LECTURE 11 - Enforcement of IL Flashcards
Last deck of midterm study
3 types of IL
- public law
* Formally negotiated instruments such as treaties,
conventions, law of the sea, laws of war, etc…)
* Governs inter-state relationships and also with some IOs
No clear lines of international authority
* There is no central international government
* States all equal actors in international order
* International system anarchical in character
* All states formally have equal voice, agency
- Private international law, or conflict of laws
Part of a national legal framework treating with conflicts
between disputants in different jurisdictions
* which national court or international body may hear a case,
and
* Which legal jurisdiction applies to the issues in the case. - Supranational law
Specific regional agreement that supersedes the national laws
of member states when a conflict arises
* i.e., EU courts, provisions within the USMCA
can the powerful do anything? yes and no (US-Brazil Cotton dispute)
- Decade-long WTO complaint against US
- WTO rules limited US subsidies to ~$2 billion, actual levels ~$3.28
billion - Rulings in favour of Brazil in 2005 and 2008
- Allowed significant retaliatory measures, including $800 million in
retaliatory measures as well as abrogation of US intellectual
property rights provisions - With WTO threat in hand, alternate resolution negotiated
- US made direct payments to Brazil cotton institute, used to finance
activities with Cotton Four (Benin, Burkina Faso, Chad and Mali) - Changes made to US farm legislation and subsidies
- WTO rules are not supposed to allow a country to ‘buy out’ a dispute
- Not quite what happened here – Brazil received right to act, but
followed alternate path - Saw a search for realigned interests and avoidance of mutual
damage
Legal theory and adherence
to International Law I: Law of Nature School
There are universal principles of right and wrong
* These principles exist independent of any other
factor
* All individuals can recognize these principles
through the use of reason and conscience
* The state is composed of individuals
* The state is the expression of the collective will of
its inhabitants
* Therefore the state is bound by the laws of nature
Legal theory and adherence to International Law II: Positivist School
- International law is derived through negotiation
- As a negotiated instrument, the parties agree to
be bound by it - International law is therefore not a mechanism
of subordination, but rather of coordination - It is therefore rational for states to adhere to
international law
what happens if a state breaks IL?
It can sully the good name of a country
* A dispute can be taken to arbitration
* Adhering to results relies on parties
agreeing to be bound
* Pressure to be bound comes from
‘guarantors’, international community
* There can be a rupture in relations between
states
* Reprisals can be authorized by the international
community or even levelled unilaterally
why is law followed (from legal perspective)?
Faith that international is negotiated by willing
parties and thus reasonable and part of effort of
states to advance welfare of all nations
* Obedience and the following of rules ingrained into
human nature
* Emphasized when international legal
agreements incorporated as part of the a
country’s domestic legal canon
* Desire to have good world opinion and public
image of a State
* Fear that violation of the rules might invite
retaliation
* Moral influence of UN and other bodies along with
its potential to authorize physical retaliation
why is law followed (from political perspective)?
- A legal form of the Doomsday advice, or Legal Mutual
Assured Destruction - Any state can simply decide not to follow the
‘rules’ and trigger cascade - Mutually Assured Destruction (MAD), Post It Note
explanation - Nuclear deterrence theory
- If you attack me my response will be so bad we
will all die - Strategic logic behind the Cold War, stockpiling of
nuclear weapons - Seen in US approach to Weapons of Mass
Destruction (WMDs)
Logic of: legal Mutually Assured Destruction (MAD):
(a manipulation of nuclear deterrence logic)
If one state breaks rules, others will start
breaking them, too
* Creates a breakdown in predictability,
coordination
* Pushes international system to
Hobbesian state of nature
* Every state for itself is high-cost, zero-
sum
* Result is pressure not to go in this
direction
* Social contract theory on national,
international level about stability
* Violation of rules causes a breakdown in
norms, practices binding society
Game Theoretical Insights: Prisoner’s Dilemma (PD) and Iterative Games
- Video on set reading list looks at a single play of the game
- What happens if you play the game over and over?
- Known as an ‘iterative game’
- Do you learn to always ‘defect’?
- Do you learn to always ‘stay loyal’?
- Insight from Prisoner’s Dilemma for international law:
- Once you defect, you can’t go back
- Credibility as trustworthy actor is lost
- Others will not want to treat with you, enter into agreements
with you - Implication: to benefit from international law you have to
follow it even when you may not like a specific outcome
Weakness to MAD/PD logic in an international law context
Assumption is that all states are actually equal
* From earlier slide we know this is not true
* If you are sufficiently powerful, you can bend the rules a lot
* Having the right to do something is not the same as being able to do it
* Can you afford to litigate internationally?
* If awarded the right to impose sanctions, can you afford to?
* Issue transference – will righteous action in one area be too
expensive for other, more important interests?
* Both approaches predicated on assumptions of rational actor theory
* States always follow their interests and act with perfect
information
* But… how do you define interests and how do you process
information?
* There is a gendered/masculinized underpinning to how these
questions are answered
* Self-fulfilling prophecy since most major decision-makers are
male, but what will happen to logic as gender balance shifts?
Bureaucratic momentum as guarantor of law
- Creating public international law difficult and
expensive
* Although consensus-based, power politics key to ‘making’
consensus
* Who has the power (however defined) to generate consensus
now?
* Thus, if costs of creating new laws too high, but need efficiency
of laws…. - Tendency here of not wanting to do things again
* Creates a proclivity to revise and revisit, not to discard and
rewrite - Tendency to not want to change what already done
* Same reactions that afflict our requests you revise your essays
conclusion ~ global anarchy is what you make of it
International law an agreed
construct
* Reflective of international
norms propagated and
mediated by power politics
* International law creates stability
and coordination
* On balance, cheaper and
more efficient to follow than
to abrogate
* Coercive enforcement
mechanisms are minimal, rarely
seen
* Actors submit to rulings to
maintain system
* Adherence to international law a
result of strategic trade offs
* On balance, benefits
outweigh the costs
