not only as a mechanism of restraining state
behavior. An important body of research focuses on the use of international law in argumentation
and justification-making, emphasizing the unique role law plays in these interactions. Given the
nature of its creation – with legal standards representing, at least in theory – agreed-upon rules,
international law offers actors a particularly useful form of rhetoric.
69
Indeed, the formalization
of legal standards may result in a 'legalization' of issue areas, ultimately rendering non-legal
justifications, such as moral arguments, inappropriate and ineffective.
70
This creates an

69
Johnstone, The Power of Deliberation: International Law, Politics and Organizations, 2011; Johnstone, “Security
Council Deliberations: The Power of the Better Argument,” 2003; Bower, “Arguing with Law,” April 2015;
Giovanni Mantilla, “Forum Isolation: Social Opprobrium and the Origins of the International Law of Internal
Conflict,” International Organization, March 28, 2018, 1–33, https://doi.org/10.1017/S0020818318000097;
Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford,
UK: Oxford University Press, 2013); Rapp, “Law and Contestation in International Negotiations”; Rapp, “Justifying
Force.”
70
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018.
22

environment where legal arguments – made in good faith or not – are often privileged above
other types of appeals and references.
71
In short, international law serves as a way for states to
‘do things’ and achieve their preferred policy outcomes – even when those may appear contrary
to many interpretations of the law.
72

Actors are able to use these ‘legitimated standards’ as powerful symbolic resources in
arguments, improving their likelihood of succeeding in an international argument or dispute.
73

International law in particular offers actors a unique tool for this. Indeed, actors may be able to
use the rhetoric of law as a tool to overcome opposition from more materially powerful actors.
74

Actors may be able to use the law to apply social pressure, isolating opposition groups and
forcing them to strategically concede in order to save face.
75
Actors may provide legal arguments
to justify actions to a domestic audience, using legal standards to explain doing rather than to
explain restraint.
76
Alternatively, these justifications may be aimed at international audiences,
drawing on the uniquely international and agreed-upon nature of international law to justify
possibly divisive policy choices.
77
In any of these cases, international law’s unique discursive

71
Ian Hurd, “The Empire of International Legalism,” Ethics & International Affairs 32, no. 3 (2018): 265–78,
https://doi.org/10.1017/S0892679418000394.
72
Ian Hurd, How to Do Things With International Law (Princeton: Princeton University Press, 2019); Rapp, “Law
and Contestation in International Negotiations.”
73
Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization 53, no. 2 (April 1,
1999): 379–408, https://doi.org/10.1162/002081899550913; Ian Hurd, “The Strategic Use of Liberal
Internationalism: Libya and the UN Sanctions, 1992–2003,” International Organization 59, no. 03 (July 2005),
https://doi.org/10.1017/S0020818305050186; Rapp, “Law and Contestation in International Negotiations.”
74
Bower, “Arguing with Law,” April 2015; Bower, Norms without the Great Powers: International Law and
Changing Social Standards in World Politics, 2017; Adam Bower, “Norms Without the Great Powers: International
Law, Nested Social Structures, and the Ban on Antipersonnel Mines,” International Studies Review 17 (2015): 347–
73, https://doi.org/10.1111/misr.12225.
75
Mantilla, “Forum Isolation.”
76
Geoffrey P.R. Wallace, “International Law and Public Attitudes Toward Torture: An Experimental Study,”
International Organization 67, no. 01 (January 2013): 105–40, https://doi.org/10.1017/S0020818312000343;
Geoffrey P.R. Wallace, “Martial Law? Military Experience, International Law, and Support for Torture,”
International Studies Quarterly 58, no. 3 (September 2014): 501–14, https://doi.org/10.1111/isqu.12092; Sarah E
Kreps and Geoffrey PR Wallace, “International Law, Military Effectiveness, and Public Support for Drone Strikes,”
Journal of Peace Research 53, no. 6 (November 2016): 830–44, https://doi.org/10.1177/0022343316657405;
Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law.
77
Rapp, “Justifying Force.”
23

and social forms – its multiple levels of specificity and references
78
combined with its supposed
neutrality and shared status
79
– make it a powerful rhetorical and argumentative tool. These
differing theories on the use of international law for justification provide important insights into
the meaning of compliance. The role and nature of law extend far beyond an idea of 'compliance'
as simply non-violation. It may also be an active process of doing and claiming, using the law to
legitimate and enable action.
This Dissertation
This dissertation, then, sets out to examine the rhetorical processes of compliance. First,
it explains the theory – the processes and actors that are involved and the forums where
rhetorical compliance may occur. The analysis then pivots to three cases which examine different
aspects of the theory in turn. This allows for a more thorough examination of the mechanisms
involved throughout the theory and a careful consideration of the temporal processes that are
involved in the ongoing social processes of rhetorical compliance. Finally, a brief conclusion
reexamines the overarching claims of the piece, situates its contribution to the field, and raises
some points for further study. This format, and the particular focuses of each section, are
discussed in more depth below.
In the following chapter (Chapter 2), I elaborate on the theory of theoretical compliance,
explaining how actors create – and contest – the meaning of compliance through public and
private arguments. This process, as I explain, creates compliance and legal meaning. The process
of “making” acts compliant, through rhetorical appeals and social interactions, then, is central to

78
Adam Bower, “Arguing with Law: Strategic Legal Argumentation, US Diplomacy, and Debates over the
International Criminal Court,” Review of International Studies 41, no. 02 (April 2015): 337–60,
https://doi.org/10.1017/S0260210514000217; Bower, Norms without the Great Powers: International Law and
Changing Social Standards in World Politics, 2017; Rapp, “Law and Contestation in International Negotiations.”
79
Jutta Brunnee and Stephen J. Toope, Legitimacy and Legality in International Law, Cambridge Studies in
International and Comparative Law 67 (Cambridge, UK: Cambridge University Press, 2010).
24

how IL is made, understood, and used in politics. This chapter elaborates these processes – the
actors involved, the types of claims that are made, and how compliance contests occur – as well
as what they mean for international relations and global politics more broadly. In doing so, it also
engages with more of the extant literature on compliance in international relations as well as
scholarship on rhetoric and argumentation, the social processes of international law, and
international legal scholarship on interpretation, all of which are used to further develop the
theory and implications of rhetorical compliance.
In Chapter 3, I elaborate on how actors create legal meaning. In particular, I examine how
contestation over legal meaning creates the range of acts that may be contested as compliance.
To do this, this chapter focuses on the rhetorical contests and social interactions that resulted in
the 1949 Geneva Conventions. In particular, emphasis is placed on how contests over legal
meaning effects the degree of clarity in the law – through rhetorical contests. Treaty drafting
provides a unique opportunity to shape the range of acts that may be justified as compliant or not
- the spectrum of contestable compliance area. Treaty drafting provides actors a forum in which
they can fundamentally shape the texts that will be central to future debates, drawing on existing
standards and creating new arguments to shape these future references to better support their
preferences. To do so, actors enter contests over how the law will be drafted – the degree of
precision it may contain and the acts which it may expressly permit or reject – invoking claims
and counterclaims to shape the treaty to fit their goals, trying to rhetorically entrap their rivals so
that their preferred legal structures may 'win out.' These arguments operate on the same logic of
compliance claims, tying the actors preferences into statements of what the law is, and are used
as a way to understand how actors claim compliance, aligning their preferences with existing
rules and acceptable interpretations.
25

This chapter combines quantitative and qualitative text-as-data approaches. First, I use a
range of quantitative text analysis to measure the change between the 1899 Hague Conventions
and the 1949 Geneva Conventions, showing how legal meanings changed situating the argument
in a broader context. Next, word embeddings – a quantitative measurement of changes in word
meanings over time – are applied to see how concepts changed throughout the drafting of the
1949 Geneva Conventions. This situates the concepts that were contested and changed through
the drafting process. This quantitative analysis is combined with a historical case study, spanning
fifteen years of archival documentation, to show how compliance claims were used to change the
meaning and interpretation of the crime of hostage taking. This is achieved through the
application of process tracing techniques, which identify the observable implications of the
theory and tests them against the available evidence. The focus in this chapter is to explore why
certain types of arguments were more or less successful in shaping legal clarity and meaning,
highlighting the arguments used to create the quantitatively observed outcomes. By combining
both quantitative and qualitative methodologies, it is able to provide an in-depth analysis of the
case – the qualitative analysis offering the opportunity to engage deeply with the complex social
processes that are involved in rhetorical compliance while the computational analysis provides
an otherwise unavailable view of the broader trends during the interwar and postwar periods.
This, in turn, helps to illuminate the temporal processes of rhetorical compliance – how claims
and interpretations are changed gradually over time via argumentation and debate.
Next, Chapter 4 examines how they contest the compliance claims of other states,
focusing on the Universal Periodic Review (UPR) process. The UPR offers a unique opportunity
to study the effectiveness of compliance claims as states are required to respond to each
recommendation. In such a process, a recommendation operates similarly to a contestation of a
26

compliance claim – it alleges that an actor is failing to comply with the law, that their behavior
cannot be justified within its language. I theorize that a compliance contestation is more likely to
succeed when it is framed on specific references to codified legal obligations. I theorize that
these claims a will be harder for the respondent state to publicly dispute, forcing their
acquiescence to the claim even if they are not persuaded. This chapter combines a large-N
quantitative analysis of more than 57,000 human rights recommendations made during the first
two UPR cycles. I argue that states will be more likely to accept a human rights argument – a
claim about the compliance behavior of the state under review – when it is framed on specific
legal grounds. My analysis finds that framing a recommendation on a codified legal reference
has a significant and measurable effect on its likelihood of being accepted, emphasizing the
importance of specific legal references in contesting compliance claims.
Having discussed how actors create compliance claims (Chapter 3) and contest the
compliance claims of others (Chapter 4), Chapter 5 aims to show the interactive process of
claiming and contesting compliance. In doing so, this chapter explores a full compliance contest
– from claims to counter-claims, to outcomes. Furthermore, this chapter employs qualitative
research techniques that allow for insights into developments and changes between – and not
only within – compliance contests. As has been discussed, compliance contests are ongoing –
outcomes are only stable for a time. By focusing primarily on one compliance contest –
surrounding military operations by the United States, United Kingdom, and France in Syria in
2018 – it is possible to explore how compliance claims are created, advanced, and contested, as
well as how these processes ‘end’ in an individual contest. At the same time, comparing this case
with the North Atlantic Treaty Organization’s (NATO) 1999 intervention in Kosovo helps
explore how dynamics change over time and between contests – how past arguments may be
27

reused in future contests and how the outcomes of previous compliance contests reshape the
spectrum of contestation in future ones. Taken together, this chapter allows for a more thorough
examination of the processes by which actors create and contest compliance claims, allowing me
to explore and illustrate the proposed theory.
Finally, Chapter 6 concludes the main points of this dissertation. It reiterates the central
arguments of the theory that are presented here before moving into a recapitulation of the
empirical analyses found throughout the project. It then moves into a discussion of the
significance of these findings, emphasizing the projects contribution to four areas in particular.
These are the constructed nature of legal compliance, the place of legal references in
international politics, the role of social and informal processes in lawmaking, and the challenges
of understanding complex processes like legal compliance in analyses of international relations.
Following this is a discussion of future work and next steps, highlighting some areas where
future work may focus on better understanding the processes and significance of rhetorical
compliance.
Taken together, this project aims to identify the process of rhetorical compliance,
examine the mechanisms through which it functions, and explain its significance to international
relations and international law – both in scholarship and practice. It identifies and evaluates
shortcomings in many theoretical views of compliance and introduces the theory of rhetorical
compliance which aims to address these limitations through a foregrounding of the social and
argumentative processes that give meaning to international law and compliance. It raises points
for how international relations and international law are studied – particularly in how scholars
may measure compliance with a rhetorical instead of behavioral focus as well as identifying
ways to deepen our understanding of what the law is. Practically, the project raises points about
28

the role and value of international legal references and compliance claims in international
relations. Better understanding how and why actors leverage compliance claims may help deepen
understandings of the role of law in policymaking – the limitations placed on actors by what may
be made compliant providing an important way for international law to shape foreign policy. At
the same time, actors may be able to strategically leverage compliance claims to develop
international law in ways that suits their interests, even absent formal lawmaking processes.
This project also highlights some of the potential for mixed methods approaches to
studying international law in international relations, particularly as they relate to computational
social science techniques. Rhetorical compliance calls greater attention to how actors justify their
behaviors or contest those of others – what they say and how – areas which computational text
techniques offer unique advantages in studying. Word embeddings, as applied in Chapter 3, offer
one example of how these techniques may be used to understand changes in legal meanings and
legal claims. Further combining these with qualitative techniques, as is done in Chapters 3 and 5,
deepens this analysis, providing a richness and context to the uniquely broad ranging insights
from computational and quantitative approaches like those applied in Chapters 3 and 4. By
combining these techniques to examine and develop a novel theory, this dissertation aims to
advance the study of international law in international relations at theoretical, empirical, and
methodological levels.

29

Chapter 2
A Theory of Rhetorical Compliance
Introduction
Having established in the previous chapter that compliance is not about aligning behavior
to a rule the question then is – what actually is compliance? As was discussed, compliance is
generally understood as behavior aligning with a rule.
80
However, this definition assumes that
there is a fixed understanding of what behaviors may meet that standard. Human rights
scholarship, for example, often tests compliance with human rights treaties by studying the
human rights performance of states who have agreed to various treaties. In these studies, a state
complies if its human rights practices improve in certain ways that may be associated with the
treaty.
81

Given the structure of the international legal system, however, there is rarely a settled
answer to such debates. Instead, various interpretations may wax and wane over time, finding
differing amounts of support from various actors. While "second-order compliance" institutions,
those tasked with providing authoritative interpretations of the law,
82
may narrow the scope of
possibly acceptable interpretations, it is rare that they entirely close off debate. Instead, due to
the multilayered and often patchwork nature of IL, with overlapping systems of rules and
enforcement, their decisions serve to restructure the field upon which the dynamic acts of
contestation and construction occur. While these institutions may shape the contestation process,
they operate within – not beyond – the scope of this theory, being one of many actors that may
shape the spectrum of compliance claims and contests.

80
Young, Compliance and Public Authority: A Theory with International Applications, 104–5.
81
Jana von Stein, “Making Promises, Keeping Promises: Democracy, Ratification and Compliance in International
Human Rights Law,” British Journal of Political Science 46, no. 03 (July 2016): 655–79,
https://doi.org/10.1017/S0007123414000489; Fariss, “The Changing Standard of Accountability and the Positive
Relationship between Human Rights Treaty Ratification and Compliance.”
82
Simmons, “Compliance with International Agreements,” June 1998, 78.
30

Instead of a fixed conception of compliance, this paper proposes a dynamic theory where
compliance is a range of actions, often contrary, which may at a given time be made compliant
through claims and contestation. Actors – through rhetorical claims and interactions – can shape
and redefine this range of compliant actions, reshaping what arguments may be accepted, or what
behaviors legitimated, in future contests. This is because, through rhetorical contests, actors can
move the bounds of compliant behavior, either by narrowing the range and forbidding some
actions or by extending the range to make other behaviors compliant. These contests occur
through legal and political processes, and in both legal and political forums – interpreting
customary law or drafting statutes, debating existing standards in political and legal forums, to
their application and contestation in times of crisis or disagreement. Throughout all three stages,
actors engage in rhetorical contests over what the law is and how it should be interpreted,
arguments that define and redefine the scope of compliance in a given instance, within a broader
ongoing process.
83

In short, the meaning of compliance is often unknown. While some rules may be clear – a
trait that often results from compliance arguments during a particular state of the law-making
process (like, for example, treaty drafting) – rules are often vague or open to interpretation. What
is an adequate standard of health? The answers to these questions are matters of debate –
different interpretations are advanced, often – if not always – for political reasons, and their
ability to draw on socially accepted standards decides which answers become accepted.
Compliance then, is interactional, depending on both collaborative and contestative processes
which shape the shared understandings and acceptable arguments underpinning the interpretation
and application of legal standards
84
. Over time, some questions may be clearly settled, or at least

83
Sandholtz, Prohibiting Plunder: How Norms Change, 4.
84
See: Brunnee and Toope, Legitimacy and Legality in International Law.
31

some behaviors may be easy to categorize, which may broaden or narrow the scope of
compliance – that is, the range of behaviors that may be credibly contested as fulfilling or
upholding the law. This means that abstract legal concepts are interpreted, refined, and given
meaning largely in relation to specific acts or events,
85
which may further complicate the
development of law – and add to future contestation – as debates may be rhetorically focused on
one case while actors may later apply those outcomes to future arguments.
86

For example, in 1978 the European Court of Human Rights found that the United
Kingdom’s treatment of detainees in Northern Ireland constituted inhuman and degrading
treatment – but not torture.
87
However, this decision has been heavily criticized since then and it
is clear that the meaning of torture has changed. While in 1978, the UK could argue – and the
European Court of Human Rights accepts – that wall-standing, hooding, the subjection to loud
noises, sleep deprivation, and denying detainees food and water were not torture, these
arguments are largely unacceptable today.
88
The meaning of torture – and, in turn – what it
means to comply with the prohibition of torture had changed. Behaviors that may have complied,
if with the letter but certainly not the spirit of the law before became non-compliant over time.
89

85
Ian Johnstone, “Condoning the Use of Force: The UN Security Council as Intrepreter of the Jus Ad Bellum,” AJIL
Unbound 112 (2018): 114–15.
86
Monica Hakimi, “The Jus Ad Bellum ’s Regulatory Form,” American Journal of International Law 112, no. 2
(April 2018): 151–90, https://doi.org/10.1017/ajil.2018.23.
87
IRELAND v. THE UNITED KINGDOM, No. 5310/71 (European Court of Human Rights January 18, 1978).
88
Vesna Stefanovska, “Reassessment of the Ireland v. the United Kingdom ECtHR Case: A Lost Opportunity to
Clarify the Distinction between Torture and Ill-Treatment,” Torture Journal 29, no. 1 (May 22, 2019): 56–69,
https://doi.org/10.7146/torture.v29i1.110000; Anthony Cullen, “Defining Torture in International Law: A Critique
of the Concept Employed by the European Court of Human Rights,” California Western International Law Journal
34, no. 1 (2003): 29–46; Manfred Nowak, “What Practices Constitute Torture? US and UN Standards,” Human
Rights Quarterly 28, no. 4 (2006): 809–41, https://doi.org/10.1353/hrq.2006.0050.
89
Importantly, though, the ECtHR's ruling, in this case, provided a focal point for later actors – in particular, the
United States – to try to justify 'enhanced interrogation’ techniques as lawful under international law. While these
justifications have met considerable pushback – including from the US government itself in the landmark 2014
Senate Select Report – this case further demonstrates the importance of socially acceptable references in framing
claims of compliance or noncompliance. While interpretations may have shifted, the US still could – and did – draw
on the ECtHR’s ruling. See: Jamie Mayerfeld, “Playing by Our Own Rules: How U.S. Marginalization of
International Human Rights Law Led to Torture,” Harvard Human Rights Journal 20 (2007): 89–140; Rebecca
32

The behaviors themselves did not change. The rhetoric around them did. Actions that
were, once, in a contested middle ground were pushed into clear noncompliance through
rhetorical action and state practice. It is this dynamic process – where behavior is claimed as
compliant and where these claims may be contested – that I argue is the nature of compliance.
Compliance is not a behavioral condition. It is a malleable, perhaps constantly changing,
spectrum depending on which claims are accepted, rejected, or able to persevere in the middle
over time.
Compliance as a Scope
This dynamic approach leads to an understanding of compliance as a scope or range of
behaviors that may be justified to different extents, the boundaries of which are open to
reinterpretation. Noncompliance then is when a behavior or claim is beyond what even a
minority of the relevant public will accept. Acts that fall into this category cannot be credibly
argued as compliant, or if they are, the actor finds so little support for the claim that it is
meaningless. On the other side, many compliance claims may be met with near-universal
acceptance. These situations may align with traditional understandings of compliance where
some acts are seen as outright noncompliance or compliance.
These boundaries may look different across types of IL, depending on the precision of the
rule. For example, consider two different rules from the 1907 Hague Convention. First is Article
23(e) which forbids the use of “arms, projectiles, or material calculated to cause unnecessary
suffering.”
90
Second is Article 16 which requires that all postage “intended for prisoners of war,

Sanders, Plausible Legality: Legal Culture and Political Imperative in the Global War on Terror (Oxford University
Press, 2018), https://doi.org/10.1093/oso/9780190870553.003.0001.
90
The Hague Second International Peace Conference, “Hague Convention (IV) Respecting the Laws and Customs
of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land,” October 18, 1907,
https://www.refworld.org/docid/4374cae64.html Regulations Article 23(e).
33

or dispatched by them, shall be exempt from all postal duties.”
91
While both are legal standards,
the range of contested compliance appears markedly different between the two. The range of
contestation over what constitutes unnecessary suffering, or an arm calculated to cause such,
may be contested on multiple grounds. Does the weapon cause such suffering? Is the suffering
calculated, deliberately intended to cause a degree of suffering beyond what is justifiable under
military necessity? On the other hand, the second standard may be harder to contest. Was
postage charged? While there may be some room for contestation – for example, would charging
a prisoner of war for an envelope, and not a stamp, violate Article 16 – it appears that this scope
of compliance here is far tighter. This is a simple recognition that, while contestation is often
possible, it is not always possible to the same degree and this fact can be shaped by the precision
of the law in question, a point that will be explored further in the next chapter.
What is missing, however, is a recognition of contested compliance, the claims which are
neither fully accepted nor rejected. This middle ground, where the meaning of compliance with a
rule is not yet fixed, lets actors claim that behavior is compliant, even as opponents disagree.
How compliance is understood in these cases then is less a set definition or empirical reality but
is instead a matter of position and interpretation. Put another way, compliance in these cases
results from conflicting interpretations of the open texture of the law, which in this case is
created and interpreted not only by legal but also by political actors who are often invoking
claims and interpretations strategically in the pursuit of different policy goals.
How actors respond to these claims may change the scope of actions that may fall into
this category. A claim which begins as contested but which, over time, is able to gain greater
recognition as compliant may eventually reach the point of near-unanimity with regards to its

91
Ibid. Regulations Article 16.
34

compliance. Alternatively, a claim may begin as contested but lose support over time, becoming
seen as non-compliant. In this way, the scope of contested compliance – the range of behaviors
in this middle ground – is in a near-constant state of flux, a process of constant creation and
recreation as actors interact with themselves and each other, defining compliance as they do.
This scope, of spectrum, of compliance is illustrated in Figure 1.
92

Figure 1: Illustration of a Changing Spectrum of Compliance

Similarly, a second-order compliance institution may provide a determination on a
contested concept. Second-order compliance institutions are those designed to help resolve
questions about a law's meaning or compliance and function similarly to domestic courts,
interpreting the law.
93
However, these organizations are rarely able to end debate and remove all
uncertainty. This stems from several features of IL as an institution.
94
For example, the formal
lack of precedence in many international legal structures limits the ability of second-order
institutions to formally stop interpretations from being used in future debates. At the same time,
unlike domestic courts that – at least in theory – may provide interpretation for everyone with a
national legal system, second-order institutions rarely exert oversight over all affected parties. A

92
This figure is intended for illustrative purposes only and does not reflect any particular case or example.
93
Simmons, “Compliance with International Agreements,” June 1998, 78.
94
It is important to note that domestic courts cannot ‘close off’ or end debates, either, although they may exercise
considerable influence over future compliance contests. Through appeals to precedent, or the issuing of binding
decisions, domestic courts may reduce the spectrum of future compliance contests in ways that international courts
cannot do.
35

treaty body, for example, may formally only advise states that are party to a treaty, while many
other states may still be interested in the interpretation of the law more broadly. With these
limitations, while these institutions may shape the contestation process, they operate within – not
beyond – the scope of this theory.
Having established that interpretation depends on argumentation by states and other
actors in the international arena the task now moves to determining how interpretation occurs. As
will be argued, interpretation – and with it, the establishment of what it means to ‘comply’ – is
the result of an interactive social process combining argumentation and social practice which
gradually shapes the range of justifiable behaviors. This requires two more steps – identifying
who the actors are in this contestation process and clearly identifying the mechanisms by which
compliance is constructed and contested through these social interpretive processes.
Contested by Whom?
As has been discussed, the scope of compliance is shaped by the interactions of various
actors on the international stage. These actors, through their rhetorical and behavioral
interactions, can change the boundaries of compliance. Importantly, these actors are both
political and legal. Indeed, the process of construction and contestation depends on the interplay
of the legal and the political – the use of legal language, justifications, and arguments is a
necessary part of international politics, and political uses of law play an important role in shaping
its development. At the same time, the process is not entirely political, the legal does maintain its
unique influence and role in shaping the development of law. Legal publics, for example, play an
important role in shaping the range of possible political-legal claims. The work of legal scholars,
theorizing on the meaning of compliance with a treaty or legal standard may shape the scope of
compliance much like a political statement will. However, the fact remains that this process –
36

just like any legal process – does not allow for a neat division of the political from the legal.
Instead, this theory of compliance recognizes and centers the role of politics in shaping
compliance and indeed centers the claim that the legal is – if not indistinguishable from –
inseparably intertwined with the political.
States
Traditionally in international relations states are understood as the primary actors. This is
no different in IL, which is traditionally understood to create obligations on states. In short, it is
states – as a whole - that are the subjects of IL, not the individual members of a government. In
keeping with this, compliance is traditionally studied as the actions of states or ‘state actors.’
Much of the international relations scholarship on compliance focuses on human rights behavior
in the state as a whole, for example.
95

This foregrounding is not without merit. The idea, if not reality, of sovereign states
constituting the international system, has underpinned international relations and IL since
arguably the mid-seventeenth century. States have significant resources that they may expend in
pursuing policy goals, including through and in IL. They occupy a privileged position in the
compliance constituting process, given their generally unique ability to join treaties and
international organizations. Customary international law (CIL), uncodified legal standards
binding on all states, is traditionally derived from the behavior and rationale of states and states
alone.

95
von Stein, “Making Promises, Keeping Promises”; Carmela Lutmar, Cristiane L. Carneiro, and Sara McLaughlin
Mitchell, “Formal Commitments and States’ Interests: Compliance in International Relations,” International
Interactions 42, no. 4 (August 7, 2016): 559–64, https://doi.org/10.1080/03050629.2016.1187144; Wade M. Cole,
“Mind the Gap: State Capacity and the Implementation of Human Rights Treaties,” International Organization 69,
no. 2 (2015): 405–41, https://doi.org/10.1017/S002081831400040X; Paul Huth, Sarah Croco, and Benjamin Appel,
“Law and the Use of Force in World Politics: The Varied Effects of Law on the Exercise of Military Power in
Territorial Disputes: Law and the Use of Force in World Politics,” International Studies Quarterly 56, no. 1 (March
2012): 17–31, https://doi.org/10.1111/j.1468-2478.2011.00695.x.
37

All of this means that states are uniquely positioned to contest the meaning of compliance
and that they have many methods at their disposal. Regarding CIL, the state's statements and
actions are taken to represent CIL, shaping how it is interpreted and applied. The strategic
application of these statements represents one way in which states may fundamentally shift the
meaning of compliance, as repeated invocations of a new interpretation of a legal standard may
fundamentally shift the standard, or at least open it to varying standards of interpretation. On the
other hand, since states are the parties to treaties, they are able to shape what becomes codified
law. In negotiations and debates, state actors decide and define what will become codified IL.
When it comes time to ratify a codified standard, states may further shape its meaning through
the use of reservations, understandings, and declarations, methods that aim to shape the legal
obligations created by the treaty, correspondingly reshaping what behaviors are compliant.
96

Importantly, states may differ in their ability to shape the meaning of compliance. A state
which is not a party to a treaty, for example, may have a harder time shaping the meaning of
compliance within the treaty’s area if the state is left out of certain forums or if their views are
discredited as irrelevant, coming from a non-party. Alternatively, states may leverage positions
of power – at least to some degree – in an attempt to coerce other states into accepting their
compliance claims as legitimate. However, it is important to note that legal rhetoric and
argumentation can often empower weaker actors and that power alone cannot create compliance,
although it is indisputably important.
97

96
Kelebogile Zvobgo, Wayne Sandholtz, and Suzie Mulesky, “Reserving Rights: Explaining Human Rights Treaty
Reservations,” International Studies Quarterly 64, no. 4 (November 24, 2020): 785–97,
https://doi.org/10.1093/isq/sqaa070.
97
Bower, “Norms Without the Great Powers”; Bower, Norms without the Great Powers: International Law and
Changing Social Standards in World Politics, 2017; Rapp, “Law and Contestation in International Negotiations”;
Sandholtz, Prohibiting Plunder: How Norms Change, 6.
38

International Organizations
However, states are far from the only actors shaping the meaning of compliance.
International Governmental Organizations (IGOs), for example, play a significant role in shaping
the meaning of compliance through a number of mechanisms. Perhaps the most obvious way is
that they provide a place for states to come together and interact, a forum for the contestation
process. States may, for example, raise issues in the United Nations General Assembly (UNGA)
or the Human Rights Council (UNHRC) and engage in contestation through these mechanisms.
In providing these forums, IGOs shape the physical space of contestation, bringing actors
together in a space where they are able to make claims and counterclaims. IGO rules structure
how contestation occurs in these forums. The Universal Periodic Review (UPR), for example, is
a UNHRC process where states’ human rights practices are reviewed. While reviewed by states,
the structure of the debate – such as the time limit for giving recommendations – is a feature of
the organization itself.
98

IGO influence spans far beyond providing forums and rules for state argumentation,
however, and many IGOs exert independent influence in shaping the meaning of compliance.
This results from the design of IGOs – although created by states, they are delegated authority
from these same states to carry out certain acts on their own.
99
This often takes the form of
providing 'second-order compliance,' interpreting the rules of an organization when a dispute
arises.
100
For example, the majority of United Nations human rights treaties include a treaty

98
Pilar Elizalde, “A Horizontal Pathway to Impact? An Assessment of the Universal Periodic Review at 10,” in
Contesting Human Rights: Norms, Institutions, and Practice, by Alison Brysk and Michael Stohl (Edward Elgar
Publishing, 2019), 83–106, https://doi.org/10.4337/9781788972864.00014; Edward McMahon and Marta Ascherio,
“A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council,”
Global Governance: A Review of Multilateralism and International Organizations 18, no. 2 (August 12, 2012):
231–48, https://doi.org/10.1163/19426720-01802006.
99
Koremenos, The Continent of International Law, 2016.
100
Simmons, “Compliance with International Agreements,” June 1998, 78.
39

body, an organization of independent experts tasked with providing guidance on the treaty's
meaning, ruling on individual or interstate petitions, and reviewing state behavior regularly.
101

These decisions can play a significant role in reshaping the grounds of contested compliance.
Interviews with policymakers, for example, have highlighted the role of treaty bodies in shaping
state policy.
102

Finally, IGOs may shape the contestation of compliance through independent statements
and reports. While IGOs are traditionally seen as collections of states, it is important to
remember that particular offices or components may, over time, develop considerable freedom in
how they operate.
103
In the United Nations system, for example, the Secretary-General – while
subject to state pressure in the election and reelection processes – may choose to speak out on
questions of compliance. For example, while Kofi Annan, while serving as United Nations
Secretary-General made waves when he spoke out publicly to criticize the United States 2003
invasion of Iraq as an illegal war.
104
This claim entered directly into the ongoing contestation
over the legality of the war, shaping the rhetorical contest that was taking place. Similarly,
Special Rapporteurs – independent experts appointed to investigate particular human rights

101
Valentina Carraro, “Promoting Compliance with Human Rights: The Performance of the United Nations’
Universal Periodic Review and Treaty Bodies,” International Studies Quarterly, 2019, 1–15,
https://doi.org/10.1093/isq/sqz078; Andreas von Staden, “Monitoring Second Order Compliance: The Follow-up
Procedures of the UN Human Rights Treaty Bodies,” Czech Yearbook of International Law, 2018, 329–51.
102
Valentina Carraro, “The United Nations Treaty Bodies and Universal Periodic Review: Advancing Human
Rights by Preventing Politicization?,” Human Rights Quarterly 39, no. 4 (2017): 943–70,
https://doi.org/10.1353/hrq.2017.0055; Carraro, “Promoting Compliance with Human Rights”; Jasper Krommendijk,
“The Domestic Effectiveness of International Human Rights Monitoring in Established Democracies. The Case of
the UN Human Rights Treaty Bodies,” The Review of International Organizations 10, no. 4 (December 2015): 489–
512, https://doi.org/10.1007/s11558-015-9213-0.
103
Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in Global Politics
(Cornell University Press, 2012), https://doi.org/10.7591/9780801465161.
104
Ewen MacAskill and Julian Borger, “Iraq War Was Illegal and Breached UN Charter, Says Annan,” The
Guardian, September 15, 2004, https://www.theguardian.com/world/2004/sep/16/iraq.iraq.
40

situations – often speak about situations where actors are contesting the legality of human rights
practices.
105

A less researched example is the International Law Commission (ILC). The ILC is a
subsidiary organization of the UN tasked with working toward the realization and codification of
IL.
106
Its members – who act as independent experts and are formally prohibited from taking
instructions from states
107
- regularly publish reports on IL questions.
108
These reports inform and
shape debates between states, within the United Nations system and outside it, as actors draw on
them to form their arguments. Together, these different mechanisms allow IGOs to interact in the
contestation process, constructing the meaning of compliance.
(International) Non-Governmental Organizations
Non-Governmental Organizations (NGOs),
109
formal independent organizations which
work to promote particular shared goals at the national or international level,
110
are another
important actor in the compliance process. Much like IGOs, NGOs can contest and construct the
meaning of compliance directly – through their statements and interactions in the international
arena – or indirectly by pressuring states or IGOs. Both approaches allow NGOs to advance
views on the compliance or noncompliance of action, shaping the meaning of compliance. With
regards to IL, many NGOs focus their work on related areas such as working on human rights

105
Surya P. Subedi, “Protection of Human Rights through the Mechanism of UN Special Rapporteurs,” Human
Rights Quarterly 33, no. 1 (2011): 201–28, https://doi.org/10.1353/hrq.2011.0011.
106
United Nations General Assembly, “Statute of the International Law Commission” (United Nations, November
21, 1947).
107
United Nations, “Regulations Governing the Status, Basic Rights and Duties of Officials Other than Secretariat
Officials, and Experts on Mission” (United Nations, June 18, 2002).
108
While the question may be raised as to if members always operate in absolute separation from their home states'
preferences, research on independent experts in other parts of the UN has found no evidence of systematic bias on
the part of regional court judges. See: Voeten, Erik. “The Impartiality of International Judges: Evidence from the
European Court of Human Rights.” Am Polit Sci Rev 102, no. 4 (November 2008): 417–33.
109
Here I use NGO to refer to both domestic and international NGOs.
110
Kerstin Martens, “Mission Impossible? Defining Nongovernmental Organizations,” VOLUNTAS: International
Journal of Voluntary and Nonprofit Organizations 13, no. 3 (2002): 282.
41

issues,
111
providing assistance in cases of armed conflict,
112
or to prevent wars
113
as a few
examples and, as such, are able to shape contests over the law as it relates to these areas.
Research has highlighted the ability of NGOs to pressure states into changing their
behavior.
114
NGOs leverage domestic and international pressure to push states to change their
behaviors. Naming-and-shaming, for example, may be particularly relevant here as it involves an
NGO ‘calling out’ a perceived violation or abuse. This, in turn, leads to the state being shamed
into changing its behavior as it faces international pressure.
115
This may shape the meaning of
compliance in several ways. First, naming and shaming works when other actors agree that an
action is noncompliant, a point which they make when shaming the offending state. This draws
them into the argument delineating their position on the question of compliance. At the same
time, state behavior is a core component of interpreting IL. If NGOs pressure a state into
changing its behavior this may contribute to reshaping the definition of compliance by changing
understandings of how the law is interpreted through state practice.
The shaming process may be done directly by the NGO as well as through the
transnational process described above.
116
The role of NGOs in the United Nations, for example,

111
ex. Amnesty International, Human Rights Watch
112
ex. International Committee of the Red Cross, Médecins Sans Frontières
113
ex. Women's International League for Peace and Freedom
114
Keck and Sikkink, “Transnational Advocacy Networks in International and Regional Politics”; Amanda Murdie
and David Davis, “Shaming and Blaming: Using Events Data to Assess the Impact of Human Rights INGOs:
Shaming and Blaming,” International Studies Quarterly 56, no. 1 (March 2012): 1–16,
https://doi.org/10.1111/j.1468-2478.2011.00694.x; Cullen S. Hendrix and Wendy H. Wong, “When Is the Pen Truly
Mighty? Regime Type and the Efficacy of Naming and Shaming in Curbing Human Rights Abuses,” British Journal
of Political Science 43, no. 3 (July 2013): 651–72, https://doi.org/10.1017/S0007123412000488.
115
Hendrix and Wong, “When Is the Pen Truly Mighty?”; Murdie and Davis, “Shaming and Blaming”; James C.
Franklin, “Shame on You: The Impact of Human Rights Criticism on Political Repression in Latin America,”
International Studies Quarterly 52, no. 1 (March 2008): 187–211, https://doi.org/10.1111/j.1468-
2478.2007.00496.x; James H. Lebovic and Erik Voeten, “The Cost of Shame: International Organizations and
Foreign Aid in the Punishing of Human Rights Violators,” Journal of Peace Research 46, no. 1 (January 2009): 79–
97, https://doi.org/10.1177/0022343308098405.
116
Jens Steffek, “Explaining Cooperation between IGOs and NGOs – Push Factors, Pull Factors, and the Policy
Cycle,” Review of International Studies 39, no. 04 (October 2013): 993–1013,
https://doi.org/10.1017/S0260210512000393.
42

has increased over time. NGOs are now frequent participants in certain international discussions
where they have a forum to portray actions as compliant or non-compliant and even indirectly
shaping the content and meanings of international legal standards.
117
As such, they are able to
shape the rhetorical space of the argument and contribute to moving the lines of contested
compliance. Through these various mechanisms – by generating domestic or transnational
pressures or by direct interventions in international discussions – NGOs are able to shape the
contestation and construction processes, shaping the meaning of compliance in IL.
Mechanism
Having clarified the actors, the question now turns to how the process of contestation and
construction functions. In contrast to previous theories of compliance that largely focus on
compliance as an outcome, this theory draws on contestation literature highlighting the role of
rhetorical claims, alongside behavior, in shaping norms and law.
118
While narrow understandings
of compliance focus on the behavior, or ‘violation,’ itself, it is the responses to this action that
ultimately determine compliance. An actor who takes an action may offer justifications or
excuses for it, claims of compliance intended to legitimate the act
119
- invoking the language of
law to portray the act as appropriate by using a shared standard
120
– in this case, the law.
If the action is not clearly 'compliant' in the typically shared definition – if opponents are
able to contest the validity of the legal claim or offer a counter-claim – it may result in a dispute.

117
Rachel Brett, “The Role and Limits of Human Rights NGOs at the United Nations,” Political Studies 43, no. 1
(March 1995): 96–110, https://doi.org/10.1111/j.1467-9248.1995.tb01738.x; Sonia Cardenas, “Emerging Global
Actors: The United Nations and National Human Rights Institutions,” Global Governance 9, no. 1 (2003): 23–42;
A. Dan Tarlock, “The Role of Non-Governmental Organizations in the Development of International Environmental
Law,” Chicago-Kent Law Review 68, no. 1 (1992): 61–76.
118
Sandholtz and Stiles, International Norms and Cycles of Change, 3, 14–15; Sandholtz, Prohibiting Plunder: How
Norms Change, chap. 1.
119
Goddard, “When Right Makes Might: How Prussia Overturned the European Balance of Power.”
120
Daniel F Wajner, “‘Battling’ for Legitimacy: Analyzing Performative Contests in the Gaza Flotilla Paradigmatic
Case,” International Studies Quarterly 63, no. 4 (December 1, 2019): 1039, https://doi.org/10.1093/isq/sqz047;
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018, 6.
43

This is where other actors disagree with the assessment of compliance and may choose to contest
it by making counterclaims. The resulting argument, where actors spar rhetorically, employing
different claims and discourses in an attempt to define the compliance or noncompliance of an
action, is what creates and shapes the middle ground.
As such, rhetorical and discursive mechanisms are central to this theory. Actors construct
and contest compliance through dynamic rhetorical acts aimed at persuading or coercing others
into accepting their action as at least contestably compliant. This is achieved through the process
of rhetorical coercion, where actors make arguments using shared rhetorical commonplaces, or
topoi. These claims must draw on discourses that are seen as acceptable – authoritative and
relevant to the topic at hand – by the relevant public.
121
This may include moral, political, or
legal discourses, depending on the particular audiences that the justification is intended for and
what references they consider appropriate.
122
The aim of these statements is to deny opponents
the ability to make sustainable responses, leaving an opponent unable to continue the contest at
that moment.
123
In compliance contests, these topoi are likely to be legal claims – particularly
legal claims that reference codified law and legal standards with explicit connections to the
substantive topic being contested, which stems from the particularly legalized nature of
contemporary international relations.
124
By looking to the past for “analogies, patterns, or
precedents”
125
actors try to justify their preferred interpretation of the law. Such references are

121
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018, 7.
122
Ibid., 8–9.
123
Krebs and Jackson, “Twisting Tongues and Twisting Arms,” March 2007; Petrova, “Rhetorical Entrapment and
Normative Enticement”; Nicole Deitelhoff, “The Discursive Process of Legalization: Charting Islands of Persuasion
in the ICC Case,” International Organization 63, no. 01 (January 2009): 33–65,
https://doi.org/10.1017/S002081830909002X; Bower, “Arguing with Law,” April 2015; Goddard, “When Right
Makes Might: How Prussia Overturned the European Balance of Power.”
124
Rapp, “Law and Contestation in International Negotiations”; Rapp, “Justifying Force.”
125
Orford, International Law and the Politics of History, 42.
44

“central to the legal process of adversarial interpretation,”
126
allowing the claimant to position
their preference as a logical extension of historical trends or previously accepted arguments.
These are contests of legitimation – legal claims may be made from a genuine belief in
the law or for political reasons, using the perceived legitimacy of legal language as a way to
advance political goals.
127
As Orford noted – “lawyers take up the past instrumentally in order to
win an argument”
128
and the same is true for other actors in the political-legal arena – claims are
made for a purpose, to achieve some aim, and references and appeals are carefully chosen to
support those aims. As contests, the outcome does not depend on collaborative meaning-making
or deliberative – non-coercive – processes, as previously theorized by constructivist scholars,
129

although this may occur in certain cases. An act may be legitimated through an entirely
contestative and coercive process, with an actor strategically employing claims and references
with the intent of blocking opposition – not gaining acceptance and building shared
understandings. This is an important reminder of the fact that, while distinct, law and politics are
simultaneously intertwined – law is the outcome of political processes and, while it constrains
political processes, it can be used to empower or enable political processes in the future.
In this theory, diagrammed below with each step indicated here by a number (Figure
2),
130
an actor (1) will make a claim arguing that their behavior is compliant with its legal
obligations (2). A rival may then contest this claim (3). At this point, actors may argue over the
alleged compliance of the action (4), drawing on various shared normative standards and existing

126
Ibid., 249.
127
Goddard, “When Right Makes Might: How Prussia Overturned the European Balance of Power”; Wajner,
“‘Battling’ for Legitimacy”; Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018.
128
Orford, International Law and the Politics of History, 76.
129
Bjola, “Legitimating the Use of Force in International Politics.”
130
Patrick James and Michael Pfonner, “The Visual International Relations Project,” International Studies Review,
2019; Patrick James, “What Do We Know about Crisis, Escalation and War? A Visual Assessment of the
International Crisis Behavior Project,” Conflict Management and Peace Science 36, no. 1 (January 2019): 5–9,
https://doi.org/10.1177/0738894218793135.
45

interpretations of the law (5). This is done in the shadow of the relevant public which shapes the
boundaries of what may be considered acceptable, limiting the range of possible arguments and
claims (6). This may, in turn, lead to several outcomes. If the claimed action is plainly outside
the public bounds of compliance (7), finding no meaningful acceptance in the public sphere, the
claim is rejected outright (8). On the other hand, an argument may be in-bounds, palatable to at
least some degree of the relevant audiences (9). If such a claim is met with general acceptance
and does not attract meaningful contestation then the act is taken as compliant (10). These two
outcomes may be considered similar to traditional understandings of compliance, the cases
which fall neatly into a binary understanding.
However, if the claim is contested (11), two outcomes may occur. First, opponents may
out-maneuver the claimant, leaving them unable to defend the frames underpinning their claim.
If this happens, the claim is ultimately rejected (12). On the other hand, if the claim is contested
but not rejected, a state of contested compliance will result (13). Actors may continue arguing
over the claim, contesting its interpretation of the legal standard, but are unable to defeat it at this
time. Importantly, this contested claim may then be drawn on by future actors to construct later
claims of compliance, functioning in a way that is almost akin to precedent in formalized courts
– providing past interpretations that may be reinterpreted and reapplied to contemporary
circumstances.
131
Over time, this may result in moving the boundaries of contestation. A claim
that begins as contested but gains support over time – or whose supporters succeed in out-
arguing their opponents – may eventually become accepted as compliant. At the same time, a

131
Francis Lieber, “On Political Hermeneutics - Precedents,” American Jurist and Law Magazine 18, no. 36 (1838):
284; Karl Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes
Are to Be Construed,” Vanderbilt Law Review 3, no. 3 (1950): 395–406.
46

claim may be contested for some time before finally being defeated and considered as strictly
noncompliant.
Figure 2: A Visual Theory of Rhetorical Contestation

The core of this process is its iterative and interpretive nature. Compliance is not a matter
of behavior but one of rhetoric and contestation. If a state is able to create a sustainable claim of
compliance, even if it is contested, that may be what matters. This theory deepens our
understanding of compliance, highlighting the ways that actors strategically use legal claims to
advance policy goals, and emphasizing the role of law as a dynamic social tool that actors may
use to legitimize their behaviors or delegitimize a rival. IL, then, gives actors a way to reduce or
47

increase the costs associated with a behavior. While previous theories see law as a fixed standard
to judge behavior, this approach sees law as a resource for actors to use to legitimate
or delegitimate different actions. Furthermore, this theory sees these processes of legitimation as
central to meaning-making in international law. When actors use law as a tool they reshape how
that tool may be understood and used in the future. Lawmaking, then, is an ongoing social
process that extends far beyond treaty drafting or other formal processes. Even written rules are
subject to these ongoing processes of interpretation and application, processes which serve a
central meaning-making function.
It is important to note that this process is ongoing and occurs throughout the ‘life’ of a
law,
132
with any individual contest being akin to a “particular moment in… an unfolding social
process.”
133
With the example of a treaty commitment, for example, the 1949 Geneva
Conventions, the process of creating the scope of the law may begin with the drafting process.
During this process, different actors debate and contest how existing legal standards and other
related norms should be interpreted and implemented into a codified agreement.
134
This stage
may be understood as establishing the ‘initial’ range of compliance, although isolating it too
much problematically minimizes how any drafting process draws on existing standards and is
more of a continuation than an absolute starting point.
135
Next, this process continues as actors
debate over the meaning of the law. For example, meetings with and within the International

132
Sandholtz, Prohibiting Plunder: How Norms Change, chap. 1.
133
Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton: Princeton University Press,
2004), 167.
134
Joyce Gutteridge, “The Geneva Conventions of 1949,” British Yearbook of International Law 26 (1949): 294–
326.
135
While it may be helpful, for the sake of illustration or to understand the development of a particular legal
standard, to treat the drafting process as a start it is important to recognize how this “start” cannot be meaningfully
separated from the history and processes preceding it. Instead of thinking of this as a starting point, it may be best to
consider it as a mark on a circle from which we may begin, while realizing that we could make our start from an
earlier point as well (for example, debates over the interpretation of the 1907 Hague Conventions, the Lieber Code,
or Medieval standards of behavior in conflict).
48

Committee of the Red Cross (ICRC) may include debates over how the law should be applied or
interpreted and would follow this process in shaping the meaning of compliance. Finally, this
process continues ‘when the rubber hits the road’ and actors need to invoke the law. In this
example, during a war, an actor may claim that their behaviors comply with the Geneva
Conventions. At the same time, other states or international actors – such as the ICRC – may
contest these claims, the process of constructing and contesting the scope of compliance
occurring even as the law is being applied to a particular instance. This process continues on,
with future contests drawing on the outcomes of previous ones as acceptable justifications are
reused and reshaped for future situations, emphasizing the importance of sequencing and time in
how compliance is constructed and contested as past interpretations shape future ones, an
ongoing social process.
136
Indeed, this process is inherent to the law – past interpretations will be
used to create new ones. There is no permanent or fixed meaning, past interperations are
constantly open to future reinterpretation to fit new circumstances or understandings.
137

This points to an important consideration from legal scholarship on treaty interpretation –
law is an ongoing process whose existence, while continuous, depends on understandings ‘in a
moment of time.’
138
This ongoing process is shaped by subsequent practice
139
and
interpretation
140
which is central to understanding international law in a given moment, since it

136
Thomas Rixen, Lora Anne Viola, and Michael Zurn, eds., Historical Institutionalism and International
Relations: Explaining Institutional Development in World Politics (Oxford: Oxford University Press, 2016), 13–14;
Pierson, Politics in Time: History, Institutions, and Social Analysis, chap. 2.
137
Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to
Be Construed.”
138
James Crawford and Thomas Viles, “International Law on a Given Day,” in International Law as an Open
System: Selected Essays, by James Crawford (London: Cameron May, 2002), 69–94.
139
Sean Murphy, “The Relevance of Subsequent Agreement and Subsequent Practice for the Interpretation of
Treaties,” in Treaties and Subsequent Practice, ed. Georg Nolte, First edition (Oxford, United Kingdom: Oxford
University Press, 2013), 82–94.
140
Gerhard Hafner, “Subsequent Agreements and Practice: Between Interpretation, Informal Modification, and
Formal Amendment,” in Treaties and Subsequent Practice, ed. Georg Nolte, First edition (Oxford, United Kingdom:
Oxford University Press, 2013), 106–22.
49

always requires interpretation.
141
Indeed, actors may – explicitly or not – choose to draw on
different approaches of interpretation, particularly treaty interpretation, when crafting their
compliance claims.
142

But even these claims change over time as what is appropriate or acceptable shifts. The
principle of in dubio mitius, for example, reasons that if there are conflicting interpretations of a
treaty the interpretation that places the fewest obligations on the state, or is least odious, should
hold.
143
However, as acceptable understandings of sovereignty and sovereign obligations have
shifted, this type of reasoning has evolved – state deference is more contested than it used to be
and opponents may more effective raise counterarguments about what is owed to the broader
international community.
144
Much as how legal meanings and arguments shift, then, so do the
formal frameworks for interpreting them. Furthermore, legal meaning making is often unbound
from the restraints of formal treaty interpretation. While its logics and languages may be used,
and while formal interpretation is no doubt important, the process of interpreting and contesting
compliance extends far beyond this. Actors may make interpretations of international law
through political statements and policy justifications, drawing on a myriad array of legal
references and reasoning’s – the relevant public is rarely strictly made up of lawyers engaging in
a formal process of interpretation but is instead comprised of relevant policymakers, diplomats,
NGO and IGO members, and numerous other groups, who may evaluate the appropriateness or

141
Ibid.; Duncan B Hollis, “The Existential Function of Interpretation of International Law,” in Interpretation in
International Law, ed. Andrea Bianchi, Daniel Peat, and Matthew Windsor (Oxford: Oxford University Press,
2015), 78–110.
142
Joseph Klingler, Yuri Parkhomenko, and Constantinos Salonidis, eds., Between the Lines of the Vienna
Convention? Canons and Other Principles of Interpretation in Public International Law (United Nations
Conference on the Law of Treaties, Alphen aan den Rijn, the Netherlands: Kluwer Law International B. V, 2019).
143
Panos Merkouris, “In Dubius Mitius,” in Between the Lines of the Vienna Convention? Canons and Other
Principles of Interpretation in Public International Law, ed. Joseph Klingler, Yuri Parkhomenko, and Constantinos
Salonidis (Alphen aan den Rijn, the Netherlands: Kluwer Law International B. V, 2019), 261.
144
Ibid., 277.
50

acceptability of a legal argument on whatever grounds they find acceptable. This dissertation,
then, explores the political decisions and processes underpinning this ‘self-regulatory process,’
145

examining how and why certain interpretations and understandings come to be and what this
means for future interpretative contests.
Arguing in the Court of Public Opinion – The Role of the Public
As this theory seeks to make clear, while compliance is broad it is not boundless. Not all
compliance claims are credible, many may be 'rejected' outright as blatantly non-compliant.
Claims that were once contested may become unpalatable as time passes and the interpretation of
norms changes. On the other hand, claims which previously were unpalatable may, over time,
become contested or even seen as outright compliant. What accounts for these changes, who or
what decides if a claim is acceptable? While interpretation is typically seen as the job of
judges,
146
this often is not possible in IL. Instead, the ‘public’ – broadly constituted – plays the
crucial role of adjudicating claims and deciding between arguments and counterarguments.
The public – made up of the constituencies and communities relevant to the debate
147
–
may explicitly and implicitly judge the compliance claims as they are made. In doing so, the
public functions as an interpretive community, judging the soundness of the argument and the
social acceptability of its underlying claims, refusing arguments that are incongruent with the
debate.
148
If a claim is rejected outright by the public it fails to provide the claimant with any of

145
Andrea Bianchi, “Law, Time, and Change: The Self-Regulatory Function of Subsequent Practice,” in Treaties
and Subsequent Practice, ed. Georg Nolte, First edition (Oxford, United Kingdom: Oxford University Press, 2013),
133–41.
146
Hart, The Concept of Law, 204–5.
147
The public may differ between arguments, depending on the topic. The public for a compliance claim may first
be other diplomats and state foreign officials. Next may be representatives from IGOs and NGOs who are involved
in the legal area in question. Academics, analysts, and relevant professional communities may be another outer layer
of the public. Finally, mass publics may play a role in certain cases, although their influence may be muted.
148
Johnstone, The Power of Deliberation: International Law, Politics and Organizations, 2011, 34; Johnstone, “The
Power of Interpretive Communities.”
51

the desired benefits – the action is seen as non-compliant and the claim is seen as nonsensical or
patently unacceptable. For example, if an actor tried to defend an international financial policy as
legitimate by basing their claims on appeals to the Bretton-Woods system their claim would be
dismissed outright as drawing on a claim that the public would not see as acceptable.
The importance of creating publicly acceptably claims incentivizes actors to use existing
shared standards, since drawing on shared interpretations shows that the public has legitimated
these claims, to at least some degree, in the past. Using commonplaces, or shared standards
makes it harder for rivals to dismiss the claim outright, increasing the odds that the compliance
claim may at least find contested acceptance. While it is possible for actors to bring new
concepts into the argument, rather than drawing on rhetorical commonplaces and existing
standards, this requires significant effort as the actor must convince their audience that the
concept is appropriate.
149
Rhetorical commonplaces, including international legal references, are
institutionally regulated – their past interpretations and uses shape their future interpretations and
uses, limiting the degree to which actors may successfully apply them to their claims.
150

In many ways, this process mirrors that of a judge interpreting a case. While the judge
may hypothetically be able to say anything in their decision, this is not the case. Instead, the
judge must justify their decision within the constraints of what has been legislated as well as how
it has past interpretations,
151
even in systems – like many of those found in international law –
that lack a formal system of precedent.
152
Similarly, an actor may – in theory – justify their

149
Bower, “Arguing with Law,” April 2015, 338; Nuñez-Mietz, “Legalization and the Legitimation of the Use of
Force,” May 10, 2018, 3–5; Neta Crawford, Argument and Change in World Politics: Ethics, Decolonization, and
Humanitarian Intervention (Cambridge: Cambridge University Press, 2002).
150
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018, 11.
151
Hart, The Concept of Law, 272–76; Ralf Poscher, “Hermeneutics and Law,” in The Cambridge Companion to
Hermeneutics, ed. Michael N. Forster and Kristin Gjesdal, 1st ed. (Cambridge University Press, 2019), 338,
https://doi.org/10.1017/9781316888582.015.
152
Krzysztof J. Pelc, “The Politics of Precedent in International Law: A Social Network Application,” American
Political Science Review 108, no. 3 (August 2014): 547–64, https://doi.org/10.1017/S0003055414000276; Urska
52

actions by invoking any claim they would like. In reality, however, they are limited by what has
been found at least somewhat substantively appropriate before. Claims then are not limitless but,
at the same time, the limits are changed by the process of interpretation. The acceptance of
different compliance claims may change over time as standards are reinterpreted in different
cases, with these new interpretations entering the pool of available claims. At the same time,
claims by be interpreted as no longer acceptable, becoming expressly noncompliant and exiting
the pool of acceptable compliance claims.
Words, Not Deeds: Implications of Rhetorical Compliance
If the open texture of law is recognized for what it is – a penumbra of uncertainty that
requires interpretation for it to be meaningfully applied to real-world cases
153
- the limits of
traditional understandings of compliance become clear. While many acts may fall neatly into
categories of compliance or noncompliance, many others do not. Instead, their status as
compliant or non-compliant requires adjudication and interpretation – do they align with the law
as it may be understood? Whose understandings are accepted, or not, and how do these
understandings shift over time?
The theory of rhetorical compliance aims to address this limitation by recognizing the
role of rhetoric and argumentation in shaping and resolving these questions. In many cases,
compliance is not a matter of behavior but one of rhetoric. Is an actor able to justify their claim
as compliant? Can they do so in a way that other actors are unable to challenge, or at least unable
to defeat outright? If so, the act may be compliant – or at least contested to be such. In these

Sadl and Sigrid Hink, “Precedent in the Sui Generis Legal Order: A Mine Run Approach: Precedent in the Sui
Generis Legal Order,” European Law Journal 20, no. 4 (July 2014): 544–67, https://doi.org/10.1111/eulj.12075;
Olof Larsson et al., “Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European
Union,” Comparative Political Studies 50, no. 7 (June 2017): 879–907, https://doi.org/10.1177/0010414016639709;
Kyle Rapp, “On What Grounds? Legal References and Effective Argumentation at the ICC,” (Working Paper),
2021, 1–25.
153
Hart, The Concept of Law, 204–5.
53

cases, the actor may still receive some of the benefits of compliance, or at least minimize the
costs of noncompliance.
This clarification of the rhetorical nature of compliance and the contestation process creates it,
challenges existing approaches to the study of compliance in IL and with norms and other
institutions more broadly. The argument that compliance is about justification and rhetorical
contests may carry to any institution where interpretation is necessary to tell if a standard has
been met. Theories that abstract this away, focusing instead on a binary of compliance and
noncompliance or gradations of 'better' or 'worse' compliance ignores the central role of language
in creating and recreating compliance. Theorizing, and studying, these processes may be
necessary to understand how real-world actors understand, interact with, and use legal claims.
Finally, this theory raises significant questions about the role of politics in IL. The
process described here, one of rhetorical claims and counterclaims, intentionally makes no
attempt to remove political claims, forums, or actors from this rhetorical process. This is because
such a separation is impossible. IL, like any legal order, is inextricably linked to politics. While
the contestation process may favor legal claims – for reasons of public acceptance and the
sustainability of claims – these claims may be made by political actors, for political reasons, in
political forums. This does not mean that all claims will be equally effective, more 'legal' claims
– those made by legal actors or in legal forums – may have a greater effect on shaping the pool
of acceptable claims. The role of second-order compliance institutions has already been noted as
one example. However, this does not change the fact that in this process the political is deeply
entwined with the legal. By recognizing this, this theory may help illuminate the role of the
political in creating and shaping law, as well as the use of law in politics, highlighting how these
different institutions are in fact deeply overlapped.
54

As has been discussed, compliance in IL is not a settled matter of behavior. One's actions
do not, on their own, determine if the law is obeyed. Instead, dynamic rhetorical processes allow
actors to create and contest different meanings of compliance. In many of these cases, there is no
settled answer. Instead, the question of compliance is left open and different behaviors may be
justified as being – at least arguably – compliant. In the end, compliance may be less a matter of
an actor's deeds and more a matter of their words – a distinction with important implications for
how we understand international politics.
The rest of this dissertation, then, explores how compliance claims are made and
contested. In Chapter 3, attention is played to how compliance claims are created with a
particular focus on the treaty drafting process. Examining the drafting of the 1949 Geneva
Conventions, this chapter shows how actors leverage historical precedents and legal references to
create claims of compliance – of what behaviors are appropriate or not – to shape how a treaty is
drafted. This has significant implications for how future compliance contests ‘play out’ as actors
use these written legal standards to justify future acts as compliant – or to contest the compliance
claims of their rivals.
Chapter 4, meanwhile, examines how compliance claims are contested. What references
are used to contest the acceptability of behavior? As this chapter demonstrates, focusing on the
Universal Periodic Review, actors may find particular success in using legal references to contest
the appropriateness of behaviors – in effect, to claim that an actor is noncompliant with their
legal obligations. Better understanding how claims are contested – in particular, understanding
more clearly what types of arguments are effective in contesting and rejecting compliance claims
– is important to understand how the process of compliance making works. As has been
discussed, compliance making is a social, not a unilateral, process that depends on the
55

acceptance of a claim by at least some members of the public. Understanding how actors may
challenge this process, then, is just as important as understanding how compliance claims are
created.
Finally, Chapter 5 examines both sides of this process. Studying changes in justifications
for military force, this chapter shows how actors may claim that their behaviors are compliant
and how other actors may respond to these claims. By using a shadow case approach, this
chapter further shows how the spectrum of compliance may shift over time, exploring how
arguments that were once outside the realm of contestation may become more acceptable over
time. Alternatively, this chapter also helps us understand the opposite – how claims that were
once considered appropriate may, over time, be made noncompliant.

56

Chapter 3
Constructing Compliance: Drafting the 1949 Geneva Conventions
Introduction
How, then, do actors create legal meaning? If compliance is the result of argumentation
and contestation, it is necessary to understand how these processes work – how compliance
claims are made. What resources do actors draw on, what references do they make, and how do
they use these to create the meaning of compliance? Furthermore, how do these processes
reshape the scope of compliance? How does the use of compliance claims change what acts may
be made compliant in the future, recasting behaviors as acceptable, contestable, or unable to be
justified with claims of law?
This chapter focuses on understanding these processes within the treaty making context.
When a treaty is written and a legal standard is codified, actors have a significant opportunity to
shape what the standard will require, what behaviors it might allow or forbid, and how it may be
interpreted and reconstructed in the future. By employing claims of what the law requires, or
what it should require, actors may reshape the meaning of compliance in that moment and in the
future. Indeed, treaty making allows actors to create legal texts and references that they may use
to justify future acts as compliant, providing actors with a strong incentive to employ the best
arguments that they can in order to craft texts that will best serve them as a justificatory tool in
the future.
At the same time, actors cannot codify any standard they would like. As with any
rhetorical and social process, actors are limited by what the public will accept – even if only
begrudgingly – as socially appropriate. This process encourages actors to draw on preexisting
references – codified or not – in order to present the strongest argument that they can. In essence,
arguments about what the law should be are strongest when they are coached on references to
57

what the law is – connecting the desired outcome with claims of preexisting legal standards.
Even with this, a socially palatable argument may not ‘win’ if rivals are able to present a stronger
case. Negotiation does not occur in a vacuum – like the rest of the compliance process it is
interactive and social. Claims are made in relation to arguments by other actors, with any
adopted text reflecting a process of cooperation and conflict.
But how does this process of argumentation and negotiation work? How do actors arrive
at the standards that are finally included in the treaty? And why do these standards so often differ
with regards to their clarity, interpretability, and demandingness? This chapter examines this
question within the drafting and negotiation process of the 1949 Geneva Conventions to show
how actors arrive at the treaties they do. Actors, entering into the drafting process with often
wildly different preferences for what the final document should look like, must negotiate the text
of the document. However, instead of arguing that this text represents a process of consensus-
making with regards to what behaviors ‘comply’ with the treaty, I argue that a range of different
compliance definitions survive for different treaty requirements. This is because, while rhetorical
contests may result in tighter definitions for some rules, these contests are rarely able to fix a
single and absolute standard into law. Instead, rules are left open to varying degrees of
reinterpretation and contestation, shaping how they may be applied in the future.
What does this mean for international relations? First, it means that treaty standards
cannot be taken as absolute. The open texture of the law remains and allows actors to justify a
range of behaviors as compliant or noncompliant.
154
Instead of viewing a treaty as a settled
standard, it is necessary to consider treaties as representing just one step in a constantly ongoing
process of constructing and contesting compliance. Drawing on preexisting interpretations and

154
Ibid.
58

standards, actors engage in rhetorical contests to create treaty rules. The degree of openness in
these rules represents the relative success – or failure – of these different arguments. Most
importantly, these outcomes shape how a treaty standard may be applied and contested later. It
shapes the range of cases it may be used to justify and the extent to which it may be interpreted
and reinterpreted. Completing a treaty then does not fix a single interpretation of a legal rule but
does shift the scope of compliance arguments in a subject area moving forward.
Second, it shows how treaty making is part of the broader process of rhetorical
compliance. Actors use legal arguments in an attempt to make the law align with their
preferences, knowing that they will be using these standards to justify future acts – or that their
future compliance claims will be contested using these references by opponents. Claims about
what the law should be are often claims about what the law is. Treaty making, then, is a political
and legal process where actors construct claims about compliance – what it is and what it should
be – with an eye toward future compliance contests.
This chapter examines one such process – the drafting of the 1949 Geneva Conventions –
which offers a unique case for such analysis. This drafting process, which began in 1934 and
continued for 15 years before culminating in Geneva, saw a range of actors coming together at
different times to negotiate a wide-ranging treaty. It featured appeals to a range of different legal
standards, interpretations, and expectations, which shifted through time as preferences changed
and the world underwent the seismic shifts of the Second World War and the beginning of Cold
War politics. Ultimately, a set of four treaties – representing an expansive codification of the
laws of armed conflict – were agreed upon. But agreeing on these standards did not settle debates
over what it means to comply with the laws of war, although they did fundamentally shift how
such arguments could and would be made in the future. Studying this drafting process, an event
59

which has seen considerable attention in legal and historical scholarship but a relative lack of
attention in international relations, allows for unique insights into how actors create and contest
legal interpretations, fixing them to some degree in writing, at least for a moment of time.
Furthermore, in doing so, this analysis highlights a fundamental shift in international law – a
recasting of the responsibility of states and the meaning of compliance with IHL that refocused
on the obligations owed to persons instead of the rights held by states. This is a fundamental shift
in international law – one that is ongoing as international legal systems increasingly recognize
the person as well as the state as an object and subject of international law – which has played a
central role in the creation of contemporary IHL,
155
a process that continues to this day across
international law.
156
Toward this end, this chapter begins with a brief overview of the literature
on the drafting of the Geneva Conventions, situating this process within the theory of rhetorical
compliance. Following this is a discussion of the mixed methods approach applied in this
chapter, including the relative strengths of both computational text analysis and process tracing
and how they are used together to provide new insights into historical processes.
Next, a comparative analysis is conducted to highlight and understand the broad changes
in legal meaning that occurred in the first half of the twentieth century, between the Hague
Conventions of 1899 and 1907
157
and the 1949 Geneva Conventions. Following this, the drafting

155
Christopher Greenwood, “International Humanitarian Law and the Tadic Case,” European Journal of
International Law 7, no. 2 (January 1, 1996): 265–83, https://doi.org/10.1093/oxfordjournals.ejil.a015513; Antonio
Cassese, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International
Humanitarian Law,” European Journal of International Law 9, no. 1 (January 1, 1998): 2–17,
https://doi.org/10.1093/ejil/9.1.2; Jean Pictet, “The Principles of International Humanitarian Law,” International
Review of the Red Cross 6, no. 66 (September 1966): 455, https://doi.org/10.1017/S0020860400011451.
156
Andrew Clapham, “The Role of the Individual in International Law,” European Journal of International Law 21,
no. 1 (2010): 25–30; Rosalyn Higgins, “Conceptual Thinking about the Individual in International Law,” British
Journal of International Studies 4, no. 1 (1978): 1–19; Alexander Orakhelashvili, “The Position of the Individual in
International Law,” Case Western Reserve Journal of International Law 31, no. 2 (2001): 241–75; George Manner,
“The Object Theory of the Individual in International Law,” The American Journal of International Law 46, no. 3
(1952): 428–49.
157
Hereafter the 1899/1907 Hague Conventions.
60

process itself is examined with a focus on hostage taking as an example case of the creation of
legal meaning. Quantitative and qualitative approaches are combined to explore not only how
meanings become clearer or not but also how they were changed – the types of arguments and
references that were used throughout the drafting processes. These findings emphasize the role of
contestation in creating legal meaning and the unique opportunities for meaning-making during
the drafting process. In particular, the importance of legal references and frames for political
arguments is discussed, with implications for how we may think about treaty making, legal rules,
and the meaning of compliance in international law and politics.
Getting to Geneva: A Brief Overview of the Drafting of the 1949 Geneva Conventions
The 1949 Geneva Conventions have received considerable attention across the fields of
international relations, history, and law. Historical research has noted the long processes that led
to the Geneva Conventions, stretching back centuries. Some accounts, for example, focus on the
creation of the International Committee of the Red Cross and how these events shaped the
Geneva Conventions,
158
especially the ICRC’s role in guiding the 1949 process.
159
The role of
interwar conferences has received some attention as the drafts made in these negotiations played
an important role in 1949.
160
Other accounts take a narrower focus, highlighting how the unique
state of the world in the immediate post-war period shaped the creation of international
humanitarian law.
161

158
François Bugnion, “Birth of an Idea: The Founding of the International Committee of the Red Cross and of the
International Red Cross and Red Crescent Movement: From Solferino to the Original Geneva Convention (1859–
1864),” International Review of the Red Cross 94, no. 888 (December 2012): 1299–1338,
https://doi.org/10.1017/S1816383113000088.
159
François Bugnion, “The International Committee of the Red Cross and the Development of International
Humanitarian Law,” Chicago Journal of International Law 5, no. 1 (2004): 191–215.
160
Gutteridge, “The Geneva Conventions of 1949.”
161
Geoffrey Best, War and Law Since 1945 (Oxford: Oxford University Press, 1994).
61

Importantly, these historical accounts help to situate the Geneva Conventions into the
broader context of international law and conflict. The standards negotiated and created in Geneva
did not create entirely new law from thin air but instead drew on previous rules. For example, the
General Order No. 100 or the Lieber Code,
162
issued during the US Civil War to provide legal
guidance to the conduct of US armies during the conflict, played an important part in shaping the
understanding of combatants and non-combatants and the different rights and protections due to
each.
163
Even broader examinations have identified the connections between Medieval concepts
of chivalry in shaping the idea of combatant and noncombatant – including how those concepts
were understood in the drafting of the Geneva Conventions.
164
Other scholars have noted the
complicated, often intertwined, relationship between the Geneva Conventions and international
human rights law,
165
much of which was beginning to take form in the immediate post war
period.
166
In an understanding of compliance that is focused on interpretation, it is vital to
understand the standards and rules used to shape and create interpretations and historical analysis
helps to identify what standards were used when and how these shaped future interpretations of
compliance.
Scholarship has also noted the role of contestation in the creation of these treaties.
Mantilla, for example, highlighted the role of social pressure in shaping the UK's and France's

162
Francis Lieber, “Instructions for the Government of Armies of The United States in the Field (Originally Issued
as General Orders No. 100, Adjutant Genera;’s Office, 1863)” (Government Printing Office, 1898),
https://www.loc.gov/rr/frd/Military_Law/Lieber_Collection/pdf/Instructions-gov-armies.pdf?loclr=bloglaw.
163
Helen M. Kinsella, “Discourses of Difference: Civilians, Combatants, and Compliance with the Laws of War,”
Review of International Studies 31, no. S1 (December 2005): 175, https://doi.org/10.1017/S0260210505006844.
164
Helen M Kinsella, The Image Before the Weapon (Ithaca, New York: Cornell University Press, 2011), chaps. 1–
5.
165
Boyd van Dijk, “Human Rights in War: On the Entangled Foundations of the 1949 Geneva Conventions,”
American Journal of International Law 112, no. 4 (October 2018): 553–82, https://doi.org/10.1017/ajil.2018.84;
Robert Kolb, “The Relationship between International Humanitarian Law and Human Rights Law: A Brief History
of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions,” International Review of the
Red Cross 38, no. 324 (September 1998): 409–19, https://doi.org/10.1017/S002086040009121X.
166
Mark Mazower, “The Strange Triumph of Human Rights, 1933–1950,” The Historical Journal 47, no. 2 (June
2004): 379–98, https://doi.org/10.1017/S0018246X04003723.
62

acceptance of Common Article 3. The risk of social sanctioning led these states to accept a
compromise agreement, despite their opposition, since the cost of continued opposition was too
great.
167
Similar pressure shaped what the US and USSR were willing to accept as part of the
negotiations as social pressure shaped what policies and preferences they could afford to pursue,
processes that continued past 1949, culminating in the extension of many Geneva Convention
protections to intranational armed conflicts with the Additional Protocols.
168
The Geneva
Conventions then, have provided an important case for studying the role of social pressure in the
making of international law.
169

In many ways, the drafting process presented a critical juncture for the development of
IHL. Critical junctures are relatively brief moments when actors have "an expanded range of
feasible options" to pick from before path dependence may set in.
170
As will be discussed in the
next section, compliance meanings may follow a certain path dependence logic – claims that are
accepted as compliant, or rejected as non-compliant – will shape what actions can be justified in
the future. These justifications – and their acceptance or failure – depend in large part on how
well they employ existing standards and references to tie a contested behavior to the language of
compliance. The drafting of the Geneva Conventions, then, provided actors with a greater range
of options in how to define and constitute the meaning and purpose of IHL. In particular, much

167
Giovanni Mantilla, “Conforming Instrumentalists: Why the USA and the United Kingdom Joined the 1949
Geneva Conventions,” European Journal of International Law 28, no. 2 (May 2017): 483–511,
https://doi.org/10.1093/ejil/chx027.
168
Giovanni Mantilla, “Social Pressure and the Making of Wartime Civilian Protection Rules,” European Journal of
International Relations, August 23, 2019, 1–26, https://doi.org/10.1177/1354066119870237; Giovanni Mantilla,
Lawmaking under Pressure: International Humanitarian Law and Internal Armed Conflict (Ithaca, New York:
Cornell University Press, 2020).
169
Mantilla, “Social Pressure and the Making of Wartime Civilian Protection Rules”; Mantilla, “Conforming
Instrumentalists”; Helen M Kinsella and Giovanni Mantilla, “Contestation before Compliance: History, Politics, and
Power in International Humanitarian Law,” International Studies Quarterly, June 4, 2020,
https://doi.org/10.1093/isq/sqaa032; Mantilla, “Forum Isolation.”
170
Karl Orfeo Fioretos, ed., International Politics and Institutions in Time, First Edition (Oxford: Oxford University
Press, 2017), 232.
63

of the drafting followed the end of the Second World War, a period of immense change in the
international legal order and a moment during which questions of humanitarianism and the
humane conduct of hostilities were fresh on the minds of those involved in the drafting process,
many of whom had experienced immense violence firsthand. While future interactions could
reshape the interpretation of the treaties, the language included – or excluded – in the final drafts
would set limits on the range of actions that might later be defended as compliant.
Constructing Compliance in Treating Drafting
How, then, do actors construct compliance meanings in the treaty negotiation and
drafting processes? In keeping with the previously discussed theory, I expect that actors will tie
their compliance arguments to legal references – they will claim that their preferred drafting
outcomes are compliant with, or even required by, existing law. Treaty drafting, as with any
legal argument, is a historically situated process where actors are limited by the references that
they may use and the arguments that the public may accept. This means that social interactions
are key to shaping what compliance is. Through social interaction, actors may increase – or
decrease – the range of compliant behaviors – justifying preferences as compliant or non-
compliant and even, over time, changing which standards are seen as clearly in one side or
another instead of being open to contestation and justification.
However, the ability of actors to contest and construct the meaning of compliance is not
always the same. Claims of compliance and noncompliance depend on invoking precedents and
formerly accepted standards – both formal standards as well as informal norms. These
commonplaces allow actors to frame their claims with references that the relevant public is more
likely to accept.
171
This is further constrained in legal debates where it may be harder to bring in

171
Friedrich Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical Legal Reasoning in
International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989); Ronald R. Krebs and
64

non-legal arguments. Law occupies a unique space as a legitimated language in international
relations, one that may help ‘even the playing field,’ reducing the ability of actors to directly
invoke power or political claims and giving materially weaker actors a more even playing field.
This is even more the case in certain moments of the treaty drafting process -for example, the
drafting of the Geneva Conventions included several meetings of the ICRC Legal Committee, an
explicitly law-focused forum, alongside broader political and diplomatic discussions. However,
even in these broader political forums, it is still expected that legal references will have a
particular importance in the negotiation process.
Furthermore, actors are limited in how they may use legal references. While an actor
could try to justify a preference as compliant by invoking an entirely new interpretation of the
law, this is unlikely to succeed as opponents can invoke concepts that are already understood by
the audience, while the claimant has to justify not only their action but their use of the new
standard.
172
Claims that are rejected wholesale by the relevant public fail at their goal of building
public support – or heading off public criticism – tying claimants and respondents to standards,
references, and sources that are acceptable or that might be made such. Prior scholarship has
highlighted the particular value of codified legal standards as commonplaces, as they allow
actors to frame their compliance claims with reference to formalized texts that they can reference
and whose interpretations may be more agreed-upon or understood by the public.
173

These codified standards, however, are part and parcel of the contestation process.
Treaties emerge out of the same process of rhetorical contestation, with actors employing

Jennifer K. Lobasz, “Fixing the Meaning of 9/11: Hegemony, Coercion, and the Road to War in Iraq,” Security
Studies 16, no. 3 (August 24, 2007): 421, https://doi.org/10.1080/09636410701547881.
172
Krebs and Jackson, “Twisting Tongues and Twisting Arms,” March 2007; Rapp, “Law and Contestation in
International Negotiations.”
173
Bower, “Arguing with Law,” April 2015; Rapp, “Law and Contestation in International Negotiations.”
65

rhetorical claims – invoking existing norms, standards, and beliefs – to shape the range of
uncertainty and precision within both a treaty as a whole and its particular substantive rules. The
fact that some legal rules are comparatively precise – with a narrow range of behaviors that may
be justified as compliant – while others are imprecise and open to far more contestation is not a
mistake. Indeed, “imprecision is revealing,” as it reflects global power structures and the results
of historical contestations.
174

Imprecision differs between rules, this chapter argues, because actors have different
levels of success in shaping the spectrums of compliance to align with their interests. With any
rule, some actors may prefer a broad range, where many behaviors are arguably compliant, while
other actors may prefer a clearer rule where a narrower range of behaviors may be justified.
Throughout the negotiation process, actors make claims about what a standard should be,
drawing on claims of how they see the existing law and what this means for the law they are
drafting, as well as what they may want the law to be. I argue that the ability of actors to shape
the spectrum of contested compliance within a rule, then, results from their ability to win these
rhetorical contests. This, in turn, shapes what codified references will be available for later
compliance claims. In short – actors argue over how broad or narrow a standard should be, and
success in this process depends on success in creating arguments that opponents cannot easily
dismiss. The outcome of this process then shapes the range of compliance claims that can later
be made, continuing the process of rhetorical coercion. Finally, when new treaties are drafted the
process continues, drawing on already codified standards and the spectrum of compliance that
has followed from them.

174
Kinsella and Mantilla, “Contestation before Compliance,” 3.
66

As discussed, this chapter focuses on the rhetorical processes at play during the drafting
stage. I argue that actors might have a greater ability to shape the meaning of compliance when a
treaty is being drafted. While an actor may contest the meaning of compliance at any point,
reshaping it through the outcome of said contestation, treaty drafting offers a unique opportunity
to shape future compliance contests. By shaping the final treaty that is adopted, actors are able to
reshape the types of rhetorical references available for future contests. Creating a treaty with
clear and specific rules, for example, may make it harder to claim that certain actions are either
prohibited or accepted. Creating a treaty with more opaque rules, in contrast, may allow for
greater degrees of contested claims. While an actor may expand or restrict the spectrum of
compliance at any point – and while the outcomes of such contests may be drawn on in future
compliance contests – treaty drafting offers an important opportunity for actors to fundamentally
alter the range of acceptable compliance claims. Drafting, then, may be seen as a type of critical
juncture in the compliance contesting process, a moment when actors have a greater than usual
opportunity to reshape meaning and change how standards may develop in the future.
175

Broadly, this chapter examines how actors employ rhetorical references to expand or
constrict the range of compliance claims with a given standard, focusing on the act of treaty
drafting as a critical moment in the creation of legal meaning and the concept of compliance.
Understanding how actors expand or contract the degree of ambiguity within a legal rule is
central to understanding how that standard may be invoked later in the rhetorical compliance
process. This paper argues that actors will have greater success in shaping legal rules to suit their
preferences if they are able to frame their claims on references to existing legal standards – in

175
Thomas Rixen, ed., Historical Institutionalism and International Relations: Explaining Institutional
Development in World Politics, First Edition (Oxford ; New York, NY: Oxford University Press, 2016), chap. 1;
Fioretos, International Politics, and Institutions in Time.
67

effect, by arguing that their preferences comply with existing law and reflect previously accepted
principles. Drafting, then, hinges on the same processes of compliance making that are employed
in other compliance contests.
Methodology & Data
To address these questions, this chapter focuses on the drafting of the 1949 Geneva
Conventions, starting in 1934 with the 15
th
International Conference of the Red Cross and
culminating with the Diplomatic Conference of 1949, which saw the conventions formally
adopted. By considering this fifteen-year span, which saw worldwide war and the rapid shifts of
the post-war era, this paper is uniquely able to examine how legal meanings were created– how
the processes of contestation and construction played out over time. Even more broadly, this
project situates these negotiations within an even broader period of changing in IHL – starting
with the 1899 and 1907 Hague Conventions and continuing to the 1949 Geneva Conventions,
emphasizing the changing nature of compliance and legal obligation in IHL over the course of
fifty years. Over the course of these fifty years, both the content and process of IHL was
fundamentally redefined. The Hague Conventions marked a fundamental shift in the content of
IHL and “remain central to their debate.”
176
Procedurally, the Hague Conferences were a seismic
change in the process for making international law, where states employed parliamentary
procedures to their negotiations and appealed to ideas of public opinion, international society,
and standards of civilization as ways to legitimate their arguments and the changes that they
reflected,
177
all processes and standards which continue to shape lawmaking, treaty negotiation,
and international diplomacy more broadly. This further emphasizes that the contestation process

176
Best, War and Law Since 1945, 29.
177
Paul K. MacDonald, “‘Parliament of Man, Federation of the World’: Repertoires of Statecraft, the Hague
Conferences, and the Making of the Liberal Order,” Diplomacy & Statecraft 32, no. 4 (October 2, 2021): 648–73,
https://doi.org/10.1080/09592296.2021.1996709.
68

is more than any single conference or meeting – it depends on historically grounded processes
and results from repeated social interactions – and this temporally broad focus helps to better
situate the processes.
To begin, this chapter first maps some of the fundamental changes in IHL in the fifty
years before the 1949 Geneva Conventions. This is achieved through a comparative analysis of
the 1899 and 1907 Hague Conventions – some of the first multilateral treaties regulating the
conduct of war – and the 1949 Geneva Conventions.
178
Unlike the word embeddings approach
that will be applied to the negotiation documents – a process discussed at length in the following
paragraphs – these documents are examined with a set of comparative approaches. First, the
treaties are grouped hierarchically, creating a sort of ‘family tree’ of IHL treaties, which
demonstrates the relationships and connections between these treaties. While this step helps to
clarify how these treaties draw on and are connected to each other, the next step – a relative
frequency analysis – highlights the ways in which they are different by drawing out words that
most differentiate the two sets of documents. Finally, the two key concepts are highlighted –
civilian and prohibition – and their related words analyzed, to show how meanings may be
shaped by word usage. In particular, this analysis highlights the potential for constructed
ambiguity within both legal and categorical words. These analyses help situate the treaties in
comparison to each other and demonstrate some of the important changes that occurred in IHL
between 1934 and 1949.
Following these analyses, the accumulated diplomatic records of the conferences
discussed above – from preparatory documents to meeting minutes – are used to provide detailed

178
For the purpose of this analysis, the 1899 and 1907 Hague Conventions are grouped together as the products of
one larger legalization project. This analysis limits itself to those treaties from the 1899 and 1907 Hague
Conferences which are considered part of IHL by the ICRC.
69

written records of the negotiation process.
179
While concerns may be raised that not all parts of
this process are recorded in these documents – for example, off-the-record discussions between
delegates or inter-state negotiations that may have occurred outside of these meetings – this does
not mean that the records themselves cannot provide significant insight. Public statements – like
those made during these meetings – are costly for the speaker. They reflect their preferences –
whether earnest or strategic – and changing positions later may be costly if doing so contradicts
previous commitments. As Mantilla has demonstrated, social pressure and concerns over
acceptability are central to lawmaking.
180
Moreover, significant debate and negotiation occurred
in these processes and is reflected in these documents, making them a useful and appropriate
source for addressing the questions of how actors create legal meanings.
To test the role of contestation and precision in this process, this project applies a mixed
methods approach, incorporating both quantitative and qualitative methods of text analysis.
Quantitative text analysis, particularly word embeddings, provide unique insight into how the
meaning of words changed over time. Word embeddings are a method of quantitative text
analysis that attempts to measure the meaning of words by examining their co-occurrence within
specific contexts. In contrast to other forms of quantitative text analysis, which focus on words
individually, word embeddings are able to account for the semantic relationships between
words.
181
Word embeddings do this by creating a vector of scores for each word and its
likelihood of appearing near any other word. With this, it is then possible to calculate the
likelihood that a word appears near another, allowing insight into its meaning based on its usage

179
International Committee of the Red Cross, “Drafting History of the 1949 Geneva Conventions,” Cross-Files |
ICRC Archives, audiovisual and library, August 12, 2017, https://blogs.icrc.org/cross-files/drafting-history-1949-
geneva-conventions/.
180
Mantilla, “Forum Isolation”; Mantilla, Lawmaking under Pressure.
181
Kenneth Benoit, “Text as Data: An Overview,” in The SAGE Handbook of Research Methods in Political Science
and International Relations, by Luigi Curini and Robert Franzese (London: SAGE Publications Ltd, 2020), 484–85,
https://doi.org/10.4135/9781526486387.n29.
70

– not merely on its frequency or presence.
182
This makes word embeddings particularly helpful
for studying changes in word meaning. A words vector – the representation of its semantic
relationships at a given time – may be compared to its vector at another time. In short, word
vectors make it possible to “semantically map a given word” and see how its meaning changes
over time.
183

This allows for the meaning of key terms to be mapped over time, to see how meanings
changed throughout the drafting process. For this project, the analysis focuses on the word
“hostage” and the changes that surrounded it. Hostage-taking, a practice that is absolutely
prohibited under current international law, is a helpful illustrative case for demonstrating the
theory discussed here. It deals with questions of civilian rights, occupation, reprisals, and
humane treatment – all longstanding areas of concern for humanitarianism and international
humanitarian law. At the same time, its current status as an absolute prohibition was not a
certainty – hostage taking was not subject to an absolute prohibition during the interwar period
and the practice was frequently used during the Second World War. Furthermore, as will be
discussed, several major powers were not keen to prohibit it. Instead, it was an area of
contestation, where its status as an absolutely prohibited practice had to be constructed through
social processes and rhetorical contests.
Of course, word embeddings cannot explain how a word’s meaning changed – no
quantitative method of analysis can accurately reflect all of the complex processes involved in
the development and use of language. With this in mind, this quantitative analysis is paired with
a qualitative analysis, applying the principles of process tracing and discourse analysis to

182
Ibid., 484; Arthur Spirling and Pedro L Rodriguez, “Word Embeddings: What Works, What Doesn’t, and How to
Tell the Difference for Applied Research,” 2019, 5.
183
Emma Rodman, “A Timely Intervention: Tracking the Changing Meanings of Political Concepts with Word
Vectors,” Political Analysis, July 25, 2019, 8–9, https://doi.org/10.1017/pan.2019.23.
71

examine how actors used the rhetorical processes theorized here to construct legal meaning and
shape the spectrum of compliance. Process tracing offers a rigorous approach for managing
questions of complex causal chains and allows for a deeper examination of the expectations that
actors strategically adjust the range of contested compliance available in a codified legal rule.
184

Qualitative analysis may also help identify cases where word usage changed, a change that might
not be picked up in quantitative analyses. For example, there could be changes in how the word
noncombatant or civilian are used, with certain words becoming more or less common.
Throughout these process tracing tests, this paper will apply the principles of discourse
analysis. Discourse analysis is an interpretive methodology focused on the social production of
reality.
185
Discourse analysis highlights the productive nature of discourse – language does not
simply analyze or reflect phenomena but creates social understandings.
186
The use of language in
social settings is key to these approaches, focusing on the use of language – the meanings it
reflects and how it is used to create and recreate these meanings.
187
Discourse analysis, then,
allows for a deeper consideration of how the different actors in this process understood their
world and how language was used to create and recreate it, through social processes of
contestation.

184
Derek Beach, “It’s All about Mechanisms – What Process-Tracing Case Studies Should Be Tracing,” New
Political Economy 21, no. 5 (September 2, 2016): 463–72, https://doi.org/10.1080/13563467.2015.1134466; James
Mahoney, “The Logic of Process Tracing Tests in the Social Sciences,” Sociological Methods & Research 41, no. 4
(November 2012): 570–97, https://doi.org/10.1177/0049124112437709; Andrew Bennett and Jeffrey Checkel,
Process Tracing (Cambridge: Cambridge University Press, 2014).
185
Cynthia Hardy, Bill Harley, and Nelson Phillips, “Discourse Analysis and Content Analysis: Two Solitudes?,”
Qualitative Methods: QMMR Newsletter 2, no. 1 (2004): 19.
186
Jennifer Milliken, “The Study of Discourse in International Relations: A Critique of Research and Methods,”
European Journal of International Relations 5, no. 2 (1999): 229.
187
Marianne LeGreco, “Discourse Analysis,” in Qualitative Methodology: A Practical Guide, ed. Jane Mills and
Melanie Birks (London: SAGE Publications, Inc., 2014), 67–88, https://doi.org/10.4135/9781473920163.
72

Situating Geneva – 50 Years of Change
To situate this analysis, I first conducted a comparative study of two sets of treaty
documents – the 1899 and 1907 Hague Conventions (The Hague Conventions) and the 1949
Geneva Conventions. This serves the important purpose of helping to identify areas where
international humanitarian law – the focus of both sets of treaties – changed during the first half
of the twentieth century, as well as highlighting some of the ambiguity that can surround legal
language. While the construction of compliance is an ongoing and recursive process, one without
a set start or end, these two sets of documents provide helpful reference points for understanding
the development of the Geneva Conventions, as the 1899/1907 Hague Conventions were perhaps
the most important precursor to the Geneva Conventions. As such, they may have served as
important argumentative tools during the drafting of the Geneva Conventions. Changes between
the two may then be deeply informative as to how compliance was created and changed during
this time.
As discussed, the first step in analyzing these two sets of treaties was to calculate their
similarities, which was done using the quanteda document similarities tool – an R package
developed for quantitative text analysis,
188
which groups documents based on their word usage
proportional to length. Documents that frequently use the same words are grouped more closely
to each other,
189
demonstrating the degree of (dis)similarity between documents. The results of
this analysis are shown in Figure 3.
190

188
Kenneth Benoit et al., “Quanteda: An R Package for the Quantitative Analysis of Textual Data,” The Journal of
Open Source Software 3, no. 30 (2018): 774.
189
Ibid.
190
hague18991 “Convention (II) with Respect to the Laws and Customs of War on Land and its Annex;”
hague18992 “Convention (III) for the Adaption to Maritime Warfare the Principles of the Geneva Convention of 22
August 1864”; hague18993 “Declaration (IV,2) concerning Asphyxiating Gases;” hague18994 “Convention (IV,3),
concerning Expanding Bullets;” hague19071 “Convention (III) relative to the Opening of Hostilities;” hague19072
“Convention (IV) respecting the Laws and Customs of War on Land and its annex;” hague19073 “Convention (V)
respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land;” hague19074 “Convention
73

Figure 3: Cluster Dendrogram of the 1899/1907 Hague Conventions and the 1949 Geneva
Conventions

Unsurprisingly, the Geneva Conventions are markedly different from the Hague
Conventions. However, it is worth noting that there is an important differentiation between the
four Geneva Conventions. The 3
rd
and 4
th
Geneva Conventions stand removed from all the other
treaties – both the 1
st
and 2
nd
Geneva Conventions and the Hague Conventions. This likely

(VI) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities;” hague19075 “Convention (VII)
relating to the Conversion of Merchant Ships into War-Ships;” hague19076 “Convention (VIII) relative to the
Laying of Automatic Submarine Contact Mines;” hague19077 “Convention (IX) concerning Bombardment by
Naval Forces in Time of War;” hague19078 “Convention (XI) relating to certain Restrictions with regard to the
Exercise of the Right of Capture in Naval War;” hague19079 “Convention (XIII) concerning the Rights and Duties
of Neutral Powers in Naval War;” hague190710 “Declaration (XIV) Prohibiting the Discharge of Projectiles and
Explosives from Balloons”
74

reflects their focus on prisoners of war and civilians while the 1
st
and 2
nd
Geneva Conventions,
along with the Hague Conventions, focus primarily on the conduct of hostilities.
191

This pattern continues through the Hague Conventions, where those focused on the
conduct of warfare – for example, the 1899 and 1907 Conventions on the Laws and Customs of
War
192
– are the nearest to the 1
st
and 2
nd
Geneva Conventions, being separated by one fork in
the tree. Meanwhile, those Hague Conventions with more technical focuses, for example,
Declaration IV on Asphyxiating Gases
193
or Convention VII which deals with the conversion of
merchant vessels into warships,
194
are further removed from the rest of the texts. This reflects
their specialized focus – since they deal with narrow topics, and in particular, topics which may
not have been repeated in later treaties – they share fewer meaningful words in common with the
other treaties.
Relative frequency analysis identifies the particular words that differentiate the texts,
weighing a word's frequency in the document with its rarity in the other document. Words that
are frequently used in one document but which are comparatively less common in the other
document may be particularly informative about what differentiates the texts. This helps account
for words that may be common across all texts – for example, “war” or “power” – which do not
offer meaningful insights into the differences between these texts.
195
A relative frequency
analysis of these documents, divided between the 1899/1907 Hague Conventions and the 1949
Geneva Conventions, then, helps identify what words are the most frequent, relative to the other
set of documents. Since the focus here is on changes between the two sets of documents, the

191
Stephen C Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press,
2008), https://doi.org/10.1017/CBO9780511494253; Best, War and Law Since 1945; Gutteridge, “The Geneva
Conventions of 1949.”
192
hague18991 and hague19072 in the figure
193
hague18993
194
hague19075
195
A frequency plot of the twenty-five most common words across all of the texts is included in Appendix 1.
75

texts are grouped into two groups - blue (words that are the most relatively frequent in the 1949
Geneva Conventions) and grey (the words that are relatively more frequent in the 1899/1907
Hague Conventions), plotted in Figure 4.
Figure 4: Relative Frequency Analysis of the 1899/1907 Hague Conventions and 1949 Geneva
Conventions
196

A few words stand out as separating the two sets. Words like “government,” “powers,”
and belligerents” are common in the Hague Conventions but are far rarer in the Geneva
Conventions. In contrast, the Geneva Conventions use words like “detaining,” “medical,”
“protecting, and “internees” with a far greater frequency. This reflects a change away from what

196
Results here are shown as a measure of chi-square. The higher the value, the more likely it is that a difference is
statistically significant.
76

might be thought of as state-centric language – belligerent, powers, government – to person-
centric language like protection and personnel. Indeed, versions of person and protection are
some of the most relatively frequent words in the Geneva Conventions compared to the Hague
Conventions. This highlights some important trends in the development of IHL in the first half of
the twentieth century, with a growing focus on the protection of individuals instead of the rights
of states.
197
Developments like this raise important questions for the meaning of compliance in
IHL – changing who compliance is owed to as well as what is owed – as well as questions about
how such changes came to be and how their meaning was contested.
Figure 5: Related Keywords - Civilian

197
Mantilla, “Social Pressure and the Making of Wartime Civilian Protection Rules”; Kinsella, The Image Before
the Weapon.
77

Engaging more deeply in this analysis, a related keyword analysis helps further
illuminate the different meanings of concepts. In particular, identifying the words that are most
frequently used in the context of keywords helps to contextualize the meaning of the word, if we
assume that word meaning is shaped by the words around it. For the purpose of this analysis, I
have identified two concepts – civilian (Figure 5) and prohibition (Figure 6)
198
- to show how
meaning may be shaped by the words used in the treaty, analyzing the words that most
frequently appear within five words in either direction. These words were chosen for their
connection to two important concepts in the IHL. First, IHL is oriented around reducing
unnecessary harm, particularly to noncombatants, during hostilities. Distinguishing between
civilian and combatant – and the different obligations owed to, and rights held by, each is central
to IHL. Similarly, then, IHL is often concerned with what an actor may not do. It is largely
impossible to create a legal code that spells out all of what an actor may do. Instead, law –
including IHL – often tries to determine what is prohibited, what the actor may not do. In the
context of IHL, this may mean determining what weapons cannot be used, what objects cannot
be targeted, or otherwise how hostilities cannot be conducted. Focusing on ‘prohibition’ helps to
examine these changes.

198
Prohibit includes words that share a common root including prohibition and prohibited.
78

Figure 6: Related Keywords – Prohibition

The patterns in these two plots may not be surprising but they do raise important points
for understanding the compliance and the meaning of legal obligation. Civilian, for example,
appears most closely related to the word protection, alongside hospitals, another category
typically understood as protected by international law. With that said, the question may be raised
– what is meant by protection? What duties do states have when offering protection and how far
do these duties extend? Prohibition, on the other hand, is most closely tied to reprisals – a
category of vengeful military action widely seen as forbidden under IHL. Similarly, pillage,
coercion, and torture also feature here. Prohibition, unlike civilian, is a legal term – one that
imparts a legal obligation – and this is clearly shown here. Even with that clarity, however,
79

contestation may still occur and indeed, such contestation is expected. Actors may contest the
meaning of what is prohibited, instead of the meaning of prohibition itself – defining acts as
reprisals or lawful acts, for example, a pattern that has been seen previously in the context of
torture
199
or hostage taking, which will be analyzed in more depth in the following sections.
Alternatively, scholarship has already noted how major powers attempted to carve out
exemptions to prohibitions in the drafting process – for example, limiting the application of the
Geneva Conventions in non-international armed conflict.
200
In contrast, categorical terms like
civilian may be contested – who counts as a civilian and is thus deserving of said treatment?
201

Questions like these are some examples of how compliance may be contested – if the rules are
unclear actors may justify a wide range of acts – including contradictory acts – as meeting the
legal requirements of compliance. Alternatively, if contestation during the drafting process
narrows these categories it may limit the range of actions that can be justified. If it is clear that a
behavior does not align with the meaning of compliance – or at least fall within a palatable range
of interpretations of compliance – the behavior cannot be justified using appeals to IHL.
Hostage Taking: Constructing an Absolute Prohibition from a Weak Ban
The analysis now turns to focusing on the development of the hostage prohibition as a
case of compliance construction. As was previously discussed, at the start of the drafting process,
hostage taking was the subject of what may be called a weak prohibition. The 1934 Draft Tokyo
Convention, for example, proposed a qualified ban for the practice. In particular, the 1934 Draft
proposed an absolute ban on taking the civilians of belligerent powers hostage if they were in the

199
Jamal Barnes, “The ‘War on Terror’ and the Battle for the Definition of Torture,” International Relations 30, no.
1 (March 2016): 102–24, https://doi.org/10.1177/0047117815587775.
200
Mantilla, Lawmaking under Pressure; Kinsella and Mantilla, “Contestation before Compliance.”
201
Kinsella, The Image Before the Weapon.
80

territory of the state at the time war broke out.
202
However, it did not prohibit hostage taking in
occupied territories. Instead, it explicitly allowed the practice in “an exceptional case” as long as
hostages were not killed and were treated humanely.
203
Indeed, it is not even clear that executing
hostages would violate international law. A Commission of Government Legal Experts noted, in
1947, that “it is only by interpretation” that the 1907 Hague Conventions could be seen to
prohibit the practice.
204
With the Tokyo proposals left in draft form, international law offered
only a weak – and conditional – prohibition on hostage taking.
This reflects the historical nature of hostage taking, which had long been seen as by many
as an important tool for maintaining order in occupied territories. Taking hostages gave the
occupying power a powerful tool for enforcing public order, leveraging the threat to human lives
to keep populations subservient. States, then, were often reluctant to do away with the practice,
especially in cases of occupation. Giving up hostage taking would, the argument goes, limit their
ability to control occupied territories.
205

The weak nature of the hostage prohibition may also be seen in the language used to
discuss the prohibition. A “nearest neighbors” approach illuminates this by showing the words
that are most closely connected to hostage taking (Table 2). This identifies the words with the
highest cosine similarity to the target word – in this case, hostage – within a specified range. The
higher the cosine similarity, the more likely it is that the words appear near each other, indicating
a greater connection between them.

202
International Committee of the Red Cross, “Draft International Convention on the Condition and Protection of
Civilians of Enemy Nationality Who Are on Territory Belonging to or Occupied by a Belligerent” (International
Committee of the Red Cross, 1934), Article 11.
203
Ibid., Article 19a.
204
Commission of Government Experts, “Preliminary Documents Submitted by the International Committee of the
Red Cross, Volume III, Condition and Protection of Civilians in Time of War” (International Committee of the Red
Cross, April 14, 1947), 15.
205
International Committee of the Red Cross, “Final Record of the Diplomatic Conference of Geneva of 1949 -
Decisions of the Bureau of the Committee III” (International Committee of the Red Cross, 1949), 141.
81

Table 2: Nearest Neighbor for Hostage Taking
206

1946 1947 1948 1949
Prohibit Prohibit Executions Prohibit
Forbid Forbid Prohibit Outrages
Humanely Stipulate Reprisals Torture
Executing Infringing Interment Punishment
Detaining Punishment Outrages Forbid

As Table 2 shows, when hostage taking was discussed in 1946, when drafting resumed with
renewed urgency after the Second World War, it was more likely to coached in permissive – if
restrictive – terms. In particular, the use of the word “humanely” implies a standard that is not
absolute. For states to treat hostages and hostage taking humanely they must still, fundamentally,
engage in the act of hostage taking. An absolute prohibition would not require such a
clarification. This pattern begins to shift, however, over the next several years. The appearance
of words like “humanely” and “accordance” in both 1946 and 1947 may indicate some level of
permission – that hostage taking may be done in accordance with certain limitations – but even
this fades as the drafting continues. By 1948 and 1949, the related words are clearly prohibitive.
Hostage taking is associated with words like “punishment,” “forbid,” and “prohibit,” words that
clearly impart a ban. Furthermore, in 1949 – when the drafting process reached its conclusion in
the 1949 Diplomatic Conference of Geneva – hostage taking is not only tied to prohibitive
words but to words that show a fundamental rejection of the practice. Hostage taking is
connected to words like “torture” and “outrages,” words that may show a connection between the
practice and the emerging United Nations human rights framework, a connection that is borne
out in the qualitative analysis that will be discussed in the following section.

206
Stemmed words – like prohibition, prohibiting, and prohibit – are grouped together. The top 5 results for each
year are shared. In the case of 1947, the top five results were groupings of the same stemmed words.
82

What these analyses make clear, though, is that the content of the hostage taking
prohibition underwent fundamental changes during the drafting process. What began as a weak
prohibition, where clauses from the Hauge Conventions required interpretation to prohibit the
execution of hostages and where the 1934 Tokyo Draft would have permitted the practice in
occupied territories, became an absolute prohibition in 1949. The 4
th
Geneva Convention, in
Articles 3 and 34, prohibited the practice in absolute terms – without differentiating between
occupied territories. Indeed, the prohibition on hostage taking was one of the few provisions to
be included in Common Article 3, being applied to both interstate and intrastate conflicts, a clear
indication of just how absolute the prohibition had become.
207

This reflects a change in the scope of compliance, in what acts may be justified as
permissible and compliant, for future compliance contests. Whereas previously an actor may be
constructed a compliance claim by invoking the contested grounds of hostage taking – that a
conflict was intranational, that the practice was occurring in an occupied territory, or that the
existing law did not explicitly prohibit executing hostages – they would find such arguments far
harder to make and sustain post-1949. The scope of contested compliance had been tightened,
fewer claims could be made in a socially sustainable way. By 1949, the contestable area of
compliance had shrunk – the excuses were gone, hostage taking could no longer be justified in
the ways that it previously could.
Constructing Compliance: Claims of Legality and Morality
In the span of fifteen years, hostage taking went from a contestable practice, one allowed
in at least some cases and which even proposed law did not seek to do away with completely, to
one that was absolutely prohibited in interstate and intrastate conflict. Such changes do not

207
Raymund T Yingling and Robert Ginnane, “The Geneva Conventions of 1949,” The American Journal of
International Law 46, no. 3 (1952): 396; Gutteridge, “The Geneva Conventions of 1949,” 300–301.
83

happen on their own so we may well ask, how did this happen? What arguments resulted in this
changing construction of what it means to comply with the international law on hostage taking?
As was previously discussed, I expect that legal arguments will particularly important in
constructing legal meaning and the spectrum of compliance. Legal arguments – where
preferences and positions are coached with legal references and draw on legal claims – offer
actors a way to connect their preferences to a supposedly neutral language. In strictly legal
forums, such as negotiations and drafting meetings between legal experts, legal arguments may
be one of the few – if not only – appropriate claims, given the nature of the epistemic community
where they are being made.
208
More broadly, though, legal references can offer an important
argumentative tool in political spaces, too. Connecting political preferences to international law –
which reflects a supposedly neutral, internationally agreed-upon and shared, set of standards
gives actors a way to advance their arguments that others may find harder to contest, a pattern
that previously scholarship has begun to identify by considering the use of international law in
diplomacy and international argumentation.
209

The analysis supports these expectations – hostage taking is tied to legal claims and
references with a greater frequency than other claims. This connection increases as the drafting
process continues, including into the 1949 Diplomatic Conferences – a political forum where
states were free to draw on whatever claims they may like in order to reshape the adapted treaties
to better align with their preferences – indicating that the use of legal terms was not strictly a
matter of legal forums. As Table 3 shows, “law” and “treaties” are closely connected to hostage

208
Peter M. Haas, “Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control,”
International Organization 43, no. 3 (1989): 377–403.
209
Rapp, “Law and Contestation in International Negotiations”; Bower, “Arguing with Law,” April 2015; Adam
Bower, “Entrapping Gulliver: The United States and the Antipersonnel Mine Ban,” Security Studies 29, no. 1
(January 1, 2020): 128–61, https://doi.org/10.1080/09636412.2020.1693621; Mantilla, Lawmaking under Pressure;
Kinsella and Mantilla, “Contestation before Compliance.”
84

taking, more so than “morals,” “moral,” or “ethical,” indicating that while ethical and moral
claims were important they were comparatively less important than legal claims.
Table 3: Types of Claims Related to Hostage Taking
210

1946 1947 1948 1949
Treaties
(0.178)
Morals
(0.186)
Law
(0.178)
Law
(0.159)
Ethical
(0.154)
Law
(0.157)
Treaties
(0.176)
Treaties
(0.155)
Treaty
(0.149)
Treaties
(0.143)
Ethical
(0.159)
Moral
(0.154)
Law
(0.139)
Ethical
(0.128)
Moral
(0.144)
Moral
(0.135)
Morals
(0.133)
Treaty
(0.098)
Morals
(0.142)
Ethical
(0.117)

This analysis is further borne out in the qualitative analysis of the drafting process. Arguments in
favor of revising the hostage prohibition were frequently connected to legal standards, including
both existing and emerging international law. Earlier arguments, for example, drew on the 1907
Hague Conventions and the 1934 Draft Tokyo Convention to elaborate the existing nature of the
prohibition. Interpretations of the Hague Conventions that prohibited the execution of hostages
were frequently invoked alongside a desire to formalize the prohibition more clearly in a new
treaty.
211
As the drafting process continued, arguments began to be tied to the new United
Nations Charter and the human rights standards found in it, further supporting the idea that actors
were eager to connect their claims to international law. It may be harder for rivals to disagree

210
This table displays the cosine similarity between each word and the target word (“Hostage taking”). A higher
value means that the word is more likely to appear in the context of the target word.
211
Commission of Government Experts, “Commission of Government Experts Preliminary Documents,” 15–16;
International Committee of the Red Cross, “Records of the Diplomatic Conference of Stockholm of 1948 - Draft
Convention for the Protection of Civilian Persons in Time of War,” 1948, 154; World Jewish Congress, “Final
Record of the Diplomatic Conference of Geneva of 1949 - Memorandum of the World Jewish Congress”
(International Committee of the Red Cross, 1949).
85

with the strengthened prohibition once it was connected to their other legal commitments,
making such references particularly effective as an argumentative tool.
Actors who favored a stricter prohibition needed strong arguments since the creation of
an absolute prohibition was not a sure thing. Diplomatic records show a reluctance on the part of
some states – including major powers like the United States and United Kingdom but also
including middle powers like the Netherlands – to absolutely forbidding hostage taking in
occupied territories. These states claimed that the practice was an important tool for maintaining
order in occupied territories and may have opposed an absolute ban in favor of one that would
leave a greater scope for compliance by allowing, at least in extreme cases, for the practice to be
continued. Ultimately, these states appear to have conditioned their support for the absolute ban
– which had been convincingly tied to legal standards and ethical arguments – to the continued
application of the death penalty in occupied territories.
212

This points to another important aspect of these negotiations – the shadow of the Second
World War and the argument that the drafting process occurred at what amounted to a critical
juncture in the creation of international law. Following the devastation and atrocities of the
Second World War, and emerging alongside fundamental changes to the international legal order
that are typified by the creation of the United Nations, the drafting of the 1949 Geneva
Conventions cannot be understood without an awareness of their greater context. Indeed, ethical
and moral arguments, which Table 3 shows remained important throughout the process even if
outweighed by legal claims, were often made in the context of the hostage prohibition. Both state
representatives and non-governmental organizations noted the use of hostage taking during the
Second World War as an affront to humanitarian principles, drawing on these arguments to call

212
International Committee of the Red Cross, “Final Record of the Diplomatic Conference of Geneva of 1949 -
Decisions of the Bureau of the Committee III,” 141.
86

for a clear and absolute prohibition.
213
At the same time, as was discussed above, the new legal
structures of the United Nations and its corresponding human rights framework, served as
important legal references for those seeking to strengthen the hostage taking prohibition.
214
It is
clear that the particular environment of the immediate postwar era shaped the nature of the legal
arguments and claims that could be – and were – used in these negotiations.
With that said, the continued strength of legal arguments even during such a unique time
may point to their particular role and value in creating legal meaning. The sort of critical juncture
presented by the end of the Second World War – a moment when previous equilibriums are
punctuated and a greater degree of change than usual may be possible – may pose a harder test
for the value of international legal references and arguments. In such an environment, actors may
be able to draw on a wider range of arguments and claims since conditions are unsettled and in
flux. Indeed, many of the moral and ethical arguments made during the drafting process reflect
this – they invoke the events of the Second World War as a particular reason motivating legal
change. However, even in these unsettled and unique conditions, the particular value of
international law remains clear. Even when actors had a greater than usual range of references to
draw on, when particular social conditions meant that previous path dependent and structural
factors may have been weakened, legal language still appears to have been central. Constructing

213
Commission of Government Experts, “Commission of Government Experts Preliminary Documents”;
International Committee of the Red Cross, “Documents Furnished by the International Committee of the Red Cross,
Volume III - Convention Relative to the Treatment of Prisoners of War and Convention Relative to Civilians.”
(Preliminary Conference of National Red Cross Societies, 1946), 1; World Jewish Congress, “Final Record of the
Diplomatic Conference of Geneva of 1949 - Memorandum of the World Jewish Congress.”
214
Commission of Government Experts, “Commission of Government Experts Preliminary Documents,” 16;
International Committee of the Red Cross - Legal Commission, “Report of the Sub-Commission for the Study of the
Draft Convention Concerning the Protection of Civilians in Time of War” (International Committee of the Red
Cross, 1948), 1; International Committee of the Red Cross, “Records of the Preliminary Conference of National Red
Cross Societies for the Study of the Conventions and of Various Problems Relative to the Red Cross” (Preliminary
Conference of National Red Cross Societies, 1946), 97.
87

ideas of compliance and building legal meaning, then, may hinge on the – often politically
motivated – use of legal references and claims.
Discussion
As the above analyses show, there was a marked change in IHL in the first half of the 20
th

century as actors constructed new legal meanings and changed the scope of compliance with
legal rules. Comparing the Hague Conventions to the 1949 Geneva Conventions, for example,
highlights the changing nature of warfare but also the changing focus of international law. While
the 1
st
and 2
nd
Geneva Conventions share the most in common with the Hague Conventions,
dealing with rules for how conflict may be conducted. When these treaties diverge, then, it is
often over the changing material nature of warfare – for example, the move away from converted
merchant warships – as much as the changing nature of law.
The 3
rd
and 4
th
Geneva Conventions, on the other hand, are quite distinct from the
preceding treaties. While these broad changes have been well-documented,
215
they are playing an
important role in framing the development of legal meaning and the construction of compliance
within the conventions. The relative frequency analysis demonstrates that, in this case, the
difference is the degree to which different treaties focus on what is owed to individuals, instead
of states. Whereas the Hague Conventions may be defined by their focus on states – their status
as belligerents, the powers of state parties, and the role of governments – the Geneva
Conventions show a different focus. In particular, the Geneva Conventions are set apart by their
focus on the individual – “persons,” “personnel,” and “members” – and the treatment owed to
them – “medical,” “detain,” and “treatment.”

215
Best, War and Law Since 1945; Neff, War and the Law of Nations.
88

Studying the keywords related to central concepts raises important points about the
structure of IHL and how it may be created and contested. Legal terms like prohibition, for
example, may track well with traditional views of IHL. However, they may still be open to
contestation. In particular, actors may try to expand or narrow how broadly a prohibition is
applied, or they may try to create ambiguity around possible caveats and exceptions to a
prohibition. Categorical terms, like civilian, present more of a challenge and may be more open
to contestation. Actors may try to shape the definition of categorical terms to expand or narrow
its application, shaping who it may be owed protections are owed to or not. This may, in turn,
allow states to contend that a wider range of behaviors meet the requirements of the law,
leveraging the ambiguity to contest that their acts are in fact compliant. However, as was
discussed, while the word prohibition seems clear its usage creates opportunities for contestation,
forcing states to clarify what it means to comply with a prohibition – querying what behaviors
may be prohibited or who might be lawfully subject to otherwise unlawful behavior.
Finally, the prohibition of hostage taking provides an insightful case into what these
changes meant for the creation of legal meaning and the construction of compliance, as well as
the processes by which these changes occurred. Faced with international law’s failure to prevent
the mistreatment of hostages during the Second World War, the drafters of the 1949 Geneva
Conventions set out to reconstruct what it meant to comply with international law on hostage
taking. While international law prior to 1949 allowed actors to claim compliance with the
hostage prohibition while still engaging in it – as long as they did so humanely and limited their
hostage taking to occupied territories – this was changed by 1949. Instead, compliance claims
now faced a far tighter spectrum of acceptability. Actors in 1949 needed to craft a claim that
could be considered appropriate while having far fewer caveats – and less flexible language –
89

than actors in 1934. The same act, then, became harder to make compliant as the result of the
drafting process and the interpretive battles that occurred within it.
This change was brought about, in particular, through the use of legal references and
arguments. While actors could – and did – draw on ethical and moral arguments, they frequently
tied the hostage prohibition to legal arguments. Following 1945, drafters were quick to connect
their arguments to longstanding legal standards, references, or claims – invoking interpretations
of the Hague Conventions – as well as newer examples of international law like the United
Nations Charter. Tying arguments to these legal claims may have strengthened them, making it
harder for opponents to create sustainable counterarguments in favor of a weaker ban, since
doing so was seen as violating existing social standards. So, even while major powers may have
expressed hesitance over a strong prohibition, they were unable to oppose it in a socially
sustainable way.
Conclusions
Legal meaning and the idea of compliance, then, is the product of social processes and
rhetorical contests. As one part of this, actors engage throughout the drafting process to contest
meanings of compliance, employing legal references as a way to portray their preferred drafting
outcomes as being aligned with existing legal interpretations. Recognizing that language is often
unclear or indeterminate, actors may work to tighten or loosen how a rule may be interpreted.
They may push for clearer language to make it clearer what is prohibited or accepted.
Alternatively, they may argue for exceptions or favor broad language that may allow for a wider
variety of acts to be justified as compliant. They do so by tying their preferences to claims of
compliance and legality – arguing that existing legal standards support, or even require, the
adoption of their preferences in the negotiated text. In this way, treaty making mirrors the
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process by which states create compliance claims – invoking legal references and rhetoric to
portray their preferences as being compliant with the law.
This was the process that played out during the drafting of the 1949 Geneva Conventions,
as the changing meaning of the hostage prohibition demonstrates. Prior to the Second World
War, hostage taking was the suspect of a weak prohibition – one with exceptions that allowed
states to justify hostage taking by situating their claims into particular categories. In particular,
while it was prohibited to take someone hostage if they were in the state at the start of conflict, it
was not prohibited to take hostages in an occupied territory. All that was required was that they
be treated humanely – and, at least in some interpretations of the 1907 Hague Conventions, that
they not be executed. Even this last part though could, in theory, be contested. A state could
executive a hostage and justify doing as being entirely compliant with their international legal
obligations. While this compliance could be contested – opponents could challenge the
humaneness, offer interpretations of the Hague Convention that would prohibit executions, or
question if the hostage had been in an occupied territory – it was still a socially plausible
interpretation of what it meant to comply with the hostage prohibition.
By the end of 1949, however, this was far from the case. The 4
th
Geneva Convention
clearly states – in Article 32 but also Common Article 3 – that hostage taking is prohibited.
There is no differentiation between occupied territories, nor is the prohibition of execution a
matter of interpretation. The exceptions that had existed before, that would allow a state to craft a
compliance claim portraying hostage taking as aligning with their international legal obligations,
were gone. The meaning of compliance in this case had been reconstructed and the scope of
contestation had been radically altered.
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This process was achieved, at least in part, through the use of legal references that
allowed actors to portray their arguments as complying with existing law and accepted legal
interpretations, in essence making compliance claims about their preferred interpretations and
treaty clauses. While actors could – and did – invoke moral and ethical arguments in favor of
changing the hostage prohibition, legal arguments appear to have had a particular role. Actors
drew on existing law and previous drafts, as well as newer international legal instruments like the
United Nations Charter and the human rights principles included in it, to argue that an absolute
prohibition of hostage taking was necessary and appropriate. Legal references gave actors an
important way to justify their claims, situating them as being matters of law as well as ethics and
morals. Faced with potential opposition from major powers, these claims may have helped ‘close
off’ debates by making opposition socially unsustainable. In short, actors constructed claims of
compliance through the careful use of legal references in order to ‘win’ their desired outcomes in
the drafting process.
As this analysis shows, legal arguments are central to the creation of legal meaning and
treaty drafting may provide a unique opportunity to reshape future compliance contests. Having
considered how legal meanings are created in the drafting process, then, the focus may not turn
to understanding how compliance claims are created and contested. This is the focus of the
following two chapters, which examine cases where actors – primarily but not exclusively states
– create claims of compliance with international law or contest the claims of others. They do so
with the same tools that they use to create legal meaning and the idea of compliance in the
drafting process – by linking, where possible, their claims and preferences to international legal
references. Doing so, it will be shown, allows them to counter opponents and close down other
92

interpretations of compliance. At the same time, these claims of compliance – or contestations of
rival claims – continue the process of legal meaning making.
Treaty drafting, however, is not the be all and end all for legal meaning making, nor does
it determine what it means to comply with international law. It is but one, perhaps particularly
influential, moment in an ongoing process – one opportunity of many for actors to create
meanings of compliance. The social uses of international law – the claims made in the future that
draw on what has been codified – are just as important in creating what it means to comply with
international law. When future treaties are negotiated, it is these past treaties – and their
subsequent use and interpretation – that actors will draw on to create the legal arguments that
allow them to push for their preferences in the new text. While this chapter has focused on the
role of treaty drafting, then, it is vital that this be understood as part of an ongoing process. Legal
meaning is created during treaty drafting, yes, but it is not fixed. As Crawford and Viles noted,
“one cannot tell what all of the international law was on a given day until after that day…like
good coffee, international law has to be brewed.”
216

216
James Crawford and Thomas Viles, “International Law on a Given Day,” in International Law as an Open
System: Selected Essays, by James Crawford (London: Cameron May, 2002), 92–93.
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Chapter 4
Contesting Compliance: Legal Rhetoric and the Universal Periodic Review
Introduction
Claiming compliance is just half of the process of rhetorical compliance. As discussed in
Chapter Two, contestation is central to the process of rhetorical compliance. When an actor
makes a compliance claim, this claim is often contested by others who dispute the interpretation
of the law that is being made. This contestation may be motivated by a genuine disagreement
over the meaning and purpose of the law or it may be driven by political goals – an actor may,
for example, contest a rival’s compliance claim for political reasons and use the language of law
and compliance for entirely self-serving reasons – but either way it is central to the compliance
making process. This is because contestation is what determines if an compliance claim will be
accepted – if the act will be made compliant through the claims of the actor or if the behavior
will be considered a violation of the law. These outcomes then feature into later compliance
contests, with behaviors that are successfully contested and defeated in one instance being likely
to face a harder time in being made compliant in the future. This is because opponents will be
able to draw on the past outcome as a type of precedent, arguing that if an interpretation was
inappropriate in previous circumstances that it remains inappropriate in the current moment. On
the other hand, if a compliance claim succeeds – if the actor is able to overcome, or at least stave
off, their critics than that behavior may be easier to make compliant in the future. In short, the
results of these contestative processes play a central role in either expanding or contracting the
scope of compliance associated with a rule.
How, then, is compliance contested? How do respondents argue that an actors claim of
compliance is inappropriate and that a behavior that is claimed as compliant is, in fact, a
94

violation of the law? I argue that actors use many of the same rhetorical tools and references to
contest compliance claims as they do to make them. In particular, actors will be most successful
in contesting compliance claims – in framing the behavior as noncompliant in a way that cannot
be successful challenged in the eyes of the public – if they draw on particular types of legal
references. As discussed in the preceding chapters, it is expected that references to codified
international law will be particularly effective in both making and contesting compliance claims,
while broadly legal references will still outperform non-legal references.
This chapter examines this assumption by focusing on how states contest the human
rights practices of other states. How do actors – successfully – argue that another state is failing
to comply with its human rights obligations? What claims do they use and is there a meaningful
difference across types of claims? More directly – do legal references lead to more successful
contestation outcomes? To do this, I examine the contestative processes that occur within the
Universal Periodic Review UPR), a United Nations human rights mechanism with global
participation. The format of this process, which will be discussed in more depth later in the
chapter, presents a unique opportunity for studying contestative processes and addressing the
question of what makes an effective compliance argument. So, while Chapter Three examined
how states claim compliance within the realm of treaty making, this chapter is able to examine
how states contest the compliance claims of others – in this case by examining how they argue
noncompliance on the part of other states, vis a vis their human rights obligations.
In asking these questions, this chapter also asks – what makes a human rights argument
successful? Why do some rights arguments lead to positive changes while others elicit a
negative response? When states discuss the human rights performance of other states, how do
they construct their recommendations and requests – what rhetoric do they use, what obligations
95

do they invoke, claims do they make, and do these decisions affect the outcome? Do actors
invoke broad concepts – appealing to the deep normative commitments and ideals of the human
rights system? Is the language of politics or power preferred, referencing material, or political
concerns to motivate changes in human rights performance? Alternatively, do states use the
language of the law – even in political settings – when trying to motivate changes in human
rights practices? Just as importantly – does the choice matter? These questions raise important
points not only for our understanding of compliance but for human rights – in particular how
actors may leverage different types of rhetoric and argumentation as tools for improving human
rights. This chapter sets out to answer these questions by offering a systematic analysis of the
value of legal references in human rights debates, finding that legal claims are uniquely powerful
in shaping argumentative outcomes.
Toward this end, this chapter begins with a discussion of the Universal Periodic Review,
including its functioning, participation, and the qualities that make it an appropriate case for this
analysis. After this, the theory of rhetorical compliance is briefly recapped, with a focus on the
process of contesting a compliance claim, in order to draw out the hypotheses that will be
examined in this chapter. Next, I discuss the methods and date used to measure the effectiveness
of different types of contestative claims, which is then followed with a presentation of results and
discussion of their meaning. Ultimately, these results support the theory – showing that actors are
most successful in contesting compliance – measured here as the ability to contest another state’s
human rights compliance in a way that leads the state under review to acquiesce and recognize
its policy as noncompliant – when they frame their claims on codified legal references. Similarly,
while less successful in contesting compliance that codified references, uncodified legal
references still outperform compliance contests that are framed on non-legal grounds.
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The Universal Periodic Review
When debating human rights, states have a range of forums in which to raise the issue
and a variety of discourses to frame their comments. States may raise human rights concerns
through backchannel diplomacy, bilateral discussions where human rights performance can be
leveraged against political concerns, such as trade policy.
217
Alternatively, states may try to
shame a state into improving its human rights practices, applying pressure through public
statements in an attempt to induce a change of behavior, a move that can be complemented by
reductions in foreign aid provision.
218
More formally, states may also engage through the various
regional and international human rights mechanisms. States may also engage through the various
treaty bodies, by raising concerns through regional courts and commissions, or in the other UN
human rights mechanisms. One mechanism, the Universal Periodic Review, offers a unique
chance for human rights discussions as every UN member state goes forward for review every
four and a half years, a rarity in a system typically dictated by state's treaty ratifications and
voluntary commitments.
219
This chapter focuses on the UPR, leveraging its uniquely global scope
and political nature to measure the outcomes of different types of argumentative frames. Since
states are required to respond to each claim made to them in the UPR, the system provides a
unique environment for studying rhetorical claims where the response to each claim is clear and
direct. At the same time, the UPR’s global nature and broad scope allow for an analysis of
human rights arguments that is truly global and speaks across issue areas. These unique

217
Daniela Sicurelli, “The EU as a Promoter of Human Rights in Bilateral Trade Agreements: The Case of the
Negotiations with Vietnam,” Journal of Contemporary European Research 11, no. 2 (2015): 230–45; Clair Apodaca
and Michael Stohl, “United States Human Rights Policy and Foreign Assistance,” International Studies Quarterly
43, no. 1 (March 1999): 185–98, https://doi.org/10.1111/0020-8833.00116.
218
Franklin, “Shame on You”; Lebovic and Voeten, “The Cost of Shame”; James H. Lebovic and Erik Voeten, “The
Politics of Shame: The Condemnation of Country Human Rights Practices in the UNCHR,” International Studies
Quarterly 50, no. 4 (December 2006): 861–88, https://doi.org/10.1111/j.1468-2478.2006.00429.x.
219
Elizalde, “A Horizontal Pathway to Impact?,” 4.
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characteristics makes the UPR ideal for studying the effectiveness of different types of language
in discussing human rights practices.
This format offers an ideal forum for analyzing how states discuss human rights and
which methods are the most effective. When commenting on the State under Review (SuR),
there are few limits as to the human rights topics that can be raised. A state may frame its
recommendations however it likes – it may appeal to human rights law, invoke humanitarian
norms or principles, or appeal to political concerns. In contrast, other forums like human rights
treaty bodies limit the range of arguments that may be made by explicitly tying the review to a
particular set of legal rules. Do these different frames matter in making a state more likely to
accept a recommendation? Drawing on scholarship on the role of rhetoric and international law
in international relations,
220
this chapter tests the theory that states will have greater success – as
measured by having their recommendation accepted by the SuR – when framing
recommendations with reference to the specific legal commitments taken on by the SuR. This is
based on the assumption that legal language has particular effectiveness in international relations
that is not shared by other forms of rhetoric. If actors indeed favor legal arguments over political,
moral, or strategic ones –, in a setting where they could invoke any argument, then we would
obtain evidence that states believe legal rhetoric is most likely to succeed in comparison to other
types of rhetoric. These results would emphasize the particular nature of legal language and
references as a tool for diplomacy and activism.

220
Bower, “Arguing with Law,” April 2015; Rapp, “Law and Contestation in International Negotiations”; Shirley V.
Scott, “International Law as Ideology: Theorizing the Relationship between International Law and International
Politics,” European Journal of International Law 5, no. 3 (1994): 313–25,
https://doi.org/10.1093/oxfordjournals.ejil.a035873; Ian Johnstone, “Security Council Deliberations: The Power of
the Better Argument,” European Journal of International Law 14, no. 3 (2003): 437–80; Fernando G. Nuñez-Mietz,
“Legalization and the Legitimation of the Use of Force: Revisiting Kosovo,” International Organization, May 10,
2018, 1–33, https://doi.org/10.1017/S0020818318000152; Christian Reus-Smit, “Politics and International Legal
Obligation,” European Journal of International Relations 9, no. 4 (December 2003): 591–625,
https://doi.org/10.1177/135406610394003.
98

In the UPR, UN member states are reviewed approximately every four and a half years in
a process that is led by three randomly selected members (the troika) of the United Nations
Human Rights Council (UNHRC) but all UN members are welcome to participate and make
recommendations during the review process. States are reviewed based on a report put together
by the troika, a compilation of reports from the Office of the High Commissioner of Human
Rights (OHCHR) including details from the UN treaty bodies, and a summary of the information
provided by nongovernmental organizations (NGOs), researchers, and national human rights
institutions (NHRIs). After these reports are prepared and shared, there is then a three-hour
dialogue where any UN member state can make recommendations as to how the state under
review (SuR) may improve its human rights practices.
This public dialogue is the focus of this analysis. As was previously mentioned, any UN
member state may make a ‘recommendation’ to the state under review. These recommendations
may speak to any issue of human rights in the member state and may be made in whatever
language the recommending state would like. There are no requirements to reference a treaty,
international standard, or agreement. Nor are their limits on the human rights topics that may be
addressed, the reviewing state may raise whatever issues it sees fit. These recommendations may
be understood as a type of argument. They feature an explicit claim – that the state should do
something – that may be contested by the state under review. The recommendation, put another
way, seeks to “establish a matter about which there is some doubt”
221
– in this case the doubt is
about the appropriateness or not of a human rights practice and the recommendation argues that
the matter should be resolved in the way proposed by the recommending state.

221
Jean H. M. Wagemans, “Four Basic Argument Forms,” Research in Language 17, no. 1 (March 1, 2019): 58–59,
https://doi.org/10.2478/rela-2019-0005.
99

Importantly, the state under review must respond to each recommendation in one of two
ways – either accepting the recommendation and agreeing to work towards fulfilling it or by
noting it, which indicates that the state under review rejects the recommendation. Once the
public dialogue is complete, the troika then collects and collates all of the recommendations that
were made and indicates if they were accepted or noted by the state under review. Accepting a
recommendation shows that the state under review accepts the argument included in the
recommendation and commits the state to working to fulfill the recommendation moving
forward. States may be evaluated against these commitments during the next review cycle,
creating social and political expectations on the state. Past scholarship has noted the importance
of this peer pressure in human rights performance.
222
These commitments may also be used by
domestic and international groups to push the state to honor its commitments.
223

In contrast, noting a recommendation reflects a rejection of the argument by the SuR. By
noting the claim, the SuR indicates that it disagrees with some aspect of the assertion – it may
reject the factual nature of the issue, the framing or reasoning for why the argument may be
called for, or the interpretation of the rights issue at stake in the recommendation. What matters
most, from an argumentative standpoint, though is that the SuR believes it is able to reject the
argument without incurring any particular social or reputational cost. Rejection a
recommendation is not an ‘easy’ decision for states, as past scholarship has noted that states put
considerable time and resources into deciding how to respond to recommendations at the UPR.
224

If an argument is well made, then, a state may find that is put in a position where rejecting the

222
Carraro, “Promoting Compliance with Human Rights.”
223
Philip Alston and Ryan Goodman, International Human Rights (Oxford, 2013), 737–38; Elizalde, “A Horizontal
Pathway to Impact?,” 4–5.
224
Sébastien Lorion, “Inside the Human Rights Ministry of Burkina Faso: How Professionalised Civil Servants
Shape Governmental Human Rights Focal Points,” Netherlands Quarterly of Human Rights, May 18, 2021,
092405192110181, https://doi.org/10.1177/09240519211018149.
100

recommendation may be seen as an unpalatable or otherwise inappropriate choice, a result of
argumentative and social processes that will be further discussed in this paper. In short, though, it
may be argued that commitments made at the UPR are, at least in some cases, a credible
commitment by the state to improve its human rights practices. Understanding what makes their
acceptance more likely, then, is one way to understand how human rights improvement may
occur.
Contesting Compliance Claims
As was discussed in Chapter Two, behaviors are compliant if the actor is able to justify
them in a way that is publicly acceptable and that opponents cannot successfully contest. The
preceeding chapter examined how states create a compliance claim – how they draw on existing
legal standards and the language of the law to portray their preferences as compliant – with the
aim of making their behavior compliant. These claims can only succeed, however, if they are
able to outperform rival claims. When an actor claims that their behavior is compliant, others
may then contest this claim, arguing that the behavior is in fact a violation and that the
justification provided is inappropriate. When this occurs, the two sides may enter into a
compliance contest, a social process of contestation where actors present arguments in an attempt
to back the other into a corner – to leave them unable to continue justifying their behavior in a
way that is socially acceptable.
225

225
Jack Holland and Mike Aaronson, “Dominance through Coercion: Strategic Rhetorical Balancing and the Tactics
of Justification in Afghanistan and Libya,” Journal of Intervention and Statebuilding 8, no. 1 (January 2, 2014): 3,
https://doi.org/10.1080/17502977.2013.856126; Ronald R. Krebs and Patrick Thaddeus Jackson, “Twisting Tongues
and Twisting Arms: The Power of Political Rhetoric,” European Journal of International Relations 13, no. 1 (March
2007): 42, https://doi.org/10.1177/1354066107074284; Nuñez-Mietz, “Legalization and the Legitimation of the Use
of Force,” May 10, 2018, 3; Frank Schimmelfennig, “The Community Trap: Liberal Norms, Rhetorical Action, and
the Eastern Enlargement of the European Union,” International Organization 55, no. 1 (March 1, 2001): 62–66,
https://doi.org/10.1162/002081801551414.
101

This limits actors, then, to what claims the public will accept. The relevant public will
differ between different areas of argumentation. In the case of the UPR, the public includes other
delegates, UN officials, and NGO members. More broadly, domestic political audiences may
also be a factor, and mass publics may be the outermost level of the relevant public.
226
These
groups evaluate the appropriateness of claims and may reject an argument if it is ‘out of bounds,’
undermining its rhetorical power. Rejection means that the argument fails to coerce the intended
target – if everyone sees the comment as inappropriate it cannot limit the opponent's rebuttal. For
example, if a state responded to accusations of pillaging by asserting that individuals in a conflict
zone had no property rights their response would be rejected outright, being so incompatible with
the socially accepted definitions of pillage and understandings of human rights. This need for
arguments to be publicly acceptable means that actors are often limited to rhetorical
commonplaces shared topoi which can be mixed to create new arguments.
227
These
commonplaces provide a source of rhetoric that is already socially accepted, at least to some
degree, and therefore appropriate and useful for constructing claims. While an actor could try to
develop new commonplaces, this process is both time and resource-demanding as the actor needs
to convince the public and other actors that the new claims are appropriate.
228

Given these goals, it is expected that actors will aim to use the most effective references
at their disposal when contesting a rival’s compliance claim.
229
As has been discussed,

226
Lawrence Jacobs and Benjamin Page, “Who Influences U.S. Foreign Policy?,” American Political Science
Review 99, no. 1 (2005): 107–23; Ian Johnstone, The Power of Deliberation: International Law, Politics and
Organizations (Oxford: Oxford University Press, 2011), 41–43.
227
Markus Kornprobst and Martin Senn, “Arguing Deep Ideational Change,” Contemporary Politics 23, no. 1
(2017): 103, https://doi.org/10.1080/13569775.2016.1213078; Krebs and Jackson, “Twisting Tongues and Twisting
Arms,” March 2007, 43–47; Thomas Risse, “‘Let’s Argue!’: Communicative Action in World Politics,”
International Organization 54, no. 1 (January 10, 2000): 1–39, https://doi.org/10.1162/002081800551109.
228
Bower, “Arguing with Law,” April 2015, 338; Krebs and Jackson, “Twisting Tongues and Twisting Arms,”
March 2007, 43–47; Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018, 3–5.
229
In this analysis, it is important to note that the initial compliance claim is implied – presented by the behavior of
the state and the materials it submits as part of the UPR. It is assumed for this analysis, then, that the SuR would
102

international law operates as a particularly authoritative source of rhetoric in international
relations,
230
thanks to its status as a legitimated and socially acceptable form of rhetoric in global
politics. Studies on legalism, for example, have noted that international law and legal arguments
are often seen as uniquely acceptable or appropriate in contemporary international politics,
231

which may reflect international law’s status as a mutually constructed system where rules are –
in their rhetoric if not practice – the result of rule-making between sovereign equals,
232
a process
which may imbed the law with a rational-legal authority.
233
By drawing on international law,
actors frame their claims with reference to a tacitly neutral language of international relations.
Instead of drawing on claims of power or politics, actors use the law to couch their arguments in
a supposedly neutral and technocratic language – they benefit from using the unique social status
of law.
234
This allows actors to portray their contestations as being about the law – not about
politics – which may result in them being harder to dismiss as inappropriate.
Furthermore, international law also gives claimants the tools to make their arguments
with multiple levels of specificity. They may invoke specific legal claims, referencing codified
legal standards or they may invoke general legal claims, those references to customary
international law or other uncodified legal norms which are broader in their scope and possible

claim that any of its human rights practices are compliant. While there may be some particular cases and substantive
areas where a state would readily admit to falling short of its human rights obligations, it is assumed that these cases
would be few in number and limited in scope. For this analysis, then, it is still possible to study how states contest
the compliance of other states. The following chapter provides a more straightforward analysis of both sides of the
compliance process – where both the claims and counterclaims are made explicit – which helps to complete the
analysis.
230
Bower, “Arguing with Law,” April 2015, 343–46; Bower, Norms without the Great Powers: International Law
and Changing Social Standards in World Politics, 2017.
231
Hurd, “The Empire of International Legalism,” 226–29.
232
Brunnee and Toope, Legitimacy and Legality in International Law, 137.
233
Bower, “Entrapping Gulliver,” 137.
234
Johnstone, “Security Council Deliberations: The Power of the Better Argument,” 2003, 441–43; Nuñez-Mietz,
“Legalization and the Legitimation of the Use of Force,” May 10, 2018; Reus-Smit, “Politics and International Legal
Obligation”; Scott, “International Law as Ideology”; Johnstone, The Power of Deliberation: International Law,
Politics and Organizations, 2011.
103

interpretations. When making an argument, actors are likely to combine both specific and
general legal claims – if available – in order to maximize their use of international legal rhetoric.
This is because the different types of claims offer unique argumentative benefits. Tying an
argument to a written agreement may make it harder for an opponent to redefine or reinterpret
the argument since the written text may limit the scope of possible interpretations. At the same
time, references to unwritten law – be it customary international law or general principles of law
– provides actors with a broader range of standards to connect their arguments to.
235
Drawing on
multiple references, or mixing between the two categories, may further strengthen the claim by
making it harder for an opponent to refute – while an opponent may be able to contest one or two
of the legal frames they may find themselves unable to successful contest all of the points.
Theory and Expectations
This chapter draws on these insights about the nature of legal rhetoric to test the
assumption that actors will have the most success in contesting the compliance claims of another
when they frame their contestations on references to international law. This comes from the
understanding that international law is a particularly legitimate form of rhetoric in the
international sphere, one that actors may have a harder time countering, and which is generally
socially acceptable.
236
If an actor frames their contestation of a compliance claim it may be
harder for the target state to contest it. In this analysis, this means that a recommendation is
framed on international law it may be harder for the SuR to reject without appearing to violate
the shared standards reflected by the law itself. The SuR may be compelled to accept a

235
Bower, “Arguing with Law,” April 2015, 399; Rapp, “Law and Contestation in International Negotiations.”
236
Scott, “International Law as Ideology”; Bower, “Arguing with Law,” April 2015; Ian Hurd, “Legitimacy and
Authority in International Politics,” International Organization 53, no. 2 (April 1, 1999): 379–408,
https://doi.org/10.1162/002081899550913; Johnstone, “Security Council Deliberations: The Power of the Better
Argument,” 2003.
104

recommendation that it otherwise would not if rejecting would lead the state to be seen as
engaging in socially inappropriate behavior by rejecting the legal reference used to frame the
recommendation.
Considering this, it is expected that recommendations framed on legal claims will have
greater success than recommendations framed on other forms or sources of rhetoric. In
particular, recommendations framed with reference to specific international law such as treaty
commitments should have the highest likelihood of being accepted by the SuR.
Recommendations framed on general legal references, such as references to international
obligations or treaty commitments more broadly, may be less effective than arguments with
specific framing but should still yield greater success than recommendations framed on nonlegal
grounds. Acceptance, then, reflects a temporary lack of rejoinder on the part of the state under
review – the recommendation being framed so that it cannot be rejected in a socially sustainable
way. The SuR may prefer to reject or ignore the recommendation but cannot, finding itself
rhetorically trapped by the use of legal framing, since its rejection could be interpreted as a
rejection of the invoked legal reference. At the same time, as previously mentioned, accepting a
recommendation creates meaningful political costs as domestic and international groups may
leverage accepted UPR recommendations to pressure the state under review to change its human
rights practices, creating political costs and potentially shaping human rights practices within the
state. In testing these assumptions, this paper builds on the theories of rhetorical coercion and
strategic legal argumentation, which theorize that arguments are effective when they deny
effective responses and that international law is particularly well suited for winning arguments in
international arenas.
237

237
Krebs and Jackson, “Twisting Tongues and Twisting Arms,” March 2007; Bower, “Arguing with Law,” April
2015; Rapp, “Law and Contestation in International Negotiations.”
105

These expectations lead to three testable hypotheses:
Hypothesis 1: If a recommendation has a legal frame, it will have a greater likelihood of
being accepted than recommendations with a nonlegal frame.
Hypothesis 2: If a recommendation has a specific legal frame, then it will be more likely
to be accepted than an argument with either a general or nonlegal frame.
Hypothesis 3: If a recommendation has a general legal frame, then it is more likely to be
accepted than an argument with a nonlegal frame.
Importantly, it is not expected that this effect will be the same for all recommendations.
As will be discussed in the following section, recommendations are not equally demanding. The
majority of UPR recommendations are comparatively ‘easy,’ calling on a state to "seek
information" or commending a state for an existing policy. These recommendations are likely to
be accepted no matter what – they place few demands on the SuR and are often made by friendly
states as a way to "praise" the state under review by highlighting areas where the recommending
state agrees with their behavior.
238
Legal arguments, if this theory is true, are particularly useful
frames because they present an argument that is harder for opponents to counter. Since the SuR
is unlikely to feel the need to counter praise, legal framing is less important here. Instead, I
theorize that the value of legal arguments increases as the demandingness of a recommendation
increases. In these cases, where fulfilling the recommendation would require considerable effort
by the state, legal arguments are more important as they provide the most effective language for
the recommending state to make this recommendation. In short – legal frames can create
particularly effective, or hard to reject, recommendations – a trait that is far more valuable for

238
“Mutual Praise Society: Country Scorecard and Evaluation of the Universal Periodic Review System of the U.N.
Human Rights Council” (UN Watch, February 6, 2009), https://unwatch.org/wp-content/uploads/2016/01/Mutual-
Praise-Society.pdf.
106

recommendations that may generate resistance from the SuR. These assumptions lead to the
fourth hypothesis.
Hypothesis 4: The value of legal arguments – measured by their rate of acceptance
compared to nonlegal arguments – will be highest for the most demanding
recommendations.
Data and Methodology
This analysis draws on all recommendations made during the first two cycles of the UPR,
which took place between 2008 and 2016,
239
during which all UN member states were reviewed
twice. This data is collected from UPR Info, a nonprofit organization that collects and organizes
data on the UPR for use by governmental and non-governmental organizations as well as
researchers
240
. Using this, all recommendations were collected, along with the information on
the SuR, the state making the recommendation, the issue area, the level of action required if the
recommendation were to be met, and the status of the recommendation.
241

Table 4: Demandingness of Recommendations
242

Rank Frequency Description
1 662 (1%) Recommendations that are aimed at a state not under review or
recommendations for the state under review to pursue technical or other
information
2 9,189 (16%) Recommendations that emphasize continuing an existing policy and would not
require a change from the state under review
3 4,516 (8%) Recommendations that call on the state under review to consider a change but
avoid recommending or calling for a specific action
4 22,551
(39%)
Recommendations based around a ‘general' element (ex. accelerate, promote,
address) but do not include a specific policy request
5 20,768
(36%)
Recommendations calling for a specific action (ex. conduct, develop, establish)
and/or legal verbs (ex. abolish, accede, adopt)

239
A total of 57,686 recommendations
240
UPR Info, “UPR Info’s Database on UPR Recommendations,” UPR Info, 2021, https://upr-info-
database.uwazi.io/.
241
States under review cannot reject a recommendation. Instead, recommendations are either accepted or noted. In
this dataset, accepted recommendations are coded as a “1” and noted recommendations are recorded as a “0.”
242
UPR Info, “UPR Info’s Database: Action Category” (UPR Info, October 2014), https://www.upr-
info.org/database/files/Database_Action_Category.pdf.
107

This coding of the demandingness of a recommendation – based on the action needed to
fulfill it – produced by UPR Info provides important methodological clarification to a theoretical
question. The different levels of recommendation, and the frequency of each, are noted in Table
4. Not all recommendations in the UPR process are equal in what they require a state to do.
Indeed, the UPR process has been noted for allowing states to give friendly, easily met,
recommendations to friendly states
243
, although - as noted in Table 4 – states often make
recommendations demanding costly changes to laws and policies.
As this analysis shows, these low-demand recommendations are almost unanimously
accepted. In many ways, this analysis is most interested in recommendations at the higher end of
this scale, which place greater demands on a state and are more contentious, calling on states to
create or change institutions, laws, or political structures. Given the theorized role of legal
language, these cases are a far more relevant test of the theory. States are unlikely to need a legal
justification for commending a state, but they may need one if calling on a state to undergo
costly political processes if legal rhetoric is indeed valuable. As Terman and Voeten
demonstrate,
244
UPR Info’s measure of demandingness is not ordinal – category 3
recommendations are less likely to be accepted than those in category 4
245
– although it does
provide an important framework for understanding demandingness. Considering this,
demandingness is coded in several ways. First, the UPR Info measure is used as-is. A revised
version of the measure, which flips 3 and 4 to create an ordinal scale, is also used. Furthermore,

243
“Mutual Praise Society.”
244
Rochelle Terman and Erik Voeten, “The Relational Politics of Shame: Evidence from the Universal Periodic
Review,” The Review of International Organizations 13, no. 1 (March 2018): 1–23, https://doi.org/10.1007/s11558-
016-9264-x.
245
Ibid., 11.
108

Terman and Voeten’s measure of severity, which groups recommendations into a 1 to 3 ordinal
scale, is used for additional robustness. Finally, a binary measure was created to reflect if a
recommendation is in category five, since this is both the most demanding and the least accepted
category. In short, recommendations in that category are the most demanding on the SuR.
246

Acceptance, as the outcome of interest, is coded as a binary variable, reflecting the
particular nature of the UPR that limits the SuR to two responses. A successful recommendation,
one where the SuR accepted the recommendation and agreed to act upon it, received a “1.”
Recommendations that were noted were coded as a “0.” As has been argued earlier in this paper,
an accepted recommendation is seen as a case of successful argumentation while a noted – or
rejected – recommendation is seen as a failure of the argument. Table 5 provides a descriptive
overview of the number of accepted and noted recommendations.
Additionally, several control variables are included. The SuR’s regime type is coded
using the polity2 score, on a scale of -10 to +10, with +10 representing a consolidated democracy
and -10 indicating a fully authoritarian state.
247
The human rights performance of the SuR, for the
preceding year, is coded using Fariss’s latent human rights measure,
248
which codes a state’s
human rights practice using a latent item response theory model, ranging between approximately
-3.8 to 5.4, where 0 represents the global mean in a given year.
249
This accounts for the challenge

246
Results are consistent across all measurements of severity, with different measures of severity yielding
statistically and substantively similar results. Full models with all measures of severity are included in the appendix.
See Appendix Table 1.
247
Monty Marshall, Ted Robert Gurr, and Keith Jaggers, “Polity IV Project: Political Regime Characteristics and
Transitions, 1800–2013” (Center for Systemic Peace, 2019), http://www.systemicpeace.org/inscrdata.html.
248
Christopher Fariss, “Latent Human Rights Protection Scores Version 3” (Harvard Dataverse, 2019),
https://doi.org/10.7910/DVN/TADPGE.
249
Christopher Fariss, “Respect for Human Rights Has Improved Over Time: Modeling the Changing Standard of
Accountability,” American Political Science Review 108, no. 2 (May 2014): 297–318,
https://doi.org/10.1017/S0003055414000070; Christopher Fariss, “Yes, Human Rights Practices Are Improving
Over Time,” American Political Science Review 113, no. 3 (August 2019): 868–81,
https://doi.org/10.1017/S000305541900025X; Keith E. Schnakenberg and Christopher J. Fariss, “Dynamic Patterns
of Human Rights Practices,” Political Science Research and Methods 2, no. 1 (April 2014): 1–31,
https://doi.org/10.1017/psrm.2013.15.
109

that better performing states may be either uniquely susceptible to legal arguments, as they may
represent a commitment they have already undertaken or that these states may be more likely to
accept any recommendation. A state’s membership in a regional human rights court is coded
dichotomously, as is its membership in the three regional human rights court systems,
250
to help
control for previously identified patterns in regional membership.
251
Dichotomous measures
capture a state’s ratification of the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). These two
treaties form the legal core of the UN’s “International Bill of Human Rights”
252
and the degree of
a state's participation in these regimes may be uniquely informative of their broader human rights
commitments. Treaty ratification also increases the range of legal arguments a state may be
exposed to. To this end, a count measure captures the total number of human rights treaties that a
state is a party to.
253
A control for the domestic legal system of the SuR is also included.
A states’ status as a permanent member of the UN Security Council – for both the SuR
and the recommending state – is coded dichotomously, to address claims that international law
may either be a tool for powerful states to bully weaker states or that stronger states may be more
likely to ignore international legal claims.

250
European Court of Human Rights, Inter-American Court of Human Rights, and the African Court of Human and
Peoples’ Rights
251
Damian Etone, “African States: Themes Emerging from the Human Rights Council’s Universal Periodic
Review,” Journal of African Law 62, no. 2 (June 2018): 201–23, https://doi.org/10.1017/S0021855318000128;
Rhona Smith, “A Review of African States in the First Cycle of the UN Human Rights Council’s Universal Periodic
Review,” African Human Rights Law Journal 14, no. 2 (2014): 346–65.
252
“Fact Sheet No. 2 (Rev. 1), The International Bill of Human Rights,” June 1996.
253
0-9. This measure only includes primary treaties, not optional protocols. The included treaties are the ICCPR,
ICESCR, International Convention on the Elimination of All Forms of Racial Discrimination, Convention against
Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, Convention on the Elimination of
Discrimination against Women, Convention on the Rights of the Child, International Convention on the Protection
of the Rights of Migrant Workers and Members of Their Families, Convention on the Rights of Persons with
Disabilities, International Convention for the Protection of All Persons from Enforced Disappearance
110

Finally, it may be the case that certain areas of rights are more or less likely to be
accepted, regardless of the framing. UPR-Info identifies 54 rights areas in their data collection.
To help control for the possible confounding effects of different substantive areas on a
recommendations acceptance, I control for the subject of the recommendation. To do this, I use
UPR-Info’s coding to group the recommendations into six issue areas – Civil and Political,
Economic and Social, Migration and Citizenship, Environment, Group, and Institutions. With the
other controls, this helps to isolate the effects of legal framing on the likelihood that a
recommendation will be accepted.
Coding Legal Recommendations
Recommendations were then coded based on their content and the framing. If an
argument was framed on specific legal grounds, based on a reference to a clearly stated legal
commitment or standard, the argument was coded as specific. Arguments framed on general
legal grounds, legal commitments which are not clearly stated – for example ‘international
obligations' or ‘obligations under human rights law' -were coded as general. All other arguments,
based on nonlegal rhetoric, were coded as other. Three examples are highlighted below. To help
show the particular nature of legal framing, all three examples focus on the same issue area – the
rights of refugees and asylum seekers – and were all made to the same country.
Specific Legal Recommendation: “Consider alternatives to the detention of
irregular migrants and asylum- seekers, limit the length of detentions, ensure
access to legal and health assistance and uphold its obligations under the
Vienna Convention on Consular Relations.”
254
[emphasis added]

This recommendation is coded as specific due to its direct invocation of the specific legal
commitments of the SuR. Here the recommendation – the argument – is that Australia should
consider revising its detention practices. The recommendation is framed on Australia’s

254
Recommendation from Brazil to Australia UPR Info, “UPR Info’s Database on UPR Recommendations.”
111

obligations under the Vienna Convention on Consular Relations. The treaty is asserted as why
Australia should accept the claim. Theoretically, it should be more difficult for a state to reject a
recommendation that clearly states a legal commitment as the basis for the recommendation. If
the state challenges the recommendation, they must also question the commitment underpinning
it, one which they have already agreed to. This requires the SuR to defend its action as compliant
with its legal obligations, as the recommendation itself contests the legality of the behavior.
General Legal Recommendation: “Ensure that all asylum seekers and refugees
who arrive in Australia are processed there regardless of their mode of arrival and
ensure that the conditions at the offshore processing centers comply with
international law and standards.”
255
[emphasis added]

In comparison, this recommendation has a general legal frame. Like the previous
recommendation, Australia was called on to revise its treatment of refugees and asylum seekers.
However, where the previous recommendation invoked a codified treaty as its frame for why
Australia should do this, this recommendation references international law broadly. Compliance
is still framed with an invocation of legal obligation but the reference is not specified. It is
expected that this type of recommendation will be less successful than the previous, specific,
recommendation but that it will still outperform recommendations that lack a legal frame.
Nonlegal Recommendation: “Review its mandatory detention regime of asylum-
seekers, limiting detention to the shortest time reasonably necessary.”
256

Finally, a nonlegal recommendation does not invoke a legal frame for the recommended
action. For example, while the above recommendation calls on Australia to review its detention
policies, it does not frame this recommendation with a reference to a specific or a general legal
reference. Indeed, in this case the recommendation is proposed without a frame at all. The
recommendation is made on its own – Australia is called on to review its practices although no

255
Recommendation from Slovenia to Australia, ibid.
256
Recommendation from Ghana to Australia, ibid.
112

explicit reason is given for why they should. This type of recommendation may be the easiest for
a state to counter. Without a legal obligation, the SuR may argue that the proposal is beyond the
scope of human rights. The state may also invoke other legal commitments in an attempt to
question the appropriateness of the recommendation.
Finally, it is worth noting that many UPR recommendations engage substantively with
international legal topics. In particular, recommendations often call on the SuR to sign or ratify
various human rights instruments. The fact that a recommendation focuses on a legal issue,
though, does not mean that it must or will have a legal framing. For example, the following
recommendation calls on a state to ratify an international legal instrument. It does not, however,
frame the recommendation on international law.
Substantively Legal Recommendation without a legal frame: “Consider ratifying
two core United Nations human rights instruments, namely the International
Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights.”
257

While this recommendation deals with a question of law it does so without invoking a
legal frame. Slovenia’s call on Qatar to consider ratification does not invoke a Qatari obligation
under international law or a specific treaty commitment, either of which would have framed the
recommendation on international law. This is to demonstrate that, while many recommendations
may substantively address a legal question they may not always invoke a legal framing.
Analysis
These hypotheses are tested using all recommendations made during the first two UPR
cycles, during which all 194 UN member states were reviewed twice. Recommendations could
either be accepted or noted and the distribution of responses is described below in Table 2. It is
important to note that the majority of the recommendations are accepted.

257
Recommendation from Slovenia to Qatar, ibid.
113

Table 5: Responses
Response Percent
Noted 15358 26.62
Accepted 42328 73.38
N 57686

The distributions of the legal coding are reflected below in Tables 6 and 7. Table 6 provides a
binary coding – legal or nonlegal - and Table 7 shows the more nuanced ternary coding.
Table 6: General Legal Coding
Legal Code Percent
Nonlegal 51474 89.23
Legal 6212 10.77
N 57686

Table 7: Ternary Legal Coding
Legal Code Percent
Nonlegal 51474 89.23
General 2499 4.33
Specific 3713 6.44
N 57686

Most recommendations are framed on nonlegal grounds or are presented without a frame.
This could be the result of the coding rules – a more relaxed interpretation of what a legal
reference is, especially with regards to a general legal reference, could yield a greater number of
legal coded arguments. However, tighter coding creates a harder test for the hypotheses and
allows for greater confidence in the results. If the hypotheses are supported with these tighter
rules, they would likely find even greater support if more arguments were considered ‘legal.'
Beyond coding, this may also reflect the nature of many UPR recommendations. Low-demand
recommendations are commonly made which commend states on their rights practices or
encourage them to pursue technical assistance, for example. These sorts of recommendations,
especially ones lauding a state’s human rights performance, certainly would not require a legal
114

frame. However, there are many UPR topics beyond these for which a state may make a legally
framed recommendation.
All four hypotheses were tested using logistic regression to account for the use of
categorical dependent variables. To interpret these results, predicted probabilities were calculated
and plotted with 95% confidence intervals. Table 8 shows the main results, with some control
variables omitted from the table. Full results, as well as robustness checks and OLS results, are
included in the appendix. Overall, the results of these models support the hypotheses. The OLS
results, which provide a more interpretable coefficient largely suitable for binary outcomes,
258

legal arguments have a statistically significant effect compared to nonlegal arguments in most
models. This mirrors the results from the logistic regression. Model 7 yields an odds ratio of
1.13, indicating that moving from a nonlegal to a legal argument increases the odds of
acceptance by approximately 13%. Meanwhile, Model 8 – using the ternary coding – yields an
odds ratio of 1.098, indicating that moving to a more legal argument increases the odds of
acceptance by approximately 9.8%.
Table 8: Logistic Regression, All Recommendations

Dependent variable: Response (Acceptance)

Response

(1) (2) (3) (4) (5) (6) (7) (8)
Binary Legal -0.005

0.116
***

0.083
***

0.122
***

(0.030)

(0.031)

(0.032)

(0.035)

Ternary Legal

0.010

0.095
***

0.079
***

0.093
***

(0.018)

(0.019)

(0.019)

(0.021)
Demandingness

-0.756
***
-0.757
***

-0.787
***
-0.788
***

(0.012) (0.012)

(0.013) (0.013)
Category 5

-1.497
***
-1.499
***

(0.020) (0.020)

Regime Type

0.022
***
0.022
***

258
Ottar Hellevik, “Linear versus Logistic Regression When the Dependent Variable Is a Dichotomy,” Quality &
Quantity 43, no. 1 (January 2009): 59–74, https://doi.org/10.1007/s11135-007-9077-3.
115

(0.002) (0.002)
HR Score

0.023
***
0.022
***

(0.009) (0.009)
Regional Court

0.353
***
0.353
***

(0.026) (0.026)
UN Core

0.439
***
0.440
***

(0.028) (0.028)
Same Region

0.262
***
0.261
***

(0.021) (0.021)
P5 Reviewer

-0.564
***
-0.565
***

(0.054) (0.054)
P5 Under
Review

-0.019 -0.019

(0.038) (0.038)
Constant 1.014
***
1.003
***
4.126
***
4.033
***
1.659
***
1.577
***
3.502
***
3.412
***

(0.010) (0.023) (0.052) (0.056) (0.015) (0.026) (0.067) (0.070)
Observations 57,686 57,686 57,686 57,686 57,686 57,686 50,514 50,514
Log Likelihood
-
33,427.720
-
33,427.600
-
30,816.410
-
30,810.310
-
30,475.980
-
30,470.760
-
25,777.670
-
25,773.880
Akaike Inf. Crit. 66,859.450 66,859.190 61,638.830 61,626.610 60,957.960 60,947.530 51,575.350 51,567.770
Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

To further clarify these results, predicted probabilities were calculated and plotted. Figure
7 displays the results for the binary legal coding and Figure 8 for the Ternary Coding. Supporting
H1, there is a statistically significant difference between legal and nonlegal arguments. Specific
legal arguments appear to be more effective than general legal arguments, with some separation,
although the relationship between general legal arguments and non-legal arguments is less clear.
Similarly, while there is no separation in Figure Two, the pattern appears to move in the
theorized direction – it appears that as the specificity of a legal frame increases, so might its
likelihood of success.
Figure 7: Probability of Acceptance, Binary Legal Coding (Model 7)
116

Figure 8: Probability of Acceptance, Ternary Legal Coding (Model 8)
117

To test hypothesis four, that legal arguments will be particularly effective for demanding
recommendations, several tests are conducted. First, Figures 9 and 10 show the predicted
probability of accepting an argument depending on the use of a legal framing for category five
recommendations – those which carried the highest demand for states. In particular, accepting a
recommendation at this level commits a state to specific policy changes – changes which may
include changing laws or reforming political institutions. The specificity of these
recommendations may create further costs later as may be easier to determine compliance or
noncompliance in the next review cycle. In short, these recommendations impose significant
political costs and may be less likely to be accepted, all else equal.
Figure 9: Probability of Acceptance, Binary Legal Coding Category 5 (Model 3)
118

Figure 10: Probability of Acceptance, Ternary Legal Coding Category 5 (Model 4)
119

Table 9: Logistic Regression, Category 5 Recommendations

Dependent variable: Response (Acceptance)

Response

(1) (2) (3) (4)
Binary Legal 0.442
***

0.459
***

(0.044)

(0.050)

Ternary Legal

0.287
***

0.290
***

(0.026)

(0.029)
Regime Type

0.022
***
0.022
***

(0.003) (0.003)
HR Score

0.072
***
0.071
***

(0.012) (0.012)
Regional Court

0.356
***
0.356
***

(0.037) (0.037)
UN Core

0.290
***
0.287
***

(0.032) (0.032)
120

Same Region

0.391
***
0.392
***

(0.042) (0.042)
P5 Reviewer

-0.617
***
-0.622
***

(0.085) (0.085)
P5 Under Review

0.062 0.061

(0.052) (0.052)
Constant 0.120
***
-0.172
***
-0.700
***
-0.987
***

(0.015) (0.033) (0.059) (0.068)
Observations 20,768 20,768 17,660 17,660
Log Likelihood -14,267.060 -14,253.490 -11,686.230 -11,678.850
Akaike Inf. Crit. 28,538.130 28,510.990 23,390.460 23,375.700
Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

Both plots demonstrate strong support for the fourth hypothesis. Legal framing has a
statistically – and substantively – significant effect on the likelihood that these high-demand
recommendations will be accepted. Moving from a non-legal to a legal-framed recommendation
increases the predicted probability of acceptance by almost ten percentage points. Similarly,
Model 3 with a binary legal coding yields an odds ratio of 1.583, indicates that a legal frame
increases the odds of acceptance by approximately 58%. A ternary coding reflects a similar
pattern that follows the second and third hypotheses regarding specific and general legal frames
with a statistically meaningful difference. The effect of legal frames on acceptance further holds
when controlling for demandingness in a range of different models. Similarly, Model 4 with a
ternary legal coding yields an odds ratio of 1.263, indicating that the move to a more specifically
framed legal reference increases the odds of acceptance by approximately 26%.
Discussion
These findings support the argument that actors will have the most success in contesting
the compliance claims of another actor when they frame their arguments with references to
international law. Furthermore, these findings indicate that legal arguments may be a particularly
important type of rhetoric in human rights debates. Hypothesis 1, that legal frames will
121

outperform nonlegal frames, finds tentative support in the full models, achieving statistical
significance across the board. Similarly, models using the ternary legal coding for tentative
support for the claim that the specificity of a legal frame – the degree to which it referenced a
codified legal commitment – has an effect on its likelihood of success.
The effectiveness of legal framing increased as the demandingness of recommendations
also increased, reflecting several patterns in the UPR process, an important expectation of the
theory proposed here. As was previously noted, many UPR recommendations make few – if any
– demands on the SuR. As such, these recommendations are often accepted and often could not
involve a legal frame. This aligns with the framing of the UPR as a cooperative human rights
process, reinforcing findings from previous work on the topic.
259
Indeed, critics have noted that
the UPR process may be little more than a “mutual praise society” where the process is used to
“legitimize human rights abusers.”
260
While this may be the case, and the analysis does not a
significant rate of acceptances – especially among low-demand recommendations – a number of
high-demand recommendations may still be made. When those recommendations are made, this
analysis indicates that legal framing plays a significant role in shaping the outcome.
Indeed, within the highest demand recommendations – those that call on the SuR to make
concrete changes to policies and laws – legal framing has a substantively important, and
statistically significant, effect on acceptance. These category five recommendations have a
predicted probability of acceptance that is up to 58% higher if they are framed on legal grounds.
Similarly, the probability increases by approximately 26% for each step in the legal reference
process – moving from no reference to a general legal reference and then again to a specific legal

259
Etone, “African States”; Smith, “A Review of African States in the First Cycle of the UN Human Rights
Council’s Universal Periodic Review”; Elizalde, “A Horizontal Pathway to Impact?”
260
“Mutual Praise Society,” 2.
122

one. These findings are reinforced in Figures 9 and 10 which show that legal framing has a clear,
statistically significant, effect on the probability of acceptance. This shows that when dealing
with the hardest human rights questions – instead of praising current policies or encouraging
'easy' steps like seeking out international assistance or technical advice – employing legal frames
may be critical to the outcome. This raises important implications for the role of law in human
rights discourses, in particular when it may be most effective at creating change, with
implications for human rights policy and advocacy.
Finally, it is important to consider the distribution of the data when interpreting these
results. While the overall effect on acceptance may appear small in full models, it is important to
recognize that, in light of the number of readily accepted recommendations, the number of
challenging recommendations is quite small, and that this scarcity is coupled with a skew in the
rate of accepted to noted recommendations. In many cases, the UPR process can be a cooperative
process where states can be hesitant to make high-profile demands of one another. Indeed, it is
designed to encourage a degree of cooperation.
261
However, the results are clear that when states
make demanding recommendations – those that, if accepted, create concrete political costs and
expectations on the SuR – the use of legal framing matters. So, while the results may seem small
in full models the effect of these small changes may weigh heavy on human rights outcomes as
they may be concentrated in areas where they can have the greatest substantive effect on human
rights practices, pushing states to change policies or laws with meaningful implications for the
lives of citizens.
Conclusions

261
“Mutual Praise Society.”
123

Compliance claims are not unilateral – other actors may contest them, arguing that a
behavior is not, in fact, compliant with the law despite what the claimant has said. In these cases,
the actors who contest a compliance claim are likely to draw on international law to frame their
contestations, offering different ideas of what the law is, means, or requires. Doing so results in a
compliance contest and may result in the behavior being made noncompliant or left somewhere
along the spectrum of contestable compliance. Compliance contestations, then, are central to the
idea of rhetorical compliance. How actors contest the claims of others is how behaviors are made
noncompliant and how rival interpretations of the law may be introduced. They spark the
contestative process that creates legal meaning and interpretation and provide an important entry
point for politics in informal lawmaking. Understanding these claims, then, is central to
understanding rhetorical compliance.
When making these compliance contestations, states have a range of discourses at their
disposal. What this analysis has shown is that legal references – especially references to written
international law – appear to be particularly effective at contesting compliance claims. By
focusing on the UPR, a process where states may invoke claims using legal or nonlegal
references, this chapter was possible to identify a range of arguments with both legal and
nonlegal frames, finding that claims framed on references to codified international law were – as
theorized – particularly effective tools for contesting a compliance claim.
Beyond the question of compliance, these findings further contribute to scholarship on
human rights. In a setting where states could draw on a range of references to justify human
rights recommendations, they still appear to prefer referencing international law. Furthermore,
these references are shown to be effective, especially when contesting demanding human rights
areas. This analysis further contributes to emerging scholarship examining the role and place of
124

the UPR in shaping global human rights.
262
Perhaps even more importantly, thanks to the nature
of the UPR, it is possible to identify whether a claim succeeds or fails. The UPR's requirement
that states respond to each recommendation – regardless of what state makes it or the language
used – creates a unique opportunity for quantitative analysis of these questions of rhetoric and
language. In keeping with the theory, there is support for the claim that legal arguments, those
which condition the expected change of behavior with reference to the legal obligations of the
SuR, are at least somewhat more likely to be accepted than arguments framed on other grounds.
Importantly, while research has criticized the UPR as a forum for legitimizing rights abusers
with cheap praise,
263
these findings show that when states do make challenging
recommendations, the value of international legal framing is clear. Indeed, when a
recommendation is framed with a legal reference it is measurably more likely to succeed.
These findings raise important points both for the academic study of law in international
relations and human rights as well as for human rights policy by both states and NGOs. They
support previous claims about the role and use of law as a tool of international argumentation,
showing that legal claims may offer actors a particularly strong language for pursuing policy
goals.
264
By focusing on the UPR, this analysis provides a unique opportunity to measure the
effectiveness of legal versus non-legal rhetoric as states a uniquely required to note when the
accept or reject a claim. Adding this quantitative assessment to outstanding qualitative work

262
Rochelle Terman and Zoltán I Búzás, “A House Divided: Norm Fragmentation in the International Human Rights
Regime,” International Studies Quarterly 65, no. 2 (June 8, 2021): 488–99, https://doi.org/10.1093/isq/sqab019;
Smith, “A Review of African States in the First Cycle of the UN Human Rights Council’s Universal Periodic
Review”; Carraro, “Promoting Compliance with Human Rights”; Elizalde, “A Horizontal Pathway to Impact?”;
Carraro, “The United Nations Treaty Bodies and Universal Periodic Review”; Etone, “African States”; Terman and
Voeten, “The Relational Politics of Shame.”
263
“Mutual Praise Society.”
264
Adam Bower, Norms without the Great Powers: International Law and Changing Social Standards in World
Politics (Oxford: Oxford University Press, 2017); Johnstone, The Power of Deliberation: International Law, Politics
and Organizations, 2011; Bower, “Arguing with Law,” April 2015; Rapp, “Law and Contestation in International
Negotiations”; Johnstone, “Security Council Deliberations: The Power of the Better Argument,” 2003.
125

further highlights the importance of studying the rhetorical uses of law. This is alongside other
possible constraining effects through mechanisms like norm adoption or domestic
implementation, as an important way by which IL can be used to shape international politics.
Legal arguments, in short, may often be the opposite of 'cheap talk.’
265
Instead of serving as
rhetorical window dressing, legal frames provide actors with a valuable source of argumentative
claims and frames to use when contesting the behaviors and claims of other actors.
Even more importantly, these findings raise questions for human rights policymaking,
within the UPR and perhaps more broadly. States, and NGOs engaging in the UPR process, may
wish to consider when and how to leverage legal frames. In particular, if making a demanding
human rights request it may be beneficial to employ a legal frame if one is appropriate and
available. Policymakers may want to, then, carefully consider when and how they can employ
legal frames in human rights discourses. More broadly, future work should consider the
opportunities for leveraging legal-framed human rights arguments in broader human rights
discourses and policymaking beyond the UPR. If – as this theory may indicate – legal arguments
have a broad social value, they may offer states and NGOs an important rhetorical tool to push
for human rights improvements in a range of contexts and on a range of topics.
In the context of this dissertation, however, this chapter has served to examine how actors
contest the compliance claims of other states. It has shown that actors are likely to draw on legal
references to contest a compliance claim – and that they are more likely to succeed when they do
reference legal claims instead of nonlegal ones. This clarifies the process by which acts are made
compliant. First, an actor will claim that their behavior complies with the law. Other actors may
contest this claim, creating a compliance contest where arguments are made about the claims

265
Jack L. Goldsmith and Eric A. Posner, The Limits of International Law, 1st paperback ed (Oxford ; New York:
Oxford University Press, 2007).
126

appropriateness or inappropriateness. Both sides in this process will be motivated to draw on
legal rhetoric – for genuine or self-serving reasons – to support their preferred position. The
outcome of this contest is what determines if an act is compliant or not – if the initial claim is
accepted, rejected outright, or left somewhere in the middle with the actor able to benefit from at
least some of the desired legitimizing outcome.
Having now separately considered both sides of a compliance contest, the next chapter
examines how they interact. By considering both at once – how claims are made and how they
are contested – it is possible to more fully understand what rhetorical compliance is.
Furthermore, Chapter Five considers a case where both the compliance claims and contestations
of those claims are made explicitly, helping to cover some of the potential limitations of this
chapter, where the initial compliance claim is implied and not always explicit.

127

Chapter 5
Claiming – and Constructing – Compliance: Use of Force Justifications and the Functioning
of Compliance Contests
Introduction
Having discussed how actors create compliance claims (Chapter 3) and contest the
compliance claims of others (Chapter 4), this chapter aims to show the interactive process of
claiming and contesting compliance. In doing so, this chapter explores a full compliance contest
– from claims to counter-claims, to outcomes. Furthermore, this chapter employs qualitative
research techniques that allow for insights into developments and changes between – and not
only within – compliance contests. As has been discussed, compliance contests are ongoing –
outcomes are only stable for a time. By focusing primarily on one compliance contest –
surrounding military operations by the United States, United Kingdom, and France in Syria in
2018 – it is possible to explore how compliance claims are created, advanced, and contested, as
well as how these processes ‘end’ in an individual contest. At the same time, comparing this case
with the North Atlantic Treaty Organization’s (NATO) 1999 intervention in Kosovo helps
explore how dynamics change over time and between contests – how past arguments may be
reused in future contests and how the outcomes of previous compliance contests reshape the
spectrum of contestation in future ones.
It does so by examining the development of, and responses to, justifications for the use of
military force. Justifications for the use of military force are made within the legal framework of
jus ad bellum, a “notoriously contentious body of law” that aims to regulate when and why states
may use force against their neighbors.
266
Despite this contention, the regulatory form of jus ad
bellum is often taken to be quite clear – a blanket prohibition on the use of military force,

266
Hakimi, “The Jus Ad Bellum ’s Regulatory Form,” 151.
128

excluding a few clear exceptions.
267
This understanding of jus ad bellum is one found in the
Charter of the United Nations
268
and reflected in customary IL.
269
This seemingly
straightforward standard, however, hides a multitude of disagreements and contentions across a
range of issue areas and conditions.
270
For example, some scholars and policymakers argue that
there is an evolving legal norm allowing the use of force in certain humanitarian situations, even
if the standard jus ad bellum criteria are not met.
271
At the same time, many others challenge this
interpretation, arguing that there is no credible interpretation for such an exception in
contemporary jus ad bellum.
272
Similarly, as Hakimi notes, states often use military force in
situations where jus ad bellum’s traditional criteria can hardly be met. These behaviors, that
would be seen by traditionalists as being clear violations of the law are, however, often treated
by many actors as though they are legal.
273

Given these tensions, understanding how uses of military force are made compliant
through the use of public justifications – and how those claims of compliance are contested by
other actors – is central to understanding the function of jus ad bellum in the contemporary legal

267
Ibid., 152.
268
United Nations, “Charter of the United Nations,” October 24, 1945 Articles 2(4), 43, 51.
269
International Court of Justice, Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(icj June 27, 1986); Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda) (icj December 19, 2005); Olivier Corten, “The Controversies Over the Customary Prohibition on
the Use of Force: A Methodological Debate,” European Journal of International Law 16, no. 5 (November 1, 2005):
803, https://doi.org/10.1093/ejil/chi147; Fernando G. Nuñez-Mietz, The Use of Force under International Law:
Lawyerized States in a Legalized World, New International Relations (Abingdon, Oxon ; New York, NY: Routledge,
2019), 111–12.
270
Hakimi, “The Jus Ad Bellum ’s Regulatory Form,” 161–62.
271
U.K. Prime Minister’s Office, “Chemical Weapon Use by Syrian Regime: U.K. Government Legal Position”
(United Kingdom, August 29, 2013), https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-
regime-uk-government-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position- html-
version; Alex Bellamy and Ruben Reike, “The Responsibility to Protect and International Law,” Global
Responsibility to Protect 2, no. 3 (June 1, 2010): 267–86, https://doi.org/10.1163/187598410X500390; International
Commission on Intervention and State Sovereignty, “The Responsibility to Protect” (Ottawa: International
Commission on Intervention and State Sovereignty, December 2001).
272
International Court of Justice, Case Concerning Military and Paramilitary Activities in and Against Nicaragua
paragraph 268; Bruno Simma et al., eds., The Charter of the United Nations: A Commentary, 3rd ed., vol. 1 (Oxford,
UK: Oxford University Press, 2012), 223.
273
Hakimi, “The Jus Ad Bellum ’s Regulatory Form,” 153–54.
129

order. Furthermore, this case shares characteristics with many other areas of IL and compliance.
Theoretically clear rules, with limited exceptions, mask significant disagreements over
interpretation and implementation. Emerging arguments and interpretations, which may
fundamentally alter how the rule functions, are not limited to jus ad bellum. The interpretation
and application of jus ad bellum is, like many areas of international law, largely made be
“individual states acting in unstructured settings.”
274
Compliance is made, and the law is
interpreted, through social processes – justifications and arguments about behaviors – that
operate in both public and private political arenas. This area, then, allows us to explore dynamics
that are common to compliance contests across many areas of international law.
Finally, understanding how compliance is constructed in the use of military force is
important on its own, speaking to questions of peace and security that are at the heart of
international politics. Jus ad bellum, as a system, is intended to limit the recourse to war, to
reduce suffering and promote peaceful coexistence. Understanding, then, how this legal system
is understood, used, and operated with may help us to better understand a complicated – and
vitally important – area of international politics.
Toward these ends, this chapter examines the compliance contests that occurred
surrounding missile strikes by the United States, United Kingdom, and France (the coalition)
against Syria in 2018. These strikes were accompanied by various claims of legality and
arguments about how they complied with jus ad bellum. At the same time, these claims were not
met with universal agreement, with many states disputing or challenging the claims in part or in
whole. In short, the coalition claimed compliance while rivals contested these claims,
challenging their interpretation and appropriateness, triggering a compliance contest over the

274
Ibid., 154.
130

behaviors. This analysis is further strengthened with an analysis of the 1999 NATO airstrikes in
Kosovo. In both cases, claims of legality were contested, a process which determined if the
behaviors complied with international law on the use of force and reshaped how future contests
over these laws would be made. This chapter proceeds first with a discussion of the role of legal
justifications for military force before moving to recapitulate the theoretical expectations
regarding rhetorical compliance. Following this theoretical discussion, I outline the
methodological approaches and considerations involved in this chapter, including a discussion of
the nature of discourse analysis. Next, the coalition airstrikes in Syria are discussed – first the
events that led to the strike and then the justifications given for it. These justifications are
positioned against the rival interpretations that were made to contest the coalition’s legal
arguments. These contestative processes are then compared to the arguments made surrounding
NATO’s 1999 intervention, highlighting how compliance contests shift over time as past
arguments reshape future ones.
Legal Justifications for Military Force
Legal justifications are central to contemporary decision-making surrounding the use of
military force. This reflects the legalized nature of modern international relations, where legal
norms and rhetorics permeate decision-making processes.
275
Indeed, decisionmakers have been
shown to expend considerable time and effort in the pursuit of legal justification, explicitly
noting a need for legal justifications – over other types of references – when legitimating military
force.
276
In this system “normatively valid behavior is cast in terms of lawful conduct”
277
– other
types of rhetoric are seen as inappropriate for justifying policies in the modern world. Since

275
Rapp, “Justifying Force”; Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018.
276
Rapp, “Justifying Force.”
277
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018, 10.
131

justifications are statements of normative value, decisionmakers are limited in what they may
use,
278
needing references that are normatively appropriate within their target community. In
short, “engaging in violent conflicts and deploying force entails strategies of justification and,
consequently, the discursive effort to present a particular action, actor or organization as
legitimate, by reshaping the boundaries of acceptability.”
279

In the contemporary legal order, this means references to international law. In a legalized
system, law and legal arguments are seen as uniquely appropriate or acceptable.
280
Invoking
legal justifications for the use of military force is important as it gives the speaker a way to tie
their action to a supposedly neutral rule,
281
and may even provide an “oughtness” claim to the act
– saying that it is not only permitted but required.
282
This is an attempt to portray the behavior as
permissible and acceptable, as the natural extension of shared rules that states have – explicitly
or not – previously agreed to.
283
Legalism is so entrenched in contemporary politics that legal
references are often the only option for legitimate justifications – legal claims cannot be replaced
with other types of rhetoric.
284
So, while decisionmakers may be forced to pursue tenuous legal
arguments or offer weak justifications,
285
they cannot easily move to other types of references if
they hope to legitimate their behavior in the eyes of the international public.

278
Travis Nelson, “Why Justify? Explaining Variation in Conflict Justification, 1980–2008,” Democracy and
Security 6, no. 2 (July 20, 2010): 143, https://doi.org/10.1080/17419161003722963.
279
Barbara Motta and David Succi Jr, “Legitimation through Collectivization: Al Qaeda and US Discourses on the
Use of Force,” Studies in Conflict & Terrorism, 2021, 15.
280
Hurd, “The Empire of International Legalism,” 269.
281
Adam Bower, “Arguing with Law: Strategic Legal Argumentation, US Diplomacy, and Debates over the
International Criminal Court,” Review of International Studies 41, no. 02 (April 2015): 337–60,
https://doi.org/10.1017/S0260210514000217; Mantilla, “Forum Isolation.”
282
Michael Byers, Custom, Power, and the Power of Rules: International Relations and Customary International
Law (Cambridge [England] ; New York: Cambridge University Press, 1999), 6–7.
283
Brunnee and Toope, Legitimacy and Legality in International Law, 24–25.
284
Hurd, “The Empire of International Legalism.”
285
Zoltán I. Búzás, “Evading International Law: How Agents Comply with the Letter of the Law but Violate Its
Purpose,” European Journal of International Relations 23, no. 4 (December 2017): 857–83,
https://doi.org/10.1177/1354066116679242; Rapp, “Justifying Force.”
132

In this way, legal justifications reflect the permissive power of the international law that
intends to restrain the use of military force. By providing a framework and language for
justifying military force, international law can be used to permit the very acts that it hopes to
prevent.
286
As with other types of legal justifications, like those made in human rights,
international law prohibiting the use of force provides a framework for actors to manage the
tensions between their political goals and the constraints imposed by the law.
287
By claiming and
contesting compliance, actors are able to turn a prohibited behavior into something lawful.
288

Reinterpreting and contesting the meaning of the law on the prohibition of the use of force –
particularly its relationship to self-defense – allows actors a way to justify intervention by
framing it as a permissible act.
289
The categories within law – self-defense versus unlawful
invasion, for example – allow actors to create compliance claims with their legal justifications,
rhetorically constructing the act as permitted within the law.
290

In these roles, legal justifications reflect a continuation of the age-old trend of leaders
providing justifying claims for their decision to use military force. Scholarship on war
justifications has noted that these claims have followed the decision to go to war, almost as a

286
Bjola, “Legitimating the Use of Force in International Politics”; Hurd, How to Do Things With International
Law; Ian Hurd, “The Permissive Power of the Ban on War,” European Journal of International Security 2, no. 1
(2016): 1–18; Freya Irani, “‘Lawfare’, US Military Discourse, and the Colonial Constitution of Law and War,”
European Journal of International Security 3, no. 1 (February 2018): 113–33, https://doi.org/10.1017/eis.2017.12;
Simona Ross, “U.S. Justifications for the Use of Force in Syria through the Prism of the Responsibility to Protect,”
Journal on the Use of Force and International Law, August 12, 2021, 2–3,
https://doi.org/10.1080/20531702.2021.1967629.
287
Sanders, Plausible Legality: Legal Culture and Political Imperative in the Global War on Terror, 12–13.
288
Ross, “U.S. Justifications for the Use of Force in Syria through the Prism of the Responsibility to Protect,” 3.
289
Hurd, “The Permissive Power of the Ban on War,” 8; Hurd, How to Do Things With International Law, 73.
290
Sidra Hamidi, “Law as Discursive Resource: The Politics of the Nuclear/Non-Nuclear Distinction in the Non-
Proliferation Treaty,” European Journal of International Relations, September 25, 2019, 1–24,
https://doi.org/10.1177/1354066119875999; Kinsella, “Discourses of Difference”; Kinsella, The Image Before the
Weapon; Anne-Marie Slaughter, “Filling Power Vacuums in the New Global Legal Order,” Boston College Law
Review 54 (2013): 925.
133

matter of course, while the references used to justify the decision have changed over time.
291
In
the early modern era, for example, the decision to use military force was often tied to moral and
ethical claims that drew on the just war tradition.
292
Similarly, before the formation of the
contemporary international legal system, states often justified their decision to use military force
by appealing to shared understandings about the appropriateness of enforcing agreements
through armed force.
293
While these claims would no longer fulfill a justificatory purpose –
being inappropriate and likely to be rejected by the relevant publics in the contemporary world –
they show how justifications have long featured in the use of military force.
Theory
In this analysis, I expect to find patterns of compliance making and contestation
throughout both cases. In particular, I expect that the acting states – those who are using military
force abroad – will offer legal justifications for their decision. These justifications will be made
because of the depths of legalism present in contemporary international relations, which was
discussed in the previous section. Drawing on research that shows how leaders value legal
justifications as a justificatory tool
294
– and that they see law as an irreplaceable language for
these justifications
295
- I expect leaders to act quickly to offer such justifications.

291
Oona Hathaway et al., “War Manifestos,” The University of Chicago Law Review 85 (2018): 1139–1225; Lothar
Brock and Hendrik Simon, eds., The Justification of War and International Order: From Past to Present, 1st ed.
(Oxford University Press, 2021), https://doi.org/10.1093/oso/9780198865308.001.0001.
292
Randall Lesaffer, “Defensive Warfare, Prevention and Hegemony. The Justifications for the Franco-Spanish War
of 1635 (Part I),” Journal of the History of International Law / Revue d’histoire Du Droit International 8, no. 1
(2006): 91–123, https://doi.org/10.1163/157180506777834407; Randall Lesaffer, “Defensive Warfare, Prevention
and Hegemony. The Justifications for the Franco-Spanish War of 1635 (Part II),” Journal of the History of
International Law / Revue d’histoire Du Droit International 8, no. 2 (2006): 141–79,
https://doi.org/10.1163/157180506779884464.
293
Hathaway et al., “War Manifestos.”
294
Rapp, “Justifying Force”; Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018.
295
Hurd, “The Empire of International Legalism.”
134

Importantly, these justifications will take the form of compliance claims. As such, their
purpose will extend beyond offering a reason for the use of military force. Instead, these
justifications will be intended to construct the use of force as a behavior that complies with
international law regulating the recourse to war. They will situate the intervention within the
context of the law – not outside, or in violation, of it – as a way to make the behavior compliant.
To do this, I expect that actors will frame their compliance claims on references to international
legal rules – especially written agreements
296
– that they believe offer the greatest chance of
success as a justificatory tool.
This does not mean that legal references will be limited to jus ad bellum or other legal
standards with an explicit connection to the use of military force. Actors may draw on a range of
legal references to support their reasoning, but the expectation is twofold. First, is that they will
seek out such legal references – even references which are only tenuously connected to the legal
question at hand. Second is that they will strive to connect their references to written agreements
– even if these standards are not as directly connected to the legal question. This is because of
the argumentative and justificatory value of such codified references in international relations.
297

Furthermore, I expect compliance contestations to follow a similar pattern as compliance
claims. When contesting a rival’s claim that their behavior complies with the law, it is not
enough to assert that they are wrong. Instead, an actor must frame their contestation on different
legal references – or an alternative interpretation of the same references used by the claimant – in
order to show why the compliance claim is, in their view, improper. This is the result of at least
two conditions. The first is that, when an actor uses international law in their reference, they
restrict the scope of future contestation. Previous research has shown that legalism, with its deep

296
Rapp, “Law and Contestation in International Negotiations.”
297
Ibid.; Rapp, “Justifying Force”; Bower, “Arguing with Law,” April 2015.
135

permeation of contemporary international relations, shapes the grounds on which actors may
contest each other’s claims. Other references are seen as improper or inappropriate, especially in
the face of legal claims, and are markedly less likely to succeed in the eyes of the relevant
publics.
298
The second condition is that to contest a legal claim – to argue that the claim is
inappropriate or an inaccurate interpretation of the law – they must offer an alternative
interpretation. While legal interpretation may be augmented with – and indeed may be motivated
by – non-legal reasons, it may be considered inappropriate to explicitly say so. Given these
factors, rivals will be motivated to employ legal references when contesting another’s
compliance claim.
Having outlined how claims will be made and contested, the next question is how these
contestative processes will be settled. How will an argument come to be accepted or rejected?
The answer to this question is far from clear, as the process requires differing amounts of time
and social interaction to resolve itself. A claim may find itself facing immediate rejection – with
a multitude of actors in the relevant public voicing their disagreement with it, for example – in a
short amount of time. One example here may be the justifications made by Russia towards its
invasion of Ukraine. These justifications were quickly met with widespread condemnation,
including a very public and global rebuke in the UNGA, that leave little doubt about the
acceptability of the argument.
299
Similarly, a claim may quickly be met with broad acceptance,
with counterclaims being few or weak, unable to provide a serious challenge to the compliance
claim.

298
Hurd, “The Empire of International Legalism”; Rapp, “Justifying Force.”
299
“General Assembly Resolution Demands End to Russian Offensive in Ukraine,” UN News, March 2, 2022,
https://news.un.org/en/story/2022/03/1113152.
136

Outside of these unique cases, though, it will be harder to determine how a contestation
process is settled. The likeliest answer is that it will take some time before the outcome is
known. The contestation process plays out over time and the claims and counterclaims about the
legality of an action may be spread over months or even years. During this time, though, it is
possible – and perhaps even likely – that one argument will begin to find greater acceptance.
This will be the claim – either the compliance claim or the contestation of it – that most
successfully draws on shared references to ‘corner’ its opponent. This process may be observed
as arguments change – as one side is forced to adjust, rephrase, or walk-back its claims in the
face of public pressure and effective argumentation. Over a longer timeframe, it may be possible
to determine which argument ‘won’ by seeing which references are used later in different
contestation processes. In this chapter, for example, a compliance claim that succeeded in 1999
is more likely to be invoked in 2018, while one that failed may not be brought up again since it
would offer little value as a justificatory tool. Contests will be settled, then, in one of three ways
– with the broad acceptance of the claim, with its rejection, or in a gradual process where one
claim may eventually rise to prominence, particularly through its use in future contests.
Importantly, the outcomes of a compliance contest have repercussions beyond the
immediate moment. As was discussed in Chapter Two, the results of past compliance contests
will often factor into the claims made in future ones. Arguments that are outright rejected at one
point in time, it is expected, are less likely to be referenced in future compliance contests.
Alternatively, arguments that find success in one moment are more likely to be referenced again
in future contests, since actors have a reason to believe that these arguments are publicly
acceptable interpretations of the law. Likewise, actors may continue to draw on references that
fall in the middle. Since compliance is a spectrum, as has been discussed, where the core is often
137

contested, it is likely that many claims will neither be outright rejected or accepted. These ‘grey
zone’ areas of compliance are likely to be referenced again in the future – especially if actors
with similar motivations are involved. These actors may see a later compliance contest as a way
to move an interpretation of the law towards greater acceptability, giving them a way to reshape
compliance to more closely align with their preferences. Since the claim was not fully rejected
before, they may reason that it is likely to find some degree of support again, further increasing
their willingness to use the claim. Given this, I expect actors in the 2018 case to be more likely to
draw on references from the 1999 NATO intervention in Kosovo to support their case – if such
claims support their preferences – even if these claims were not accepted in 1999. As long as
these claims were not outright rejected, a later compliance contest gives actors the opportunity to
continue reshaping the meaning of compliance and the effect of the law.
Case Justification and Methods
These processes will be tested with a qualitative analysis of the justifications – and
counter-claims – surrounding coalition strikes against Syria in 2018.
300
Analyzing the
justifications made by the U.S., U.K., and France, this project primarily employs a ‘single case’
approach where different justifications, and the conversations surrounding and reactions to them,
may be understood as different cases of contestation. This case may be understood as an
exploratory case – where the outcome of interest (contested compliance claims) is already known
but where it is the cause of this outcome that is of interest.
301
This allows for a thorough

300
Alonso Gurmendi Dunkelbert et al., “UPDATE: Mapping States’ Reactions to the Syria Strikes of April 2018,”
Just Security (blog), May 7, 2018, https://www.justsecurity.org/55790/update-mapping-states-reactions-syria-
strikes-april-2018/.
301
John Gerring, Case Study Research: Principles and Practices, 2nd ed. (Cambridge University Press, 2016), 67,
https://doi.org/10.1017/9781316848593.
138

examination of the processes – the ways by which actors advance and contest compliance claims
– in a rigorous way that may provide insights into the mechanism and processes at work.
Within these cases, the focus is on analyzing public discourses – including government
and organizational statements, interviews, and deliberations in international and regional
institutions – to illuminate how actors both construct a claim of compliance and how that claim is
contested by others. Materials were gathered from a collection of sources and, where appropriate,
supplemented with reference to secondary source material. For the Syria case, the collection of
statements put together by Opinio Juris was used as the starting point for the analysis.
302

Additional primary source material, including news sources, were also identified.
303
As a shadow
case, the Kosovo examination draws more heavily on secondary source material, including
broader analyses of the conflict
304
as well as scholarly analysis of the legal arguments that were
made surrounding the strikes.
305
The use of primary materials in the Syria case allows for a deep
engagement with the public compliance contests that occurred surrounding this strike. Since
compliance contests are necessarily public – states much assert the legality of their actions in
public if they are to have a justificatory effect – it is appropriate to focus on public, instead of

302
Gurmendi Dunkelbert et al., “UPDATE: Mapping States’ Reactions to the Syria Strikes of April 2018.”
303
For sources published in languages other than English, informal translation using Google Translate was used.
While this technique may miss some of fine grained points, automated translation has been noted as being largely
accurate for text analysis, especially between European languages, and provides a useful tool for identifying the
main points of a text. “An Analysis of Google Translate Accuracy - TRANSLATE 2011-3,” accessed March 27,
2022, https://sites.google.com/site/translation20113/analisis.
304
Andrew Cottey, “The Kosovo War in Perspective,” International Affairs 85, no. 3 (2009): 593–608; Mark
Webber, “The Kosovo War: A Recapitulation,” International Affairs 85, no. 3 (May 2009): 447–59,
https://doi.org/10.1111/j.1468-2346.2009.00807.x; David L Phillips, Liberating Kosovo Coercive Diplomacy and
U.S. Intervention (Cambridge, Mass: MIT Press, 2013); Benjamin S. Lambeth, NATO’s Air War for Kosovo: A
Strategic and Operational Assessment, Project Air Force Series on Operation Allied Force (Santa Monica, CA:
Rand, 2001); International Court of Justice, “Legality of Use of Force (Yugoslavia v. Spain),” Government,
International Court of Justice, accessed March 27, 2022, https://www.icj-cij.org/en/case/112.
305
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018; Christopher Greenwood,
“International Law And The Nato Intervention In Kosovo,” International and Comparative Law Quarterly 49, no. 4
(October 2000): 926–34, https://doi.org/10.1017/S0020589300064745; Jens Rytter, “Humanitarian Intervention
without the Security Council: From San Francisco to Kosovo – and Beyond,” Nordic Journal of International Law
70, no. 1 (January 1, 2001): 121–60, https://doi.org/10.1163/15718100120296539.
139

private, statements. Drawing on a range of statements – including press releases, media
reporting, and statements at international organizations – allows for a thorough examination of
the compliance contestation process in the various forums where it may occur. The shadow case,
drawing on secondary material, is able to further illuminate and expose these patterns, deepening
the understanding provided by the primary case.
Discourse analysis is particularly suitable for understanding how meanings are created
and recreated, providing a grounded and reflexive approach to understanding social processes
like those underpinning the creation and contestation of compliance.
306
It recognizes discourses
as productive sets of rules that are reproduced and transformed through their manifestation in
linguistic and non-linguistic practices that are deeply connected to institutions and political
power.
307
These discourses “set the terms of intelligibility of thought, speech, and action”
308
–
and are often advanced through arguments about what is acceptable or appropriate.
309

Discourse analysis calls our attention to two concepts – articulation and interpellation.
Articulation is first the practice of “creating and temporarily fixing meaning through the
contingent connection of signifying elements,”
310
which is to say the act of using different terms,
symbols, and meanings together to create a claim. Secondly, articulation refers to how these
claims are giving meaning in the context of institutions and social relations. It recognizes that a
claim is “socially constructed, historically contingent, and therefore requires a great deal of
ideological labor to establish and maintain.”
311
In short, articulation is the process by which an

306
Hardy, Harley, and Phillips, “Discourse Analysis and Content Analysis: Two Solitudes?”
307
Mark Laffey and Jutta Weldes, “Methodological Reflections On Discourse Analysis,” Qualitative Methods:
QMMR Newsletter, Spring 2004, 28, https://doi.org/10.5281/ZENODO.998671.
308
Neta Crawford, “Understanding Discourse: A Methods Of Ethical Argument Analysis,” Qualitative Methods:
QMMR Newsletter, Spring 2004, 22–23, https://doi.org/10.5281/ZENODO.998633.
309
Ibid., 23–25.
310
Laffey and Weldes, “Methodological Reflections On Discourse Analysis,” 28.
311
Ibid.
140

actor or actors draws on discourse to create and propagate a meaning for their actions.
Interpellation is the dual process by which subject-positions are created. Interpellation, then, first
refers to how specific identities are created when social relations are depicted. Secondly, when
interpellation is successful it leads actors to identify with these subject-positions, which in turn
leads them to understand and accept the power relations depicted within them.
312

Analytically, discourse analysis begins by identifying and exploring the representational
practices within a case. This includes identifying the main signifying elements in the discourse
and then understanding how they are linked together into a chain of connotation.
313
For example,
signifying elements like “self-defense” and “proportionality” could be linked together into a
chain of connotation arguing about the legitimacy of self-defense if it is undertaken in a
proportional manner. A discourse may be made up of multiple chains of connotation, in which
case it may be possible to identify nodes – areas in the discourse where multiple chains are
brought together.
314
In doing so, discourse analysis focuses on the embeddedness of words –
understanding their meaning by considering how they are embedded in various discourses that
actors may string together.
315
Beyond this, discourse analysis further requires an examination of
how these claims are situated within institutions. Discourses may differ in their power as they
benefit from different degrees of institutional power which may serve to legitimate their claims,
meaning that discourse analysis is not solely focused on what is said but also on the social
relations underpinning these representational practices.
316

312
Ibid.
313
Ibid., 29.
314
Ibid.
315
Karin Fierke, “World Or Worlds? The Analysis Of Content And Discourse,” Qualitative Methods: QMMR
Newsletter, Spring 2004, 36, https://doi.org/10.5281/ZENODO.998641.
316
Laffey and Weldes, “Methodological Reflections On Discourse Analysis.”
141

Turning towards interpellation, discourse analysis emphasizes an investigation of the
subject positions that are created by the discourse. When actors use discourse, they construct
identities for the subjects and objects that they refer to, linking certain qualities to what it means
for someone or something to be in a category. US discourse during the Cold War, for example,
created on subject position for the meaning of the Soviet Union, a subject position that was made
up of various claims by the US about what differentiated it from the USSR.
317
Questioning ‘who
speaks’ is central to understanding this process in discourse analysis, and the approach calls for
significant attention to who authors the discourse – who is the ‘we’ that is making a claim. Doing
so further highlights the power relationships that are inherent to discourse and the knowledge
creating process.
318

Applying these concepts, the analysis in this chapter seeks to identify and understand the
discourses that were articulated regarding the legality or illegality of the coalition strikes in
Syria.
319
This includes identifying not only what was said but who it was said by and where. Just
as importantly, consideration will be given to what is not said or whose voices are not heard. As
legal scholars have noted, silence in international law is not random
320
– while it may reflect an

317
Ibid., 29.
318
Ibid., 29–30.
319
Given all of this, it is important to note that this chapter takes on a far more ‘interpretivist’ bend than the largely
‘positivist’ approaches that have preceded it. Discourse analysis, like other interpretivist methods, realizes that truths
may be plural and relative and that there may not be a single ‘right’ answer to a question. The goal in applying these
methods is to more deeply engage with the processes that occur when compliance is claimed, realizing that these
processes are deeply constitutive and constructive. Claims – and contestations – create meaning. Compliance
arguments are not merely claims, nor are they a reflection of a material or legal argument – they are processes that,
over time, fundamentally create and reshape the world in which they are made. By applying such a post-positivist
approach, I hope that this analysis will further serve as a dialogue for how these different approaches – not only to
research but to comprehending our world – may speak to and alongside each other, an important tradition within IR-
IL research for more fully understanding what rules say, mean, and do. See: Nicholas Onuf, “Do Rules Say What
They Do? From Ordinary Language to International Law (1985),” in International Legal Theory, 1st ed. (London:
Routledge-Cavendish, 2008), 233–57.
320
H. Quane, “Silence in International Law,” British Yearbook of International Law 84, no. 1 (January 1, 2014):
240–70, https://doi.org/10.1093/bybil/bru021.
142

acquiescence to an argument,
321
it can also tell us far more,
322
including whose voices are
silenced and why.
323
Having identified what is articulated, this analysis will then turn to
considering the processes of interpellation that occurred throughout this case – how actors used
different discourses to create and contest subject position meanings within the context of legal
compliance.
In addition to the principal case, this chapter utilizes a ‘shadow case’ – the 1999 NATO
bombing campaign in Kosovo. A shadow case is a more peripheral case brought in alongside the
primary case to deepen the analysis by providing a point of contrast,
324
typified by its retainment
of the intensive engagement that required of case studies, its ancillary nature to the primary case,
and the fact that it is – for logistical, presentational, or research cycle reasons – more constrained
in its analysis.
325
Shadow cases are particularly helpful as they can allow for an exploration of
observable implications that may be outside the scope of the primary case.
326
In this case, the
shadow case will allow for an exploration of how compliance claims and contests surrounding
the use of military force have shifted over time. As has been noted throughout this dissertation,
compliance contests are an ongoing process
327
– actors draw on past standards and arguments to
create new claims or to contest the claims of their rivals. The case will feature a similar analytic

321
M. Mendelson, “The Subjective Element in Customary International Law,” British Yearbook of International
Law 66, no. 1 (January 1, 1996): 186, https://doi.org/10.1093/bybil/66.1.177; Michael Wood, “Third Report on
Identification of Customary International Law (A/CN.4/682)” (International Law Commission, 2015), paras. 19–26,
https://undocs.org/A/CN.4/682.
322
Dustin Lewis, Naz Modirzadeh, and Gabriella Blum, “Quantum of Silence: Inaction and Jus Ad Bellum,” The
Harvard Law School Program on International Law and Armed Conflict, 219AD, http://nrs.harvard.edu/urn-
3:HUL.InstRepos:40931878; Elisabeth Schweiger, “‘Targeted Killing’ and the Lack of Acquiescence,” Leiden
Journal of International Law 32, no. 4 (December 2019): 741–57, https://doi.org/10.1017/S0922156519000475.
323
Hilary Charlesworth, “Feminist Methods in International Law,” American Journal of International Law 93, no. 2
(April 1999): 381–83, https://doi.org/10.2307/2997996.
324
John Gerring, “What Is a Case Study and What Is It Good For?,” American Political Science Review 98, no. 2
(May 2004): 344, https://doi.org/10.1017/S0003055404001182.
325
Hillel Soifer, “Shadow Cases in Comparative Research,” Qualitative and Multi-Method Research 18, no. 2
(2020): 11–12, https://doi.org/10.5281/ZENODO.4046562.
326
Ibid., 13.
327
Sandholtz, Prohibiting Plunder: How Norms Change, chap. 1.
143

approach as the principal case, with the goal of identifying the discourses that were articulated to
justify or contest the intervention along with a focus on exploring the processes of interpellation
that occurred throughout these processes.
This means that we should expect to observe a temporal aspect to the justifications that
are used. Justifications should not be static over time but should invoke new standards or
interpretations that are derived from new events. This observable implication – that justifications
will shift over time as past compliance contests are used to justify positions in new contests –
cannot be observed in a single case. By its very nature, it requires comparison across time and
this shadow case begins to allow for such an analysis. This shadow case, then, will be used to
explore these developments, particularly how certain types of compliance claims may have
gained – or lost – acceptance over time, reshaping the later claims. Understanding these
developments is important for understanding how the process of claiming and contesting
compliance plays a generative role in international law, quite literally changing the meaning and
applicability of the law through contestation and interpretation.
The Syrian Civil War
The Syrian Civil War and the 2018 Coalition Strikes in Syria
The 2018 airstrikes carried out by the US, UK, and France occurred in the broader
context of the ongoing Syrian Civil War, which began in after violent government repression in
the face of popular protests that had begun in 2011, driven by a combination of economic
stagnation and ongoing repression.
328
The conflict has principally been described as a non-
international armed conflict, although it has also seen international involvement from many

328
Itamar Rabinovich and Carmit Valensi, Syrian Requiem: The Civil War and Its Aftermath (Princeton: Princeton
University Press, 2021), 41–53; Steven Heydemann, “Pity the Nation: Assessing a Half-Century of Assadist Rule,”
Brookings (blog), December 14, 2020, https://www.brookings.edu/blog/order-from-chaos/2020/12/14/pity-the-
nation-assessing-a-half-century-of-assadist-rule/.
144

states, including Turkey,
329
Russia,
330
and the United States, which may challenge that
interpretation.
331

Throughout the conflict, the Syrian government has been repeatedly criticized by other
states, human rights organizations,
332
and international organizations
333
for failing to respect
human rights. A significant part of this was the Syrian regime’s continued use of chemical
weapons against its civilian population. In 2012, the Syrian government admitted to possessing
chemical weapons while claiming that they would not would not use them in the ongoing civil
conflict.
334
Attacks in 2013, including sarin gas attacks by Syrian government forces against
civilian populations, led to an international agreement to oversee the removal and safe
destruction of the Syrian government’s chemical weapons.
335
Following this destruction, though,
reports continued about the use of chemical agents by the Syrian government. In particular, the

329
“Turkish Tanks Cross Syrian Border to Free IS-Group Held Town,” France 24, August 24, 2016,
https://www.france24.com/en/20160824-turkey-us-led-forces-launch-joint-operation-northern-syria; Rabinovich and
Valensi, Syrian Requiem, chap. 5.
330
Rabinovich and Valensi, Syrian Requiem, 185–91.
331
David Wallace, Amy McCarthy, and Shane R. Reeves, “Trying to Make Sense of the Senseless: Classifying the
Syrian Civil War Under the Law of Armed Conflict,” Michigan State International Law Review 25, no. 3 (2017):
555–94.
332
Human Rights Watch, “Syria: Events of 2021,” in World Report 2022, 2021, https://www.hrw.org/world-
report/2022/country-chapters/syria; “Syria,” Amnesty International USA, accessed March 13, 2022,
https://www.amnestyusa.org/countries/syria/.
333
AP, “UN Human Rights Council Emphasises Assad Role in Syria War Crimes,” The Hindu, September 16, 2014,
sec. World, https://www.thehindu.com/news/international/world/UN-Human-Rights-Council-emphasises-Bashar-
Assad-role-in-Syria-war-crimes/article60419561.ece; “UN Human Rights Council Condemns Violence in Syria,”
UN News, July 6, 2012, https://news.un.org/en/story/2012/07/414922-un-human-rights-council-condemns-violence-
syria; “Ten Years on, Syrian Crisis ‘Remains a Living Nightmare’: UN Secretary-General,” UN News, March 10,
2021, https://news.un.org/en/story/2021/03/1086872; “OHCHR | IICI Syria Independent International Commission
of Inquiry on the Syrian Arab Republic,” Independent International Commission of Inquiry on the Syrian Arab
Republic, accessed March 13, 2022,
https://www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/IndependentInternationalCommission.aspx.
334
Bretislav Friedrich et al., eds., One Hundred Years of Chemical Warfare: Research, Deployment, Consequences,
1st ed. 2017 (Cham: Springer International Publishing : Imprint: Springer, 2017), 364–65,
https://doi.org/10.1007/978-3-319-51664-6.
335
John Hart and Ralf Trapp, “Collateral Damage? The Chemical Weapons Convention in the Wake of the Syrian
Civil War,” Arms Control Today 48, no. 3 (2018): 6–13.
145

Syrian government was accused of using chlorine gas – which is legal as an industrial agent but
whose use in combat is strictly prohibited – against civilian populations.
336

On April 6
th
, 2017, the issue came to a head after the Assad regime used sarin gas in the
town of Khan Shaykhun on April 4th, killing at least 89 people and injuring hundreds more.
337

This was the deadliest chemical weapons attack in Syria since the 2013 Ghouta attacks,
338

prompting international condemnation. After two days of deliberation, the US launched 59 cruise
missiles against targets in Syria, primarily the airfield where it was believed the Khan Shaykhun
attack had been launched from.
339
This attack marked the first time that the US directly targeted
the Syrian government, a dramatic escalation in the conflict.
340
Justifying the strike, Trump
invoked the “vital national security interest of the United States: to prevent and deter the spread
and use of deadly chemical weapons.”
341
The action was further justified with appeals to the
Chemical Weapons Convention and appeals from the UNSC,
342
situating the strike as an attempt
to enforce international law. While the attack created considerable international controversy, it

336
Friedrich et al., One Hundred Years of Chemical Warfare, 372.
337
Edmond Mulet, Judy Cheng-Hopkins, and Stefan Mogl, “Letter Dated 26 October 2017 from the Leadership
Panel of the Organisation for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism
Addressed to the Secretary-General” (United Nations, October 26, 2017).
338
“Assad Regime Responsible for ‘Awful’ Syria ‘Chemical’ Attack: EU’s Mogherini,” Al Arabiya English, April
4, 2017, https://english.alarabiya.net/News/middle-east/2017/04/04/Syria-toxic-gas-attack-kills-civilians-in-Idlib-
province.
339
Dan Lamothe, Missy Ryan, and Thomas Gibbons-Neff, “U.S. Strikes Syrian Military Airfield in First Direct
Assault on Bashar al-Assad’s Government - The Washington Post,” Washington Post, April 7, 2017,
https://web.archive.org/web/20170407024143/https://www.washingtonpost.com/world/national-security/trump-
weighing-military-options-following-chemical-weapons-attack-in-syria/2017/04/06/0c59603a-1ae8-11e7-9887-
1a5314b56a08_story.html.
340
Ibid.; “US Warships Launch Cruise Missile Strike against Syrian Airfield in Retaliation for Chemical Attack -
ABC News (Australian Broadcasting Corporation),” accessed March 20, 2022,
https://web.archive.org/web/20170407023424/http://www.abc.net.au/news/2017-04-07/us-launches-cruise-missile-
strike-on-syria/8425132; Barbara Starr and Jeremy Diamond, “Syria Missile Strike: Trump Authorizes Action -
CNNPolitics.Com,” CNN News, April 7, 2017,
https://web.archive.org/web/20170407021906/http://edition.cnn.com/2017/04/06/politics/donald-trump-syria-
military/index.html.
341
German Lopez and Libby Nelson, “President Trump Speaks after Ordering Attack on Syria,” Vox, April 6, 2017,
https://www.vox.com/world/2017/4/6/15214942/trump-syria-bombing-attack.
342
Ibid.
146

seemed to have a limited impact on the conflict itself – Syrian aircraft were operating from the
base within days of the attack.
343
Internationally, meanwhile, reactions were mixed. At the
UNSC, for example, some states supported the attack as a “proportionate response” to the use of
chemical weapons while others condemned the attacks as unlawful aggression.
344

It was in the shadow of these past strikes, and the broader Syrian Civil War, that the US-
UK-France coalition carried out theory April 2018 attacks. Early in the morning of April 14
th
,
2018, the US, UK, and France carried out missile strikes against multiple targets in Syria. The
strikes came a week after the Syrian government carried out a chemical weapons attack in a
Damascus suburb,
345
and targeted military and research facilities across Syria.
346
The attack was
meant to punish Syria’s use of chemical weapons, limit the Syrian chemical weapons program,
and deter the future use of such weapons.
347
Syrian state TV and government sources later
reported that three civilians and “at least six” soldiers were injured in the attacks but that the
facilities had been evacuated earlier that week following prior warning by Russia of the
strikes.
348

343
Josie Ensor, “Syrian Warplanes Take off Once Again from Air Base Bombed by US Tomahawks,” The
Telegraph, April 8, 2017, https://www.telegraph.co.uk/news/2017/04/08/syrian-warplanes-take-air-base-bombed-us-
tomahawks/.
344
“Members Warn That Persistent Deadlock Threatens Security Council’s, ‘Remaining Credibility’, in Meeting on
United States Air Strike against Syria | Meetings Coverage and Press Releases,” accessed March 20, 2022,
https://www.un.org/press/en/2017/sc12783.doc.htm.
345
Ben Hubbard, “Dozens Suffocate in Syria as Government Is Accused of Chemical Attack,” The New York Times,
April 8, 2018, sec. World, https://www.nytimes.com/2018/04/08/world/middleeast/syria-chemical-attack-
ghouta.html.
346
Helene Cooper, Thomas Gibbons-Neff, and Ben Hubbard, “U.S., Britain and France Strike Syria Over Suspected
Chemical Weapons Attack,” The New York Times, April 14, 2018, sec. World,
https://www.nytimes.com/2018/04/13/world/middleeast/trump-strikes-syria-attack.html.
347
Julian Borger and Peter Beaumont, “Syria: US, UK and France Launch Strikes in Response to Chemical Attack,”
The Guardian, April 14, 2018, sec. World news, https://www.theguardian.com/world/2018/apr/14/syria-air-strikes-
us-uk-and-france-launch-attack-on-assad-regime.
348
Amir Tibon, Jack Khoury, and Noa Landau, “U.S., France and U.K. Strike Syria Over Chemical Attack,”
Haaretz, accessed February 27, 2022, https://www.haaretz.com/middle-east-news/syria/trump-approves-precision-
strikes-in-syria-explosions-near-damascus-1.5995358.
147

Coalition Compliance Claims
The US, UK, and France were quick to justify the strikes as complying with international
law. All three states made statements, across a variety of forums, about the permissibility of the
strikes, invoking various degrees of legal claims and references. The UK issued a detailed legal
position on the 14
th
, arguing that the strikes were justified under the doctrine of humanitarian
intervention in response to Syria’s ongoing use of chemical weapons against its civilian
population.
349
That same day, at the UNSC, France argued that the strikes were “fully in line
with the objectives and values” of the UN and that they were “necessary in order to address the
repeated violations by the Syrian regime of its obligations – obligations stemming from the law,
treaties, and its own commitments.”
350
A US statement immediately after the strike highlighted
the domestic legal justification for the use of force, while further arguing that the strikes were
necessary to enforce and protect international law’s prohibition on the use of chemical
weapons.
351
A few days later, the US Secretary of Defense further argued that “we did what we
believe was right under international law.”
352

These claims formed the core articulations of the coalition’s justifications for their strike.
In making these claims, the coalition drew on both specific and general references. In the UNSC,
for example, the French claim that the strike was “fully in line”
353
with the UN Charter reflect an
appeal to specific codified principals of international law. US claims, meanwhile, were more

349
“Syria Action – UK Government Legal Position,” GOV.UK, April 14, 2018,
https://www.gov.uk/government/publications/syria-action-uk-government-legal-position/syria-action-uk-
government-legal-position.
350
United Nations Security Council, “Minutes of the 8233rd Meeting of the Security Council” (United Nations,
April 14, 2018), 9.
351
“Statement by Secretary James N. Mattis on Syria” (US Department of Defense, April 13, 2018).
352
Helene Cooper, “Mattis Wanted Congressional Approval Before Striking Syria. He Was Overruled.,” New York
Times, April 17, 2018, https://www.nytimes.com/2018/04/17/us/politics/jim-mattis-trump-syria-attack.html.
353
United Nations Security Council, “S/PV.8233,” 9.
148

general – arguing that the attack was “right under international law”
354
without invoking any
particular legal references. The UK offered perhaps the most unique set of articulations for its
claim, linking together various general legal references to support its humanitarian intervention
argument.
355
This justification is notable for its lack of specific references combined with what is
presented as a clear legal argument – it lays out a series of conditions under which, the UK
argues, humanitarian intervention is justified. Doing so allowed the UK to invoke the language
of legal claims, drawing on its past support for the principal of humanitarian intervention,
356

while sidestepping the numerous controversies and disagreements that follow the doctrine.
357
As
will be further discussed in the following sections, this argument followed on previous
compliance contests, including those surrounding the Kosovo operation, where the UK advanced
– and opponents failed to convincingly reject – similar claims.
358

Taken together, these references created a compliance claim based on appeals to specific
and general legal references. Broad appeals to the UN Charter and principles and humanitarian
intervention were combined with specific references to the chemical weapons prohibition with
two purposes. First, the coalition states aimed to portray their intervention as permissible under –
or not explicitly prohibited by – the UN Charter. Invoking the chemical weapons prohibition
further strengthened this argument, at least rhetorically, by providing a sense of oughtness to the
action. This created the idea of Syria in a subject-position where its past behaviors – notably, its

354
Cooper, “Mattis Wanted Congressional Approval Before Striking Syria. He Was Overruled.”
355
“Syria Action – UK Government Legal Position.”
356
Greenwood, “International Law And The Nato Intervention In Kosovo,” 929–31; Milena Sterio, “Humanitarian
Intervention Post-Syria: A Grotian Moment?,” ILSA Journal of International & Comparative Law 20, no. 2 (2014):
n. 51.
357
Petr Valek, “Is Unilateral Humanitarian Intervention Compatible with the U.N. Charter,” Michigan Journal of
International Law 26, no. 4 (2005): 1223–56; Evans Gareth, “The Responsibility to Protect: Rethinking
Humanitarian Intervention,” Proceedings of the Annual Meeting (American Society of International Law) 98 (2004):
78–89; Rytter, “Humanitarian Intervention without the Security Council.”
358
Greenwood, “International Law And The Nato Intervention In Kosovo”; Sterio, “Humanitarian Intervention Post-
Syria: A Grotian Moment?”
149

flagrant violation of international legal rules prohibiting the use of chemical weapons – made
such strikes permissible.
359
These arguments advanced the idea that the Syrian state was
operating outside the bounds of appropriateness, or – in the framework of discourse analysis –
attempted to place Syria in a rule-breaking subject-position which allowed the use of force, even
if it would usually have been prohibited.
Similarly, in making these justifications the coalition states aimed to portray themselves
as acting in the interests of international justice and the rule of law. By carrying out the strike,
their justifications reasoned, the coalition states were ensuring that international law remained
respected and obeyed. This interpolation aimed to make it harder to challenge the coalitions
compliance claims by buttressing the legal arguments with ethical appeals and conditions of
appropriateness and even oughtness. In short, the coalition’s claims extended beyond ‘mere
compliance’ – the strikes were not only legal, but they were also right and necessary. As will be
discussed later in this chapter, this combination of legal references in the coalition’s articulations
of its compliance claims – combined with its interpolations of a subject-position that portrayed
itself as legitimate and the Syrian state as a rulebreaker – played an important part in shaping
how the public contestation of the compliance claim occurred.
Compliance Contestations
While the US, UK, and France offered their compliance claims in support of the strike,
Syria and its allies likewise offered their contestations, aiming to portray the strikes as illegal –
fundamentally incompatible with international law and noncompliant with the prohibition on the
use of force and the norm of territorial integrity. Syria’s contestations of the compliance claim
focused on the UN Charter’s prohibition on the use of force and non-interference norms.

359
“Release No: NR-113-18.”
150

Speaking bluntly, the Syrian representative speaking at the UNSC meeting, called on the
coalition states to “read what the Charter actually states,”
360
arguing that the coalition’s
justifications could not be reasonable supported by the legal references that they had used. The
attack, according to Syria, was a “flagrant violation of the principles of international law and the
United Nations Charter.”
361
With this criticism, Syria invoked both codified and general legal
references in its contestation of the coalition’s compliance claims, references that were further
supported with appeals to Article 51 and Syria’s right to self-defense in having allegedly
intercepted several of the inbound missiles.
362

In these claims, Syria portrayed itself as being on the side of international law, arguing
that the coalition’s strike – and the justifications given for it – were “an attack against the [UN]
Charter, the [United Nations Security] Council, international law and the 193 members of this
Organization.”
363
This was an attempt to create a subject-position where the coalition was
engaged in rule-breaking and where Syria occupied a position as a defender of the international
order. This was further elaborated with appeals to third world solidarity and neocolonial thought.
Syrian arguments aimed to tie the coalition strike to a “return of the Cold War logic” where only
Western arguments could be acceptable.
364
For example, Syria criticized Qatar’s support for the
strike, arguing that Qatar “supported Western colonial tripartite aggression” and that the
coalition was using the UNSC to “pursue their aggressive policy of interference and
colonialism.”
365
These claims aimed to portray Syria as a defender of former colonial states,
arguing that if the coalition’s compliance claims were accepted it would weaken the international

360
United Nations Security Council, “S/PV.8233,” 20.
361
Ibid., 21.
362
Ibid.
363
Ibid.
364
Ibid., 19.
365
Ibid., 21.
151

order in a way that would disproportional harm these states. Supporting Syria’s compliance
contestation, then, was an important part of curtailing colonial or neocolonial tendencies.
Regarding also counterclaims, it is important to consider who was speaking and their
relation to the contest at hand. In this case, it is worth noting Russia’s contestations as part of the
initial compliance contest. In the Syrian Civil War, Russia has operated as a – perhaps the –
significant ally of the Syrian government. It has provided material and diplomatic support for the
Syrian regime, including in the UNSC where it often prevented coordinated international
action.
366
There is even speculation that Russia gave Syria advanced notice of the attacks, having
itself been warned by the US.
367
Given these conditions, it warrants examining Russia’s response
as part of the initial compliance claim-counter claim process, instead of treating Russia as a
member of the public involved in adjudicating the claims and determining the scope of
compliance.
Russia’s arguments – made both at the UNSC and in a presidential statement – criticized
the strikes as “an act of aggression…committed without permission from the Security Council
and in violation of the Charter of the United Nations.”
368
The coalition attacks demonstrated “a
flagrant disregard for international law” and Russia directly criticized the coalitions use of UN
Charter references in support of their compliance claims. While the coalition states had argued
that the strike aligned with the purpose of the UN Charter, Russia countered that the US, UK,
and France – as permanent members of the UNSC – had a “special duty to uphold” the UN

366
Philippa Webb, “The Security Council Veto in Syria: Imagining a Way Out of Deadlock,” Lieber Institute West
Point, August 12, 2021, https://lieber.westpoint.edu/security-council-veto-syria-imagining-way-out-deadlock/; Ümit
Seven, “Russia’s Foreign Policy Actions and the Syrian Civil War in the United Nations Security Council,” Journal
of Balkan and Near Eastern Studies, February 9, 2022, 1–16, https://doi.org/10.1080/19448953.2022.2037966.
367
Everett Rosenfeld, “The US Warned the Russians Ahead of Syria Missile Strikes,” CNBC, April 7, 2017,
https://www.cnbc.com/2017/04/06/the-us-warned-the-russians-ahead-of-syria-missile-strikes-official.html.
368
United Nations Security Council, “S/PV.8233,” 3.
152

Charter.
369
Furthermore, Russia criticized the US’ use of its own constitution in its legal
justification,
370
arguing that:
“It was a disgrace to hear an article of the United States Constitution cited as justification
of this aggression. We respect the right of every State to honour its own fundamental law.
But it is high time that Washington learned that it is the Charter of the United Nations
that governs the international code of conduct on the use of force.”
371

Russia’s compliance contestations drew, as expected, on references to codified and
general international law. It emphasized the role of the UN Charter and the UNSC in regulating
the use of force to argue that the coalition strike – carried out without UNSC approval – fell
outside of those rules and therefore outside the realm of compliance. Regarding the chemical
weapons arguments made by the coalition states, Russia did not engage directly with the legal
claims – if the use of chemical weapons permitted the coalition’s use of force – but instead
challenged them on factual grounds. Russia argued that there was no proof of chemical weapons
having been used and supported their claims with references to recent OPCW inspections of
some of the targeted sites.
372

Russia’s compliance contestations echoed those made by Syria in at least some areas.
They aimed to portray the coalition states as acting outside the UN system and imposing a type
of “might makes right” politics. In doing so, Russia attempted to portray itself as speaking in
defense of the law and the coalition as fundamentally opposed to it. By questioning – however
weakly – coalition arguments about the use of chemical weapons, Russia further aimed to
portray the coalition as lying about fundamental issues, which may serve two purposes. First, if
accepted, it would portray the coalition states as subjects occupying a dishonest position, which

369
Ibid.
370
“Release No: NR-113-18.”
371
United Nations Security Council, “S/PV.8233,” 3.
372
Ibid., 4.
153

may invite further questioning of their legal references. Secondly, it allowed Russia to challenge
the coalition’s justification on the level of facts instead of law – reasoning that even if one
accepted a right to use force in response to chemical weapons, that case would not apply here.
Finally, Russia aimed to portray the coalition – as Syria had too – as neocolonialist.
373
Similarly
to how the coalition states aimed to portray Syria as a rule-breaking state whose chemical
weapons use warranted an exceptional use of force, Syria and Russia aimed to portray the
coalition states as acting beyond the scope of international law in pursuit of a neocolonialist
agenda.
The Compliance Contest
Both sides of the compliance contest made their claims known soon after the strike, as
discussed above. With this done – the coalition states having claimed compliance and Syria and
Russia having contested it – a compliance contest had begun. Had the coalition strikes complied
with international law or were they a violation? What would determine this was not the behavior
itself, but the success or failure of the different compliance claims and contests made
surrounding it. Through the following process, these strikes would be made compliant or
noncompliant.
In this case, much of the public process of adjudicating the compliance and contestative
claims occurred publicly. The overt nature of the strike may have increased the pressure on states
to engage publicly with the compliance claims that were made. Furthermore, much of the
contestation occurred within international organizations – including the UNSC – as both sides
worked to present their claims in various forums. Given that the strikes directly involved four of

373
Ibid., 3.
154

the five permanent members of the UNSC, it is perhaps unsurprising how much of the
contestation occurred in that forum.
In these processes, the coalition states found considerable – if qualified – support for their
claims. Some actors, for example, supported the coalition’s claims about the importance of
enforcing the ban on the use of chemical weapons. In doing so, many spoke to – or with the
language of – international law. Turkey, for example, noted that the use of chemical weapons
against civilian populations constituted a crime against humanity which could “not go
unpunished.”
374
New Zealand, meanwhile, made a statement that accepted the coalition strikes,
accepted the argument about deterring the use of chemical weapons, and explicitly condemned
Syria’s use of such weapons as a violation of international law.
375
In doing so – in portraying
Syria as a rule-breaker and accepting the coalition’s arguments about the necessity and
appropriateness of the strikes – statements like these provided important support for the
coalition’s compliance claims. Without explicitly referring to the coalition’s legal arguments,
these types of statements offer support for the strike and portray it as appropriate and legitimate.
Perhaps even more importantly, the address legal noncompliance with regards to Syria’s
behavior. This accomplishes two things. First, it reinforces the subject-position interpolation of
Syria as a rulebreaker, which was central to the coalition’s legal arguments. This serves to
weaken Syria’s legal arguments, weakening their legitimacy by showing that at least some
members of the relevant public are fundamentally opposed to their claims. Secondly, this type of
statement may show where silence can be support. New Zealand – and other states
376
– did

374
Republic of Turkey, “No: 105, 14 April 2018, Press Release Regarding the Military Operation Against Certain
Points in Syria by the US, the UK and France” (Republic of Turkey, April 14, 2018),
https://www.justsecurity.org/wp-content/uploads/2018/04/Turkey-Press-Release-Syria-strike-2018.pdf.
375
Jacinda Ardern, “Statement on Syria,” Government, The Beehive, April 14, 2018,
http://www.beehive.govt.nz/release/statement-syria.
376
Ministry of Foreign Affairs, “Action against Syrian Chemical Weapons,” Pressemelding, Government.no
(regjeringen.no, April 14, 2018), https://www.regjeringen.no/en/historical-archive/solbergs-
155

criticize Syria’s noncompliance with international law. At the same time, they did not criticize
the coalition’s strike as noncompliant – they chose to remain silent. This may be driven by
political factors – US allies, for example, may be reluctant to condemn its policy choices – but
what matters is that a statement is or is not made. In doing so, their statements weakened Syria’s
contestations and strengthened the coalition’s compliance claims through silence of some legal
questions mixed with outspoken support on political issues.
In addition to these statements that spoke, at least tangentially, to the question of legal
compliance, the coalition strikes were met with considerable political support, much of which
was unconditional.
377
Even though these statements did not address either the compliant nature
of the coalition strikes, or an unacceptability of Syria’s contestations, they played an important
role in the contestation process. They reflect a failure of the counter-arguments – by these actors
decided not to speak out in acceptance of the Syrian or Russian arguments – indicating a lack of
public support for the claims. While this does not necessarily mean that these actors did support
the coalition’s compliance claim, it does show that they failed to criticize or challenge it. In

government/Ministries/ud/news1/2018/action-against-syrian-chemical-weapons/id2598054/; United Nations
Security Council, “S/PV.8233,” 13; “Statement by the Ministry of Foreign Affairs of the Republic of Macedonia,”
Ministry of Foreign Affairs, accessed March 25, 2022, https://www.mfa.gov.mk/en/page/1759/post/1405/republika-
makedonija-so-vnimanie-i-zagrizhenost-go-sledi-najnoviot-razvoj-na-nastanite-vo-sirija-i-n; “Rajoy: ‘La gravedad
de los ataques perpetrados contra población indefensa no puede quedar sin respuesta’” (Office of the Prime Minister
of Spain, April 14, 2018), https://www.justsecurity.org/wp-content/uploads/2018/04/Spain-Rajoy-Syria-strikes-
2018.pdf; Information Office, “Qatar Supports Operations against Specific Military Targets Used by Syrian Regime
in Its Chemical Attacks” (State of Qatar, April 14, 2018); Ministry of Foreign Affairs & International Cooperation,
“UAE Voices Concerns at Escalating Developments in Syria” (United Arab Emirates, April 14, 2018).
377
@CharlesMichel, “Belgium Strongly Condemns the Use of Chemical Weapons in #Syria. We Show
Understanding for Joint Action of US, France and UK. Focus Needs to Be on Political Negotiations Now in Order to
Avoid Escalation @dreynders,” Twitter, April 14, 2018,
https://twitter.com/CharlesMichel/status/985063970414395392; Steffen Seibert, “In English: Statement by
Chancellor #Merkel on the Military Strikes by the United States, United Kingdom and France in #Syria.
#SyriaStrikes Https://T.Co/Ihc8vgUgwx,” Twitter, April 14, 2018,
https://twitter.com/RegSprecherStS/status/985124181141610496; “Rajoy: ‘La gravedad de los ataques perpetrados
contra población indefensa no puede quedar sin respuesta.’”
156

doing so, they implicitly rejected the counter-claim – their political support mixed with legal
silence providing support for the claimants.
In contrast, the Syrian compliance contestations received fewer statements of public
support, although those that were made often echoed the references and subject-positions
invoked in the Syrian and Russian arguments. Cuba, for example, condemned the attacks as a
unilateral attack that was a flagrant violation of international law, based on the “supposed use” of
chemical weapons.
378
This echoed Russia’s argument that the chemical weapons strikes had not
been proven by independent investigations, an attempt to challenge both the factual and legal
basis of the coalition’s compliance claims. This argument was referenced by Equatorial Guinea,
as well, although in a less absolute framing that focused on the need for a thorough international
investigation into the matter.
379
Iran, meanwhile, did not directly challenge the factual nature of
the justification but instead focused its contestation on the coalition’s claims that such an attack
permitted the use of military force in response.
380
China similarly challenged the coalition’s
claim that their strikes were compliant as a means of enforcing the chemical weapons
prohibition, noting both international law’s prohibition of reprisals and directly challenging the
doctrine of humanitarian intervention.
381

378
Ministry of Foreign Affairs of Cuba, “DECLARACIÓN DEL GOBIERNO REVOLUCIONARIO”
(CubaMINREX, April 13, 2018).
379
United Nations Security Council, “S/PV.8233,” 17.
380
Ministry of Foreign Affairs, “Iran Condemns US-Led Strikes on Syria, Warns about Consequences” (Ministry of
Foreign Affairs - Islamic Republic of Iran, April 14, 2018).
381
Ministry of Foreign Affairs of the People’s Republic of China, “Foreign Ministry Spokesperson Hua Chunying’s
Regular Press Conference on April 16, 2018” (Ministry of Foreign Affairs of the People’s Republic of China, April
16, 2018).
157

Venezuela,
382
Bolivia,
383
and Lebanon,
384
meanwhile, echoed Syrian counterclaims by
invoking language of solidarity against imperialism, aiming to portray the coalition’s compliance
claims as an attempt by Western powers to leverage legal language against Global South states.
Venezuela, in their contestation of the coalition’s compliance claims, invoked the typical
references to the UN Charter and international law but also drew on human rights references –
including the right to life – to further contest the coalition’s justifications for attacking the
“brotherly Syrian People.”
385
The Lebanese contestation, meanwhile, condemned the attacks as
the “flagrant breach of the sovereignty of a sister Arab country,”
386
combining references to law
and solidarity to portray the coalition as lawbreakers who were engaging in neocolonialist
attacks against a fellow Arab state.
Tentative Compliance?
Although compliance remains an ongoing process – as has been emphasized throughout
this project – it is possible to identify trends and patterns that may show how particular
compliance processes ‘ended,’ at least temporarily. In this case, it appears that the tentative
outcome was in favor of the coalition’s compliance claims, even if their fundamental legal
claims remain unsettled or unaccepted by some actors. This outcome, though, may be seen in at
least two factors. First was the widespread support provided to the claim – both in what was said
and what was left unsaid – as discussed above. Secondly, as will be discussed more here, was the

382
Ministry of People’s Power for Foreign Affairs, “Venezuela repudia ataque perpetrado por Estados Unidos,
Francia y el Reino Unido contra Siria - MPPRE,” Government, Ministry of People’s Power for Foreign Affairs,
April 14, 2018, http://mppre.gob.ve/comunicado/venezuela-repudia-ataque-perpetrado-por-estados-unidos-francia-y-
el-reino-unido-contra-siria/.
383
MINISTERIO RELACIONES EXTERIORES, “Bolivia condena los ataques contra el pueblo de Siria,”
Government (Archived), MINISTERIO RELACIONES EXTERIORES, n.d.
384
“ايروس اهل تضرعت يتلا ةيوجلا تاراغلا نيدُت ةيجراخلا - نيبرتغملاو ةيجراخلا ةرازو,” Government, Ministry of Foreign Affairs
and Expatriates, accessed March 27, 2022, https://www.mfa.gov.lb/arabic/minister/announcments/syria-air-attack.
385
Ministry of People’s Power for Foreign Affairs, “Venezuela repudia ataque perpetrado por Estados Unidos,
Francia y el Reino Unido contra Siria - MPPRE.”
386
“ايروس اهل تضرعت يتلا ةيوجلا تاراغلا نيدُت ةيجراخلا - نيبرتغملاو ةيجراخلا ةرازو.”
158

failure of the counterclaims to successful defeat the coalition’s compliance arguments. As was
shown in Chapter 2, Figure 1 compliance claims often end in an unsettled middle ground –
neither rejected nor fully accepted. In these cases, the failure of opponents to overwhelmingly
defeat a claim means that the claimant may still benefit from their compliance arguments with at
least some publics recognizing their behavior as complying with the law. Furthermore, since the
claim was not rejected, it may be drawn on again in the future to justify similar behaviors – a
pattern seen in this case when actors drew on references previously used in the Kosovo case –
serving an important function in the development of how the law is interpreted and applied.
In this case, Russia’s failed attempt to condemn the coalition’s strike – and reject its
compliance claims – at the UNSC highlights this type of outcome. As part of its contestation of
the coalition’s compliance claims, Russia submitted a draft UNSC resolution that would have
condemned the strike as an act of aggression “in violation of international law and the UN
Charter.”
387
If adopted, this resolution would have served as a powerful rebuke of the coalition’s
compliance claim as the UNSC is the international institution with the greatest responsibility for
interpreting and maintaining international law on peace and security. The resolution, then, could
have served a purpose similar to that of a court – providing a ruling on the application of the law
in question and radically narrowing the scope of possible compliance claims. Even if not
adopted, the resolution gave several states an opportunity to formally express their condemnation
of the strike and the compliance arguments made alongside it.
This condemnation, though, largely failed to appear. Unsurprisingly, the coalition states –
the US, UK, and France – all voted against the proposal, ensuring its failure. This, on its own,
would not represent a failure of the contesting states to undermine the compliance claim. The

387
Russian Federation, “Russian Federation: Draft Resolution” (United Nations Security Council, April 14, 2018),
para. 1, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/108/97/pdf/N1810897.pdf?OpenElement.
159

abstention of states like Equatorial Guinea, Ethiopia, Peru, and Kazakhstan – all of whom made
states that offered varying degrees of support or acceptance of the Syrian counterarguments
388
–
marked a greater failure on the part of Syria and Russia to successfully contest the compliance
argument. While these states had voiced some degree of support for Syria and Russia’s
contestations of the coalition’s compliance claims, they were not willing to translate that support
into votes at the UNSC. In doing so, they denied to formally condemn the strikes as being illegal
under international law in what would likely have been their most effective forum for doing so.
This may be a case where silence is informative – especially when it is contrasted with
the words that were said – in understanding how compliance contests work. Many states voiced
support for the coalition strikes and, in doing so, often voiced support for the compliance claims
made alongside them. These strong voices of support, along with the initial claims, met
resistance from Syria, Russia, and several other states. However, even among the states who did
speak out – often in tentative or conditioned language – there appears to have been a hesitation to
formally reject the compliance argument. States who had expressed political skepticism of the
strikes – and even raised concerns about the coalition’s compliance claims – were unwilling to
formalize their contestation through the most powerful and formal process at their disposal. This
decision may have been driven by political factors – these states may have seen little value in
risking a political confrontation with three major powers – but that does not fundamentally
change the legal or social processes at work here. What matters is what was or was not said.
When these objections were not stated in the formal vote, the coalition’s compliance claims
gained strength – or at least were not effectively denied any. While Syria and Russia, along with

388
United Nations Security Council, “S/PV.8233”; Ministerio de Relaciones Exteriores, “Comunicado del
Ministerio de Relaciones Exteriores sobre la situación en Siria” (Ministerio de Relaciones Exteriores, April 14,
2018), https://www.justsecurity.org/wp-content/uploads/2018/04/Peru-Syria-strikes-2018.pdf.
160

their close allies, could continue to challenge the coalition’s claims, they could not draw on
powerful references like a UNSC refutation or even a convincing display of votes or formal
statements of support. The coalition states, meanwhile, could draw on statements of support – or
strategic silence – by many states to show that their compliance claims, while perhaps not
reflecting a unanimous interpretation of the law, were seen as at least partially credible by many
in the international community.
The Kosovo War
1999 NATO Intervention in Kosovo
The Kosovo War represented a continuation of the Yugoslav Wars which had followed
the collapse of the Socialist Federal Republic of Yugoslavia in the early and mid-1990s.
389
While
the 1995 Dayton Accords marked the formal end of fighting in Bosnia and Herzegovina,
providing a temporary respite to the conflict, it made no formal mention of Kosovo and largely
failed to address ethnic concerns in the supposedly autonomous region of Federal Republic of
Yugoslavia (FRY).
390
This followed a pattern where Kosovo had been a focus of international
concern in 1989 and 1990 but this international focus “shifted elsewhere” as war broke out
across the region.
391

Within in the Yugoslav Wars, the Kosovo Liberation Army (KLA) began to engage in
coordinated attacks against the FRY with the aim of securing Kosovo’s independence from the
FRY. These attacks began in 1996 and were growing in effectiveness by 1998 as the KLA
secured greater public support and equipment.
392
In response to this movement, the Yugoslavian

389
Cottey, “The Kosovo War in Perspective,” 594.
390
Webber, “The Kosovo War,” 449; “General Framework Agreement for Peace in Bosnia and Herzegovina
(Dayton Agreement)” (United Nations, November 21, 1995).
391
Phillips, Liberating Kosovo Coercive Diplomacy and U.S. Intervention, 30.
392
“Kosovo Liberation Army,” Britannica, accessed March 21, 2022, https://www.britannica.com/topic/Kosovo-
Liberation-Army.
161

government engaged in widespread human rights violations throughout the region. By the Fall of
1998, it was estimated that at least a quarter million Kosovars had been displaced as the result of
Yugoslavian military and paramilitary operations.
393
This created significant international
concern, with the UNSC passing multiple resolutions on the issue,
394
including Resolution 1199
that called for an immediate ceasefire and the improvement of humanitarian conditions.
395

Following Resolution 1199, NATO engaged in a series of increased readiness alerts,
intending to pressure the FRY into fulfilling its obligations. These tactics seemed to work,
leading to “a brief period where conditions in Kosovo seemingly stabilized” as Yugoslavia
leadership appeared to back down in the face of concerted NATO action.
396
However, these
developments were short lived and on January 19
th
, 1999, 45 civilians were allegedly killed by
Yugoslavian forces near the town of Racak. In response, an international conference was called
at Rambouillet, France, and NATO prepared to carry out air strikes if the talks failed.
397
These
talks failed, however, and as they did the FRY began to preposition substantial forces around
Kosovo in preparation for continued hostilities.
398
Finally attempts to reach a peaceful settlement
failed, however, and NATO began carrying out airstrikes against Yugoslavian forces and targets
across the country on March 24
th
.
399

NATO’s Operation Allied Force (OAF) was the result of months of planning between
NATO leadership and featured three distinct combat phases and at gaining air superiority across

393
William Arkin, “Operation Allied Force: ‘The Most Precise Application of Air Power in History,’” in War Over
Kosovo: Politics and Strategy in a Global Age, ed. Andrew Bacevich and Eliot Cohen (New York: Columbia
University Press, 2002), 1.
394
United Nations Security Council, “Resolution 1160 (1998)” (United Nations, March 31, 1998); United Nations
Security Council, “Resolution 1199 (1998)” (United Nations, March 23, 1998).
395
United Nations Security Council, “S/RES/1199,” paras. 1–4.
396
Arkin, “Operation Allied Force: ‘The Most Precise Application of Air Power in History,’” 2.
397
Ibid.
398
Ibid.
399
Webber, “The Kosovo War,” 450; Arkin, “Operation Allied Force: ‘The Most Precise Application of Air Power
in History,’” 2.
162

the region, attacking military targets in Kosovo, and expanding operations through the rest of
Yugoslavia if the first two stages did not force the FRY to accept the UN plan.
400
Building on
this, NATO later announced five non-negotiable demands that would have to be met before the
campaign would cease, including the end of Yugoslavian military operations in Kosovo, the
withdrawal of Yugoslavian forces from the region, the stationing of an international
peacekeeping mission in the area, the safe return of refugees, and a willingness of Yugoslavian
leader Milosevic to discuss Kosovo’s political future within the Rambouillet framework.
401

OAF lasted 78 days
402
during which time NATO carried out 38,004 sorties, releasing tens
of thousands of air munitions as well as hundreds of cruise missiles,
403
the “most intense and
sustained military operation to have been conducted in Europe since the end of World War II.
404

Despite the scale of the operation, its impact on the ground has been harder to establish. OAF
had a limited effect on Yugoslavian ground forces, who continued to commit atrocities against
the population of Kosovo.
405
The operation did result in significant damage to Yugoslavian
infrastructure,
406
however, it did mark the first time that an airpower only campaign coerced a
state into accepting an agreement and some scholars have argued that it set the stage for
Kosovo’s declaration of independence in 2008.
NATO’s Compliance Claims
NATO announced their decision to carry out strikes on 23 March 1999, the first day of
the air operation over Kosovo with a statement that noted the operation’s connection to “the

400
Arkin, “Operation Allied Force: ‘The Most Precise Application of Air Power in History,’” 2–5.
401
Webber, “The Kosovo War,” 450.
402
Arkin, “Operation Allied Force: ‘The Most Precise Application of Air Power in History,’” 3.
403
Webber, “The Kosovo War,” 450.
404
Lambeth, NATO’s Air War for Kosovo.
405
Webber, “The Kosovo War,” 450; Lambeth, NATO’s Air War for Kosovo, 226.
406
Webber, “The Kosovo War,” 450; Lambeth, NATO’s Air War for Kosovo, 224–25.
163

political aims of the international community” and NATO’s “moral duty” to act.
407
This initial
statement, however, made no mention of international law or the legality of the strike. While
working to justify the strike as legitimate, NATO did not – initially – launch a public compliance
claim. This posed a challenge for NATO’s attempt to legitimate the strike, since legitimacy in
contemporary international relations is deeply connected to questions of law and appeals of
legality,
408
and further reflected the weakness of many of the legal arguments that would come to
underpin NATO’s eventual compliance claims.
409

This does not mean, however, that NATO backed away creating a compliance claim for
their operation. As Nuñez-Mietz noted “even in this case [Kosovo], legitimacy was gained
through, not despite, international law.”
410
On 12 April 1999, for example, NATO issued another
statement in which it connected the strikes to the FRY’s repeated violations of UNSC
resolutions. In doing so, NATO worked to construct a subject-position for itself as a rule-
enforcer, acting to support “the political aims of the international community” as reflected by
these resolutions.
411
Similarly, NATO’s claimed argued that the FRY’s ongoing actions in
Kosovo – particularly their violation of Kosovar human rights – violated international law.
412

Through these justifications, these internal human rights violations – which many scholars noted
created difficulties in justifying intervention due to the UN Charter’s prohibition on interfering in

407
NATO Statement by the Secretary General, Press Release (1999)040, 23 March 1999 in Heike Krieger, ed., The
Kosovo Conflict and International Law: An Analytical Documentation, 1974-1999, Cambridge International
Documents Series, v. 11 (Cambridge: Cambridge University Press, 2001), 304.
408
Rapp, “Justifying Force.”
409
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018, 2–3.
410
Ibid.
411
NATO, Statement Issued at the Extraordinary Ministerial Meeting of the North Atlantic Council held at NATO
Headquarters, Press Release M-NAC-1(99)51, Brussels, 12 April 1999 in Krieger, The Kosovo Conflict and
International Law, 307.
412
Ibid.
164

the internal affairs of another state
413
– were portrayed as a threat to the surrounding region.
414

This invoked the idea of threats to international peace and security, a precondition for when the
UNSC may authorize the use of armed force.
415

These points were further drawn out in statements by NATO member states where the
advanced concrete compliance claims for the alliance’s airstrikes. France, for example, claimed
that the strike complied with international law on the basis of multiple UNSC resolutions. In
particular, resolutions 1199
416
and 1203
417
were referenced as providing a basis for the strike.
Both resolutions called on the FRY to respect international law and various measures intended to
deescalate the conflict and reduce civilian suffering. Since these resolutions were passed under
Chapter VII of the UN Charter – which includes provisions for authorizing the use of military
force against member states – France argued that they justified the strikes as a lawful
enforcement measures.
418
In doing so, NATO further aimed to position itself as acting in the
interests of international law and the international community, portraying the strikes as necessary
to “serve the law” and uphold the obligations of the UNSC.
419

Indeed, NATO had begun setting the groundwork for these compliance claims in 1998,
referencing Resolution 1199 as providing the grounds for the eventual use of military force.
420

413
Ved P. Nanda, “NATO’s Armed Intervention in Kosovo and International Law,” United States Air Force
Academy Journal of Legal Studies 10 (2000 1999): 4; Albert Legault, “NATO Intervention in Kosovo: The Legal
Context,” Canadian Military Journal, Spring 2000, 63; Christoph Schreuer, “Is There a Legal Basis for the NATO
Intervention in Kosovo?,” International Law FORUM Du Droit International 1 (1999): 151; Ian Brownlie and C. J.
Apperley, “Kosovo Crisis Inquiry: Memorandum On The International Law Aspects,” International and
Comparative Law Quarterly 49, no. 4 (October 2000): 878–905, https://doi.org/10.1017/S002058930006471X.
414
Krieger, The Kosovo Conflict and International Law, 307 para 2.
415
United Nations, “UNTS XVI,” chap. VII.
416
United Nations Security Council, “S/RES/1199.”
417
United Nations Security Council, “Resolution 1203 (1998)” (United Nations, October 24, 1998).
418
Ministry of Foreign Affairs, Legal Basis for the Action Taken by NATO, 25 March 1999 in Krieger, The Kosovo
Conflict and International Law, 393.
419
Speech by M. Lionel Jospin, Prime Minister, to the National Assembly, Paris, 26 March 1999 in ibid., 393–95.
420
Deliberations of the Deutscher Bundestag, BT Plenarprotokolle 13/248, p. 23127, Extracts, Bonn, 16 October
1998 in ibid., 398–99.
165

These resolutions were used to “underpin our [NATO’s] actions,”
421
providing the compliance
claiming states with an important set of references to use in an attempt to preempt and counter
criticisms that the strikes were launched without appropriate UNSC backing.
These references to specific international law were further reinforced, at least by the UK,
with appeals to the doctrine of humanitarian intervention.
422
These references were echoed in
other NATO members as well, with invocations of humanitarian intervention used to justify the
strikes as lawful under emerging customary international law.
423
These justifications were an
attempt to create a subject-position where even if the UNSC arguments were rejected, the UK
remained a law-following actor whose behaviors could be made compliant through appeals to a
new legal standard. This would be done by creating a new category of action – humanitarian
intervention – which could be used to attempt to justify a strike that would otherwise have been
difficult to make compliant under previous legal references.
Compliance Contestations
NATO’s compliance claims were quickly contested by the FRY, whose contestations
focused on one issue in particular – the question of aggression. Early Yugoslavian statements
criticized the strikes as an act of aggression against their sovereignty.
424
Unlike NATO’s
justifications, then, the FRY advanced a fairly simple and straightforward argument – that the
strikes were noncompliant with international law since they were undertaken without explicit

421
Statement by the Deputy Prime Minister, John Prescott, in the House of Commons, Hansard, HC, vol. 328, col.
383, 24 March 1999 in ibid., 409.
422
Brownlie and Apperley, “Kosovo Crisis Inquiry,” para. 6; UK, House of Commons, Foreign Affairs Committee,
Fourth Report on Kosovo, 7 June 2000 in Krieger, The Kosovo Conflict and International Law.
423
Special Debate in the House of Commons, Extracts, 36th Parliament, Ist Session, Hansard 134, 1830-2330,
Ottawa/Ontario, 7 October 1998 in Krieger, The Kosovo Conflict and International Law, 384–90.
424
FRY, Statement from the Federal Government’s Meeting, Beigrade, 25 March 1999 in ibid., 304.
166

UNSC backing and violated the territorial integrity of a sovereign state.
425
According to the
FRY’s compliance contestations, it was “absolutely clear that the members of NATO have
violated the UN Charter and the basis of international law.”
426
These arguments portrayed
NATO’s actions as fundamentally opposed to the UN Charter and unpalatable under
international law. They created a subject-position where the FRY was the victim of unlawful
aggression, turning the legal debate away from questions of human rights and criminal conduct
to the organizing principles of the UN Charter and the contemporary international legal order.
Compliance Contest
The compliance contest between these claims – NATO’s varied references to UNSC
resolutions and humanitarian intervention contested by straightforward FRY references to the
UN Charter and acts of aggression – in a variety of forums. Like with the Syria case, the UNSC
was a site of contestation. Unlike the first case, though, this compliance contest also involved
two courts – the International Court of Justice (ICJ) and the International Criminal Tribunal for
the Former Yugoslavia (ICTY). Beyond these formal institutions, there were informal debates –
many of which have continued since 1999, on questions of humanitarian intervention.
In public statements, some NATO members contested Yugoslavian claims that the strikes
violated the prohibition of noninterference in domestic affairs by referencing developments in
international human rights law. German officials, for example, referenced the Helsinki Final Act
as having developed an understanding of severe human rights violation as being an international
– and not solely domestic – concern.
427
While these arguments seemed to have little

425
Request for the Indication of Provisional Measures Concerning the Application of the Federal Republic of
Yugoslavia against the Kingdom of Belgium for Violation of the Obligation not to Use Force, Belgrade, 28 April
1999 (Extracts) in ibid., 504.
426
FRY, Statement from the Federal Government’s Meeting, Belgrade, 6 June 1999 in ibid., 514–15.
427
Deliberations of the Deutscher Bundestag, BT Plenarprotokolle 14/32, p. 2619, Extracts, Bonn, 15 April 1999 in
ibid., 400.
167

effectiveness in improving the acceptability of NATO’s compliance claims, they reflect an
attempt to draw in different legal standards to challenge the FRY’s compliance contestations,
challenging their arguments that human rights were outside the scope of international concern.
At the UNSC, China and Russia were particularly involved in challenging NATO’s
compliance claims. Both states continued to object to the operation, arguing that it violated the
UN Charter and was an unlawful act of aggression. In Resolution 1244, passed after the end of
NATO’s operation, they worked to ensure that the resolution indirectly criticized NATO,
criticizing UN members for not being “in full compliance”
428
with past resolutions.
429
The
resolutions, then, are not seen as providing a post hoc authorization for the operations.
430
The
resolution did, however, recognize the situation the results of the strike and ensured that the
administration of Kosovo would be aligned with international law, offering at least some indirect
legitimacy to the outcome – if not the process – of NATO’s operation.
431

Public contestation and adjudication of NATO’s compliance claims and the FRY’s
contestations of these claims occurred in a variety of forums. In the UNGA, for example,
representatives from Cuba criticized arguments for humanitarian intervention, arguing that they
posed a threat to “the countries of the Third World” and violated “the letter and spirit of the [UN]
Charter.”
432
Zimbabwe similarly challenged the humanitarian intervention aspect of NATO’s
compliance claims, arguing that the standard was vague, open to misuse, and beyond the
processes of global governance laid out in the UN Charter.
433
These rejections of NATO’s

428
United Nations Security Council, “Resolution 1244 (1999)” (United Nations, June 10, 1999).
429
Francesco Francioni, “Of War, Humanity and Justice: International Law After Kosovo,” Max Planck Yearbook of
United Nations Law 4, no. 1 (2000): 116.
430
Brownlie and Apperley, “Kosovo Crisis Inquiry,” paras. 79–81.
431
Abraham Sofaer, “International Law and Kosovo,” Stanford Journal of International Law 36, no. 1 (2000): 14.
432
United Nations General Assembly, 54th Session, 12th Plenary Meeting, 24 September 1999 in Krieger, The
Kosovo Conflict and International Law, 465.
433
Zimbabwe, Foreign Affairs Minister, Hon. Mudenge’s Address at a Reception in Honour of the Visiting Chinese
Foreign Minister, 14 January 2000 in ibid., 499.
168

compliance claim were echoed by other states, including Iraq
434
and Libya
435
while others like
Lichtenstein and Jamaica voiced cautious support for the doctrine in theory, while raising
concerns about its implementation and without expressing particular support for its use in the
Kosovo case.
436
On the whole, these statements reflect a broad rejection of NATO’s
humanitarian intervention based compliance claims. States were largely unwilling to voice
support for the idea as it applied to Kosovo. While some did voice an openness to the idea,
appeals to the need for further thought and careful application undermined NATO’s attempt to
use it as part of a successful compliance claim in this case. The attempt, then, to portray NATO
as occupying a position of law-respecting, even if the UNSC resolutions claims were rejected,
failed to find significant public support.
The FRY further contested NATO’s compliance claims by bringing cases against several
NATO member states at the ICJ.
437
In these cases, the FRY alleged that the NATO states had
violated their obligations not to use force against another state, as well as alleging a host of other
violations of international law.
438
Following oral arguments, however, the ICJ rejected the FRY’s

434
United Nations General Assembly, 54th Session, 12th Plenary Meeting, 24 September 1999 in ibid., 468.
435
United Nations General Assembly, 54th Session, 19th Plenary Meeting, 30 September 1999 in ibid., 473.
436
United Nations General Assembly, 54th Session, 13th Plenary Meeting, 24 September 1999 in ibid., 469; United
Nations General Assembly, 54th Session, 17th Plenary Meeting, 29 September 1999 in ibid., 471–72.
437
International Court of Justice, “Legality of Use of Force (Serbia and Montenegro v. Belgium),” International
Court of Justice, accessed April 3, 2022, https://www.icj-cij.org/en/case/105; International Court of Justice,
“Legality of Use of Force (Serbia and Montenegro v. Canada),” International Court of Justice, accessed April 3,
2022, https://www.icj-cij.org/en/case/106; International Court of Justice, “Legality of Use of Force (Serbia and
Montenegro v. France),” International Court of Justice, accessed April 3, 2022, https://www.icj-cij.org/en/case/107;
ibid.; International Court of Justice, “Legality of Use of Force (Serbia and Montenegro v. Germany),” International
Court of Justice, accessed April 3, 2022, https://www.icj-cij.org/en/case/108; International Court of Justice,
“Legality of Use of Force (Serbia and Montenegro v. Italy),” International Court of Justice, accessed April 3, 2022,
https://www.icj-cij.org/en/case/109; International Court of Justice, “Legality of Use of Force (Serbia and
Montenegro v. Netherlands),” International Court of Justice, accessed April 3, 2022, https://www.icj-
cij.org/en/case/110; International Court of Justice, “Legality of Use of Force (Serbia and Montenegro v. Portugal),”
International Court of Justice, accessed April 3, 2022, https://www.icj-cij.org/en/case/111; International Court of
Justice, “Legality of Use of Force (Serbia and Montenegro v. United Kingdom),” International Court of Justice,
accessed April 3, 2022, https://www.icj-cij.org/en/case/113; International Court of Justice, “Legality of Use of Force
(Yugoslavia v. United States of America),” International Court of Justice, accessed April 3, 2022, https://www.icj-
cij.org/en/case/114.
438
Krieger, The Kosovo Conflict and International Law, 500.
169

request for provisional measures, basing each ruling on procedural and jurisdictional grounds.
439

The ICJ did, however, indicate its “profound concern” over the use of force in the FRY, stating
that it raised “serious issues of international law.”
440
This statement, while far from an absolute
rejection of NATO’s compliance claims by the ICJ, provided significant support to the FRY’s
contestations.
The ICTY also considered the question, at least briefly, after arguments that if NATO’s
operations were illegal under jus ad bellum that they would also be illegal under the law of
armed conflict. While the ICTY did note that such an argument could be made, it noted that the
question was beyond its scope – the ICTY’s mandate did not include crimes against peace.
441

Compliance contests in this forum, then, were limited in their scope and application. While a
rejection of NATO’s claims would have certainly strengthened the FRY’s contestations of the
compliance claims, the ICTY’s silence offered little in the way of support, being closely tied to a
narrow reading of the ICTY’s mandate.
Tentative (Non)Compliance?
Ultimately, then, it may be argued that the NATO allies failed to advance a compelling
compliance claim. While this did find public support for their strikes, their compliance
arguments were met with considerable skepticism and silence. While the 2018 coalition strikes
were also met with much silence, this occurred alongside public statements of support –
including statements that drew on legal language and references – that indicated broader, if not
universal, acceptance of the compliance claim. In the Kosovo case, however, NATO faced an

439
Ibid., 508–14.
440
IC J Case Concerning the Legality of Use of Force, Request for the Indication of Provisional Measures, Order, 2
June 1999 in ibid., 511.
441
ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the FRY, PR/P.I.S./510-E, 13 June 2000 in ibid., 340–52.
170

“uneasy” situation in trying to create a legal justification for their operation.
442
For example, as
was discussed above, even states who voiced an openness to the idea of humanitarian
intervention were hesitant to support it in this case or as part of a claim of legal compliance. The
FRY’s straightforward compliance contestations – focused on the UN system and the weakness
of NATO’s UNSC resolution’s based compliance claims – seem to have found wide acceptance,
a position that is further reflected in secondary sources on the legality of the intervention,
443
even
if many scholars were morally sympathetic to the strikes.
444

This point is made clear by how the NATO states later discussed their compliance
arguments. Instead of standing by a claim of legal compliance, several actors moved to a framing
of “unlawful but legitimate”
445
which recognized their inability to make the strike compliant. At
the same time, some states did stand by their compliance arguments – for example, the UK
remained convinced of the legality of the operation under the humanitarian intervention
framework
446
– with very limited success. Appeals to UNSC resolutions were criticized as
misrepresenting the resolutions – noting, for example, that an Article 39 determination of a threat
to international peace did not equal an authorization to use military force.
447
Similarly, while

442
Nuñez-Mietz, “Legalization and the Legitimation of the Use of Force,” May 10, 2018, 2.
443
Schreuer, “Is There a Legal Basis for the NATO Intervention in Kosovo?”; Brownlie and Apperley, “Kosovo
Crisis Inquiry”; Ian Brownlie and C. J. Apperley, “Kosovo Crisis Inquiry: Further Memorandum on the International
Law Aspects,” International and Comparative Law Quarterly 49, no. 4 (2000): 905–10; Francioni, “Of War,
Humanity and Justice: International Law After Kosovo.”
444
Martti Koskenniemi, “‘The Lady Doth Protest Too Much’ Kosovo, and the Turn to Ethics in International Law,”
The Modern Law Review 65, no. 2 (June 28, 2008): 159–75, https://doi.org/10.1111/1468-2230.00373.
445
Independent International Commission on Kosovo, ed., The Kosovo Report: Conflict, International Response,
Lessons Learned (Oxford; New York: Oxford University Press, 2000), 4.
446
UK, House of Commons, Foreign Affairs Committee, Fourth Report on Kosovo, 7 June 2000 in Krieger in
Krieger, The Kosovo Conflict and International Law; Foreign and Commonwealth Office, “Further Supplementary
Written Evidence from the Rt Hon Hugh Robertson MP, Minister of State, Foreign and Commonwealth Office:
Humanitarian Intervention and the Responsibility to Protect (USA 19) - Annex A” (United Kingdom, January 14,
2014); Edward Newman, “Exploring the UK’s Doctrine of Humanitarian Intervention,” International Peacekeeping
28, no. 4 (August 8, 2021): 632–60, https://doi.org/10.1080/13533312.2021.1878689.
447
Schreuer, “Is There a Legal Basis for the NATO Intervention in Kosovo?”
171

later UNSC resolutions could be interpreted as providing some legitimacy for the operation,
448

they stopped well short of stating its legality.
449

Arguments about a right to humanitarian intervention were further contested, with some
commentators calling it a “highly dubious legal argument” that did not reach the threshold of
being part of customary international law.
450
At the same time, some experts have addressed
limited supports for portions of NATO’s compliance claims – for example, the argument that
human rights concerns were no longer strictly domestic affairs.
451
Overall, NATO’s compliance
claims may be seen as falling to the left of the contestation spectrum. They were not entirely
rejected or defeated but the support provided for them was more limited and conditional than in
the 2018 case.
Analysis
In both 2018 and 1999, compliance claims were contested by rivals who wanted the
strikes to be understood as noncompliant. These actors found greater success in 1999, with
NATO’s operation being widely seen as a “unlawful but legitimate.”
452
In 2018, though,
coalition strikes in Syria met different results. In that case, the US, UK, and France found greater
success in creating a compliance argument that portrayed their strikes as lawful under
contemporary understandings of international law. In particular, they found support for their
portrayal of themselves as being law-respecting countries in contrast to Syria, who they

448
United Nations Security Council, “Resolution 1239 (1999)” (United Nations, May 14, 1999); United Nations
Security Council, “S/RES/1244 (1999).”
449
Bjola, “Legitimating the Use of Force in International Politics,” 284; Francioni, “Of War, Humanity and Justice:
International Law After Kosovo,” 116.
450
Schreuer, “Is There a Legal Basis for the NATO Intervention in Kosovo?,” 152; Nanda, “NATO’s Armed
Intervention in Kosovo and International Law”; Koskenniemi, “‘The Lady Doth Protest Too Much’ Kosovo, and the
Turn to Ethics in International Law,” 163; Bjola, “Legitimating the Use of Force in International Politics,” 284.
451
Francioni, “Of War, Humanity and Justice: International Law After Kosovo,” 108.
452
Independent International Commission on Kosovo, The Kosovo Report, 4.
172

portrayed as being in as subject-position of rule breaking. This subject-position, then, permitted a
strike that may otherwise not have been allowed.
This was possible, in no small part, because of the arguments made in 1999. Compliance
contests, as has been discussed throughout this project, are ongoing. They depend on the results
of previous concepts to sustain current ones. Actors draw on references that found success before
and invoke examples and precedents from past behavior as part of their compliance-making. In
2018, then, it was possible to construct an effective compliance claim in part because the
coalition states could draw on arguments that had been developed surrounding the Kosovo strike.
Appeals to enforcing rules against a rogue rulebreaker, for example, featured in both cases.
While the 1999 strikes were not made compliant, the claims surrounding them were also not
fully defeated. Indeed, some scholars have argued that the UNSC’s reaction to the strikes may
have worked to legitimize or legalize NATO’s compliance claims.
453
Any precedent may, then,
provide a justification for future action assuming that it is not roundly rejected or defeated.
Compliance claims that survive, even if in the face of severe skepticism, may be later used as a
type of precedent.
454
As such, the coalition and its allies could draw on these references for
support in their claims. These references and appeals to Kosovo, mediated through how the case
had been understood and the law reinterpreted over the preceding 20 years, played a central role
in the 2018 compliance claims. These two cases, then, call attention to the ongoing nature of
compliance contests and the temporal processes at play in any attempt to create a compliance
argument.
These cases also call attention to the role of politics in making and contesting compliance
claims. An actor’s decision to speak out in support or criticism of a compliance claim is not a

453
Hakimi, “The Jus Ad Bellum ’s Regulatory Form,” 166–67.
454
Ibid., 185.
173

neutral one. While being a legal act, it is also one where it cannot be disentangled from its
political environment. In 2018, for example, the political environment meant that Russia’s was
more likely to oppose any compliance claim made by the coalition. It also meant that other states
new these contestations were likely to be forthcoming, changing how they were understood and
reacted to. Coalition states could dismiss these criticisms as being politically motivated – while
simultaneously making their own politically motivated claims – in an effort to minimize their
effect on the compliance process.
Ireland, meanwhile, offers an example for how politics may shape the acceptance or
rejection of a compliance claim. Publicly, Ireland offered some statements of support for the
strikes.
455
In private, however, Ireland worked to condition and limit the scope of European
Union support for the strikes,
456
leading to a European Union statement that stopped short of
offering absolute support for the strikes.
457
This tension – between what is said in public versus
private – may be understood within the broader political context. It may have been politically
infeasible for Ireland to have condemned the strikes given the coalition’s success in creating
Syria’s rule breaking subject-position. By 2018, it was widely accepted by many in the West that
Assad’s regime was engaging in widespread and severe human rights violations. Being seen to
offer even tepid support for that regime, even just through statements of non-support for the
coalition’s strike, may have been politically untenable for the Irish government. Alternatively,

455
Brian Hutton and Harry McGee, “Syria: Coveney ‘Understands’ Need for US, UK and France Air Strikes,” The
Irish Times, accessed April 3, 2022, https://www.irishtimes.com/news/politics/syria-coveney-understands-need-for-
us-uk-and-france-air-strikes-1.3463135; AFP, “Tánaiste Would Have ‘much Preferred’ If the UN Was Taking
Action against Alleged Syrian Chemical Attack,” TheJournal.ie, accessed April 3, 2022,
https://www.thejournal.ie/syria-attack-2-3959834-Apr2018/.
456
Patrick Smyth, “The Unresolved Dilemma at the Heart of Ireland’s ‘Ethical’ Foreign Policy,” The Irish Times,
accessed April 3, 2022, https://www.irishtimes.com/news/world/europe/the-unresolved-dilemma-at-the-heart-of-
ireland-s-ethical-foreign-policy-1.3474167.
457
Council of the European Union, “OUTCOME OF PROCEEDINGS - DRAFT COUNCIL CONCLUSIONS ON
SYRIA” (Council of the European Union, April 16, 2018), https://data.consilium.europa.eu/doc/document/ST-7956-
2018-INIT/en/pdf.
174

Ireland may have feared pushback from any or all of the coalition states if it staked out a strong
public position against the compliance claim. The decision of how to speak and when is one
where political considerations and goals are central to creating, contesting, and deciding to
accept or reject, compliance claims.
Finally, it is necessary to consider the place of silence in both cases. Compliance contests
are not resolved solely through the arguments that are made. Silence – the arguments that are left
unstated or the actors who do not directly raise their support or criticisms – is central to what
compliance claims succeed. Temporary silences in the UNSC – when states who had expressed
criticism of the strikes refrained from voting for a resolution condemning them – are one such
example. Here, states were silent in one forum and at one time, despite being vocal in others. An
understanding of compliance contests, then, needs to consider when these silences occurred and
what they mean for the success or failure of the compliance contests. If these states had, for
example, voted to condemn the coalition’s justifications it may have added considerably more
weight to the view that the compliance claims failed. Their silence, however, allowed the
coalition to portray the failed resolution as representing a very narrow range of views,
minimizing its effect on the compliance process.
Conclusions
This chapter has examined the process of claiming and contesting compliance in two
cases. It has highlighted how these compliance claims are made – the references that they use
and the portrayals that these references are used for – by the claiming actor. It has further
examined how these claims are contested by other actors – the types of arguments that are used
to challenge and oppose a compliance claim. Furthermore, in this chapter I have shown how
relevant publics interpret and respond to these compliance claims. Compliance is a social process
175

– one of contestation and argumentation – and understanding how these processes play out in
and between actors is central to understanding the concept. By examining how compliance
claims and contests were responded to in a variety of public settings, we begin to better
understanding these argumentative underpinnings.
These cases have also highlighted how compliance claiming extends beyond the question
of compliance itself. It involves the creation and propagation of categories and identities which
give the compliance claim or contestation its meaning. States are rule-breakers to whom violence
may be lawfully done or they are good citizens, acting to enforce and maintain shared rules.
These claims are not entirely about the law but about the identities and social relations through
which compliance is understood and made. Future work, then, should further examine how the
law is used to create and contest categories, building on the important work that has already been
done.
458

Finally, in this chapter I have tried to emphasize the political nature of these compliance
contests. How or why states decide to create, contest, or interpretate a compliance claim are all
questions that combine the legal and the political. Who speaks up, who defense who, and the
legal references that are accepted or rejected are all political questions. While the law is in many
ways unique – operating with its own logics and processes – it is still, in its use, political. While
it can be important and insightful to consider the law on its own, it is necessary to recognize the
limits of this approach and to consider the myriad ways in which law is politics and how politics
uses and understands the law.

458
Kinsella, “Discourses of Difference”; Kinsella, The Image Before the Weapon; Kinsella and Mantilla,
“Contestation before Compliance.”
176

Chapter 6
Words and Deeds: Rhetoric, Compliance, and the Nature of International Law

What does it mean to comply with international law? This is the question that was set out
at the start of this project and it is the question that this research has, hopefully, begun to answer.
Compliance with international law, I have argued, is a social and interpretive process. Behaviors
are not, on their own, compliant or not. They are made such through social processes of
argumentation – through the use of legal claims and references that may face public contestation.
Compliance, as the title of this project suggests, is about the words and not the deeds. Put another
way, compliance is less a matter of what an actor does and more about how they talk about it.
In this final chapter, I will first briefly outline my core arguments before reviewing each
of the three empirical chapters in turn and discussing how it relates to the arguments being made
in this project. I will then turn to a brief discussion of why the idea of rhetorical compliance
matters – what it means for international relations and international law scholarship. Finally, I
will conclude by indicating some areas where future work may focus on either further
developing, testing, or extending the arguments made in this dissertation.
Revisiting Rhetorical Compliance
Throughout this project, I have argued that compliance with international law is more a
matter of rhetoric – of social arguments and contestations – than behavior. IL, like all types of
law, requires interpretation. While some rules may be clear in what they require, others have an
open texture,
459
a degree of ambiguity in their meaning or requirement that is fundamental to the
very nature of IL.
460
This means that traditional views of compliance – those that understand the

459
Hart, The Concept of Law, 7.
460
Orford, International Law and the Politics of History, 178.
177

concept as the conformity of behavior to a rule
461
– are incomplete. They require an assumption
of what the rule is – what it is understood to require – that cannot be assumed. Conformity is a
relational concept that cannot be understood on its own. Instead, compliance is best understood
as the social processes by which actors contest meanings of compliance – how they make a
behavior conform to the rule by contesting rival understandings of what conformity entails.
I have argued that behaviors are made compliant through appeals to legal rhetoric,
precedents, and examples. Actors draw on various claims – with a preference for those that
appeal to codified legal agreements but also customary law and non-legal references – to craft a
compliance claim. Opponents may then contest this claim – drawing on different standards or
interpretations of the same rules to argue that the behavior is in fact a violation of the law. These
competing compliance claims create a compliance contest – when two or more actors engage in
argumentative processes about how the behavior should be understood in relation to the law. If
the claimant 'wins' – advancing an argument that opponents cannot defeat or sufficiently question
– then the behavior is understood as being compliant. Alternatively, the claimant's compliance
arguments may be roundly rejected – challenged by rivals and dismissed by the relevant publics
as being beyond the bounds of how the law may be interpreted or applied. In these cases, the
behavior is clearly non-compliant.
However, these are not the only two outcomes. In addition to emphasizing the social
processes of compliance-making, this dissertation has also aimed to highlight the spectrum of
compliance. Many acts may be justified in a way where the initial compliance claim is neither
fully accepted nor defeated. Opponents may still challenge it, raising points that find support
among at least some of the relevant public, while others are willing to accept the compliance

461
Beth Simmons, “Compliance with International Agreements,” Annual Review of Political Science 1, no. 1 (June
1998): 78, https://doi.org/10.1146/annurev.polisci.1.1.75.
178

claim. In these cases, the behavior remains in a state of contested compliance. Over time,
behaviors may shift in the compliance spectrum – as interpretations and applications of the law
either gain or lose support, behaviors that could previously be made compliant may no longer be,
or vice versa.
This dissertation, then, has set out to explain this theory and examine some of its core
processes and assumptions. This includes examining how compliance claims are made – the
types of references that are used and the ways that they are advanced – to understand the initial
process of compliance claiming. It also includes examining how actors respond to compliance
claims – how they contest the presumed compliance of others through the use of particular types
of references and appeals. Finally, it examines these processes in tandem, with an emphasis on
understanding the deeper social processes at play in compliance contests and emphasizing the
ongoing nature of compliance contests.
Summarizing the Argument
In Chapter 3, I examined the processes of compliance making in the 1949 Geneva
Conventions. This case allows us to understand how states make compliance claims – in
particular, the references that they use and how these claims differ in their likelihood of success
or failure. In the drafting of the Geneva Conventions, states had a unique opportunity to reshape
international humanitarian law. Through the use of legal arguments – particularly those that tied
an actor’s preference to claims of compliance with existing legal rules – states were able to push
the rules in directions that better suited their interests. In keeping with the theory, states drew on
legal references over moral or ethical ones. Invoking references to law allowed states to portray
their preferences as being the result of legal compliance and not political desires – in words if not
179

reality. This chapter, then, focused on the opening stages of rhetorical compliance – how claims
are made and what types of arguments are used.
This analysis has also contributed to our understanding of the development of
international humanitarian law. Understanding the arguments that are used in drafting the law
helps us more fully understand what is included or excluded in the law. This chapter further calls
our attention to the possibilities of extending computational social science approaches to the
study of international law. Combining qualitative historical analysis with computational
approaches – particularly word embeddings – this chapter showed how legal meaning is made
and changed over time, Further developing these tools – for example, through the creation of law
and diplomacy specific vectors and dictionaries – may yield significant benefits for the study of
international law.
Chapter 4, meanwhile, examined how compliance claims succeed or fail once they are
made. While Chapter 3 focused on the opening stages of a compliance contest, this chapter
focused on the outcome. For this chapter, I leveraged a dataset of all recommendations made in
the first two cycles of the UPR. In this UN human rights process, all member states have their
human rights practices reviewed by their peers. As part of this process, any state may make any
recommendation that they like – calling on the state under review to change its behavior in a
particular way. These recommendations, then, often function as compliance contests. They
represent an allegation that a state is noncompliant, that it must change its behavior in order to
align with the law. But what makes a successful compliance contest? I expect – and find – that it
is the use of specific legal references in the compliance contest. Actors are far more likely to
accept a recommendation – to cede the argument that their current behavior is non-compliant –
when it appeals to a written legal agreement as the reason for it. Failing that, appeals to law more
180

broadly are still a more effective contestative tool than appeals to political, social, or moral
frames.
This analysis raises important points for human rights scholarship, as well. It calls
attention to the role of legal references in human rights processes, particularly political ones. The
findings presented in Chapter 4 emphasize the particular value of legal rhetoric in creating an
effective human rights argument. This may call for a reevaluation of how legal references can
and should be used in human rights settings and how legal arguments may be used to improve
human rights practices.
Finally, Chapter 5 examines the compliance process in full, building on Chapter 3’s
analysis of how claims are made and Chapter 4’s examination of how they succeed or fail. This
allows for the full process to be observed – how compliance claims are made, contested, and
settled. Focusing on the 2018 coalition airstrikes in Syria, I have shown how actors use legal
references to create compliance claims. These claims create subject-positions where the actor is
legitimated in their acts and where the target is placed in a category of rule-breaking which
justifies the action.
Implications for International Relations and International Law
As discussed, this project has aimed to identify and examine the processes of rhetorical
compliance in international law. In doing so, it calls attention to five areas that will be discussed
here – one methodological and four theoretical. Methodologically, this project hopes to call
attention to the value of multi-methods research in understanding compliance in international
law, particularly approaches that combine computational and qualitative approaches to text
analysis. Theoretically, this project emphasizes the constructed nature of legal compliance, the
place of legal references in international politics, the role of social and informal processes in
181

lawmaking, and the challenges of understanding complex processes like legal compliance in
analyses of international relations.
Methodologically, this project has explored the value and importance of multimethod
research involving computational and qualitative approaches to text analysis in developing our
understanding of compliance – and the broader role of international law – in international
relations. Understanding compliance as a rhetorical process means understanding how actors
create and advance rhetorical claims – the references that they use, the claims they support or
contest, and the structure of their claims and contestations. These processes tend toward
producing text or can be transcribed into text from speeches, often in vast quantities.
Multimethod research with a strong computational component may allow scholars to more fully
engage with these processes. A computational approach can allow for vast corpora of text to be
measured, understood, and compared in a way that is not feasible to do qualitatively. This may
provide a significant benefit for tasks such as measuring changes over time, understanding the
interactions of multiple claims, or sorting through corpora of text to identify areas for future
research. The further development of these approaches promises to provide significant gains for
the study of international law and international relations.
At the same time, computational approaches cannot replace qualitative ones. Qualitative
analysis remains the best option for understanding the nuances within rhetorical processes – how
actors understand and relate to the claims that they make or the details within particular cases.
Understanding traits like these are necessary for developing a full view of how actors
understand, relate to, and use the law. These different approaches also allow us to consider
different aspects of our research questions – from most positivist questions focused on clear
measurement and hypothesis testing to post-positivist analyses of discourses and relationships.
182

As was shown in this dissertation, these different approaches and understandings may be brought
together to deepen our understanding of the role and use of legal language.
Theoretically, this project aims to emphasize – above all – the constructed nature of
compliance and to challenge views that see compliance as an a prior determinable category.
Compliance, as a rhetorical process, requires constant construction and deconstruction. It
depends on the claims that are made and contested – the references that are used, the actors that
are involved, and the forums where debates occur – to be given meaning. As legal scholars have
long noted, law is given meaning through interpretation.
462
This project has aimed to focus the
attention of international relations and legal scholars on how these interpretive processes work in
the construction of compliance. Emphasizing the constructed nature of compliance challenges us
to more fully consider not only what is done – which may often be easier to observe – but what is
said, or left unsaid, about those behaviors. Without this, our understanding of it an act is
compliant is incomplete, leaving us with a limited understanding of what the law is, how it
operates, and how it matters in international politics.
Secondly, this project emphasizes the importance of legal references in international
politics. This builds on past scholarship about how legal claims are used as justificatory and
legitimizing tools, with appeals to law employed strategically to build or maintain political
support.
463
This project has considered these processes within the making and contesting of
compliance. This has called attention to the use of legal references as not only a tool of
justification but as part of meaning-making in law. It has built on past work on the use of

462
Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists
(Oxford: Oxford University Press, 2012).
463
Kyle Rapp, “Justifying Force: International Law, Foreign-Policy Decision-Making, and the Use of Force,”
Forthcoming, European Journal of International Relations, 2021, 1–37; Rapp, “Law and Contestation in
International Negotiations”; Bower, “Arguing with Law,” April 2015; Mantilla, Lawmaking under Pressure;
Kinsella and Mantilla, “Contestation before Compliance”; Hurd, How to Do Things With International Law.
183

different types of legal references to further emphasize the particular political value of
referencing codified legal standards where possible,
464
even when these rules are not necessarily
the most directly connected to the subject of contestation, raising important questions about how
law is understood and the hierarchies within formally equal types and systems of law.
Thirdly, this project aims to call attention to the social and informal processes of
lawmaking that are present in international law. While rhetorical compliance occurs in formal
lawmaking settings, like the drafting of the 1949 Geneva Conventions which is discussed at
length in Chapter 3, it extends far beyond these formal settings. Indeed, the bulk of rhetorical
compliance occurs outside of formal lawmaking processes – in the everyday compliance claims
and contests that typified international relations in a legalized system. These processes of
rhetorical compliance – which may occur in press releases, public statements and speeches,
debates in political forums, and diplomatic correspondence – are just as important to lawmaking
as any drafting meeting or formal conference. Law is given meaning through interpretation and it
is these processes of interpreting – and contesting the interpretations of others – that make the
law what it is. They give it meaning in the reality of its use – in how it may be claimed or
contested, in what interpretations may be accepted, rejected, or tolerated – a process that occurs
far beyond formal lawmaking. This dissertation calls attention to, and hopefully will encourage
further work on understanding, these social processes and what they mean for our understanding
of what the law is, who is able to make it, and how they may do so.
Finally, an overarching goal of this project has been to identify and illuminate the
challenges to understanding international law in international relations. A rhetorical theory of

464
Rapp, “Justifying Force: International Law, Foreign-Policy Decision-Making, and the Use of Force”; Rapp, “Law
and Contestation in International Negotiations”; Bower, “Arguing with Law,” April 2015; Rapp, “On What
Grounds? Legal References and Effective Argumentation at the ICC”; Bower, “Entrapping Gulliver”; Kyle Rapp
and Joshua Turner, “Citations and Legal Reasoning at the International Criminal Court,” Working Paper, 2022.
184

compliance is a complicated one. It raises concerns about how compliance is understood,
measured, and studied. It requires careful consideration of not only what is done, or even what is
said, but to the multitude of layers involved in social interactions. The role of international law in
international relations is not, I would argue, solely a matter of behaviors changing or remaining
static. It is a social phenomenon featuring complex layers of use – through speech and silence –
by various actors – both formal and informal – in varied settings. It hinges on historical
references but also contingency and moments of opportunity. It is a process that depends on
language and politics, one that is deeply co-constitutive with every process that it seeks to
understand or shape, in ways that make it incredibly rich but also incredibly difficult to analyze
in straightforward ways. In these ways, this dissertation aims to call attention to the careful work
that is needed to develop methodologies and approaches that may allow us to continue building
on the excellent work that has been done – including many fantastic studies of compliance
through behavioral lenses – to continue expanding our understanding of how law, and similar
social processes, work in and through international politics.
Future Work
There is more work to be done on understanding how the social and rhetorical processes
of compliance. While this dissertation has set out the theory and begun to test it, further work is
needed to fully understand the process and the various actors within it. In particular, future
scholarship may consider how the process operates in different issue areas, how compliance
claims – and the law itself – change over time, the process of 'conceptual laundering,' the
strategic 'drawing in' of actors to a compliance contest, and the role of non-state actors and mass
publics. This section speaks briefly about each of these five areas.
185

This dissertation has focused on the role of compliance contests in three areas of public
international law – humanitarian law and the law of armed conflict, human rights, and jus ad
bellum. The theory is not, however, limited to these areas. Future scholarship may consider how
processes of rhetorical compliance operate in different issue areas, particularly those with greater
degrees of formalization or a greater number of second-order compliance institutions.
International trade may be one such area of study, allowing the opportunity to see how
compliance contests operate in a system with a high degree of formalization and with strong
second-order compliance institutions.
The temporal processes involved in rhetorical compliance also merit further discussion.
Compliance is not a one-off process, each compliance contest draws on references and appeals to
past cases and the acceptance or rejection of these arguments is central to the evolution of
international law. Future scholarship, then, may consider these processes more deeply, drawing
on the theoretical work in this dissertation and Chapter 5 in particular. Future work may map
how arguments have shifted over time, or situate the use of compliance claims in the modern
international system in relation to historic processes of lawmaking and law-using.
How arguments, concepts, and ideas are made legitimate through their use in compliance
contests – is one that arose during the writing of this dissertation and which merits further
consideration. During compliance contests, and particularly between them and over time, actors
make previously unacceptable concepts acceptable. This process of turning the inappropriate into
appropriate, I call conceptual laundering. Given the analysis in this dissertation, it is expected
that ideas are 'made appropriate' through their use in compliance claims which are able to gain
acceptance over time. By combining accepted references with new claims, an actor may
gradually build support for the new concept. Research may consider how accepted and novel
186

claims are mixed – by which actors, in which forums, and to what success – as a way of
deepening our understanding of how international law develops through its use.
One part of the rhetorical compliance process that fell beyond the scope of this project –
but that should be pursued further – is the processes by which new actors may be drawn into a
compliance contest. As was demonstrated in the Syria and NATO case studies, compliance
contests are rarely arguments between just two actors. Instead, multiple actors may engage on
both sides of the compliance contest, bringing different references and arguments into the
process. For example, Ukraine responded to Russia’s invasion – in part – by turning to the ICJ to
counter Russia’s legal justifications.
465
Involving the ICJ allowed Ukraine to challenge Russia's
justifications on additional grounds and limited the contestative space, making it harder for
Russia to justify its invasion. Future work may consider how actors are brought into these
processes – either deliberately by one party as we see in the previous example or unintentionally
– and how their involvement reshapes the compliance contest.
Finally, this analysis has focused on the actions of states and senior-level government
officials. Future work may, however, extend this analysis with a consideration of the roles of
non-state actors as mass publics. How do NGOs, for example, interact in compliance contests
and how are their voices different – in message or effect – than those of states? What is the role
of mass publics in adjudicating between compliance claims? Similarly, how does media
coverage of compliance contests shift the bounds of acceptability and allow public opinion to
reshape the shared meanings of the law?
466
These are important questions to consider which
emphasize the role of non-state actors in the lawmaking and compliance contestation processes.

465
Ukraine, “Application Instituting Proceedings - Dispute Relating to Allegations of Genocide (Ukraine v. Russian
Federation)” (International Court of Justice, February 26, 2022).
466
See: Daya Kishan Thussu, “Legitimizing ‘Humanitarian Intervention’? CNN, NATO and the Kosovo Crisis,”
European Journal of Communication 15, no. 3 (2000): 345–61.
187

Closing Thoughts
International law plays a central role in contemporary international relations. It shapes
global politics in areas as diverse as human rights and security to trade and the environment.
Legal claims occupy a central place in international debates and discourses, with appeals to law
and legality being invoked in political and legal forums, by states and non-state actors. The
question of compliance is an important one for both international relations and international law
scholars. What compliance is, though, is a difficult question that this dissertation has set out to
examine.
While many scholars have argued – and raised important considerations and findings in
studying – that compliance is a matter of behaviors aligning to a rule, this project has argued that
these views are incomplete. They are incomplete since they cannot account for how a behavior is
made to align with a rule – how it is understood as 'aligning' or not. This project has addressed
that question by arguing that compliance is actually the rhetorical processes by which actors
make a behavior compliant – or not – through argumentation and social interactions. It has
explored how actors use legal claims and references – in both political and legal forums – to
claim compliance for their behaviors. It has also explored how these compliance claims are
contested by others and the contestative process that then occurs, one that often results in a
spectrum of compliance – where behaviors may be understood as being compliant to a degree.
This spectrum of compliance – where the idea of a behavior aligning with a rule or not is
replaced by one of gradients of justification and contestation – is what it means to comply with
international law. Compliance is a matter of contesting – of providing justifications and
arguments that opponents cannot easily defeat and which publics are willing to accept – a
behavior as aligning with the rule. It is a process that often does not yield a binary outcome – a
188

matter of compliance or noncompliance – but a spectrum that is open to ongoing contestation
and reinterpretation. As actors claim and contest compliance in this spectrum, they engage in
political-legal processes which serve to both legitimate their behavior – or delegitimize the
behavior of others – while also working, intentionally or not, to develop international law. The
answer to what compliance is, then, is that it is a series of ongoing, historically connected, and
socially contingent, sets of processes by which actors use, contest, and develop the law.

189

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221

Appendix 1 - Chapter 3
25 Most Frequent Words Across All Texts

222

Appendix 2 – Chapter 4
Appendix Table 1: Full Models with all measures of Demandingness

Dependent variable: Acceptance

Response

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
Binary Legal -0.005

0.129
***

0.134
***

0.083
***

0.117
***

(0.030)

(0.033)

(0.032)

(0.032)

(0.036)

Ternary Legal

0.010

0.110
***

0.111
***

0.079
***

0.098
***

(0.018)

(0.019)

(0.019)

(0.019)

(0.022)
T&V Demand

-0.819
***
-0.820
***

-0.826
***

(0.010) (0.010)

(0.011) (0.011)
Demandingness

-1.479
***
-1.481
***

(0.018) (0.018)

High Demand

-1.497
***
-1.499
***

(0.020) (0.020)

Regime Type

0.022
***
0.022
***

(0.002) (0.002)
Human Rights

0.044
***
0.044
***

(0.009) (0.009)
Regional Court

0.088
***
0.088
***

(0.029) (0.029)
Same Region

0.432
***
0.432
***

(0.029) (0.029)
UN Human Rights Treaties

0.222
***
0.222
***

(0.009) (0.009)
Reviewer P5

-0.049 -0.049

(0.040) (0.040)
SuR P5

-0.293
***
-0.293
***

223

(0.058) (0.058)
Constant 1.014
***
1.003
***
4.164
***
4.054
***
4.619
***
4.508
***
1.659
***
1.577
***
2.453
***
2.358
***

(0.010) (0.023) (0.041) (0.046) (0.048) (0.052) (0.015) (0.026) (0.073) (0.076)
Observations 57,686 57,686 57,686 57,686 57,686 57,686 57,686 57,686 50,514 50,514
Log Likelihood -33,427.720 -33,427.600 -29,188.740 -29,180.340 -28,912.670 -28,904.430 -30,475.980 -30,470.760 -24,224.300 -24,219.360
Akaike Inf. Crit. 66,859.450 66,859.190 58,383.490 58,366.680 57,831.350 57,814.860 60,957.960 60,947.530 48,468.610 48,458.720
Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

Appendix Table 2: Logistic Models, Full Data

Dependent variable: Response (Acceptance)

Response

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)
Binary Legal -0.005

0.116
***

0.083
***

0.122
***

0.103
***

0.267
***

(0.030)

(0.031)

(0.032)

(0.035)

(0.035)

(0.036)

Ternary Legal

0.010

0.095
***

0.079
***

0.093
***

0.079
***

0.171
***

(0.018)

(0.019)

(0.019)

(0.021)

(0.021)

(0.022)
Demandingness

-0.756
***
-0.757
***

-0.787
***
-0.788
***
-0.782
***
-0.783
***
-0.716
***
-0.716
***

(0.012) (0.012)

(0.013) (0.013) (0.013) (0.013) (0.014) (0.014)
Category 5

-1.497
***
-1.499
***

(0.020) (0.020)

224

Regime Type

0.022
***
0.022
***
0.039
***
0.039
***
0.043
***
0.043
***

(0.002) (0.002) (0.002) (0.002) (0.002) (0.002)
HR Score

0.023
***
0.022
***
-0.004 -0.005 0.011 0.010

(0.009) (0.009) (0.009) (0.009) (0.010) (0.010)
Regional Court

0.353
***
0.353
***
0.127
***
0.128
***
0.167
***
0.168
***

(0.026) (0.026) (0.028) (0.028) (0.030) (0.030)
UN Core

0.439
***
0.440
***
0.449
***
0.449
***
0.382
***
0.382
***

(0.028) (0.028) (0.028) (0.028) (0.029) (0.029)
Same Region

0.262
***
0.261
***
0.194
***
0.194
***
0.189
***
0.189
***

(0.021) (0.021) (0.022) (0.022) (0.023) (0.023)
P5 Reviewer

-0.564
***
-0.565
***
-0.379
***
-0.380
***
-0.222
***
-0.223
***

(0.054) (0.054) (0.056) (0.056) (0.058) (0.058)
P5 Under
Review

-0.019 -0.019 -0.024 -0.024 0.055 0.054

(0.038) (0.038) (0.039) (0.039) (0.040) (0.040)
Common Law

-0.966
***
-0.965
***
-0.965
***
-0.964
***

(0.082) (0.082) (0.083) (0.083)
Civil Law

-0.305
***
-0.305
***
-0.158
*
-0.158
*

(0.079) (0.079) (0.081) (0.081)
Islamic Law

-0.449
***
-0.449
***
-0.387
***
-0.387
***

(0.082) (0.082) (0.084) (0.084)
Mixed Code

-1.134
***
-1.134
***
-1.129
***
-1.129
***

(0.084) (0.084) (0.086) (0.086)
Civil Political

-0.793
***
-0.791
***

(0.030) (0.030)
Economic
Social

0.426
***
0.425
***

(0.041) (0.041)
Rights
Institutions

-0.488
***
-0.496
***

225

(0.028) (0.028)
Migration &
Citizenship

-0.825
***

(0.049) (0.049)
Environmental

0.215
***
0.220
***

(0.055) (0.055)
Group Rights

0.246
***
0.243
***

(0.030) (0.030)
Other

0.511
***
0.507
***

(0.041) (0.041)
Constant 1.014
***
1.003
***
4.126
***
4.033
***
1.659
***
1.577
***
3.502
***
3.412
***
4.209
***
4.132
***
4.313
***
4.150
***

(0.010) (0.023) (0.052) (0.056) (0.015) (0.026) (0.067) (0.070) (0.101) (0.103) (0.104) (0.106)
Observations 57,686 57,686 57,686 57,686 57,686 57,686 50,514 50,514 50,514 50,514 50,514 50,514
Log Likelihood
-
33,427.720
-
33,427.600
-
30,816.410
-
30,810.310
-
30,475.980
-
30,470.760
-
25,777.670
-
25,773.880
-
25,372.180
-
25,369.410
-
24,448.660
-
24,445.060
Akaike Inf.
Crit.
66,859.450 66,859.190 61,638.830 61,626.610 60,957.960 60,947.530 51,575.350 51,567.770 50,772.360 50,766.810 48,939.320 48,932.120
Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

Appendix Table 3 – OLS Regression, Full Data

Dependent variable: Response (Acceptance)

Response

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12)
226

Binary Legal -0.001

0.023
***

0.015
***

0.024
***

0.021
***

0.052
***

(0.006
)

(0.006)

(0.006)

(0.006)

(0.006)

(0.006)

Ternary
Legal

0.002

0.019
***

0.014
***

0.018
***

0.015
***

0.033
***

(0.004
)

(0.003)

(0.003)

(0.004)

(0.004)

(0.004)
Demandingn
ess

-0.114
***
-0.115
***

-0.114
***
-0.115
***
-0.112
***
-0.113
***
-0.099
***
-0.099
***

(0.002) (0.002)

(0.002) (0.002) (0.002) (0.002) (0.002) (0.002)
Category 5

-0.299
***
-0.299
***

(0.004) (0.004)

Regime
Type

0.004
***
0.004
***
0.007
***
0.007
***
0.007
***
0.007
***

(0.0004) (0.0004) (0.0004) (0.0004) (0.0004) (0.0004)
HR Score

0.005
***
0.005
***
-0.001 -0.001 0.002 0.002

(0.001) (0.001) (0.002) (0.002) (0.002) (0.002)
Regional
Court

0.063
***
0.063
***
0.023
***
0.023
***
0.032
***
0.032
***

(0.004) (0.004) (0.005) (0.005) (0.005) (0.005)
UN Core

0.069
***
0.069
***
0.070
***
0.070
***
0.057
***
0.057
***

(0.004) (0.004) (0.004) (0.004) (0.004) (0.004)
Same Region

0.050
***
0.050
***
0.037
***
0.037
***
0.033
***
0.033
***

(0.004) (0.004) (0.004) (0.004) (0.004) (0.004)
P5 Reviewer

-0.106
***
-0.106
***
-0.072
***
-0.072
***
-0.050
***
-0.050
***

(0.010) (0.010) (0.010) (0.010) (0.010) (0.010)
P5 Under
Review

-0.006 -0.006 -0.007 -0.007 0.006 0.006

(0.007) (0.007) (0.007) (0.007) (0.007) (0.007)
Common
Law

-0.162
***
-0.162
***
-0.157
***
-0.157
***

227

(0.012) (0.012) (0.012) (0.012)
Civil Law

-0.045
***
-0.045
***
-0.020
*
-0.020
*

(0.012) (0.012) (0.012) (0.012)
Islamic Law

-0.071
***
-0.071
***
-0.060
***
-0.060
***

(0.013) (0.013) (0.012) (0.012)
Mixed Code

-0.200
***
-0.200
***
-0.190
***
-0.190
***

(0.013) (0.013) (0.013) (0.013)
Civil
Political

-0.143
***
-0.143
***

(0.005) (0.005)
Economic
Social

0.054
***
0.053
***

(0.006) (0.006)
Rights
Institutions

-0.086
***
-0.087
***

(0.005) (0.005)
Migration &
Citizenship

-0.115
***

(0.008) (0.008)
Environment
al

0.048
***
0.049
***

(0.009) (0.009)
Group
Rights

0.046
***
0.046
***

(0.005) (0.005)
Other

0.090
***
0.090
***

(0.007) (0.007)
Constant
0.734
*
**

0.732
*
**

1.181
***
1.162
***
0.840
***
0.825
***
1.035
***
1.018
***
1.148
***
1.133
***
1.152
***
1.121
***

(0.002
)
(0.005
)
(0.007) (0.008) (0.002) (0.004) (0.010) (0.010) (0.015) (0.015) (0.015) (0.015)
228

Observations
57,68
6
57,68
6
57,686 57,686 57,686 57,686 50,514 50,514 50,514 50,514 50,514 50,514
R
2

0.000
00
0.000
00
0.078 0.079 0.105 0.105 0.112 0.113 0.128 0.128 0.163 0.163
Adjusted R
2

-
0.000
02
-
0.000
01
0.078 0.079 0.105 0.105 0.112 0.112 0.127 0.127 0.163 0.163
Residual Std.
Error
0.442
(df =
57684
)
0.442
(df =
57684
)
0.424 (df =
57683)
0.424 (df =
57683)
0.418 (df =
57683)
0.418 (df =
57683)
0.414 (df =
50504)
0.414 (df =
50504)
0.410 (df =
50500)
0.410 (df =
50500)
0.402 (df =
50493)
0.402 (df =
50493)
F Statistic
0.025
(df =
1;
57684
)
0.282
(df =
1;
57684
)
2,451.078
***

(df = 2;
57683)
2,458.303
***

(df = 2;
57683)
3,385.807
***

(df = 2;
57683)
3,391.873
***

(df = 2;
57683)
710.987
***

(df = 9;
50504)
711.997
***

(df = 9;
50504)
568.109
***

(df = 13;
50500)
568.659
***

(df = 13;
50500)
491.071
***

(df = 20;
50493)
491.514
***

(df = 20;
50493)
Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

229

Appendix Table 4 – Category 5 Recommendations, Logit with Full Controls

Dependent variable: Response (Acceptance)

Response

(1) (2) (3) (4) (5) (6) (7) (8)
Binary Legal 0.442
***

0.459
***

0.434
***

0.488
***

(0.044)

(0.050)

(0.050)

(0.052)

Ternary Legal

0.287
***

0.290
***

0.272
***

0.298
***

(0.026)

(0.029)

(0.030)

(0.030)
Regime Type

0.022
***
0.022
***
0.038
***
0.038
***
0.041
***
0.041
***

(0.003) (0.003) (0.003) (0.003) (0.004) (0.004)
HR Score

0.072
***
0.071
***
0.047
***
0.046
***
0.069
***
0.068
***

(0.012) (0.012) (0.013) (0.013) (0.014) (0.014)
Regional Court

0.356
***
0.356
***
0.131
***
0.132
***
0.179
***
0.179
***

(0.037) (0.037) (0.039) (0.039) (0.042) (0.042)
UN Core

0.290
***
0.287
***
0.229
***
0.227
***
0.233
***
0.231
***

(0.032) (0.032) (0.033) (0.033) (0.034) (0.034)
Same Region

0.391
***
0.392
***
0.382
***
0.383
***
0.348
***
0.349
***

(0.042) (0.042) (0.043) (0.043) (0.044) (0.044)
P5 Reviewer

-0.617
***
-0.622
***
-0.490
***
-0.495
***
-0.336
***
-0.340
***

(0.085) (0.085) (0.087) (0.087) (0.091) (0.091)
P5 Under Review

0.062 0.061 0.060 0.059 0.140
***
0.137
**

(0.052) (0.052) (0.053) (0.053) (0.054) (0.054)
Common Law

-1.122
***
-1.119
***
-1.118
***
-1.113
***

(0.114) (0.114) (0.117) (0.117)
Civil Law

-0.464
***
-0.463
***
-0.331
***
-0.329
***

230

(0.110) (0.110) (0.114) (0.114)
Islamic Law

-0.694
***
-0.692
***
-0.636
***
-0.633
***

(0.115) (0.115) (0.118) (0.118)
Mixed Code

-1.250
***
-1.247
***
-1.229
***
-1.226
***

(0.118) (0.118) (0.122) (0.122)
Civil Political

-0.779
***
-0.774
***

(0.044) (0.044)
Economic Social

0.268
***
0.267
***

(0.065) (0.065)
Rights Institutions

-0.298
***
-0.311
***

(0.040) (0.040)
Migration & Citizenship

-0.926
***

(0.081) (0.081)
Environmental

0.062 0.068

(0.080) (0.080)
Group Rights

0.318
***
0.314
***

(0.044) (0.044)
Other

0.689
***
0.680
***

(0.054) (0.054)
Constant 0.120
***
-0.172
***
-0.700
***
-0.987
***
0.190 -0.081 0.518
***
0.228
*

(0.015) (0.033) (0.059) (0.068) (0.116) (0.121) (0.126) (0.130)
Observations 20,768 20,768 17,660 17,660 17,660 17,660 17,660 17,660
Log Likelihood -14,267.060 -14,253.490 -11,686.230 -11,678.850 -11,494.300 -11,488.500 -11,100.230 -11,096.430
Akaike Inf. Crit. 28,538.130 28,510.990 23,390.460 23,375.700 23,014.590 23,003.010 22,240.450 22,232.850
Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

231

Appendix Table 5 – Category 5 Recommendations, OLS Full Controls

Dependent variable: Response (Acceptance)

Response

(1) (2) (3) (4) (5) (6) (7) (8)
Binary Legal 0.107
***

0.105
***

0.097
***

0.106
***

(0.011)

(0.011)

(0.011)

(0.011)

Ternary Legal

0.069
***

0.065
***

0.060
***

0.064
***

(0.006)

(0.007)

(0.006)

(0.006)
Regime Type

0.005
***
0.005
***
0.009
***
0.009
***
0.009
***
0.009
***

(0.001) (0.001) (0.001) (0.001) (0.001) (0.001)
HR Score

0.017
***
0.016
***
0.010
***
0.010
***
0.015
***
0.015
***

(0.003) (0.003) (0.003) (0.003) (0.003) (0.003)
Regional Court

0.086
***
0.086
***
0.031
***
0.031
***
0.041
***
0.041
***

(0.009) (0.009) (0.009) (0.009) (0.009) (0.009)
232

UN Core

0.069
***
0.068
***
0.053
***
0.053
***
0.052
***
0.051
***

(0.007) (0.007) (0.008) (0.008) (0.007) (0.007)
Same Region

0.090
***
0.090
***
0.086
***
0.086
***
0.075
***
0.075
***

(0.010) (0.010) (0.010) (0.010) (0.009) (0.009)
P5 Reviewer

-0.144
***
-0.145
***
-0.108
***
-0.109
***
-0.075
***
-0.076
***

(0.020) (0.020) (0.020) (0.020) (0.019) (0.019)
P5 Under
Review

0.014 0.014 0.013 0.013 0.031
***
0.030
**

(0.012) (0.012) (0.012) (0.012) (0.012) (0.012)
Common Law

-0.253
***
-0.252
***
-0.240
***
-0.239
***

(0.025) (0.025) (0.024) (0.024)
Civil Law

-0.097
***
-0.097
***
-0.061
***
-0.061
***

(0.023) (0.023) (0.023) (0.023)
Islamic Law

-0.153
***
-0.153
***
-0.131
***
-0.130
***

(0.025) (0.025) (0.024) (0.024)
Mixed Code

-0.283
***
-0.282
***
-0.260
***
-0.259
***

(0.026) (0.026) (0.025) (0.025)
Civil Political

-0.175
***
-0.174
***

(0.010) (0.010)
Economic Social

0.061
***
0.060
***

(0.014) (0.014)
Rights
Institutions

-0.064
***
-0.067
***

(0.009) (0.009)
Migration &
Citizenship

-0.205
***

(0.017) (0.017)
Environmental

0.015 0.016

(0.017) (0.017)
Group Rights

0.073
***
0.073
***

233

(0.010) (0.010)
Other

0.155
***
0.153
***

(0.012) (0.012)
Constant 0.530
***
0.460
***
0.334
***
0.270
***
0.535
***
0.476
***
0.602
***
0.541
***

(0.004) (0.008) (0.014) (0.015) (0.025) (0.026) (0.026) (0.027)
Observations 20,768 20,768 17,660 17,660 17,660 17,660 17,660 17,660
R
2
0.005 0.006 0.055 0.055 0.075 0.076 0.116 0.117
Adjusted R
2
0.005 0.006 0.054 0.055 0.074 0.075 0.115 0.116
Residual Std.
Error
0.497 (df =
20766)
0.497 (df =
20766)
0.485 (df =
17651)
0.484 (df =
17651)
0.479 (df =
17647)
0.479 (df =
17647)
0.469 (df =
17640)
0.469 (df =
17640)
F Statistic
102.650
***
(df =
1; 20766)
128.901
***
(df =
1; 20766)
127.349
***
(df =
8; 17651)
129.156
***
(df =
8; 17651)
119.301
***
(df =
12; 17647)
120.241
***
(df =
12; 17647)
122.143
***
(df =
19; 17640)
122.559
***
(df =
19; 17640)
Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

Appendix Table 6: Alternative Measures of Demandingness

Dependent variable:

Response
234

(1) (2) (3) (4) (5) (6) (7) (8)
Binary Legal 0.048

0.101
***

0.058
*

0.118
***

(0.031)

(0.031)

(0.034)

(0.034)

Ternary Legal

0.044
**

0.079
***

0.045
**

0.083
***

(0.018)

(0.018)

(0.021)

(0.021)
High Action -0.760
***
-0.762
***

-0.814
***
-0.815
***

(0.025) (0.025)

(0.028) (0.028)

Criticism

-2.255
***
-2.257
***

-2.432
***
-2.434
***

(0.049) (0.049)

(0.056) (0.056)
Regime Type

0.019
***
0.019
***
0.023
***
0.023
***

(0.002) (0.002) (0.002) (0.002)
HR Score

0.020
**
0.019
**
0.029
***
0.029
***

(0.008) (0.008) (0.008) (0.008)
Regional Court

0.384
***
0.384
***
0.371
***
0.371
***

(0.025) (0.025) (0.026) (0.026)
UN Core

0.222
***
0.222
***
0.269
***
0.268
***

(0.020) (0.020) (0.021) (0.021)
Same Region

0.575
***
0.575
***
0.488
***
0.488
***

(0.027) (0.027) (0.028) (0.028)
P5 Reviewer

-0.554
***
-0.554
***
-0.526
***
-0.527
***

(0.052) (0.052) (0.054) (0.054)
P5 Under Review

-0.101
***
-0.101
***
-0.095
**
-0.095
**

(0.037) (0.037) (0.038) (0.038)
Constant 1.606
***
1.560
***
3.035
***
2.956
***
0.949
***
0.904
***
2.422
***
2.341
***

(0.023) (0.030) (0.048) (0.052) (0.042) (0.047) (0.065) (0.068)
Observations 57,686 57,686 57,686 57,686 50,514 50,514 50,514 50,514
Log Likelihood -32,907.070 -32,905.330 -31,498.300 -31,494.370 -27,587.890 -27,586.940 -26,294.640 -26,292.550
Akaike Inf. Crit. 65,820.140 65,816.660 63,002.590 62,994.740 55,195.780 55,193.880 52,609.270 52,605.100
235

Note:
*
p<0.1;
**
p<0.05;
***
p<0.01

Abstract (if available)

Abstract What does it mean to comply with international law? While the role and effect of international law on politics has received considerable attention, this question remains central to understanding its effect. While most scholarship takes the position that compliance is a matter of behavior – an actor fulfills or fails its obligations discreetly through its actions – this dissertation argues that compliance cannot be understood as a binary condition and that rhetoric is at least as important, if not more important, than behavior in determining the meaning of compliance. Drawing on theories of rhetoric and argumentation, this dissertation advances a new theory of compliance with international law, one which highlights the indeterminacy of many legal rules and the ways that actors create and contest this contested middle ground through the use of rhetoric and argumentation. By claiming compliance and contesting the compliance claims of others, actors shape the meaning of compliance through the strategic use of legal arguments. This dissertation applies a mixed-methods approach to explore how actors create meanings of compliance, how these meanings are open to interpretation, and how rhetoric and argumentation are used to contest these interpretations.

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Asset Metadata

Creator Rapp, Kyle (author)

Core Title By word, not deed: advancing a theory of rhetorical compliance in international law

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Political Science and International Relations

Degree Conferral Date 2022-08

Publication Date 05/12/2022

Defense Date 04/20/2022

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag argumentation,Compliance,global governance,human rights,international humanitarian law,international institutions,international law,international organizations,International Relations,OAI-PMH Harvest,rhetoric

Format application/pdf (imt)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Sandholtz, Wayne (committee chair), Gruskin, Sofia (committee member), James, Patrick (committee member)

Creator Email krapp@usc.edu,kyle.s.rapp@gmail.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-oUC111313290

Unique identifier UC111313290

Document Type Dissertation

Format application/pdf (imt)

Rights Rapp, Kyle

Type texts

Source 20220517-usctheses-batch-942 (batch), University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

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