Lecture Notes International Law And Human Rights (6442HILHR)
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Course
International Law And Human Rights (6442HILHR)
Institution
Universiteit Leiden (UL)
These are my complete notes from the International Law and Human Rights lectures taught in the second year of IRO. If there is anything about the exam, this is about the May 2021 exam.
Lecture 1 – Introduction
• Exam will be 3 questions of 500 words each (essay)
What you will know in 6 weeks.
• Situate International Law (IL) into a broader historical trajectory
• Analyze the dynamic between IL and international politics
• Identify the core controversies and debates in IL
• Deconstruct the methodological commitments of IR theories about IL
• Apply IL in simple cases
Course is structured in three parts
• Part 1: Theories and histories of IL
• Part 2: Structures and mechanisms of IL
• Part 3: Core issues of IL
What is law?
• “Law is the recognized, mostly codified, legitimate standard of behaviour that binds
community together”
• Law tends to have three essential properties:
1) Law is universal (applies to everyone equally)
A lot of history involves people fighting against a Crown for more
rights
Statue of Justitia wears a blindfold not considering social status
2) Law is coercive (transgression and violations are punished)
Not that they can be punished, but that they are routinely punished
3) Law is open: individuals can establish their own relationships within the law
and shape it
Might not be so intuitive
Unlimited number of legal relationships between people
The law is of direct immediate use to everybody
If it’s closed, it’s not considered law
Why have law?
• Large societies need formal rules that can be enforced bc:
o You can make long-term decisions
We have bigger projects that we seek to undertake in modern societies
o Order
Transgressions are punished
People are nudged to follow one line that the law opens up for you to
live your life
o Predictability of outcome
We want to know beforehand what the outcome of a situation is going
to be
Know punishment of transgression
o You can trade with people who are far away
Before nation-states, you only had small societies you had trust
relationships, but this became difficult when trade relations grew
Now you’re trading with people you don’t know law helps with this
(you can trust the law and don’t have to trust the person individually)
o There is someone to enforce the rules when you have a dispute
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,But why? I study IR!
• IR is the study of relations between actors across national borders
o And states have decided to make use of law to interact with each other
(language of communicating)
• IL informs foreign policy decisions
• IL is a way of solving problems with a global scope
o Can bring humanity closer together
• IL has expanded significantly in the past century and continues to accelerate
o Lot of IOs informed by this
• IR scholars have to engage with public international law
International law and foreign policy
• IL has played an outsized role in informing foreign policy
• President Coolidge (1920)
• Key aim of public policy is to reduce “domestic and foreign relations to a system of
laws”
o Very utilitarian
International law and foreign policy
• President Obama’s National Security Strategy or 2010
• (...) we should strengthen enforcement of international law and our commitment to
engage and modernize international institutions and frameworks.
• (...) strengthening of international norms, and enforcement of international law is not a
task for the United States alone—but together with like-minded nations, it is a task we
can lead.
What is international law?
• There are two types of international law:
1) Public International Law
“a set of rules that states create to regulate and order their own
behaviour and that are intended to bind states in their relationships with
each other”
States and their relationships with each other
2) Private International Law (also known as Conflict of Laws)
“areas of conflict between national laws and international actors
(people, companies/corporations, or legal entities).
Everything that is not states having a problem that they want to solve
through the law and that has a transnational element to it
They ask: the law of which country applies?
Public international law
• PIL is what IR scholars study when they say “international law”
• PIL is what we are going to look at in our course
• PIL what you would intuitively consider to be “international law”
• PIL are for instance: Human Rights, World Trade Organisation...
Private international law
• Covers areas dealing with the clash of domestic laws and domestic laws with
international law
• Traces its history to Roman Law and has not been the focus of IR scholars
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, • Focuses on businesses that have contractual obligations in multiple countries and
jurisdictions
• Focuses on legal disagreements between private parties
• Dispute settlement (arbitration) outside of domestic legal frameworks
International law /= domestic law
• Domestic law:
o Formal rules have some type of enforcement
o Sovereign makes law and uses force to make people comply
• International law:
o No sovereign no legitimate enforcer
o Force plays a very limited part in enforcement
o … other forms of sanctions are required to make states comply
Theories of international law in IR
• Theoretical perspectives in IR have very different views of IL
o Is always a good Exam Q!
• They disagree over what motivates actors:
1) Realist approaches
2) Functionalist approaches
3) Constructivist approaches
4) Marxist approaches
5) Critical approaches
1) Realism
• Analytical focus on state power and state interest
• IL reflects the power and interest of states
o The only reason why they would take IL seriously is if they are being coerced
or if it is in their interest
• There is no need to explain the proliferation of legal agreements as the question is not
central to world politics
• Compliance of states to IL is seen as an expression of their national interest
• IL is inconsequential and only epiphenomenal of power!
o Power is the most important thing, once we understand power everything else
falls into place
2) Functionalism/Rationalism
• Look at the world: it is organized in large cooperative structures! Clearly nation states
must care about IL
o We have organizations structuring our actions
• States enjoy order and the benefits that come with cooperation over time
o They like predictability
• States spent money and time to justifying their actions under IL
• They accept the central realist tenant of rational egoism but argue that realists have
focused on too narrow on short term gains
• Interest is not a zero-sum game = all state can win if they work together
• International law matters!
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, 3) Constructivist approaches
• Focus less on materialistic and strategic approaches to theorize IL and more on
sociological and contextual views
o It is socially constructed
o The content is not that important
o But how, the discourse that produces that entity
o Ex: What makes a sex?
• There is an inherently sociological nature of the development of international regimes
• Understanding the actors' purposes and intentions is central to understanding the
existence and operation of IL
• IL reflects and informs struggles over international legitimacy
• IL is a reflection of social purpose!
Why do states sign international legal agreements?
• Realism: primarily for cynical reasons; little expectation of compliance
• Functionalism: states want to realize joint future gains
o Costs of committing are lower than the benefits to be gained
o Paris agreement: if everyone lowers their carbon emissions, everyone would
benefit
• Constructivists: states commit because they become persuaded of the appropriateness
of such action and to fashion themselves as a legitimate state.
How is international law implemented?
• Different legal systems absorb international law in different ways
• There are, however, two broad theories of understanding the interaction of
international law with domestic law
o Dualism
o Monism
Dualism (Heinrich Triepel)
• Mainly prevalent in common law jurisdictions (UK, USA, India...)
• Emphasizes the difference between national and international law
o It requires a translation of one into the other
• For IL to be valid it needs to be adopted and translated into national law
• National law has priority over IL that has not been incorporated!
• In more extreme cases, dualist hold that international law does not exist as law
o It also has to be domestic law
• International law can also be intervening in your rights
o Think of farmers cursing EU dictating how fat our potatoes should be
o State coming in and protecting citizens from IL
• But in other instances, international law grants you more rights
Monism (Hans Kelsen)
• Mainly prevalent in civil law jurisdiction (like the Netherlands, Germany, France,
Italy...)
• The international legal framework and the internal legal system form a unity
o Hierarchical relationship IL is on top of domestic law affects you
immediately
o Comes from Roman Law was a kind of international legal order (between
disputes in Europe)
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