Contemporary Values of International Law | Quizlet

Week 1-2

Main Theories of IR

The Main International Relations Perspectives

1. Realism

2. Liberalism

3. Marxism

4. (Social) Constructivism

5. Post - Colonialism

6. Feminism

Realism

- The dominant theory of IR

- The state is the key actor in international politics

- The distribution of power in the international system is the most important factor in shaping behaviour of states

- The ultimate goal is to ensure the survival of the state in the anarchical system

Power in Realism

Power is relational: Never exercised in a vacuum but always in relation to another entity

Who is the main actor in international relations?

The state is the main actor and lives in a state of anarchy, where there is no power above the state

Machiavelli's realist maxims

- it is better to be feared than loved

- the necessities of politics, such as the need to ensure the survival of the state by any means, were derived from human nature

Thucydides and realism

The desire for power and the need to follow self-interest are held to be fundamental aspects of human nature and therefore, realism

The raison d'etat (Reason of State)

- the principle that a nation should act on the basis of its long-term interests and this can justify actions that may be outside the bounds of traditional morality or law

The three Ss of Realism

statism, survival, and self-help

Self Help

the principle that because in international anarchy all global actors are independent, they must rely on themselves to provide for their security and well-being

It is not prudent to entrust a state's safety and survival to another actor or international institution

This may lead to a Security Dilemma

The Security Dilemma

A dilemma that arises when efforts that states make to defend themselves cause other states to feel less secure. This dilemma can lead to arms races and war due to fear of being attacked.

Criticisms of Self Help

Not an inevitable consequence of anarchy, but rather a logic that states have selected with other options such as collective security systems being viable

Statism

The state is the main actor in IR distinguished by sovereignty.

Criticisms of Statism

- Flawed on empirical grounds: The state faces internal challenges

- Flawed on normative grounds: States cannot individually respond to global problems

Survival

in world politics, all states have a vital interest in survival

Types of Realism

-Classical

-Structural ( Neo- Realism)

-Defensive Realism

- Offensive Realism

Classical Realism

The belief that it is fundamentally the nature of people and the state to act in a way that places interests over ideologies. The drive for power and the will to dominate are held to be fundamental aspects of human nature.

Structural Realism (Neorealism)

a theory in international relations that focuses on the structure of the international system, rather than individual states or their internal characteristics, to explain state behavior

Offensive Realism (Mearsheimer)

a structural theory of realism that views states as power maximisers

Hegemony and Offensive Realism

Offensive realists argue that the pursuit of hegemony may lead to the development of a new stable world order

Defensive Realism

a variant of realist theory that emphasizes the preservation of power, as opposed to the expansion of power, as an actor's primary security objective

Balance of Power Theory

The balance between the greatest powers in the world: A realist is concerned with any development on this scale on the relevant positions of power

Bipolarism and Defensive Realism: What is argued?

Bipolar system is stable because each of the two superpowers can directly balance the other, reducing the likelihood of major conflicts

Multipolarism and Defensive Realism: What is argued?

Defensive Realists argue that a multipolar system is less stable due to the complexity of balancing major powers

Liberal Internationalism

- 'power' politics are fading ideas and subject to change

- Self-restraint, moderation, compromise and peace.

- Peace is achieved through international cooperation and institutions, it is not inherent but must be constructed

- Free movement and trade will facilitate more peaceful international relations

Democratic Peace Thesis

The notion that there is an intrinsic link between peace and democracy, in particular that democratic states do not go to war with one another.

The Challenges confronting LI

- Rising power's demands for a greater share of authority e.g. all decolonised countries, China as opposed to US

- Europe's inability to serve as a second superpower that could promote internationalist rules and values

- A return to form of state sovereignty that rejects intervention on internationalist grounds

Criticisms of LI

- Imposition of Western Values

- Global governance encroaches on national sovereignty

- Ineffectiveness and Selectivity: International interventions based on human rights or democratic governance, are often selective and based on strategic interests

- Economic Disadvantages: The economic policies promtoed under LI such as free trade and deregulation may exacerbate economic inequality

Examples of Clashes of LI and Realism

- ICC ruling on jurisdiction over Palestinian Territory v Germany's reaction: Germany maintains realism while ICC embraces LI

- The ICC's stance reflects commitment to applying international legal norms universally, regardless of political considerations.

Realism and Globalisation

- Globalisation does not alter anything in world politics, particularly the strict division of states

- globalisation does not render obsolete the struggle for political power among states

Liberal Internationalism and Globalisation

Globalisation is the end product of a long running progressive transformation of world politics

Social Constructivism and Globalisation

Globalisation tends to be presented as an external force acting on states, which leaders often argue is a reality that they cannot challenge

Marxism and Globalisation

Globalisation is a Western-led capitalist phenomenon that simply furthers the development of global capitalism, in a neoliberal vein

Marxism

- The social world should be analysed holistically

- The global system is characterised by systemic inequalities between capitalist and non-capitalist states

- ALL states have shared interest in overthrowing capitalism and creating a socialist world order:

1. Financial crises

2. Sustainability of patterns of production and consumption

3. Ethical concerns and,

4. Inequality

Marxism and Imperialism

Capitalist states use their economic and military power to dominate and exploit weaker state

Historical Marxism

Historical change are a reflection of the economic development of society particularly the tensions between the means of production and relations of production

Class conflict is a key determinant in historical developments

Social Constructivism

Social forces such as identities, norms and ideas influence states in their interests. it is therefore not only the material aspect that influence a state's interests

Instead of directing interests towards material gain it is instead the development of ideas and norms which shape these interests

Key tenets of Social Constructivism

- Constructivism is about human consciousness and the construction of reality

- It is important to take seriously the role of ideas in world politics

- This also influences states' identities and interests and consequently world politics

- Constructivism is a social theory, which is concerned with the interplay between structure and agency.

- Individuals and states are produced and created by their cultural environment

Legitimacy in Social Constructivism

All states seek legitimacy for their actions, and our construction of legitimacy is the result of the development of norms i.e. what is legitimate and what is not. States will seek to take actions in line with this construction

Power in Social Constructivism

Makes the delineation between soft and hard power: Power can be ideational as well

What are Ideas in Social Constructivism?

Ideas are structural factors which influence how different actors interpret the world -> Ideas surrounding 'refugees' change and lead to different actions taken in relation

Diffusion in the discussion of Global Change

How do particular models, practices, norms strategies or beliefs spread within a population

How does Diffusion occur?

through coercion, strategic competition, pressures to secure resources, mimicking of successful models, the symbolic standing of certain models, and professional associations and expert communities

Socialisation

How states change so that they come to identify with the identities, interests, and manners of the existing members of the club

How states, accordingly, change their behaviour so that it is consistent with that of the group e.g. by join international institutions

Life Cycle of Norms

The three (3) stages of norm evolution:

1) norm emergence where a norm entrepreneur calls attention to issues,

2) norm cascade where a norm spreads through the rest of the population i.e. it diffuses

3) norm internalization where norms acquire a taken-for-granted quality.

Social Constructivism Criticisms

- overly focused on ideas and culture

- neglects material factors such as power and economics

- lack of empirical evidence

How does Marxism critique traditional IR theories

- believes liberalism and realism perpetuate the interests of the capitalist class

- capitalist mode of production creates exploitation and oppression between and within states

Post-colonialism

- focus on centring the experiences and perspectives of colonised peoples and marginalised groups in understanding global politics

- legacy of colonialism and imperialism continues to shape the contemporary world creating inequalities

postcolonial/decolonial critique of traditional IR theories

- need for epistemic diversity and pluralism in knowledge production and dissemination

- traditional IR theories are complicit in perpetuating dominance of western epistemologies

postcolonial/decolonial theory benefits

- experiences of race/gender/class etc are mutually constituted and cannot be understood in isolation

- inspired new research agendas and methodologies (ie. critical security securities, development studies and geopolitics)

Critique of Liberal Internationalism

too focused on the interests of Western powers and fails to take into account the perspectives and the needs of non-Western states

liberal internationalism benefits

leading role in the creation and development of international organisations e.g. United Nations (UN)

Realism Critiques

- pessimistic view of international relations

- neglects the role of non-state actors (e.g. international organisations and transnational corps)

realism benefits

- one of most influential approaches to understanding international relations

- shaped many foreign policies

Does International Law Matter?

Proponents will say that states want international law because it leads to cooperation and mutual benefit (i.e. reciprocity, Geneva convention leads to humane treatment of POWs and other hors de combat).

What is the value of IL from a Liberal perspective?

- States consent to be bound freely

- Other actors (NGO's) are relevant

- Provides legitimacy for states that comply

- Compliance is high

- Peer pressure

- Law has inherent value

- Nature of collective problems (e.g. climate change) require collective solutions

Lawfare

Using or abusing law in place of normal military force to achieve goals

Type of International legal arguments in IR

- Rhetorical and subject to justification

- Analogical

Analogical arguments of IL in IR: How are analogies used?

1. They use t hem to interpret a given rule

2. They draw similarities between one class of action and another

3. Establish the status of one rule with reference to other rules

What are International Institutions

Complexes of norms, rules, and practices that prescribe behavioural roles, constrain activity, and shape expectations.

Multilateral Legislation

The principal mechanism modern states employ to "legislate" international law is multilateral diplomacy, which is commonly defined as cooperation among three or more states based on, or with a view to formulating, reciprocally binding rules of conduct.

Informal Legislation

Customary International Law

Most important principle of international law

Consent

Week 3

Genocide, Crimes Against Humanity, War and World Politics and the Value of International Law

What are Crimes Against Humanity

acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (Article 6 ICC Statute)

What is genocide?

the deliberate killing, harming, displacing of a large group of people, especially those of a particular ethnic group or nation.

Interpretation of the Crime of Genocide in Bosnia v Serbia

Although the Court found that "The acts committed at Srebrenica... were committed with the specific intent to destroy in part the group of the Bosniaks... and thus constituted acts of genocide" it could NOT attribute these to Serbia (effective control)

Value of the 3 Dutch Supreme Court Rulings (Mustafic, Nuhanovic, Mothers of Srebrenica)

The crime of genocide is so elevated in its gravity within the international legal order that the Courts departed from traditional rules of attribution and guilt to provide justness

Mothers of Srebrenica Case

The Mothers of Srebrenica represent the victims' relatives who initiated legal proceedings against the Dutch State alleging that Dutchbat failed to protect 350 men who were expelled from the compound

Ruling: The Supreme Court of the Netherlands held the Dutch state liable for 10%

Nuhanovic Case

- Hasan Nuhanović, a former UN interpreter, lost his father and brother after they were expelled from the Dutchbat compound

- The Supreme Court of the Netherlands held the Dutch state liable for the Dutchbat's actions since it had effective control over the troops despite their UN mandate - contravening UN Immunity

Mustafic Case

- Rizo Mustafić, despite his employment with Dutchbat, was expelled from the compound by Dutch soldiers and subsequently murdered by Bosnian Serb forces

- The Supreme Court of the Netherlands held the Dutch state liable for the actions of its troops. The Court emphasised that while Dutchbat operated under a UN mandate, the Netherlands retained effective control over its troops

Rationale of the Supreme Court

the protection of individuals (liberalism theory)

Value of ICJ South Africa v Israel: Request for Interim Measures

The ICJ determined that a final ruling on genocide against Israel is indeed plausible based on the fact that they are plausibly being committed. It therefore imposed interim measures

The development of Genocide from the realist perspective

Genocide has seen little development in scope and application due to the high threshold of intent. Given the gravity of the crime, from the realist perspective, states are unwilling to alter and apply it.

What is war?

Organized violence against political entities with the capacity/resources to wage war

The two types of war in the international/national system

- International War

- Civil War

Civil War

a war between citizens of the same country, but may have an international aspect due to global influence and proxy war

Scales of War

- Limited War

- Total War

Limited War

Lesser goal than political existence e.g. a clash over territory

Total War

Fighting over Political Existence

Total War in Ukraine

The war is a total war for Ukraine, as it is fighting for its very existence as a state but for Russia it is a limited war as after the war it will still exist.

What international law mechanisms can be used in the conflict in Ukraine?

- Security Council - but Russia's veto power can block it

- International Humanitarian Law - but very broad, no real compliance

Can international organisations help to stop the war?

UN is the main one, but limited by permanent members of the SC

The Role and Impact of the ECtHR in Interstate Conflicts

1. Establishing legal responsibility

2. Creating authoritative law principles

3. Interpreting international law principles

What are the problems with bringing interstate disputes before International Courts?

When cases are brought, realism meets liberal internationalism → Hakimi makes the point that a court deciding on an issue has a purpose in itself

What is the benefit of bringing a case to the ECtHR even if Russia is not a party?

- Court decisions are valuable for case law and customary international law

- Legal Certainty for other states

Have the Laws of War changed over time?

The justifications and conduct during war have changed over time, e.g. it used to be commonly accepted that states could wage war for conquest, but after WW2 this faded

In what circumstances is it morally justified to wage war?

- Self Defence under Article 51 UN Charter

- Peace Enforcement action sanctioned by UNSC (Chapter VII Art 42)

Does democracy create peace? (Arguments for)

- Kant: Peace will come from republics that obey the rule of law and freedom of travel, goods etc..

- Democratic institutions make it harder for a state to be at war due to separation of powers and gridlock etc..

- Democratic Peace Thesis

Does democracy create peace? (Arguments against)

- Democracies fight covert wars that do not appear in statistical tests.

- Democratic states have fought against democratic movements

- Explanations for peace are to be found at the level of the international system, not regime type e.g. Int. Courts and Organizations

What is Security?

freedom from threats that could undermine survival and well-being

What is the traditional approach to National Security

Dominated by the realist theory: international system is anarchic and security is achieved through self-help

New Approach to ensuring National Security from the LI Perspective

Military power is important but emphasizes the importance of international institutions, law, and cooperation to mitigate anarchy through the creation of collective security systems

Constructivist Approach

Argues that threats are socially constructed, not objective

States identities and interests are shaped by social interaction and discourse thus changes in the nature of social interaction among states can bring a fundamental shift towards greater international security

Effect of Globalisation on Security

- Blurred domestic/international distinctions.

- Amplified transnational threats (e.g., terrorism, pandemics).

- Challenged traditional borders as bases for securing populations

What is International Law

A set of rules and norms, created by states and other actors, that govern relations among states and between states and other international actors.

International law gives the appearance of order while relying on voluntary compliance, custom, and reciprocity.

How have states tried to achieve international order?

International Institutions and Organizations e.g. the UN

Types of International Institutions

- Constitutional

- Fundamental

- Issue specific

Constitutional Institutions

comprise the primary rules and norms of international society, without which society among sovereign states could not exist

Fundamental Institutions

represent the basic norms and practices that sovereign states employ to facilitate coexistence and cooperation under conditions of international anarchy