Lecture 2: International law and international relations theory

Question 1

How did the US and others avoid falling into legal trouble with the killing of Bin Laden?

Answer 1

Since IL dictates that you cannot kill an enemy who has surrendered, they didn’t allow him to surrender. So US hired IL lawyers who said that:

1. There was a state of emergency in Pakistan
2. If Bin Laden was dressed, they could assume he had weapons
3. Civilian killings justified with the value of killing Bin Laden
4. Offering body to Saudi Arabia for burial (requirement of IL), they refused and they buried him in the ocean to avoid his grave becoming a shrine

Question 2

What does the example of Bin Laden show about the relationship between IL and IR?

Answer 2

That IL is subject to power relations in IR and that IL can be seen as a constraint, legitimizing force, enabler, fig leaf etc. all at the same time

Question 3

What is the point of Moyn’s saying that the US has abandoned peace and reinvented war?

Answer 3

International humanitarian law has made war more justifiable and legalized, meaning you have a license to go to war if you use humanitarian justifications

Question 4

According to realism, IL is ephiphenomenal - what does this mean?

Answer 4

It is a product of state self-interest and has no value on its own because of anarchy in the international system

Question 5

How does realism question the relationship between state compliance and effectiveness?

Answer 5

Effectiveness: law can make states act in ways contrary to their self-interest

Compliance: when states do happen to follow what IL says, but only because it serves their interest

Purely correlation, not causation

Question 6

How do classical realists see IL?

Answer 6

They talk about it, but only to critique it and undermine its significance - they see it as a primitive type of law because of lack of enforcement

Question 7

How do structural realists/neorealists see IL?

Answer 7

Nothing else matters except states; everything is determined by anarchy and change only happens through changes in the distribution of power (=IL does not matter)

Question 8

What do most realists today say about IL? And examples

Answer 8

They acknowledge that IL can have important functions, but not that it has autonomous explanatory power for state behavior

E.g. IL make interactions more efficient, create incentives for weaker states to change, facilitate cooperation among powerful states and weaker states, generation information flows -> IL only matters in relation to power

Question 9

3 questions that realism can’t answer regarding IL

Answer 9

1. How do they explain the explosive growth of IL in both numbers and scope?
2. How do they explain instances where strong states are constrained by law or when weaker states use law successfully against them?
3. How do they account for the role of IL within states in shaping foreign policy preferences, goven they ignore the domestic level entirely? (US and Bin Laden example)

Question 10

How do liberal institutionalism differ from realists in their understanding of IL?

Answer 10

Liberals think that IL matters because it facilitates collaboration by preventing cheating, sharing information, and lowering transaction costs -> IL can change behavior

Question 11

How do liberals see IL as useful?

Answer 11

It has no autonomy of its own and no generative power, but it can be used as an instrument

Question 12

4 questions liberal institutionalism cannot answer regarding IL

Answer 12

1. Law is viewed as an institution like any other - how does that work?
2. What about customary IL?
3. Does legitimacy matter at all? Is legitimacy a feature of law and if not, does it become like any other institution?
4. Is law best viewed as a product or a process? Is law what is written in the books or the process of generating rules? Liberals tend to only talk about the end-product

Question 13

How do constructivists view IL?

Answer 13

Law is not a by-product of power relations or an instrument for advancing interests, but an institution of the international system with its own agency and power

Question 14

How do constructivists view the relationship between IL and international politics?

Answer 14

IL is viewed as being mutually constitutive with international politics

Question 15

One question that constructivists have a hard time answering regarding IL

Answer 15

Does viewing IL as a norm dilute the distinctive character of IL qua law? Is there anything distinctive about law as opposed to other (social) norms?

Question 16

How do constructivists (Toope and Brunnée) attempt to distinguish IL from social norms?

Answer 16

IL is distinctive in obeying certain “criteria of legality” which generates legal legitimacy and a sense of obligation to obey:

Generality, promulgation, non-retroactivity, clarity, non-contradiction, not asking the impossible, constancy, congruence between rules and official action

Question 17

What do all critical approaches share

Answer 17

A desire to expose what they see as the fundamental failings of IL and to destabilize its core assumptions = normative

Question 18

What are the historical origins of critical theory in IL?

Answer 18

Right-wing, from conservative German lawyers who were critical of the Versailles peace settlement (seen as the justice of the victors, not IL)

Question 19

How does post-colonial approaches (TWAIL) look at IL? 2 points and one example

Answer 19

1. Looks at the role of IL in development and expansion of imperialism
2. Focuses on the history of IL and its entanglements with imperialism and empires

Example: “treaties” drafted with African leaders under colonialism meant that sovereignty of African leaders were briefly recognized in order to get them to make concessions to the imperialists -> show IL as a tool of power

Question 20

How does radical indeterminacy look at IL?

Answer 20

Any given course of action is both permitted and prohibited by law, so legal arguments can be made both for and against any proposed state conduct, which is a fundamental part of liberalism

Example: IL serves both as an apology for actions and a utopia. IL only exists because it is vague enough to represent both, but this means it can never achieve what it wants

Question 21

What is one example of examining race relations in IL?

Answer 21

ICC never having prosecuted a leader from outside Africa

Question 22

2 examples of looking at IL and capitalism

Answer 22

1. International investment treaties are a way to protect colonial capitalism after giving up official control of countries (=neo-colonialism)
2. IL promotes capitalism as a criteria for being civilized, but when non-capitalist countries adopt capitalism to gain entry into ‘family of civilizations’, IL keeps them down still because of Eurocentric hierarchy