International Law(text: 285-291)

Objectives:• Describe the transformation of IL into

supranational law• Categorize and summarize the laws of war• List and describe the theoretical

approaches to IL

IL becoming SUPRANATIOANAL

• At 1st IL was restricted:1. States were the main

subjects of IL2. States were the main

agents of IL3. IL was focused on only

inter-state relations4. IL was focused on only

questions of order, not justice

IL becoming SUPRANATIONAL• New changes in IL

1. Individuals, groups and organizations are now seen as subjects of IL

2. Non-state actors have become agents of IL

3. New focus on global, not just international, intervention

4. Broader focus of IL on justice (humanitarian law), not only order

The Laws of War• Jus ad bellum – focus is on

proper reasons for going to war at all

• Early writings stressed the importance of “just cause” when going to war• Unwarranted attack• Seeking reparations for damages• 19th C.: was also seen as a key

sovereign right of the state to serve state interests

– Post-WWII: only allowed for self-defense and as a UNSC sanctioned action

The Laws of War• Jus in bello: Deals with conduct during war• Legal constraints of actions during war:

1. The kind of weaponry permitted (HC)2. Proper treatment of military combatants (GC)3. Proper treatment of non-combatants (GC)

Laws of War: evidence of supranationalism

• Creation of int’l criminal tribunals for Rwanda and fmr. Yugoslavia

• Creation of the Int’l Criminal Court (ICC) after WWII– Established to prosecute

crimes of genocide, crimes against humanity, war crimes and crimes of aggression

USA – Iraq Case Study

Recent challenges to the laws of war1. Jus ad bellum – US attack on Iraq not seen

as legitimate– “preventative self-defense”

not very compelling

2. Jus in bello – Treatment of combatants– torture (at Gitmo)

Theories and IL

• Realism– argue that international

law is only important when it serves the interests of powerful states.

– Generally view international law as a primitive form of law with few enforcement mechanisms and few sanctions

Theories and IL

• Neoliberals– explain how self-interested states come to construct dense

networks of international legal regimes.

Theories and IL

• Constructivism – Treats international law

as part of the normative structures that condition state and non-state agency in international relations. Like other social norms, they emphasize the way in which law constitutes actors’ identities, interests, and strategies.

Theories and IL• New liberals

– emphasize the domestic origins of state preferences and, in turn, international law. Within international law, they stress the need to disaggregate the state to understand transnational legal integration and interaction, and they prioritize international humanitarian law.

Theories and IL

• Critical legal studies– Concentrates on the way

in which the inherent liberalism of international law seriously curtails its radical potential.

– Any int’l legal doctrine can justify multiple and competing outcomes