International Law(text: 280-285)

Objectives:• Explain the paradox of IL• Summarize the order and institutions of IL• List and describe the components of the

modern institution of IL

The Paradox of Int’l Law

• The power and interests of states is the most important element of the int’l system; IL merely serves states’ purposes

• Yet states and other actors spend LOTS of time creating and supporting legal regimes; AND also often boast about how they follow Int’l Law

Order and Institutions of IL - Why

• War – recurrent, deeply dysfunctional, crude way of ensuring security

• Creating int’l order is a common need of most states– Done via int’l institutions

and int’l organizations• (not the same thing)

– 3 levels of institutions1. Constitutional2. Fundamental3. Regimes (issue-specific)

Fundamental Institutions - What

• i.e. International law, multilateralism, diplomacy…

• Provides basic rules and practices that shape how states solve cooperation and coordination problems

• Ex: institutional norms, techniques, and structures that int’l actors use in various (pos. and neg.) circumstances that are emerge as a result of an anarchic int’l system

European Historical Roots of IL• “Fathers” of IL– Hugo Grotius (17th C)– Emerich de Vattel (18th )

• Key Treaties– Augsburg (1555), Westphalia (1648),

Utrecht (1713)

European Historical Roots of IL

• Ideas of law prior to the “fathers” and treaties:– Monarchs possessed “divine

right” to rule, tempered by “God’s law” and “natural law”

– Subjects of the crown were also ruled by municipal law w/ authority given over to monarchs

– Monarchs were obliged to observe int’l law not b/c of contractual agreements w/ each other, but b/c of their fealty to God

European Historical Roots of IL• Challenges to the system (at

left) came in the 18th & 19th Centuries due to principles of liberalism and nationalism– Equal application of law was a

new concept employed domestically

– Soon it filtered up to int’l level to govern relations between states

– Gives rise to “contractual int’l law” or “positive” law… formed by negotiations between states rather than the command of God

Four Distinctive Characteristics of Modern Int’l Law

1. Multilateral legislation

2. Consent and legal obligation

3. Special language and practice of justification

4. The discourse of institutional autonomy

Multilateral legislation

• Informal methods– Ex: repeated practices of

states, social learning…– Leads to creation of ever-

evolving “norms”– Customary norms – a special

category of IL

• Formal methods– Ex: multilateralism, treaties,

regimes created by institutionalized orgs.

– Arose along with 18th C. liberal constitutions transforming Europe

http://blogs.law.yale.edu/blogs/rarebooks/archive/tags/International+law/default.aspx

Consent and legal obligation

• Consent – the primary source of int’l legal obligation– Tied to sovereignty; helps

reveal the paradox of IL

• “Consent” and “legal obligation” is complex:1. Customary IL2. Philosophical Problems

Special language and practice of justification• IL is NOT always strictly logical,

straightforward or clear-cut• Two language forms used:

1. Rhetorical: requires interpretations of the application and meaning of rules and the nature of the case at hand.

2. Analogical: finding similarities among cases in 3 different ways:• Rule interpretation• Find similarity of action(s)• Establish status of rules in

relation to other rules

The discourse of institutional autonomy

• Distinction/separation of the political and legal realms (i.e.: negotiations)

• Legal side gets power of rule interpretation - “separation of powers”

• Makes international relations more predictable & structured