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      Vienna Convention on Diplomatic Relations (1961/1964)

o      UN Charter

-          ‘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