International Law
· Sovereigns can create binding
obligations among each other
· States ‘contract’ with each other in
making treaties
Does International Law Exist?
·
No:
J. Austin’s positive theory of law (the sovereign ‘posits’ the law)
“a rule R is legally valid (i.e., is a law) in a society S if and only if R is
commanded by the sovereign in S and is backed up with the threat of a
sanction.”
·
Yes:
international law is ‘de-centralized’ or ‘un-centralized’ (H. Kelsen)
o
States
make treaties (joint law-making) and most recognize each other’s sovereignty
Types of Law
-
customary
law: long-standing practices that are regarded as binding
o
freedom
of navigation
o
diplomatic
immunity
-
treaty
law: formal agreements
o
Law
of the Sea (1982/1994)
§
12-mile
territorial sea
§
200-mile
exclusive economic zone
o
-
‘soft law’: norms & principles
o
Final
Act of CSCE
o
UN Declaration of Human Rights
(1948)
Theoretical Approaches and Int’l Law
Realism
-
international law is created to serve the interests of powerful states.
-
States
will violate international law ‘when it serves their interests’
Liberalism
-
international
law is created to serve the common interests of states
-
preservation
of international law may become an interest
in and of itself
-
Most
international law is followed most of the time
Constructivism
-
international
law reflects shared understandings about rights and duties in international
society
-
norms
of appropriateness (under law) prevail over logic of consequences
Law and Diplomacy
-
diplomatic
negotiations conducted in the language of international law
-
arms
control agreements as treaties v. non-binding commitments
-
basis
of talks around I-L
o
negotiations
w/ Iran & DPRK re NPT
o
US
detention policies