Int law - Lecture 7

international law

body of principles, customs, and rules recognized as effectively binding obligations by sovereign states

• its distinguishing feature is that it’s in principle binding

• This binding state-to-state quality distinguishes int law from the broader concept of international institutions and IOs

customary int law

a stable practice develops among several states, and when they view the practice as legally binding, it gets recognized as a binding principle

• e.g. crimes against humanity

history of international law

there’s a debate between idealists and realists and the role of power, morality, and law

the lessons WWII gave us

power can’t be contained by fragile legal tenets

the central problem with international law was its decentralized and unenforceable nature

why do ‘useless’ institutions such as itnernational law exist at all?

all nations generally observe the great majority of the rules of international law without actual compulsion, because it’s generally in the interest of all nations to honour their obligations under international law - Morgenthau

international law development

in the 90s: IR scholars discovered that the int system is organized, and also quite legalized

the international legal system is growing increasingly complex, with developing at various levels of governance (global, regional, national) and across distinct issues areas (trade, human rights, environment)

Great powers design international institutions in their own interests, locking other states into these structures

sets of theories providing insights about law facilitating more than shallow cooperation between states

• material pressures

• identities, ideas, and persuasion

compliance with international law

depends on the willingness of states to enforce agreements, using material pressures if necessary

• e.g. dispute settlement panels of the WTO

studies of the laws of war

they have found that int norms that are not enforced are likely to be sacrificed for military needs

• ex: norms proscribing the international killing of civilians

The uncertainty of the effectiveness of sanctions should cast some doubt on the assumption that coercion alone increases compliance with international law

theory of self-enforcement

they’re enforced by the risk of losing or reducing the future flow of benefits

ideational approaches to compliance

int laws are embedded in a broader system of socially constructed interstate rule-making, normatively linked by the idea that agreements of a legally obligatory nature must be observed

• the socialization of actors can improve compliance

constructivists on int law

they argue that int law embodies norms which reflect the social meanings and purposes of the relevant community

• rules and norms are important because they condition actors’ self-understandings and behaviour

kinds of socialization

incentive-based inducements and the process of acculturation

primary challenge to a peaceful international order

no longer from intra-state conflicts, now it’s domestic conflicts were the major threats to local and regional stability

• e.g. Balkan wars

R2P

began to take shape with wide agreement that protection and human security must form a cornerstone of the int community’s efforts to prevent mass atrocities

humanitarian intervention

introduction of foreign forces into a sovereign country to protect or save the lives of the country’s civilian population

3 principles of R2P

1. the responsibility of the state to protect its own people from harm

2. the commitment of the international community to assist states in providing protection

3. the responsibility of member states of the UN to respond to a crisis when a state is unable/unwilling to provide that protection

facilitating cooperation among states

states create international institutions, of which three levels exist in modern international society

• constitutional institutions, fundamental institutions, and issue-specific institutions/regimes

international law as a fundamental institution

is one of the most important for understanding cooperation and order among states

anarchy in relation to states

states have strong incentives to free themselves from the insecurities of int anarchy

• states face common coordination and collaboration problems, yet cooperation is still difficult under anarchy

modern international law

is a historical artifact, a product of the revolutions in thought and practice that transformed the governance of European states after the French Revolution

Age of Absolutism

Before the French Revolution, law was understood mainly as the command of a legitimate superior

international law was seen as the command of god, derived from natural law

law and int law in the modern period

law is seen as something contracted among legal subjects or their representatives

international law is seen as the expression of the mutual will of nations

modern institution of international law

its most distinctive characteristics are its multilateral form of legislation, its consent-based form of legal obligation, its language and practice of justification, and its discourse of institutional autonomy

key limitations of international law when it was designed to facilitate international order

• States were its principal subjects and agents.

• Focused on regulating inter-state relations.

• The scope was confined to questions of order.

the two traditional categories of the laws of war

jus ad bellum: laws concerning when war is legally okay

jus in bello: laws concerning how war may be managed/conducted

How has the legal justification for war (jus ad bellum) changed over time?

19th century: war was seen as a sovereign right

post-1945: war is only justified in self-defence or under a UN-mandated peace enforcement action

What are the three broad categories of jus in bello ?

weaponry regulations, rules for combatants, and protections for non-combatants

How have jus ad bellum and jus in bello been challenged since 2001?

US administrations have pushed the limits of international law in the war on terror

• transnational insurgents have openly violated legal principles

• Russia has undermined the territorial integrity of neighbouring states

realist view of international law

Realists argue that international law is only important when it serves the interests of powerful states

neoliberal view on international law

Neoliberals argue that self-interested states construct dense networks of international legal regimes to facilitate cooperation.

What is the focus of critical legal studies regarding international law?

Critical legal studies emphasize that the inherent liberalism of international law limits its radical potential.

What do practice theorists argue about legal obligation?

Practice theorists claim that legal obligation arises from participation in the practice of international law, rather than from coercion, consent, or legitimacy.