International Law (text: 280-285 )

1. 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

2. 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

3. 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 institutions • Constitutional • Fundamental • Regimes (issue-specific)

4. 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

5. European Historical Roots of IL • “Fathers” of IL • Hugo Grotius (17th C) • Emerichde Vattel (18th) • Key Treaties • Augsburg (1555), Westphalia (1648), Utrecht (1713)

6. 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

7. 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

8. Four Distinctive Characteristics of Modern Int’l Law • Multilateral legislation • Consent and legal obligation • Special language and practice of justification • The discourse of institutional autonomy

9. 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

10. 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: • Customary IL • Philosophical Problems

11. Special language and practice of justification • IL is NOTalways strictly logical, straightforward or clear-cut • Two language forms used: • Rhetorical: requires interpretations of the application and meaning of rules and the nature of the case at hand. • 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

12. 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