L2 - IL and IR Flashcards
(12 cards)
Bin Laden example
IL in practice
Osama Bin Laden located in Pakistan -> US killed him
how to kill him lawfully?
he shouldn’t surrender:
- US Naval Handbook (2007) states that examples of war crimes could be considered as grave breaches of the 1949 Geneva Conventions include: denial of quarter (i.e. killing or wounding an enemy unable to fight due to sickness or wounds or one who is making a genuine offer of surrender)
*if Bin Laden surrenders, you can’t kill him, you have to capture him - US Manual for Military Commissions (2010) Part IV =’protected person’: any person entitled to protection under one or more of the 1949 Geneva Conventions including military personnel placed out of combat by sickness, wounds, or detention
second legal dimension that people had to consider - how to kill him
- dropping bomb safest way to preserve lives own troops, IL says you can’t really do this:
- Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
- question = when is it disproportionate? one terrorist leader vs how many civilians? = unclear (+ really speculative: expected ..)
once you kill him:
- Geneva Convention (legal conduct warfare): they shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are respected, grouped if possible according to the nationality of the deceased, properly maintained and marked so that they may always be found
- treatment of killed enemies is regulated
breaking state sovereignty Pakistan?
- it is close to compound Pakistan gov
-> how to do this lawfully, how to enter a sovereign country and carry out a hostile action - do we ask for permission or for forgiveness?
(CIA general counsel + National Security Council legal adivser + Joint Chiefs of Staff legal adivser and Pentagon general counsel worked secretly on clearing legal hurdles for the 2011 raid against Osama bin Laden)
- emails: there would be noncombatant/innocent deaths -> can’t bomb it (also bc we can’t ID him)
- discussed situations in which they could kill him even if he surrendered: e.g. if he could be concealing suicide vest or if militants next to him were firing weapons
- lawyers decided unilateral military incursion would be lawful bc disputed exception to sovereignty for situations where the gov is “unwilling or unable” to suppress a threat to others emanating from its soil
!!this is highly controversial: not everyone agrees customary law allows for this
!! law is infinitely ambiguous: they can’t be precise enough to cover all cases
Pakistan was a bit pissed, but didn’t really do anything bc in the end was better not to be harboring him
the killing of bin Laden and IL
what does this episode tell us about the relationship between IL and IR?
laws function as:
- constraint? - yes: couldn’t bomb the compound
- Legitimizing force? - lawyers say US can do it bc Pakistan can’t take care of threat
- Enabler? - loss of war allows for war to be carried out legally
- Fig leaf? - US would’ve done it anyway. partially legal reasons they didn’t bomb it, partially bc they wanted to collect fingerprints/DNA (sometimes first do the act, than call in lawyers to justify it)
- Mutually constitutive? - legal imperatives shape political behaviour, but politicians may also shape legal behaviour
- All of the above?
= it shows the complexity of IL
The traditional debate has been about the constraining power of IL
But some more recent scholarship has sought to move beyond this framing
Traditional, positivist theories focus on causation
Newer theories focus instead on mutual constitutivenes
realism and IL
Of the “traditional” theories of international relations, realism is the most critical of international law’s potential to constrain state behaviour
Indeed, insistence on compliance of legal rules without great power buy-in may even make war more likely
- e.g. Mearsheimer: Ukraine was sucker for believing in IL, bc Russia clearly doesn’t
- believing in IL can be harmful when others don’t
International law is epiphenomenal as it is a product of state self-interest
- it is not an independent factor in IR, it is epiphenomenal to power/self-interest
- interpretations and treaties are based on self-interest
- IL has no meaning beyond interests
IL doesn’t really matter
law has a moderating function within states, as there is a hierarchy of authority and enforcement
but no such hierarchy/institutions exist, ergo law cannot deliver what it promises to deliver
- absence hierarchical institutions with enforcement power above states -> can’t deliver the peace they promise
state compliance with IL does not prove that IL is effective
(almost all states comply with almost all of the IL almost all of the time)
- effectiveness implies law can make states act in ways contrary to their self-interest
- compliance is mere happenstance, when the cost-benefit calculus is preferable
(compliance happens to match with the interests of states)(states are main creators of IL, so they wouldn’t make rules that go against self-interest)
= compliance happens, but doesn’t tell us anything about the ?relevance? of IL
classical vs structural/neo realists
classical realists = willing to talk about IL, if only to disparage it:
- Keenan: “an attempt to transpose the Anglo-Saxon concept of individual law into the international field” (IL is a bad idea bc not everyone has western/Anglo-Saxon/civilized morale)
- Morgenthau: “primitive type of law resembling the kind of law which pre- vails in certain preliterate societies , such as the Australian aborigines and the Yurok of Northern California”
structural realists/neorealists like Waltz don’t even bother: states are like units existing under structural anarchy: nothing really matters, and certainly not law
- nothing outside of structure/anarchy really matters - don’t even think about it, say it is all fake
many/most realists
are willing to acknowledge that IL can have important functions, but still not that IL has autonomous explanatory power as to state behaviour
Steinberg: international law
= it does things for great powers, but not of existential importance for realist scholars
(it matters in marginal ways)
(no state is going to die or survive bc of IL, but it will make life easier)
- may be Pareto-improving
- create incentives and opportunities for weaker states to change… in ways favored by powerful states
- facilitate cooperation among powerful states in their relations with weaker states
- generate information flows for powerful states
= moderate position of realism
realism and IL - some questions:
- How do we explain both the explosive growth of international law (“legalization” of international relations), both in numerical terms but also in in terms of scope?
(what explains this? anarchy hasn’t disappeared, are leaders more stupid?) - How do explain instances where strong states are constrained by law/weaker states use law successfully against strong states?
- e.g. UK giving shit to Mauritius bc court said it should, but UK is way more powerful, why would it go against self-interest =indicates law may have some independent influence apart from power - What about the role of law within states in terms of shaping foreign policy preferences?
- e.g. Osama bin Laden example
- maybe believing in law domestically has influence on your view/preferences on IL
= opening the black box of states, maybe IL matters at the domestic level
= challenges for realists
liberal institutionalism and IL
Broadly shares most of the assumptions of realism when it comes down to the nature of the international space
- liberalism was offshoot of realism
- shares many of the assumptions: anarchy, self-help
But liberals try to explain the “why bother?” question by pointing to the role law/institutions have in facilitating collaboration (prevention of cheating, share information, lower transaction costs, etc.)
- if you negotiate everything from scratch = high transaction costs
- law/treaties make negotiation/agreement easier (no renegotiation every single time)
- it makes collaboration easier under anarchy
(anarchy with softened edges thanks to magic IL and int’l institutions)
Still very rationalist (positivsts) and views state behaviour vis-à-vis IL in utility/interest maximalizing terms
- IL is useful in maximizing self-interests
BUT:
outcomes within given institutional regimes can be explained by law, in broader context it is about power)(law can make for different outcomes in local contexts, not in universal context)
- law in this view has no creative or generative power in the social life of states (
- states interests are viewed as exogenous to the argument
- law (often called institutions, regimes, etc.) can explain variations in outcomes within the context of particular institutional arrangements, but has no autonomy of its own
liberal institutionalism and IL - questions
- Law is viewed as an institution like any other—does this matter?
(focus is institutions, not law) - What about customary international law? (law based on practice of states)
- Does legitimacy matter at all?
everyone hates trump but he’s still winning/popular - so it doesn’t really seems to matter, manners/legitimacy don’t seem to matter
(Everyone hates Trump, but he is still winning internationally (everyone tries to be nice to him) -> for realists this shows it/manners does not matter) - Is law best viewed as a product or as a process? Law-making as a site of social contestation?
= about nature of law = maybe the outcome is not the most important, maybe it is the negotiation/compromising -> but then what is the diff with any type of diplomacy
constructivism and IL
don’t take state interests as unchanging/permanent = emphasize socially constructed nature -> capacity for change and transformation
- IL (and other ideas/norms) viewed as being in a mutually constitutive relationship with int’l politics
-> law is not viewed as
- a by-product (realism) or
- purely an instrument for enabling the advancement of interests (institutionalism),
-> law is viewed as an institution of the international system with its own agency
- it is autonomous
- it has a brain/influence of its own
constructivism IL vs constructivism IR
lots of synergy (overlap) between IL and constructivist IR theory but…
Does the submerging of international as part of an overarching idea of “norms” dilute the distinctive character of international law qua law? Is there in fact anything distinctive about law as opposed to other norms, notably social norms?
- what distincts law from norms, from etiquette
- law is elevated norm, but if the distinction collapses: if IL is norms -> we are losing distinctiveness of law as special form of norm
= IR theorists don’t really care if it is collapsed (law into norms), lawyers do care (see it as unique/different)
Stephen Toope and Jutta Brunnée attempt to reconcile the two by arguing that IL is distinctive from generic social norms because it obeys certain “criteria of legality”, which generates legal legitimacy and creates a sense of obligation to obey the law
law has to be:
- generality
- promulgation
- non-retroactivity
- clarity
- non-contradiction (laws have to be consistent)
- not asking the impossible (law becomes ridiculous if it asks for impossible things, it has to be grounded)
- constancy
- congruence between rules and official action (de jure vs de facto)
law has to obey these criteria, other norms don’t
critical approaches to IL
critical theory = broad term (encompassing nr of distinct approaches (post-colonial, Marxist, feminist, etc.))
= diversity of approaches
critical approaches share a desire to expose what they see as the fundamental failings of IL (the lies/quicksand on which it is built) and to destabilize its core assumptions
= it challenges what exists (states, treaties etc.)
critical approaches tends to be explicitly and heavily normative
critical theory often associated with the political left
but in law and IL, their historical origins are actually right-wing, more particularly from conservative German lawyers critical of the Versailles peace settlement - Grewe, Schmitt, Triepel
- IL is fake bc it is invented by American bankers to undermine German econ
some overlap with realist conceptions of IL, but with a normative edge which can be very cutting
- emphasize the influence of power (of e.g. language)
- main difference = normativeness
- both think IL is bullshit
some examples of critical approaches
post-colonial (most important)
- sometimes known as TWAIL (third world approaches to IL)
- looks at role of IL in dev and expansion of imperialism (formal and informal) = legitimizes imperial expansion
- often focuses on history of IL and its entanglements with imperialism, esp from Grotius onward
- Grotius: VOC lawyer (legitimizing its behaviour) -> law is based on imperialism
- e.g. Belgium treaty in Congo, but they didn’t speak French, so probs didn’t know they signed to give up sovereignty (they just put cross as signature) = example relationship IL and imperialism
radical indeterminacy
- language is ambiguous -> law is indetermined: you can never know for sure what it requires -> getting a good enough lawyer you can always argue something is or isn’t allowed
- never any certainty what law is, its meaning is never fixed
- any given course of action is both permitted and prohibited by law, so that legal arguments can be made both for and against any proposed of state conduct
- this is not an issue with imprecise legal drafting and the like, but is inherent in the liberal conception of law
- Koskenniemi: the tension between apology and utopia in IL is not a bug, but an inherent feature
(law utopian: if we sign a treaty war is illegal and all will be well)(it is also apologetic of power) => inherently contradictory = tension built-in
IL and capitalism:
- Kate Mills on int’l investment law and its colonial origins (investment law bc protection colonial investors)
- Ntina Tzouvala on IL as promoter of capitalist modernity whilst keeping its recipients down (IL to carry out capitalism and keeping recipients dependent/poor)
