Laura A. Dickinson

Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance

International law scholarship remains locked in a raging debate about the extent to which states do or do not comply with international legal norms. For years, this debate lacked empirical data altogether. International law advocates tended to assume that most nations obey most laws most of the time and proceeded to measure state activity against international norms through conventional legal analysis. In contrast, international relations realists and rational choice theorists have argued that international law is simply an epiphenomenon of other state interests with little independent power at all. Meanwhile, constructivist and transnational legal process approaches have posited that international law seeps into state behavior through psychological and sociological mechanisms of norm internalization and strategic action. But even these studies tend to remain on a theoretical level, without on-the-ground data about which factors might influence compliance in actual day-to-day settings.

The State Action Doctrine in International Law

Because international human rights and humanitarian law traditionally binds only state action, courts must reconceive the state so that nominally nonstate activity, such as the acts of private military contractors, fits within this legal framework. I summarize state action cases under U.S. constitutional law and the nascent jurisprudence in U.S. courts involving the application of international law norms to government contractors. I also consider holding nonstate actors accountable for violations of international law norms through ordinary U.S. domestic law tort suits. Yet, even in this context delineating the public/private divide is a core part of the analysis.