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| Participation in International Law is based on consent and law is binding because it has been positive by some authority |
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| Three Axis of International Law |
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Realism
Rationalism
Institutionalism |
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| Realist Vision of International Law |
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a) theory of human nature: everyone is motivated by self interest (1st preservation, then power)
b.) when states engage in altruistic behavior, it happens outside realm of politics
c.) Decentralization argument: international law works despite decentralized nature because it is based on consent and necessity
d. states are unitary actors, states a unitary actors recognizing competing interest with other states
e. main advantage is the predictive nature and states will act like people and seek to maximize their power (most predications have come out to be wrong) |
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a. in international law countries align themselves to balance power of stronger states
b. 2 things in sharp contrast: 1) balancing - when there is no clear leader identified, everyone shuffles around 2.) bandwagoning - once a leader is ID, everyone jumps on the bandwagon/occurs when leader is not threatening to power and security of smaller or weaker states; if this doesn't exist then smaller or weaker states flock to 2nd strongest power
c.) waltz theory attempts to explain the frequency by which countries adhere to agreements; countries need to have security in context of balance of power relationship |
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a. states aren't always rational and don't always matter. they disagree with morgenthau that self-interest is always about maximizing power. they explain international behavior in terms of 4 game theoretic models and they develop on them:
b. state will comply or establish intentional rule because there is coincidence of interest
c. sometimes the strong state coerces the weaker states to comply
d. reiterated prisoner's dilemma (true cooperation)
e. bilateral coordination game- indifferent to outcome but they know they will both benefit if they agree (ex: international railway system - if you could connect england and france would you measure in meters or yards? doesn't matter if it just the same)
f. they are skeptical about international law - no such thing as customary international law, it's states going after their self-interests |
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| Prominent Institutionalist |
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sometimes called neo-realist institutionalism, it recognizes that states aren't the only thing that matter, there are institutions like UN and NATO that matter
Guzman's Reputation Based theory:
a. a brand of realism, assume states are rational actors, acting in own self interest; adds two elements:
1.) reputation: rational states won't breach if hit to reputation is greater than value of noncompliance, however when statkes are large states still won't comply, and one hit won't destroy reputation 100%
2.) the one shot game: sometimes no benefit can be gotten from noncompliance, but it comes with compliance: indicates that reputation matters
Summary: Institutionalism is a rationalist with a normative twist: states care about their reputations, they have a long term investment in international institutions, you know that a rule of custom exists when other states get mad at you for violating it (gets rid of general and consistant practice and turns opinio juris on its head) |
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| Developer of Bureaucratic-centric System |
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| Bureaucratic-centric system |
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-Multiple people and branches influence foreign policy and international relations
-if actors stake their reps on processes, they will want to follow through and commit
-hardest opposition to vilating treaty will be those who staked reps on it
Chayes is trying to explain why states comply with international law:
International Law is based on consent, because of treaty making process all these factors are thought out:
When states don't comply it's because treaty:
1.) is ambiguous
2.) of a change in circumstances
3.) because they are unable to comply with it because of lack of resources
-Key insight is that states aren't unitary actors, states are not capable of identifying their interests and pursuing them. Rather, you have bureaucracies that compete and horse trade. Various constituencies buy into a regime. There might be change in administration, but htere are several bureaucracies that want to keep things a certain way. This is very helpful in explaining compliance and why the lack of an enforcement element is irrelevant to International Law becase IL is based on consent (states only take on obligations that they want to, its not that they don't want ot comply, they can't comply because they lack the resources and threatening them won't change them)
Chayes solution to the problem is "jaw-boning"- diplomats working things our and negotiating. |
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| Founder of Legitimacy of the Rule system |
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| Legitimacy of the Rule System |
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a. international system works if people think it is procedurally fair and substantively just
b. legitimacy is not measured by enforcement mechanism, but by discomfort states feel violate law
c. don't focus on if there is international law, now focus on can international law be enforced, is it effective, is it fair
d. elements of fairness: 1.) procedural fairness (procedurally fair if there are clear rules of enforcement and all are equal before the law - the law is consistent, regular, predictable and nondiscriminatory. 2.) substantive fairness: fairness as dstributive justice: evaluate international law with an eye to consequences (does it create a more just society -- if yes, international law will work and there will be a compliance pull) and dsitributive justice works on international level if 2 preconditions are met (i. moderate scarcity (no state gets everything it wants), and ii.) sense of community with shared values (reciprocity is one transcultural value (if one does not share well, they won't benefit in international community) |
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| 4 indicators of the legitimacy of rules system |
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1.) Determinate/Clarity: Law is determinate when it is clear
2.) Symbolically Valid: if something appears to be official, then more likely to be recognized as important and authoritative (greater degree of legitimacy then greater likelihood states will comply with rule)
3.) Coherence: rule must be stated in a form so that it is generally applicable and substantially fair
4.) In adherence with a body of law: a nexus between primary and secondary rules creating a relationship between them; if there is a conflict between 2 rules, there are rules that tell us which ones trump |
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| Liberal Theory of International Law/Transnational Legal Process Founder |
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| Leberal Theory of International Law/Transnational Legal Process |
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a.) There are 3 levels of law: 1.) new law merchant: volunatry private law (entered into by individuals, businesses, NGOs, etc) 2) Government Regulation of new law merchants 3.) state to state interactions
b.) democracy deficit is not how international law really works
c.) many private systems of organizing law eventually work their way up to form international laws between states |
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a.) Soft law is a type of law that is non-coercive like a presidential singing statement or NASSAQ rules. a social not a legal norm
b.) can be on domestic or international level
c.) there is primary and secondary soft law. Primary is a declaration like the Universal Declaration on Human Rights. Secondary is when the norm is still being developed and negotiated and isn't in a norm.
d.) can be tough to tell the difference between hard and soft law
e.) soft law can fill gaps in international custom law
f.) soft law can foster treaty formation
g.) soft law has a political remedy, hard law has a legal remedy |
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| A declaration like the Universal Declaration on Human Rights |
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| When the norm is still being developed and negotiated, and isn't a norm yet |
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| Global Legal Pluralism/Constructivism |
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-Law is constantly constructed because of norm generating communities (NGOs, bureaucrats)
-Pluralism cannot accurately predict state behavior
- so many non-state actors that it becomes impossible to predict
-different interpretive communities have different levels of volume
-internalization is expression of international law as their own values
-it draws on Chayes model to create a complex model of understanding to see how states operate. It is critical of Frank's notion of legitimacy. Instead, focusing on the ways in which international norms are internalized and domesticated. GLP relates to the fact that we don't have any sort of unified leglislature, executive, judicial structure, so no court can set down universally binding rules -- but this is a GOOD thing. This generates of juris generativity. Domestic courts kill off competing interpretations of law. When international court sets down law it is not exclusive of other court rules, can be interpreted in other ways. |
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Bellinger states:
Answers the critiques that the US is not interested in international law
-why is the US serious about international law: because we enter into hundreds of treaites per year (though 90% are executive agreement), we take multiple reservations to treaties because we are serious about enforcing them domestically (we are very careful with the wording of treaties so thye will be ratified domestically), the US Constitution makes international law the supreme law of the land (but sometimes this comflicts with the concepts of our federalism because we can't tell states what to do), US domestic law requires that new crimes and taxes can only be created in the legislature, not treaties, therefore we cannot agree with international law which imposes these requirements (we are serioius about internatinoal law, but more serious about our sovereignty), the US will not enter into agreements we do not plan on fulfilling (we won't sign to make other people happy if we do not plan on following our obligations)
-Why is the US criticized about not being serious about international law? Because of the multiple reservations we take on treaties, it seems we only get involved when it is convenient for us, the seerious treaties we are not a part of, Avena Case - The US was asked to review the death penalties of 51 Mexicans - The US argued this is an example of how we do take it serious because the Rome Statute conflict with many US laws and woudl therefor never be ratified, so we don't sign it) |
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Is everybody that does not know about international law
-advance a policy of state sovereignty
-really strict realist and isolationalist view (only do what is in our self interest)
-Bolton beleives that VA still executed the Mexicans in the Avena Case because American Law trumpes international law |
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Believe in world governance
-oppose capitalaism as an economic policy
-oppose indivudualism as a political philosophy
-are characterized as law and foreign relations professors
-like and believe that NGOs, environmental groups, religious groups are having a greater impact on American international policy every day (this is evidenced by the ladmine treaty and the Rome Statute which are against America's interests) |
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