International Law and Order Midterm

What does Keohane (1997) mean by “two optics”? 

• They are two complementary lenses for explaining why nations choose to comply with international law. 

• Instrumentalist Optic

• Normative Optic

What is the Instrumentalist Optic

• “States are rational actors who comply when it serves their interests.”

  • Clear rules, credible retaliation, repeated interactions, reputational costs- compliance cheaper than violation.

  • Ex. Nuclear Non-Proliferation Treaty- shows strong compliance when rules + consequences are clear. 

• Weakness: Explaining why nations enter into costly compliance and preference change over time.

What is the Normative Optic?

• “Socialization, legitimacy, identity, and expectations shape behavior beyond immediate material interests. 

  • Chagos (separation of Chagos Archipelago from Mauritius) advisory opinion shifted how states and IOs describe sovereignty despite UK rejection.  

What is the value of interdisciplinary IL-IR analysis? 

• Enriches IR theory, IOs and institutions, traces cooperation history, brings IL perspectives to global issues, assess the power of norms, links ideas to practice. 

• Two optics complement each other.

What is the International Court of Justice? (ICJ)

• It is the United Nations’ principal judicial organ based in The Hague that settles legal disputes between states and issues advisory opinions.

• ICJ gets jurisdiction when states consent to its jurisdiction.

• The ICJ can issue binding judgements between consenting stats and advisory opinions requested by UN Orgs.

• The ICJ cannot overrule state consent and politics.

What is the UN Security Council?

• The UN organ responsible for international peace and security with authority over sanctions, peacekeeping mandates, and certain enforcement measures.

• Permanent members holding veto power and additional rotating members to reflect broader representation.

The Development of International Law and Order: Peace of Westphalia 

• Ended the Thirty Years’ War and formalized state sovereignty as a core principle of international law. 

The Development of International Law and Order: 19th Century Shift in International Law.

• Move from natural law to positive law and codification , European nations redraw borders at Congress of Vienna.

The Development of International Law and Order: 1864 Geneva Convention

• Obliged care for the wounded and respect for medical personnel and the Red Cross, launching international humanitarian law

The Development of International Law and Order: Nuremberg Trials

• Established responsibility for war crimes and crimes against humanity and spurred the UNDHR and human rights covenants.

The Development of International Law and Order: Bandung 1955

• The Asian- African Conference held in Bandung, Indonesia, 29 mostly newly independent or anti-colonial African and Asian states met.

• Asserted Afro-Asian solidarity, opposed colonialism, promoted non-alignment, and forced IL to accommodate diverse realities.

Post Cold War 1990s Trends

• WTO Creation, environmental treaties, expanded UN peacekeeping, and ad hoc (done for a particular purpose) criminal tribunal for Yugoslavia and Rwanda.

What is Article 1 of the UN Charter 

• Maintain international peace and security, develop friendly relations based on self-determination, achieve international cooperation, and promote and encourage respect for human rights.

Explain the Whaling in the Antarctic Case.

• 1946 International Convention for the Regulation of Whaling, regulated the whaling practice to conserve stock. Especially in Japan

• Created International Whaling Commission.

• 1982, IWC adopted moratorium on all commercial whaling.

• Article 8 of ICRW, allow states to whale for scientific purposes.

• Japan used this to whale aggressively.

• Australia hated this and filed a case at the ICJ.

• Claimed that JARPA II was no genuinely scientific, New Zealand intervened to back AUS.

• Japan insisted JARPA II met requirements.

Explain the Whaling in the Antarctic Case. Australia V Japan (NZ Intervening)

• JARPA II found guilty of breach.

• Scientific purposes must be interpreted in good faith.

• ICJ order Japan to revoke permits and refrain from granting permits.

• Japan initially complied.

• Introduced NEWREP A, claimed it adhered to Court’s criticism.

• Same time Japan withdrew from ICRW’s jurisdictional clauses.

• 2019, Japan withdrew from ICRW altogether.

What is Keohane’s (1982) institutionalist theory? 

• Even under anarchy, states often create and comply with regimes because institutions make cooperation rational and feasible.

How should we understand the role of international regimes in world politics? (5)

• An international regime- set of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in an issue-area.

• 1. States demand international regimes because they help solve collective-action/public-goods problems that arise when self-interested behavior produces suboptimal outcomes.

• 2. Multilateralism bargains, cooperation becomes cheaper. 

• 3. Reduces uncertainty by locking in expectations and standards so states fear defection less and deals don’t unravel.

• 4. Monitor and report (IMF stats. WTO reviews) 

• 5. Regimes make repeated cooperation by lengthening the “shadow of the future,” institutionalize repeated rounds- settlement, reciprocity, punishment is predictable.  

Keohane vs. Realism?

• Keohane accepts anarchy but shows how and when institutions succeed where realism predicts failure (IMF, WTO, Paris)

What is Morgenthau’s (1985) central critique of international law?

• International law exists but is structurally weak because they lack the three pillars that make domestic law effective. 

• 1. Legislator

• 2. Judiciary

• 3. Executive

• Law making is decentralized and consent-based, interpretation is left to the states themselves, courts (ICJ/PCIJ) lack compulsory jurisdiction and binding precedent, and enforcement is decentralized. 

What is the Primary reason states comply (or fail to comply) with IL - Chayes & Chayes (1993)?

• Compliance is the more because treaties are problem-solving tools - states want them to work; 

• non-compliance usually happens due to ambiguity, limited capacity, and time lags, not bad faith or coercion failure. 

What are the three core dimensions of “legalization”?

1. Obligation: How legally binding.

2. Precision: how clearly rules are defined

3. Delegation: authority granted to third parties like courts/tribunals.

According to Abbott et al. (2000), what defines a highly legalized regime?

• High obligation + high precision + high delegation (“hard law”)": clearly binding commitments, specific rules/benchmarks, and empowered third-party adjudication/enforcement.

Downs et al. (1996) on high compliance rates and IL? 

• Downs believes high compliance can be misleading - often reflects shallow agreements that require little change; 

• states sign what they’d do anyway, so compliance ≠ cooperation or effectiveness. 

According to Keohane & Martin (1995), how do international institutions influence state behavior under anarchy?

They shape incentives:

1. Provide information/monitoring —→ reduce uncertainty about others’ actions

2. lower transaction costs via standing forums and procedures

3. create focal points & norms that clarify compliance

4. lengthen the shadow of the future through repeated interactions-  thus altering how power is exercised without eliminating it. 

What is Mearsheimer’s (1994) central claim about international institutions?

• Institutions have minimal independent effect because they largely reflect great-power interests and cannot overcome relative gains concerns (the worry that one country's gains will be less than another's, potentially making the first country worse off comparatively) or fear of cheating;

• Cooperation endures only when it already suits powerful states.

What was the ICJ advisory opinion- Reparation for Injuries (1949)?

• Reparation for Injuries Suffered in the Service of the United Nations.

• 1948, UN mediator Count Folke assassinated in Palestine: The UN sought to bring international claim for the injury to its agent.

• This raised questions of whether International Organizations could do what only states had previously done.

• Holding: ICJ recognized UN’s international legal personality and capacity to bring claims distinct from member states. BUT but emphasized this personality was limited.

ICJ advisory opinion- Legality of the Use by a State of Nuclear Weapons in Armed Conflict 

• Amid intensified 1990s disarmament debates, the WHO asked whether nuclear weapons are lawful, citing health and environmental impacts. 

• Raised competence question- does the requesting organization legally have the power to ask that specific legal question? 

• Holding: WHO lacked competence- its constitution concerns international health, not the legality of weapons; legality exceeded its field activity. 

ICJ advisory opinion -Legality pf the Threat or Use of Nuclear Weapons (UNGA Request 1996)

• The UN General Assembly, which has broad peace-and-security functions, asked if the threat or use of nuclear weapons is ever permitted under international law. 

• Holding: 

• 1. No comprehensive treaty ban existed

• 2. the court could not conclude on legality in an extreme self-defense scenario where a state’s survival is at stake; 

• 3. threat = use (a threat is unlawful if the use would be); 

• 4. states have an obligation to pursue nuclear disarmament under strict and effective international control. 

What are some examples of hard law and soft law?

• Hard Law (binding treaties): e.g. Rome Statute (ICC), UNCLOS, VCLT- formal consent ratification, enforceable treaty obligations.

• Soft Law (non-binding instruments): UNGA resolutions, declarations (e.g. UDHR), codes of conducts, WHO/ILO guidelines; often shape expectations/interpretation and can inform rulings.

  • Paris Agreement is widely discussed as soft law for its flexible Nationally Determined Contributions, despite being a treaty.

Which two elements are required for customary international law (CIL)?

1. State Practice (general, representative, reasonably consistent behavior) 

2. Opinio juris (belief that the practice is legally required) 

What does opinio juris mean?

• The sense of legal obligation- evidence that states follow a practice because they think the law requires it, not merely from habit or convenience.

What is a jus cogens norm?

• A peremontory norm of general international law from which no exemption or relaxation is permitted. (prohibitions on genocide, torture, slavery)

ICJ, Rservations to the Genocide Convention (Advisory, 1951)

• After states attached reservations (A formal declaration by a state to exclude or alter the legal obligations of specific parts of a treaty for itself.) to the 1948 Genocide Convention, the UNGA asked whether they could still be parties if others objected.

• Holding: Reservations are permissible if not incompatible with the treaty’s “object and purpose.” Objections don’t automatically eject a state; assess whether the reservation undermines core goals. Significance: Launches the object-and-purpose test, later reflected in VCLT art. 19–21

South China Sea Arbitration (Philippines v. China, PCA 2016)- synopsis & findings.

• Philippines challenged China’s “nine-dash line” under UNCLOS Annex VII. China declined to participate.

• Findings: Tribunal had jurisdiction; nine-dash line had no legal basis under UNCLOS; China violated Philippines’ EEZ rights and environmental obligations; award is legally binding, but China rejected it.

• Significance: Shows limits of enforcement and how soft environmental norms can inform interpretation.

ICJ, Armed Activities on the Territory of the Congo (DRC v. Rwanda, 2006)

• DRC alleged Rwanda’s cross-border operations and serious IHL/HR violations.

• Holding: : ICJ lacked jurisdiction—Rwanda hadn’t accepted Art. 36(2) compulsory jurisdiction and had reservations/non-ratifications blocking treaty-based jurisdiction.

• Significance: Consent is king; reservations can shield states from litigation even amid grave allegations.

ICJ, Jurisdictional Immunities of the State (Germany v. Italy, 2012) 

• Italian courts allowed civil claims against Germany for WWII atrocities; Italy argued jus cogens overrides immunity.

• Holding: State immunity (a customary, procedural rule) still applies in foreign civil courts even for alleged jus cogens violations; the two operate on different planes.

• Significance: Confirms that jus cogens does not automatically trump state immunity in domestic civil proceedings.

ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory, 2004)

• UNGA asked about the wall’s legality and consequences.

• Findings: The wall violated IHL (e.g., Fourth Geneva Convention) and human rights law, impeded self-determination, and contributed to de facto annexation

• . Obligations: All states must not recognize the illegal situation and not render aid or assistance in maintaining it (reflecting erga omnes duties); Court drew on soft-law materials alongside treaty/custom.

• Significance: Illustrates advisory opinions’ norm-shaping role and the legal bite of non-recognition duties.