Final Exam Review INRChapter 11: International Law and NormsWhat is International Law?• International Law: A body of rules that binds states and other agents in world politics and is considered to have the status of law. • To stand as law, rules must be woven together by a unifying set of ideas.o The primary unifying concept is sovereignty• Law is defined by a set of both primary and secondary rules.o Primary rules are negative and positive injunctions regulating behavior Negative injunctions are prohibitory and take the form of “Do not do X,” where X is some more or less clearly specified actiono Secondary rules address rule making itself and specify the powers and processes that create or change primary rules. The constitution that structures the making of primary rules• To be governed by the “rule of law” is to set and enforce primary rules in ways that are consistent with secondary rules• Norms are often singular rules, disconnected from any larger body of rules, and can contradict secondary rules, especially sovereigntyHow Does International Law Get Made?• There are 2 principal mechanisms for making international lawo 1. Custom or accepted practice that is carried out by states based on a subjective belief that an action is a legal obligation. Customary International Law: international law that usually develops slowly, over time, as states recognize practices as appropriate and correct• Example: the law of diplomatic immunity, whereby ambassadors and other embassy staff are exempt from a host nation’s law. Secondary rules for the establishment of customary international law remain vagueo 2. International treaties, duly negotiated and ratified by statesIs All International Law The Same?• International law varies across several dimensions:• 1. Varies in obligation: the degree to which states are legally bound by an international rule. o High-obligation rules must be performed in good faith and, if breeched, require reparations to the injured party. • 2. Differs in its precision: the degree to which international legal obligations are fully specified. o More precise rules narrow the scope for reasonable interpretationo Much of international law is quite precise, with international treaties running to hundreds and sometimes thousands of pages of definitions, terms, and rules. • 3. Varies in degree of delegation: the degree to which third parties, such as courts, arbitrators, or mediators, are given authority to implement, interpret, and apply international legal rules, to resolve disputes over the rules, or to make additional rules. o When delegation is high and statutes are imprecise, courts through their interpretations may actually make a new law, a result sometimes decried by critics as “judicial activism”• These 3 dimensions can be aggregated into a single continuum of hard & soft lawo Hard law is obligatory, precisely defined, and delegates substantial authority to third parties, particularly international courtso Soft law is exhortatory, ambiguous, and does not delegate significant powers to third parties. Soft law is not a failure of law making but reflects intentional choices by states to write law appropriate to the issue area or to the extent of cooperation they are currently prepared to acceptDoes International Law Matter?• Proponents of international law view it as an effective tool in facilitating cooperation and managing conflicts• Others argue that states typically do comply with international law, and when they fail to do so, it is either because the law itself is imprecise of because they lack the capacity to fulfill their obligations• More skeptical observers see international law as unrealistic and utopian or at least a reflection of state interest rather than as a severe constraint on state action• Two main problems exist:o 1. Law is seldom precise enough to deal with every possible interaction between actorso 2. International law is the product of states’ interests and interactions With states crafting the laws that constraint them and then interpreting their meaning for their own purposes, it is very difficult for scholars to demonstrate conclusively that international law has an effect on state behavior over and above state interest• The enforcement of international law is dependent on the principle of national self-help.o This dependence on self-help necessarily limits the effectiveness of ito However, it is generally followed because of the very real and important benefits of cooperation it enables• Some international law also creates “compliance constituencies” within states that have interests in ensuring that their governments follow the ruleso States have an interest in following law so as to ensure that other states follow the rules also. What are International Norms?• Norms: standards of behavior for actors with a given identity; norms define what actions are “right” or appropriate under particular circumstanceso Norms may be codified into both hard and soft international law Soft law is often just the articulation of a norm, but can exist and be respected by members of a community when they aren’t formal• We can group norms into 3 broad categories:o 1. “Constitutive” norms define who is a legitimate or appropriate actor under what circumstances Ex.) Sovereignty o 2. “Procedural” norms define how decisions involving multiple actors should get madeo 3. “Regulative” norms govern the behavior of actors in their interactions with other actors The nuclear taboo is a regulative norm; countries do not use nuclear weapons for fear of retaliation• When not written down, norms exist only by collective assent• Norms are often most easily observed when they are violatedHow are International Norms Created?• For a principle or idea to become institutionalized as a norm, the standard of behavior it specifies must be accepted as morally right and appropriate by a sufficiently large proportion of any given populationo Child labor is one such principle• Norms typically begin with norms entrepreneurs: individuals or groups who seek to advance a principled standard of behavior for states and other actors• Transnational advocacy networks (TANs): A set of individuals and nongovernmental organizations acting in pursuit of a normative object.o Includes human rights, the environment, democracy, right to life, etc.• Within TANs, the constituent actors
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