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REALIST VIEW OF INTERNATIONAL SOCIETY

Intl society is a society of States


States are the sole source of legitimate authority; they are sovereign
States are determined to maintain their status
Purpose of ILAW in the international society
Support the idea of a society of sovereign states through appropriate rules and laws
Provide basic rules of coexistence among states but dont undermine sovereignty
Help mobilize compliance with rules in the international society
Main source of intl legal agreements is State Consent
ILAW tends to cater to the interests of the most powerful
REALIST VIEW OF ILAW
Many realists oppose adopting an unduly legalistic approach to world politics
Fear ILAW is a straight jacket on their sovereignty
Distrust ILAWs emphasis on sovereign equality
Realist perception of ILAW they dont reject ILAW completely
States use ILAW arguments as a tool to support their national interests
See ILAW often as wishful thinking
See phenomena like war as extralegal
Inevitable ILAW reflects interests of most powerful
Most fundamental principle of ILAW (pacta sunt servanda) is qualified by the principle while circumstances
remain the same (rebus sic stantibus)
States are free to withdraw from treaties & are sole interpreters of when circumstances have changed
LIBERAL PARADIGM
Observing the world shows order does exist and is related to ILAW
Liberals focus on cooperative impulses of men and States
Assumptions
States increasingly compete with nonstate actors in producing outcomes in the international society
States are not unitary, single-minded entities driven by national interests, they are pluralistic collections of interests
& complex interdependence
States have mutual interests & will act collectively more often than realists believe
LIBERALIST VIEW OF INTERNATIONAL SOCIETY
Man is rational & cooperation is based on enlightened rationality of mutual gain
Shared vision of world order built on values
Challenges State-centered realism
Challenge the amorality of realism
Numerous actors are capable of influencing ILAW
Community values are center stage
Law and institutions serve a broad range of functions
Need value-laden institutions namely liberal democratic states and free trade
LIBERAL VIEW OF ILAW
Encourage the development of ILAW
Norm Entrepreneurs
Treaty development
General reject State control over all aspects of ILAW
NGO expansion
Institutions building
ILAW is a key to developing an integrated global approach to global issues that are proliferating
BRIDGING THE REALIST-LIBERAL DIVIDE
21
st
century will be pulled by two competing forces
History is search for the optimal political unit; swings b/t 2 extremes
Single universal political order
Multiple, small, fragmented polities
Competition b/t forces of integration and disintegration is not new, and this has implications for our world today
Aim is a more mature anarchy (Barry Buzans phrase)
Avoid bad liberalism (wishful thinking)
Avoid bad realism (resignation to failure)
NATURAL LAW
System of laws purportedly determined by nature & is universal
Certain rights and values are inherent in nature of man & can be universally understood through reason
Higher law from which all men can divine natural justice from injustice
It means the order that governs the actions of the universe
Some argue man is obliged to contribute to the greater good of society
Opposite of the positivists view of law - one that views law as whatever man says it is so long as the appropriate procedure
is used
Natural law is used to criticize positivist or specific written law by saying it is against nature
TWO SCHOOLS OF THOUGHT THAT DOUBT THE STATUS OF INTERNATIONAL LAW
2 schools of thought believe the political conditions necessary for an effective legal system to exist are absent in international
society
Positivist philosophy rejects natural law, based on math & science
Positivism in law
Authority of human political structures replace the science aspect of the philosophy
Law = command by a sovereign power backed by force
International law is enforced by moral sanctions and fear only, not true coercive law
Societies that only have norms have not advanced into true laws
Realism classic realists dont dismiss ILAW completely
International society is one of anarchy and all member states ceaselessly compete to pursue their own
interests
ILAW must rely on self-help
Struggle for power is not constrained by moral or legal principles
Cooperation is always limited and short term
ILAW has only limited role, its undeveloped; international community is decentralized
Inevitably, ILAW reflects interests of the powerful
RESPONSE TO POSITIVISTS AND REALISTS
Positivists and realists definition of law is oversimplified
Few laws are so unambiguous as to leave no room for interpretation
People dont only obey out of fear; they often accept law as legitimate or because it serves their self-interests
There are many laws or rules that have no coercive character
Law doesnt only come from a sovereign, it can evolve in the common law system where laws emerge through
courts & interpretations
ILAW is decentralized and under-developed, but it reflects intl society
In the real world the number of areas in which ILAW has come to play an important and growing part
REAL WORLD DEVELOPMENTS
Since 1945 there have been a number of areas that ILAW has played an important and growing part
Growth in various legal systems around specific treaties
States appear to take these rules seriously
Most states observe most rules almost all the time
When states dont observe the rules, they devote significant resources to try and demonstrate that what they are
doing does in fact accord with ILAW as they interpret it
NORMS vs. LAWS
Both norms and laws are techniques for societies or groups to gain compliance
Norms imply something ought to happen in a given circumstance
Enforced by informal, societal mechanisms
Generally vague; not interpreted uniformly
Often can vary depending on individual factors
Law employs a formal institution with established coercive sanctions
Has an separate, independent system of enforcement, courts, judiciary, rules of procedures, evidence
Standard is all are equal before the law
MODERN POSITIVIST HANS KELSEN
Detached science of law from other social sciences
Concept of norm is a proposition that something ought to happen in a given circumstance
Norms can prescribe or permit certain actions
Moral norms and legal norms are social techniques to achieve certain ends, but legal norms employ coercive
sanctions and function with their own distinctive and autonomous system with separate rules
ILAW meets the criteria for law because
States right to self-help acts as a functional equivalent to coercive sanction
ILAW has 2 characteristics that distinguish it from domestic law it is primitive and decentralized; lacks objective organs to
determine if wrong occurred and administer sanctions.
EVOLUTION OF INTERNATIONAL LAW
International society is decentralized system of power
Lacks norms and institutions to determine if a wrong occurred and to coerce States to correct themselves
Primitive legal systems can evolve to be more centralized and institutionalized
With increasing globalization, more formal law becomes more useful
Three stage process
From norms, customary international law develops
Then customary law is codified in treaties
Then treaties create institutions to enforce the codified norms
ILAW is a primitive legal system
EVOLVING INTERNATIONAL LAW
Interaction among states occurs in context of rules and norms
Example: Intl society is made up of sovereign states
Rules like non-interference in internal affairs and diplomatic immunity uphold that norm
Content of norms and rules have expanded in recent decades to include broad norms on human rights and the
environment
Norms and rules change through time
TWO VIEWS OF LAW
Rule of law model is an idealized type (law as more autonomous from politics)
Separates law from moral, social or economic factors
Legal systems had to be autonomous and separate from other aspects of society to prevent abuse and corruption
Requires professional class of highly trained professionals
Structural complexity and well established procedures
Roman view where there is society there is law (law as closely connected to politics)
Law is merely a set of norms and rules that have taken a particular form and acquired a particular function
covering certain interactions
How law acquires its form and functions is a product of political, social, economic and cultural factors
Gradually law evolves to be obligatory, universally applicable to members of a society, accepted as legitimate and
complex
Societies use a blend of state, religious and historical developments to create law
FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW
States must consent to any rule before it is bound by them
Hierarchy in the order of the three sources of ILAW
#1 Treaties expressly recognized
#2 Custom, practices accepted as law
#3 General principles recognized by states
Treaties must be observed pacta sunt servanda
While circumstances remain the same rebus sic stantibus
The second principal is qualified by the second
States are free to withdraw from treaties and are the sole interpreters of rebus sic stantibus
States are sovereign and equal; other States will not interfere with their domestic affairs
MAKING OF INTERNATIONAL LAW - TERRORISM EXAMPLE
Long disagreement on creating intl regime against terrorism
One mans terrorist is another mans freedom fighter
Could only get specific conventions on aerial hijacking, terrorist financing, internationally protected persons such as
diplomats
9/11 changed limited goals of terrorist with limited weapons into fear of global terrorists willing to kill large #s of civilians
US consistently used legal arguments in support of its actions including Guantanamo, invading Iraq, killing Bin
Laden
Strong criticism from international lawyers
Resulted in complex amalgam of legal, quasi-legal and unilateral and multilateral military measures that some see as
an emerging new regime
Others see it as breakdown in international law
SOFT LAW
Soft law = vast array of non-binding instruments that may have some legal consequences
Many object to using word law if it is non-binding
Includes things like General Assembly resolutions, codes of practice, joint communiques, framework agreements
Many states have come to prefer soft law for many reasons
Used to declare new norms that may lead to a later treaty
STATES ARE EVOLVING
States themselves are evolving
Increasing demands for welfare, not just national security
West has re-defined the understanding of what is a legitimate state
End of Cold War means West is less constrained to prop up regimes that fall far short of good governance standards
Concern for states reputation as a law-abiding and trust-worthy actor
Norm entrepreneurs play key role throughout the system
WHAT IS A PARADIGM?
Ways of seeing/understanding the world; based on series of assumptions or beliefs
Comprehensive perspectives that organize our overall understanding
Help us see meaningful patterns in a confusion of events
Steer our attention toward some things and away from others
Astronomy example
Hobbes and Locke
REALIST PARADIGM
Realists insist theyre skeptics; Hobbesian view
Believe power drives all politics, national and international
No world govt, legislature, court, police and never likely to be
Decentralized State system will remain in the future
Assumptions:
States are the lead actors on the world stage
States behave as unitary, ego-driven, rational actors; national security is #1 and almost only goal
Given decentralized, anarchic system w/o global govt, there is inherent mutual distrust; conflict is the norm; self-
help is bottom line
IDEALIST (LIBERAL) PARADIGM
Observing the intl system shows that order does exist and this order is related in important ways to ILAW
Focus on cooperative impulses of men & States; Locke based
Assumptions:
States increasingly compete with nonstate actors in producing outcomes in the international arena
States are not just unitary, single-minded entities driven by their national interests; they are more pluralistic
collections of interests
States have mutual interests in will act collectively to address problems more often that Realists believe
REVIEW OF RECENT MATERIAL
Do you understand the intimate connection b/t ILAW & intl politics?
What is international law? What is a political system? How do they inter-relate?
What are the key differences between domestic law and intl law?
Can you define/explain the following concepts?
Natural law
Rule of law model vs. Roman view (that where there is society there is law)
What do the positivists say about ILAW?
What is a paradigm? What do the Realist & Liberal paradigms claim about human nature, politics and ILAW?
Do you understand the relationship between norms and law?
What is a norm and soft law? What is the key difference b/t norms and law?
Stages of evolution of ILAW
ILAW IN ANTIQUITY
Is ILAW a European invention or an international phenomena?
Ancient times
Elementary self vs. other norms on how to treat members vs. outsiders
First likely areas of minimal norms were in diplomacy, treaties and war
Treaties, like contracts, originate in simple requirement (and moral norm) that promises need to be honored (pacta
sunt servanda)
500BC social and economic interaction was more intense & rules and norms expanded in Greece, Rome, India and
China
GREEK AND ROMAN LEGAL DEVELOPMENTS
Earliest Greek and Roman rules related to diplomacy, war, treaties
Just cause, rituals for start and end of war
Moved slowly from custom to written body of common jurisprudence
Very rudimentary institutional structure supported the laws
Rhetoric & debate started principle of justification for actions argued in public forum
Rome as law giver
Created sophisticate array of legal concepts & moved to delineate legal rules from religious obligations
Two distinct periods of Roman ILAW
500-150 BC fluctuating balance of power; dealt with several states on basis of equality
150BC 400AD Empire period; increase in centralization and based on t
MIDDLE AGES (400 1492)
Varied number of actors with varying kinds of legal authority
Though ignored in practice, war was morally connected to justice
Chivalric codes of righteous conduct in war in West and Islam
No universal or coherent body of rules or institutions, but some growth in:
Moral and ethical doctrines
State practice
Diplomacy
Origins of sovereignty
Legal culture
EMERGING POSITIVE ILAW (1500-1800)
Sovereign state system emerged in Europe
Explosion of scholarly writing
Law is the product and servant of specific political issues
Factors contributing to the emergence of ILAW
Discovery of New World
Stronger emphasis on territory
Increased legal research on defining society to which ILAW applies
Great Community of Mankind concept
society of States concept
GREAT COMMUNITY OF MANKIND & SOCIETY OF STATES
Great Community of Mankind
Human race as a whole should be seen as a single community governed by moral norms
Looked toward Greek and Roman stoics
Hugo Grotius (1583-1645) argued natural law would be valid even if God did not exist; included states, non-state
actors & individuals in ILAW
Society of States
Intl society isnt united by moral obligations but by common interests (order & liberty)
Emerich de Vattel (1714 67)
Each sovereign state claims and actually possesses an absolute independence from all others
Living in society imposed general obligations to live in harmony w/ other states
Only permissible institutional underpinnings to keep order are diplomacy & balance of power
TREATIES OF WESTPHALIA 1648
Ended the Thirty Years War
First major congress of its kind; almost all of Europe attended
Symbolic origin of the modern European intl society
Principle that rulers of a territory can determine the official religion
Freedom of religion
Shift toward positivist principle that ILAW is what a society of sovereign states consents to
FRENCH REVOLUTION TO LEAGUE OF NATIONS
French and American revolutions gave push to ideas of national self-determination and democracy
Had enduring impact on underlying principles of ILAW
Sovereignty based in the people, not the ruler
Rise of doctrine of sovereignty
Moved from basing ILAW on custom toward written consent
Treaties only bind those that sign
Areas covered did not impinge of key national interests
After Napoleonic ward, the rise of great powers to lay down the law to smaller powers when the great powers
agreed
Society of states gradually became universal
Developments in the area of war
CONTEMPORARY ILAW
UN gives institutional form to a legal order that is universal
Expanding areas that are subject to ILAW
Deeper process of legalization of world politics than ever before
Rise of soft law
Impact of globalization on the nature of intl society
Greater concern with internal affairs w/i states
Increased emphasis on human rights
Most ideas are Western rather than universal & have been resisted by some
Western emphasis on good governance by States also reinforce traditional state system
REVIEW OF LAST WEEK
Review of ILAW in Ancient and Medieval times
Elementary concepts of self vs. other; trade, war and diplomacy were first areas of minimal normative rules
Basic principles of ILAW come from formalized agreements (treaties)
Pacta sunt servanda and the concept of changed circumstances
Emergence of the positivists
What is the differences between the Great Community of Mankind idea of the international community
and the Society of States idea of that same community?
Rise of the Euro-centric Westphalian system
Europe centric at the start; global now
The rise of the State; its core elements and its key powers
Concept of state sovereignty
Foundation of interstate relations
What the UN Charter says about sovereign equality and non-intervention
UN Charters exception to non-intervention Chapter VI and VII
THIRTY YEARS WAR 1618-48
Europe in 1618 - conflict between Protestants and Catholics
Spain to Sweden - nightmarish famine, disease, destruction.
One of longest, most destructive conflicts in European history
Consequences
Devastation of entire regions
Decreased the population of the German states, Low Countries, Italy
Most combatant powers were bankrupted
"The Westphalian System"
The Peace of Westphalia = beginning of the intl state system
Key principles of the Peace of Westphalia
The principle of the sovereignty of states and the fundamental right of political self-determination for the ruler or
majority; minority protection
The principle of legal equality between states
The principle of non-intervention of one state in the internal affairs of another state
SOVEREIGNTY AS A CONCEPT
Sovereignty is the foundation of interstate relations and world order
Definition: Independent, unfettered power of state in its jurisdiction
It has never been inviolate, either in law or practice
Technology and communication have made borders permeable
Despite globalization, democratization and privatization worldwide, the state remain the fundamental building block of
international society
THE BASICS
Sovereignty denotes
Competence
Independence
Legal equality
Decides and acts without intrusions from other sovereign states
Includes things like political, economic, social and cultural systems
Formulation of foreign-policy
HISTORICAL EVOLUTION OF THE STATE
Treaty of Westphalia (1648)
Thirty years of religious wars
Supremacy of state enshrined with system of independent and equal units as a way of establishing peace and order
Montevideo Convention on Rights and Duties of States (1933)
Spells out 4 core elements
Permanent population
Defined territory
Functioning government
Ability to enter into relations with other states
Max Weber
Administrative apparatus with a monopoly on the legitimate use of force within its territorial borders
Some states are de jure but not de facto sovereign
TREATIES OF WESTPHALIA 1648
Ended the Thirty Years war
Marked the symbolic origin of the modern European intl society
Pushed the right of the rulers to determine official religion of territory
First major Congress of its kind, attended by almost all European states
Idea that ILAW is what a society of sovereign states consented to
Only applied to Europe; outside was open for colonization
SOVEREIGNTY AND THE UN CHARTER
Art 2(1) UN based on sovereign equality of all its members
Art 2(7) UN cannot interfere in domestic matters
Art 1(2) - all members assume obligations when they join UN
ICJ: b/t independent states, respect for territorial sovereignty is an essential foundation of intl relations
Sovereignty is key constitutional safeguard of intl order
Equality and legal status is customarily viewed as protection for weaker states in the face of pressure from powerful states
SOVEREIGNTY IS NOT UNLIMITED
Charters collective intl obligations for maintaining intl peace
Chapter VII sovereignty is not a barrier to Security Council action in response to threat to peace or an act of aggression.
Sovereignty may be limited by customary law & treaties
RESPONSIBILITIES OF SOVEREIGN STATES
Expanding network of obligations in field of human rights
Sovereignty cannot shield internal violations of human rights that contradict international obligations
First 45 years, Charter put state sovereignty over human rights
Balance shifted in 1990s; norm of nonintervention is softening
LIMITS TO SOVEREIGNTY
Erosion by economic, cultural, environmental interpenetration
Limits by customary law and voluntary treaty obligations
The right of self-determination
Weakening of the sanctity of borders
Broadening conception of international peace and security
The collapse of state authority
CONTINUITY IN STATE SOVEREIGNTY
State decision-making remains central to the entire system
There is no overriding global authority, in existence or soon to be in the making
CONTEMPORARY ILAW
Expansion of areas of intl life that are subject to intl law
Rise of soft law - rules and norms that create some sense of obligation among states, short of legal obligation by treaty
Impact of globalization
Greater concern with internal affairs within states
Increasing emphasis on human rights
Most ideas are Western rather than universal & some are resisted
Western emphasis on promoting good governance by viable States also reinforce the traditional State system
DEFINITIONS
INTERVENTION consists of various forms of nonconsensual action that directly challenge state sovereignty.
NONINTERFERENCE is the principle that affairs which fall within the domestic jurisdiction of states anchor the system of
international relations and one sovereign state must not intervene in opposition to another states authority
JURISDICTION broadly refers to the power, authority and competence of the state to govern persons and property on its
territory
INTL ACTORS, POWER AND AUTHORITY
Actor: any person or body whose decisions and actions have repercussions for intl politics
States are most important; they can wield significant armies; have the power to tax and spend; answer to no one
higher
Power: ability to affect others to get the outcomes one wants, to get others to do what the otherwise would not do
Hard vs. Soft (attractive) Power soft is not necessarily more effective or ethical; depends on circumstances
Authority: a moral, normative or juridical concept involving legitimacy
WORLD POLITICS AND INTERNATIONAL LAW
Overlap between actors in world politics and in intl law
Key actors in both categories
States
Intergovernmental organizations (IGO)
Nongovernmental organizations (NGO)
ROLE OF STATES
The most important actor in the system of ILAW are states
State practice gives rise to custom
Interstate negotiations produce treaties
Take part in proceedings before the International Court of Justice
Once a portion of territory is designated a state, that territory and its inhabitants are to be governed independently of
the populations of other portions of territory
Possess the armies and police organization
Control the embassies and consulates (see some of the functions of a diplomatic mission on page 24 of textbook)
SOVEREIGNTY
To belong to the international (political) system of states, a state must be sovereign.
Sovereign = constitutional independence, unfettered power within its jurisdiction
State capacity to enter into relations w/ other states & is key criterion of statehood
Independence is the right to exercise state functions w/i its territory, to the exclusion of any other state.
STATES, NATIONS AND NATION-STATES
State: a political unit that has territoriality, population, govt and sovereignty
Answers to no higher authority
To be a state, one must be recognized as state by other states
Monopoly on the legitimate use of force
Nation: group of people who have some combination of common language, culture, religion, history, mythology, identity or
sense of destiny, national narrative
Often claim right to self-determination (to decide ones own political fate)
Intl system reluctant to recognize secession except for serious genocide, violent state collapse, or oppression
Nation-State: a state whose citizens are overwhelmingly members of single group
STATES, NATIONS, NATION-STATES
Nations may be found within states, or the nation-state can have a state thats population is a single nation; or a state can
have a number of nations within its borders
In 19
th
century, the idea that every nation should have its own state grew
In 20
th
century the idea of self-determination grew
Woodrow Wilson announced a new intl order based upon justice and upon the rights of all people to determine for
themselves their own governments
SELF-DETERMINATION
Self=determination THE PRINCIPLE THAT THOSE LIVING WITHIN A PARTICULAR TERRITORY HAVE A
RIGHT TO CHOOSE THEIR OWN POLITICAL SYSTEM
Self-determination is listed in UN Charter as a general & specific purpose of UN
Intl Covenant proclaims that all peoples have the right of selfdetermination (peoples sometimes used in place
of nations or ethnic groups)
Can lead to integration or disintegration
Self-determination is an explosive principle
It does not prohibit civil war
Does not specify a means to resolve the conflicts that follow
Problem of overlapping rights to self-determination
STATE SUCCESSION
STATE SUCCESSION HOW ONE STATE RELACES ANOTHER AND WITH WHAT LEGAL AND
POLITICAL CONSEQUENCES
Two multilateral treaties cover when one state replaces another, legal and political consequences
Dissolution of USSR
Dissolution of Yugoslavia
RECOGNITION OF STATES
States want recognition from other states, so its a very controversial ILAW issue
Recognition and non-recognition were sometimes used to signify approval or disapproval
Express recognition a formal statement of recognition of a new state by an existing state
One unequivocal statement of full recognition of a state isestablish diplomatic relations
Implied recognition actions by an established state (making a bilateral treaty) with a new state that indicate it is
recognized as a state
US Position: US will now only recognize States, not Governments of those states, and will make a decision about
establishing diplomatic relations with governments instead
JURISDICTION OF THE STATE
Jurisdiction = legal authority & can relate to legislative, executive or judicial action
Some principles are in flux and states often disagree about them
Territorial principle - State has jurisdiction over all persons, property and activities in its territory and its airspace
and in the waters subject to its sovereignty
Active personality principle state may prosecute its nationals for crimes committed anywhere in the world (as long
as its domestic law allows for it); state may also prosecute crimes committed on its ship, aircraft and spacecraft
registered in its state.
Effects doctrine state may have jurisdiction over person whose behavior outside its territory causes injury within
its territory
Protective principle state may punish acts that threaten its security even if committed by non-nationals outside the
territory of the state
JURISDICTION OF THE STATE (CONT.)
Some aspects of the ILAW relating to jurisdiction are not clear
Passive personality principle some states assert the right to try a foreigner for injuring its nationals outside its
territory (but this is NOT a widely recognized right of jurisdiction)
Universal jurisdiction some internationally defined criminal offenses for which a state has jurisdiction to arrest
and try a person no matter where the offense occurred;
Slavery
Piracy
Genocide an certain war crimes
And offenses covered by various multilateral treaties on terrorism
Growing human rights litigation based on universal jurisdiction (Pinochet)
JURISDICTION OF A STATE OVER ANOTHER STATE
Jurisdiction of one state over another is a fundamental prohibition
No state has the legal right to exercise its jurisdiction over another state
State immunity a state may not perform any governmental act or send its agents to arrest or restrain any person or
property in the territory of another state without the latters consent
Doctrine of absolute state immunity the courts in one state cannot hear any case brought against a foreign state
unless the state has waived its immunity and consented to the proceedings.
By middle of 20
th
century, absolute immunity gave way to restrictive immunity which imposed limits on absolute
immunity
If a state is acting in a commercial capacity, it doesnt have a more privileged position than any other
trader or company
Should immunity be granted to states violating human rights?
HEAD-OF-STATE IMMUNITY
Pinochet case
Spain passed universal jurisdiction law over human rights violations and torture
1998 Spain issued an intl warrant for the arrest of Senator Augusto Pinochet who was in the UK getting medical
treatment
Pinochet was arrested a couple of weeks later in the UK
Arrest warrant alleged Pinochet intentionally inflicted severe pain and suffering while he was Chiles president
1988-92
1999 - House of Lords ruled Pinochet was not entitled to immunity
In March 2000 Home Secretary ruled Pinochet was too ill and frail to be extradited to Spain and he returned to Chile
and died

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