Evading international law: How agents comply with the letter of the law but violate its purpose
| Date | 01 December 2017 |
| Author | Zoltán I. Búzás |
| DOI | 10.1177/1354066116679242 |
| Published date | 01 December 2017 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/1354066116679242
European Journal of
International Relations
2017, Vol. 23(4) 857 –883
© The Author(s) 2016
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DOI: 10.1177/1354066116679242
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E
JR
I
Evading international law:
How agents comply with the
letter of the law but violate its
purpose
Zoltán I. Búzás
Drexel University, USA
Abstract
Despite the widespread nature of evasion (bad-faith compliance), this interesting
phenomenon is under-studied in International Relations. Even the most sophisticated
typologies of compliance and rule following overlook evasion. This is problematic
because evasion is essentially a false positive that looks like genuine compliance but can
have the effect of violation. Drawing on purposivist legal theory, this article offers an in-
depth discussion of evasion. It articulates what evasion is, why it occurs, how it relates
to designed flexibility, and how it impacts accountability. Evasion entails intentional
compliance with the letter of the law but violation of the purpose of the law in order
to minimize inconvenient obligations in an arguably legal fashion. Three original case
studies illustrate the empirical purchase and generalizability of evasion in International
Relations. Evasion contributes a more nuanced understanding of compliance, cautions
that legality sometimes hinders accountability, and offers policy recommendations to
counter undesirable evasion. The article concludes with promising directions for a
research program on evasion.
Keywords
Accountability, compliance, evasion, flexibility, international law, the purpose (spirit) of
the law
Corresponding author:
Zoltán I. Búzás, Department of Politics, Drexel University, MacAlister Hall 3025, 3250-60 Chestnut Street,
Philadelphia, PA 19104, USA.
Email: zib23@drexel.edu
679242EJT0010.1177/1354066116679242European Journal of International RelationsBúzás
research-article2016
Article
858 European Journal of International Relations 23(4)
Introduction
As the number of asylum seekers from the Czech Republic increased in the late
1990s, Britain found its obligations under the 1951 Refugee Convention increasingly
inconvenient. Given hostile public opinion, British officials deemed asylum seekers
politically costly and the processing of their claims a burden. At the same time, they
considered the blatant violation of the Convention unpalatable. To minimize inconven-
ient British obligations without violating international refugee law, British authorities
devised a clever solution. In 2001, they concluded an agreement with the Czech
Republic to station British immigration officers in the Prague airport. These officers
“pre-cleared” passengers and refused entry to potential asylum seekers, most of them
Czech citizens of Roma ethnicity. Britain argued that since Article 1 of the Refugee
Convention defines refugees as individuals “outside the country of nationality,” those
refused entry were not covered as they never left the Czech Republic. The British
judiciary repeatedly upheld this literal interpretation and ruled that Britain complied
with the Refugee Convention.1
This is an instance of what I call bad-faith compliance or evasion, which entails fol-
lowing the letter of the law but violating its purpose (spirit) in order to minimize incon-
venient obligations in a way that is arguably legal. This type of behavior is abundant in
international politics. Australia minimized its obligations under the Refugee Convention
by passing domestic legislation that excluded thousands of islands from its territory for
immigration purposes. Asylum seekers that subsequently landed there did not technically
enter Australian territory, and therefore were arguably not covered by the Refugee
Convention (Inder, 2010). Multinational corporations exploit loopholes in tax codes to
technically legally minimize their liabilities through tax havens and creative accounting
techniques (Gravelle, 2009). Actors game the carbon market and dodge the Kyoto
Protocol legally to sell already-used certified emission reduction credits (Chan, 2010:
scam 9). States circumvent anti-mercenary international law by integrating private fight-
ers into their national forces (Percy, 2007: 376).
What exactly is evasion and how does it differ from cognate behaviors? When and
why does it occur? What are its consequences? We are all superficially familiar with eva-
sion, but most of us would struggle to articulate satisfactory responses to these questions.
The scholarly literature in International Relations (IR) is of little help because it over-
looks evasion. Nuanced compliance typologies include good-faith non-compliance, but
they omit its mirror image, bad-faith compliance or evasion (Mitchell, 2007: 895).
Although evasion overlaps with flexibility, the IR literature focuses mainly on designed
flexibility (Koremenos et al., 2001) and misses much of evasion, which often qualifies as
non-designed flexibility. Studies on the instrumental use of international rules examine
how states reduce their obligations through “regime-shifting” (Helfer, 2009), resist com-
pliance pressures through “rhetorical adaptation” (Dixon, forthcoming), and exploit
international rules as a resource in the politics of legitimacy from sanctions to lawfare
(Hurd, 2005; Smith, 2002). These intriguing studies touch on evasion, but a detailed
analysis of evasion is outside their scope.
This article provides a systematic discussion of evasion, articulating what it is, why
it occurs, and what its main consequences for accountability are. It is inspired by
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