IL & The Study of Politics Flashcards
(19 cards)
Basic definition of international law
International law is the body of rules that states consider binding their mutual relations
Which words in the definition of international law are open to questioning?
- Body of rules
- States (what about individuals)
- Consider (are they objective or subjective?)
- Binding (morally or legally?)
- Mutual relations (very broad, what does this actually cover?)
What can law be understood as?
- A set of rules
- A professional practice
- An independent social phenomenon
- An epiphenomenal reflection of power
What does it mean to say that law can be understood as an independent social phenomenon?
Social scientists like to think of law as a social production and therefore may not take the claims of lawyers at face value
- As the claims of lawyers are actually the claims of politicians, societies, socialization, etc.
What does it mean to say that law can be understood as an epiphenomenal reflection of power?
- Epiphenomenal means derivative
- Esentially, law is a reflection of the preferences of those in power (great powers)
– ie. law exists but it does not matter separate from power
What is another term for domestic law?
Municipal law
Is international law really (considered) law?
- Compared to municipal law, international law has many distinctive features
- As a result, many lawyers have traditionally rejected the idea that international law is really law
What is international law traditionally said to have?
- Based on voluntary adhesion (in most cases, unlike municipal law)
- Weak or no enforcement mechanisms
– Although increasing legalization
– Traditionally international system is based on self-help - Rules are few in number and vague (is this changing?)
What does Austin think of international law?
If law is sovereign command backed by the threat of sanctions, then international law is probably not law
- This was accepted from 19th century to 1940s, until IL had a revolution
What does Hart think of international law?
If law is about a rule identifying which rules are law, international law is maybe law?
- According to Hart in the legal system there is a definition characteristic, the rule of recognition, therefore the question is is there a rule of recognition in IL?
What is soft law?
A variety of non-binding normatively worded instruments used in contemporary international relations by states and international organizations
- There is a sense of morality that has persuasive power
- Argued that this is fairly modern (following 1945)
Does the expansion of the definition of law dilute the distinctive nature and authority of legal rules?
- Even IL lawyers don’t like soft law, you are diluting what makes law special, law can be distinguished from politics
- IR scholars will deny the definition between law and politics, everything is politics
What is the (historical) relationship between IL and IR?
- IL has always been studied as part of the study of IR
- But the relationship between the two has often been contentious
- From its origins after the end of WW1 and WW2, IR had a strong legalist bend
- International law was viewed as a key to securing world peace, culminating in the Kellogg-Briand Pact of 1928 which “outlaws” war
- But the experience of WW2 provoked a breach
What does Morgenthau (founder of post-war modern IR) think of international law?
- Morgenthau used to be a German Law professor, but then had to flee as a german jew to America
- He then had a disillusionment with law and believed that it did not matter
- “During the four hundred years of its existence international law has in most instances been scrupulously observed. When one of its rules was violated, it was, however, not always enforced, and when law enforcement action was actually taken, it was not always effective. There can be no more primitive and no weaker system of law enforcement than this; for it delivers the enforcement of the law to the vicissitudes of the distribution of power between the violator of the law and the victim”
What does Louis Henken think of international law?
- “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”
– The implication of this is, should we look at the 99% of cases where states ascribe to IL or should we look at the 1% of cases where it is not obeyed?
What did international lawyers emphasize in the post-war era?
- Emphasized international law’s separation from politics
- Focused on studying specific legal rules and decision-making processes (doctrinal scholarship)
What did international relations scholars emphasize during the post-war era?
- Ignored international law, even when it overlapped with their topics of interest
- Spoke of “regimes”, “norms”, “institutions”, etc. instead of using the dreaded L-word
What is interesting about the explosion of international law in the post-war era?
- Paradoxically, just as international law’s prestige among IR scholars (and arguably many practitioners) was at its lowest ebb international law underwent an explosive growth
- Key international institutions/treaties/regimes were born after WW2 (UN, GATT/WTO, EU, etc.)
How do IL and IR scholars feel about the explosion of IL in the post-war era?
- Lawyers think it’s great, since post-WW2 we got loads more laws
- Political scientists would say that in fact the hegemons simply wanted to enforce their power/entrench their position as hegemons through law, therefore power matters above all
