MIDTERM 1 - POL S Flashcards
The 5 Cs of Law
Cops (enforcement)
Congress ( a central legislature)
Code - (a written compilation of all the written rules) domestic law in us, treaties IL
Courts (compulsory and binding dispute settlements)
Clink (jail)
Key publicists – Vitoria; Grotius; Vattel (know main ideas associated with them; minor
historical details not necessary)
Vitoria - believed in universal laws (to defend indigenous people)
Grotius - believed in international society based in law (freedom of the seas)
Vattel - believed in equality between states (The “Golden Rule of Sovereigns”)
This was the development of modern international law (a Western affair)
Natural vs. Positivist legal traditions
Positivist law - Law based on state consent
- Treaty law
- Customary law
Natural law - law based on (divine) principles governed by nature
argued that the UDHR has some more natural laws
Primary vs. Secondary rules
○ Treaties contain 2 Main Sets of Rules §
§Primary - Rules regulating behavior
§ Secondary - “rules about rules”
□ How rules are made, interpreted, withdrawn, exceptions, etc.
® Vienna Convention on the law of treaties (with annex) Concluded at Vienna on 23 May 1969 (Secondary laws_
Legalization components – obligation; precision; delegation
Obligation - similar to opinio juris, assigning this treaty and you have to do it
Precision - unambiguously define the concept that they require
Delegation - How they pass off who can punish another actor for not following the treaty
Pacta sunt servanda
"practices must be kept" - a part of "duties" - Non-intervention □Collective security exceptions - Responsibility and compensation □ German "War Guilt" Clause
Montevideo criteria for states
- General Criteria for New States
○ Objective criteria
§ Territory; Population; Government control/legitimacy
○ Various Subjective criteria
§ Example: Wilson Doctrine (1913-1929)
○ But NO consensus over legal criteria
○ Instead, importance of politics. But with huge legal consequences- Should objective criteria be enough? The principality of Sealand
○ Technically meets many objective tests, but no recognition - Should objective criteria be required? The Case of Palestine
○ Doesn’t meet most objective criteria - not necessarily by own choice
- Should objective criteria be enough? The principality of Sealand
Theories of state recognition (domestic and/or international)
State Recognition - Exclusive Club
- formal acknowledgement by existing state of the existence of another state
- Recognition = politically motivated
- Somaliland unrecognized state while Croatia is recognized, even though they have similar situations, Croatia was recognized by other states
The constitutive theory of recognition holds that a state does not exist until it receives recognition. By contrast, the declaratory theory of recognition holds that a state exists without recognition, which is merely an acknowledgment of an existing situation
- General Criteria for New States ○ Objective criteria § Territory; Population; Government control/legitimacy ○ Various Subjective criteria § Example: Wilson Doctrine (1913-1929) ○ But *NO* consensus over legal criteria ○ Instead, importance of politics. But with huge legal consequences
Common examples of state (non)recognition (e.g., Sealand, Somaliland, etc.)
Sealand - Technically meets many objective tests, but no recognition
Somaliland - is a Philosophical States - “I think, therefore I am (or might be)”
Palestine - Recognized But doesn’t meet most objective criteria - not necessarily by own choice
Defining elements of cooperation problems in IR (coordination, collaboration)
Coordination - dilemmas of common aversion
- Common interest in in avoiding particular outcome
- Creates multiple equilibria
- Trust is a problem for all international actors
ex: Rules for navigating the sea
Collaboration - dilemmas of common interest
- actors would benefit for cooperating (ensuring a particular outcome), but each has a unilateral incentive to defect
Ex: Fisheries
- Prisoner’s dilemma
Main functions of international law in addressing cooperation problems (e.g., transactions
costs, shadow of the future, focal points, information problems)
General Attributes of domestic vs International law
Domestic Law
- Domestic law arises from legislature that is created by a group of people within one country.
International Law
- International law is all about behaviors and actions of persons, companies or states and countries in cross border situations.
Ratification benefits vs. Sovereignty costs
- Ratification Benefits
○ Credible commitments (already covered)
§ More attractive for some States than others - trustworthiness
○ Short-term material benefits - trade; aid; etc.
○ Normative pressures
§ Cascade effect
“Logic of appropriateness”
- Ratification Costs - "Sovereignty Costs" ○ Policy change § Gap between treaty and existing policy § Barriers □ Legislative veto players □ Federalism ○ Unintended Consequences § External § Domestic □ Common law systems ○ Limited Flexibility § But some actors may *want* to tie hands - remember credible commitment
Understanding ratification patterns in the Convention against Torture (CAT)
- Strange relationship between Torture and CAT ratification
- Completely “opposite” for democracies and dictatorship
- No/One-Party States and the CAT
○ They are still pro-torture
○ No opposition groups to pressure joining CAT
○ So less likely to ratify the CAT - Multi-Party Dictatorship and the CAT
○ Multi-parties “incorporate” parts of society into regime
○ Regimes faces pressure from political parties
§ CAT as a type of concession
○ So more likely to join the CAT
- No/One-Party States and the CAT
Understanding the relationship between the spread of international humanitarian law
(IHL) and use of IHL
The Spread of IHL Leads to Less (Attempted) Use of IHL
○ IHL Codification = Growing Costs of Compliance
§ 1)Bureaucratic Costs
§ 2)Strategic Costs
□ Limiting Flexibility
® Cultural Property
□ Increased risk to own troops
§ 3)Legal Liability - international and domestic
§ 4)Domestic Political Costs
§ 5)International Reputation
□ India ICJ case for Bangladesh
War
- Irony of IHL Codification
○ Increased Legalization of IHL - Obligation, Precision, Delegation
○ But increases incentives to evade IHL
“Screening” vs. “Constraining” role of international law and credible commitments
Solving commitment problems #1 - Screening
○ Signaling intention to comply
○ Ex ante costs of ratification
§ Domestic or external
○ Costs provide information thus helps to separate (non)serious “types” of states
○ Higher than costs = the stronger the signal
But trade-off - may reduce participation
Solving commitment problems #2 - Constraining
○ Raises ex post costs on non-compliance - binds governments (more later in the course)
§ Reputational stakes
§ Audience costs
○ Higher expected ex post costs can increase credibility of current commitment
Understanding of the general advantages/disadvantages of hard and soft law
Advantages of Hard Law - Enhance credibility of commitments □ Collaboration > Coordination - Reduce (subsequent) transaction costs § Role of delegation § Precision and Default rules □ Vienna Convention on the Law of - - - Treaties ○ Provide different menu of strategies § Both internationally and domestically Include other actors - NGOs; individuals
Disadvantages of Hard Law
○ "Enforcement-bargaining paradox" ○ Difficult to reconcile states with different capabilities/preferences ○ Unintended consequences ○ Laws of War, aka international Humanitarian Law (IHL) ○ Regulate the conduct of armed actors § Humanize, not outlaw, war ○ Customary for centuries - Just War Theory ○ But increasingly codifies - 2 branches § 1)Geneva Law = protection of war victims § 2)Hague Law = conduct of hostilities (e.g. weapons, ruses, etc.) § Though increasingly converging…
Case of Kosovo independence and recognition
- Case Study - Kosovo
○ Semi-autonomous region in Yugoslavia
○ 1989 - lose autonomous status
○ 1991-1992 - Breakup of Yugoslavia
○ 1996 - Start of insurgency by Kosovo Liberation Army (KLA)
○ 1998 - Worsening ethnic violence
○ 1999 - Kosovo War; NATO coalition defeats Serbs
○ 1999+ UN Transitional Administration (UNMIK)
§ UNSC Res. 1244
○ Republic of Kosovo declared independence on Feb. 17 2008
○ But WHO agrees??
○ At present, recognized by about 100 (half) of all UN states- Kosovo in Perspective - Somethin to Consider for Section
○ What costs and benefits…
○ …. LOOK AT LECTURE - The Politics of State Birth - A Larger Empirical Study
○ State birth over time
○ In 20th Century, 1/3 of independence movements succeeded - State Birth - Domestic Explanations
○ Ethno-national distinctiveness and mobilization
○ Domestic institutions and empowerment
§ Colonies/Federations
○ Relative power - Domestic Explanations - Problems
○ I line between new states and non-state actors clear?
○ Remember Somaliland
Vs
○ Bosnia-Herzegovina - State Birth - International Explanations
○ Key role of external legitimacy - i.e., what other states ay
○ Great Powers as main legitimizers
○ Political factors
§ External security
§ Domestic Insecurity
§ Coordination
- Kosovo in Perspective - Somethin to Consider for Section
Defining attributes of main sources of international law with appreciation of relevant
applications (e.g., treaties, customary law, general principles, judicial decisions, etc.)
Principled treaty (Cartage protocol) vs negotiable treaty (Kyoto protocal)
Enforcement-bargaining paradox
○ “Enforcement-bargaining paradox”
§ The WTO and the Doha Round - a victim of its own success?
○ Difficult to reconcile states with different capabilities/preferences, Unintended consequences
Treaty sabotage (principled vs. negotiable treaties)
Main International Relations (IR) paradigms and their application to international law
(Realism, Liberalism, and Constructivism)
General Types of commitment (e.g., sincere non-ratifiers; sincere ratifiers; false
negatives; false positives)
