Attitudes toward Consent-Based and Non-Consent-Based International Law in a Regional Power Context

ABSTRACT

International legal scholars have identified and argued for and against new forms of non-consent-based international law. We study variation in Brazilian public opinion about adherence to international law created in three different ways: through a consent-based multilateral treaty, by the U.N. Security Council with the participation of Brazil, and by the U.N. Security Council without the participation of Brazil. Information that Brazil has participated in creating the international legal obligation through a multilateral treaty or membership on the Security Council yields levels of support for adherence to the legal obligation that are similar to those found when the origins of the legal obligation are generic. Information that the international legal obligation was created without Brazil’s participation, on the other hand, results in reduced support for compliance. This difference, which is particularly concentrated among highly educated respondents, is not driven by reduced concerns about reputational consequences or sanctions. Our results suggest that the increased use of non-consent-based forms of international law might be challenged by a lack of public support for compliance.

KEYWORDS:

• Brazil
• international law
• public opinion
• reputation
• survey experiment

Acknowledgment

A previous version of the paper was presented at the 2016 International Political Science Association meeting. Thanks to Eduardo Azevedo at IBOPE for overseeing the administration of the survey. Thanks to Stephen Chaudoin, Xinyuan Dai, Julia Gray, Rafael Magalhães, Pedro Feliú, and two anonymous reviewers for comments on previous versions. The University of Illinois Office for the Protection of Research Subjects determined that this project did not require IRB approval (IRB Protocol No. 15919).

Funding

This research was supported by the Lemann Institute for Brazilian Studies at the University of Illinois and the State of São Paulo Research Foundation (FAPESP).

Notes

¹ For the case of the U.N. Security Council, its ability to produce non-consent-based international law is rooted in the fact that U.N. member states have consented to the provisions of the U.N. Charter that allow it to do so. In addition, international law is increasingly recognized to include jus cogens (that is, peremptory norms that cannot be derogated and that have force simply as a result of their being international norms) (see Frowein 2013). Jus cogens rules (for example, a prohibition against international law allowing enslavement) have force without having been made explicit either in a consent-based treaty or in hierarchical law. We thank a reviewer for highlighting this.

² Among the growing list of exceptions are Anjum et al. (2016), Chapman and Chaudoin (2017), and Lupu and Wallace (2017). Lupu and Wallace (2017) show different effects on government support of international law violations across three different contexts: Argentina, India, and Israel.

³ On the other hand, since the United States plays a prominent role in writing international law, it may be more concerned than the average state about violations by other states.

⁴ Our main reason for choosing nuclear proliferation as a substantive domain is the existence of international law generated through the three mechanisms that we study: consent, a non-consent-based mechanism in which Brazil participated, and a non-consent-based mechanism in which Brazil did not participate. This lets us truthfully vary the source of international law in our experimental vignette.

⁵ Although not specified in the vignette, we are referring to U.N. Security Council Resolution 1540. As described by the committee charged with monitoring its implementation, the resolution “imposes binding obligations on all States to establish domestic controls to prevent the proliferation of nuclear, chemical or biological weapons, and their means of delivery” (http://www.un.org/en/sc/1540/, accessed 20th June 2016).

⁶ Ideally, we would have stated in the third condition that Brazil was not a member of the U.N. Security Council when the resolution was passed. Since Resolution 1540, however, is the basis of our vignette and Brazil was, in fact, on the council when it was passed, we could not do this without deception.

⁷ Our goal with this sentence was to introduce the idea of costs to the respondents. As a reviewer pointed out, the initial clause, however, may also increase baseline levels of support for compliance. Since we use the phrase in all four vignettes, the phrase should not drive any differences in responses to the vignettes.

⁸ Note that this is the same proportion of Brazilians who think that nuclear proliferation is important or very important in the IRI-USP (2015) survey cited above. Nine percent of respondents said that they did not know or refused to give an answer.

⁹ We also present these results in the Appendix in a regression framework using treatment indicators and a full set of controls. The indicator for the non-consent-based law treatment is negative and highly significant. Most of the control variables are not significant, although two questions measuring international attitudes both positively and significantly predict increased support for compliance.

Additional information

Funding

This research was supported by the Lemann Institute for Brazilian Studies at the University of Illinois and the State of São Paulo Research Foundation (FAPESP).