International law and developing states

Question 1

Edmunson and Levy international law

Answer 1

international law comprises a body of legal principles, standards, procedures, conventions and institutions that coordinate the relationship between sovereign states (disregards the relationship between states and non-state actors or other state actors)

Question 2

Origins of international law

Answer 2

• personalities: developed ideas on how states interacted with each other, contributed to the formation of many treaties
  
  • Hugo Grotius (1583-1645)
  • Emerich de Vattel (1714-67)
• treaties concluded in Europe
  
  • Treaties of Augsburg (1555): legal division of Christendom
  • Treaty of Westphalia (1648): sovereignty-maintain standing armies, build fortifications and levy taxes
  • Treaty of Utrecht (1713): sovereign authority and territorial boundaries
• very western-European orientated view of the world, directing ideas around international law while conducting colonisation

Question 3

Influential strands of thought on IL

Answer 3

• natural law (Ancient Greek and Roman thought)
• Christian norms of social conduct in relation to other Christians (equality) and non-Christians (the formers’ superiority
• the ‘standard of civilization’: idea that people around the world could be ranked
  culturally and/or racially, became the basis for several international practices (e.g. rule of war), categories were divided into:
  
  • ‘civilized’ world of the white West
  • ‘barbarians’, light-skinned peoples with an urban high culture
  • ‘savages’, dark skinned peoples without an urban high culture

Question 4

Sources of international law

Answer 4

Divinity or interactional

• absolutist source
• sovereignty with God-leaders to act out of allegiance
• rising idea of reciprocity in state relations e.g. one state’s actions requires a reaction
• gradual move to interactional/contractual law: international law is the result of how actors interact with each other (absolutist > interactional (remained European))

Treaties

• can be bilateral or multilateral, often mechanism to form a relationship between countries
• has a contractual dimension
• number of participants often considered before treaty is signed - non-proliferation treaty (signed 1968) took effect in 1970
• has constant evolution e.g. nuclear issue – NPT (1968-1970) to Paris Agreement (2016)

Customary law

• norms existing that shape the relationships between states
• there is implied subjection/agreement of the state and based on general observance of the customary law
• e.g. Law of the Sea-Freedom of Navigation

Other sources

• general principles recognized by civilized states
• decisions of judicial and arbitral tribunals
• distinguished writings
• declarations of international organizations e.g. UN – after 9/11 increasing importance of defining groups as terrorists

Question 5

Subjects of international law

Answer 5

• Peace of Westphalia 1648: consolidation of sovereign states in Europe, establishment of the modern international system of states
  
  • key principles of Westphalian sovereignty: territorialism, independence, non-intervention, pluralism, equality of states, diplomacy & rules for state interaction
  • aspects of sovereignty:
    
    • internal (or empirical) sovereignty: authority and control within own borders
    • external (or juridical) sovereignty: recognition of authority by other states
• states: primary actors but individuals, groups, and organizations are increasingly becoming recognised subjects of international law
• non-state actors: becoming important agents in international legal processes
• international law: increasingly concerned with global not merely international regulation
• processes mean that issues of global justice are permeating the international legal order

Question 6

Theoretical approaches to IL

Answer 6

• realists: are sceptical about international law – it only serves the interests of powerful states to expand their power, display little trust in IL
• neo-liberal institutionalists: explain how self-interested states construct international legal regimes
• constructivists: consider IL as part of the normative structures of international relations

Question 7

Does IL have any effect on the nature and conduct of IR?

Answer 7

Advocates

1. International law is what defines sovereign states and their legitimate actions
2. Legitimacy is crucially important to states and international law is one of its principal sources
3. Levels of compliance are high e.g. international air travel
4. Even where international law is broken its legitimacy is affirmed e.g. US invasion into Iraq

Detractors

1. International law is not real law as it is not created/enforced by a centralized authority
2. Only serves the interests of the powerful states
3. Complexity of international law makes almost any action justified
4. Lags behind rapid changes in world politics (e.g. war conduct, cyber conduct)

Question 8

Laws of war

Answer 8

• traditionally:
  
  • jus ad bellum: set of criteria that are to be consulted before engaging in war in order to determine whether entering into war is permissible, that is, whether it is a just war
  • jus in bello: the law that governs the way in which warfare is conducted, it is purely humanitarian, seeking to limit the suffering caused. It is independent from questions about the justification or reasons for war, or its prevention, covered by jus ad bellum
• laws have evolved over to take into account social and technological changes
• recent developments: have led to a fear that the established frameworks of IL are weakening in the face of crass realpolitik e.g. US response after 9/11

Question 9

Is IL still an expression of Western dominance?

Answer 9

For

• peak legal institutions and international human rights law are premised on Western values about individual rights, alien to non-Western societies
• this dominance is given expression in humanitarian interventions, where Western powers make up the majority of UNSC members

Against

• the modern international legal system rests on a set of customary norms that uphold the legal equality of all sovereign states and their right to self-determination à non-Western states have been among the most vigorous proponents
• UNDHR was the product of deliberate and systematic process of intercultural dialogue
• ICCPR was shaped in critical ways by newly independent postcolonial states

Question 10

Individual criminal accountability and the non-Western world

Answer 10

• was traditionally assumed that individual leaders of states were protected by the doctrine of
  sovereign immunity
• the creation of institutions such as the International Criminal Court (ICC) have bolstered international mechanisms for ensuring individual criminal accountability
• courts in other countries have also attempted to prosecute the leaders of other states
• critics argue that attempts to prosecute sitting heads of state undermine efforts to end civil conflicts and bolster democracy
• international tribunals have sometimes been presented as tools of the West – to be used only in non-Western contexts, however, in the negotiation of the Rome Statute of the ICC, African states were enthusiastic supporters

Question 11

Definitions of developing states

Answer 11

• developing v Third World
• general image: weakness, underdevelopment
• 1963: term from French tiers monde
  
  • Alfred Sauvy (1898-1990): formulated 1952 by French economic historian, on model of the third estate (French tiers état) of Revolutionary France; his first world (The West) and second world (the Soviet bloc) and everyone not part of that was third world, never caught on
• developing states emergence: there is developed states and countries on their way to this
• issue with terminology – doesn’t necessarily describe the complete nature of the state

Question 12

Characteristics of developing states

Answer 12

• economy
  
  • assumptions: weak economy, poor utilisation of resources/no resources, economic mismanagement, unequal economic development, low income/capita
• military
  
  • post-colonial states: Saudi Arabia and India are the next top spenders on military after US, China and Russia, due to state borders formed by departing colonisers creating conflict – meant poor states had to excessively spend on military
• political systems
  
  • democracies, Indonesia, India
  • pseudo-democracies: Pakistan (limiting power of politicians)
  • kingdoms: Saudi Arabia, United Arab Emirates, Thailand
  • dictators: Libya, Turkey, Egypt
  • characterised by lack of political institutionalisation: based on principal can clearly identify those institutions with power, have separated branches of government
    
    • gives those with influence on the political system the ability to implement their will
    • generally due to cultural ethos around respecting hierarchies
  • institutions do not provide citizens mechanism to have voice heard, hence laws do not necessarily reflect their interests or are for the benefit of the citizenry
• social cultures
  
  • different social structures exist but generally have respect for hierarchies without regarding what it means principally – allows culture of ‘justified’ taking of human rights e.g. Turkey and monitoring/preventing Facebook use
• differences:
  
  • Middle East: different political and economic conditions
    
    • Yemen: political stability severely affected, one of the poorest countries
    • Saudi Arabia: rich oil state
  • South America: history of conflict and cooperation
  • South-East Asia: example of regional cooperation
    
    • Singapore: elections but only one opposition that is allowed by government
    • Indonesia:
    • Thailand: continuous military take overs and monarchy
  • huge economic diversity
    
    • World Bank: assigns world’s economies into income capacities – high, upper-middle, lower-middle and low based on Gross National Income/capita

Question 13

Role of developing states CW

Answer 13

• developing states have not always been victims of superpowers, can also be agents of exploitation within their own rights by looking at interests of developed states e.g. Iraq – America then Soviets, Egypt – shifted sides from Soviets to America (became manipulators rather than victims)
• economic disparity issues:
  
  • developing states have become agents of change asking for greater voice and support

Question 14

Developing states after CW

Answer 14

• failed states: Somalia, Rwanda, Afghanistan, former Yugoslavia
  
  • lost income and support
  • political structures not working and rights for even government officials not protected
  • state existed but wasn’t state
  • critics: should use terminology of failing states rather than failed states (not fixed)
• fragile states: weak state capacity and/or state legitimacy leaving citizens vulnerable to a range of shocks
  
  • World Bank: defines as is eligible for assistance from International Development Association, has had UN peacekeeping mission in the last 3 years, has received a governance score of <3.2 (as per the Country Performance and Institutional Assessment (CPIA) index of The World Bank)
• war on terrorism
  
  • new form of alliances with aims – American interest in countering terrorism can be used in these states’ interests
• emerging states that carry the promise of an Asian century