Lecture 2 Flashcards
IL and the killing of Osama bin Laden
1
Q
Realism and IL
A
- Of the traditional theories of international relations, realism is the most critical of international law’s potential to constrain state behavior.
- Indeed, insistence on compliance of legal rules without great power buy-in may even make war more likely.
- International law is epiphenomenal as it is a product of state self-interest.
- Law has a moderating function within states, as there is a hierarchy of authority and enforcement. So, realists accept IL.
2
Q
Compliance and realism
A
- But no such institutions or hierarchy exist, ergo law cannot deliver what it promises to deliver.
- State compliance with international law doesn’t prove that international law is effective. Effectiveness implies law can make states act in ways contrary to their self-interest. Compliance is mere happenstance when the cost benefit analysis is preferable.
3
Q
Classical realists
A
- Classical realists were still willing to talk about IL, if only to disparage it:
o Keenan; an attempt to transpose the Anglo Saxon concept of individual law into the international field. Morgenthau; primitive type of law resembling the kind of law which prevails in certain preliterate societies, such as the Australian aborigines and the Yurok of northern California.
4
Q
Structural/neo realists
A
- Structural realists/neorealists like Waltz don’t even bother, states are like units existing under structural anarchy; nothing else really matters and certainly not law.
5
Q
State behavior and IL
A
- Many or most realists are willing to acknowledge that international law can have important functions, but still not that international law has autonomous explanatory power as to state behavior.
o Richard H. Steinberg (2002) IL examples
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.
6
Q
Some realist questions
A
o How do we explain both the explosive growth of IL (legalization of IR) both in numerical terms but also in terms of scope? How do we explain instances where strong states are constrained by law/weaker state use law successfully against strong states? What about the role of law within states in terms of shaping foreign policy preferences?
7
Q
Liberal institutionalism and IL
A
- Broadly shares most of assumptions of realism when it comes down to the nature of the international space. 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. Still very rationalist, and views state behavior vis a vis IL in utility/interest maximizing terms.
8
Q
State interests are exogenous
A
- But law in this view has no creative or generative power in the social life of states. State interests are viewed as exogenous to the argument. Law can explain variations in outcomes within the context of particular institutional arrangements but has no autonomy of its own. States have interests of their own regardless of IL, IL can be used as a tool to get their way.
9
Q
Liberal institutionalist questions
A
- Law is viewed as an institution like any other, does this matter?
- What about customary IL? Liberal institutionalism doesn’t really explain this because it is just customary.
- Does legitimacy matter at all?
- Is law best viewed as a product or a process? Law-making as a site of social contestation?
10
Q
Constructivists and IL
A
- Constructivists do not take state interests as unchanging, but instead emphasize their socially constructed nature and therefore their capacity for change and transformation. IL along with other ideas and norms is viewed as being in a mutually constitutive relationship with international politics. In other words, law isn’t viewed as a byproduct (realism) or purely an instrument for enabling the advancement of interests (institutionalism), but as an institution of the international system with its own agency.
11
Q
Toope & Brunnee constructivism
A
- Toope & Brunnee attempt to reconcile the 2 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.
o Criteria of legality = generality, promulgation, non-retroactivity, clarity, non-contradiction, not asking the impossible, constancy, congruence between rules and official action.
12
Q
Synergy IL and realism (constructivism)
A
- Lots of overlap (synergy) 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?”
13
Q
Critical approaches to IL
A
- Critical theory is a very broad term and encompasses any number of distinct approaches (post-colonial, marxist, feminist etc). despite the diversity of approaches, critical approaches share a desire to expose what they see as the fundamental failings of IL and to destabilize its core assumptions. Critical approaches tend to be explicitly and heavily normative.
14
Q
Critical approaches origin
A
- Associated with political left. The historical origins are actually right wing, more particularly from conservative German lawyers critical of Versailles peace settlement (Triepel, Schmitt and Grewe). Some overlap with realist conceptions of IL, but with a normative edge which can be very cutting.
15
Q
Post colonial approaches
A
o Post colonial (sometimes known as TWAIL = third world approaches to IL)
Looks at the role of IL in development and expansion of imperialism, both formal and informal. Often focuses on history of IL and its entanglements. With imperialism, especially from Grotius onward.
