Special Topics in Political Science Exam 1

Natural Law

A legal theory that claims that universal laws bind all human beings, regardless of their social context or whether they have explicitly consented.

Positivism

Modes of knowledge that emphasize observation and direct experience.

Sociological Perspective

• Preferences of states/leaders/publics can change over time.

• Persuasion and socialization as tools to change behavior.

• IL can change the relative power of particular political groups.

• Example: Environmental treaties often require monitoring.

Contractual Perspective

• International law as a tool for solving specific kinds of common problems.

• Assumption of (mostly) rational behavior by states/governments.

• Coordination / Collaboration / Commitment / Screening.

Critical Perspective

• States routinely break IL therefore it doesn’t matter.

• Behavior is driven by selection effects.

• Ambiguity of rules can lead to manipulation.

• Law reflects power.

• Example: US negotiates for international criminal court, does not ratify the treaty.

Voluntary Law

The man-made rules to which political leaders have consented, either explicitly or implicitly, via agreements and state practice.

Communitarian Law

Rules collectively made by the international community whose interests and values trump those odd individual states.

Non-Governmental Organizations

• Operate independently of states to achieve political objectives.

• Advocacy groups, multinational corporations, and armed opposition groups are all examples.

John Austin

International rules are not law but just general opinion.

Hugo Grotius

• Dutch Protestant lawyer.

• Key Ideas:

  • Freedom of the seas.

  • Laws of war.

  • Rights of multinational corporations.

Coordination Problems

All states have a shared incentive to use a common rule. States disagree or are uncertain about what that rule should be. Law specifies the rule. Example: Airplane pilots must speak English.

Collaboration Problems

States jointly benefit from choosing the same action. Each state is tempted to unilaterally deviate to a different action. Law creates punishments for states that deviate. Example: Dumping pollution into a shared ocean.

Commitment Problems

Sequential decision-making. Plan of action that is initially optimal becomes sub-optimal as time passes. Law locks in the initial plan of action. Example: Taking property that belongs to foreign investors.

Screening Problems

Uncertainty about the preferences of a government. State faces difficulty in credibility communicating its preferences to others.

Sovereignty

Principle that political leaders have both authority over the internal policies of their own territory and an obligation not to interfere in the internal policies of other territories.

Treaty of Westphalia

• Ends religious war in Europe.

• Changing political power (Spain/Portugal > France).

• Territorial state system formed.

• Sovereignty

Treaties

• Comes from Vienna convention on the Law of Treaties (VCLT).

• Agreement between states.

• Legally binding (not soft law).

• Written document(s) not verbal consent.

• Name doesn’t matter (e.g. agreements, conventions, covenants, etc).

Treaty Process

1. Negotiations (study group > write a report > multilateral conference for negotiations > draft treaty)

2. Signature (state says they want to join)

3. Ratification (intentional act of signing document by head of state)

4. Entry Into Force (treaty becomes legally binding)

5. Accession (allows states to join that did not sign)

Entry Into Treaties

Not fully bound but has interim obligation under VCLT to refrain from acts which would defeat the object and purpose of a treaty.

Exiting a Treaty

• Exit Clause

• Consent (explicit or tacit)

• Material Breach

• Impossibility of Performance

• Fundamental Change of Circumstance

Customary International Law

• Common in European Middle Ages.

• Unwritten, overseen by traveling judges.

• Community-specific

• Example: Three Mile Limit

Opinio Juris

• Acceptance as law

• Subjective: belief or consent to law.

• Distinguish law from habit or consistent behavior.

• Usually more emphasis on verbal statements.

Active Protest

Physical or verbal acts that demonstrate that a state disagrees with a particular asserted rule.

Peremptory Norms

• Jus Cogens

• Norm accepted by international community as a whole.

Chronological Paradox

If acceptance as law comes from belief, how can you believe in law that does not exist? Chicken or the egg? You cannot change custom without violating it.

Persistent Objector

The claim that a state that disagrees with a rule before it becomes customary law is not constrained by the rule after it becomes customary law.

International Law Commission

Multilateral negotiations often supervised by this of the UN.

Permanent Court of Arbitration

• Created in 1899, not actually a court, located in The Hague.

• Provides resources such as office space, procedural rules, recommendations for arbitrators.

• Litigants choose arbitrators and negotiate procedures.

International Court of Justice

• Created in 1945, part of UN system.

• Successor to the Permanent Court of International Justice.

• No subject matter restrictions.

• 15 judges elected by UN for fixed terms (9 years).

Erga Omnes Obligation

An obligation to the international community as a whole.

Standing

Does the actor filing a case have a legal interest in the dispute?

Judicial Propriety

The principle that a legal body should decline to make a ruling that would not serve a judicial function.

Judicial Economy

The principle that a legal body should decline to make a ruling that is not necessary to resolve a dispute.

Reparation

A state that is responsible for breaking international law must repair the damage to injured states from its breaches.

Restitution

Make injured state whole by returning the injured state to its position prior to a breach.

Attribution

When a legal breach is considered an act of a state. Country is responsible for acts of all government bodies (executive, legislative, judicial) at all levels (national, state, local).

Effective Control Standard

States must be issuing direct instructions to non-state actors to be responsible for its conduct.

Overall Control Standard

To attribute the acts of a military or paramilitary group to a state or must be proved that the state wields overall control over the group by equipping and financing the group and by coordination or helping in the general planning.

Countermeasures

Legal violation taken in response to a prior wrongful act by another state.

Retorsion

A lawful act used to punish a state.

Proportionality

Principle that force and coercion must be commensurate with a state’s objectives or injury.

Arbitration

One or more individuals decide a dispute based on evidence and arguments.

Territory

• Base of domestic jurisdiction.

• State has exclusive authority to rule on acts within its borders.

Active Personality

• Base of domestic jurisdiction.

• Person who committed the relevant act is the state’s national and the act occurred outside of the state’s territory (state can regulate acts that occurred elsewhere).

Passive Personality

• Base of domestic jurisdiction.

• National was harmed by an act outside of state’s territory.

Protective Principle

• Base of domestic jurisdiction.

• State can regulate and punish systematic and important effects on the state’s national interests (like security).

Universal Jurisdiction

• Base of domestic jurisdiction.

• Use of a state’s domestic law and institutions to regulate behavior that occurs outside of its domestic territory.

Sovereign Acts

Act that can only be undertaken by a state, not a private company.

Commercial Acts

Acts that can be undertaken by a private company.

Domestic Accountability

• Form of punishment

• Leaders are accountable to domestic constituencies that favor compliance.

Legalized Dispute Settlement

• Form of punishment

• Injured states use legal institutions to challenge violations and seek remedies.

Linkage

• Form of punishment

• Violating state loses benefits in other areas of international cooperation.

Reciprocity

• Form of punishment

• Other states mimic violations.

Reputation

• Form of punishment

• Violation reveals information to other states that makes future cooperation difficult.

Retaliation

• Form of punishment

• Other states adopt costly policies to punish.

Enforcement Mechanisms

• International Legal Enforcement

• Domestic Legal Enforcement

• Political Enforcement

State Immunity

Principle that a domestic court should not rule on a foreign state act without that state’s approval.

Diplomatic Immunity

• Protects diplomats from civil and criminal acts in domestic courts of a foreign state.

• Extends to embassies and their property, records, etc.

Consular Immunity

The principle that protects consular officials from criminal (but not civil) actions in domestic courts of a foreign state.

Socialization

• Form of persuasion

• Informal process in which diverse actors internalize social norms through their interactions.

Scorecard Diplomacy

• Form of persuasion

• Public grading of states to influence behavior.

Naming and Shaming

• Form of persuasion

• Public condemnation of noncompliance states.