Lecture 1: International Law and the Study of Politics

Question 1

Definition: International law

Answer 1

IL is the body of rules that states consider binding in their mutual relations

Question 2

4 things that law can be understood as

Answer 2

1. A set of rules
2. A professional practice
3. An independent social phenomenon
4. A reflection of power

Question 3

Traditionally, IL is said to have these 3 features

Answer 3

1. Voluntary adhesion, except for preemptive rules
2. Weak or no enforcement mechanisms (but changing with international courts)
3. Few and vague rules with focus on broad obligations

Question 4

Preemptive rules

Answer 4

Rules that states have to follow, whether they want to or not, e.g. pirating, genocide

Question 5

2 understandings of IL and whether that makes it law

Answer 5

1. Sovereign command backed by the threat of sanctions - IL probably not law
2. About a rule identifying which rules are law - IL is maybe law

Question 6

Hart’s rule of recognition

Answer 6

IL is meta-rules telling you what is a rule and what is not a rule

Question 7

Does IL have strong or vague rule of recognition?

Answer 7

Vague -> IL is a weak form of law

Question 8

Definition: hard law

Answer 8

Law in the form of legally binding treaties

Question 9

Definition: soft law

Answer 9

A variety of non-binding normatively worded instruments used in contemporary international relations by states and international organizations

Question 10

What is the risk of expanding the definition of law to include soft law?

Answer 10

It dilutes the nature and authority of law, and law becomes everything that states do and say -> law loses meaning

Question 11

When did IL historically have a strong legalist bent?

Answer 11

Between WW1 and WW2, with the outlawing of war in the Kellogg-Briand Pact of 1928

Question 12

Why does Morgenthau call IL “primitive law”?

Answer 12

It lacks enforcement mechanisms, and the existing mechanisms are derived from power relations between states

Question 13

What is Henkin’s defense of IL in contrast to Morgenthau?

Answer 13

Almost all nations observe almost all principles of IL and almost all of their obligations almost all of the time - in contrast to domestic laws that are not always followed

Question 14

In the post-war era, international lawyers focused on these 2 things

Answer 14

1. Emphasizing IL’s separation from politics
2. Focused on studying specific legal rules and decision-making processes (=doctrinal scholarship)

Question 15

Meanwhile, in the post-war era, IR scholars focused on:

Answer 15

1. Ignoring IL, even when it overlapped with their topic of interest
2. Spoke of “regimes”, “norms”, “institutions” etc. instead of using “law”

Question 16

Has the gap between international lawyers and IR scholars become smaller?

Answer 16

It has become smaller after the Cold War, but gap still remains

Question 17

Paradoxically, when IL’s prestige among IR scholars was at its lowest, what was happening at the same time?

Answer 17

IL underwent an explosive growth, establishment of key international institutions/treaties/regimes (UN, WTO, EU)