Summary COMPLETE OVERVIEW International Law and Human Rights (6442HILHRY)
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Course
International Law and Human Rights (6442HILHRY)
Institution
Universiteit Leiden (UL)
This document contains a complete overview for the course International Law and Human Rights given in the second year of the IRO course at Leiden University. This is perfect for studying and revising after you have done all the lectures.
Lecture 1: International Law and the Readings:
study of politics Beth Simmons
● Traditionally, IL has been used as a tool of foreign policy, powerful states have used it to legitimize actions and justify
the use of force.
● IL can also be used to constrain state behavior by creating norms of behavior that states are expected to follow.
● States comply with IL because states want to be legitimate actors in the international system, additionally they comply
because non-compliance causes economic sanctions or military action.
● ICJ and ICC play an important role in promoting compliance with IL by providing a forum for states to resolve disputes
and holding individuals accountable for violations of IL.
● The rise of non-state actors and the complexity of IR have made it difficult to enforce IL, additionally the rejection of the
ICC by the US has raised questions about the effectiveness of IL in enforcing compliance.
The politics of IL - chapter 1
● IL is inherently political, because it is created and enforced by states and it reflects their interests and values.
● The development of IL has been shaped by political actors such as the BoP and the influence on non-state actors (IO’s
and civil society groups).
● Realist perspective on relationship IL & politics= IL is a tool of powerful states to advance their interests
● Liberal perspective on relationship IL & politics= IL is a means of promoting cooperation and reducing conflict among
states.
● Critical approaches= IL is a site of contestation among actors with competing interests and values.
Non-state actors and the complexity of global governance make it difficult to enforce international law. Additionally, populist and
nationalist movements might reject international legal norms in favor of national sovereignty.
International law = the body of rules that states consider binding in their mutual relations
Hard law= law as traditionally understood by most people, usually in the form of legally binding treaties
Soft law= a variety of non-bin ding normatively worded instruments used in contemporary international relations by states and
international organizations
Between WWI & WWII:
● International law was viewed as key aspect to securing world peace (Kellogg-Briand Pact)
● After WWII there was a breach between ILe & IR
After WWII:
● International lawyers → emphasizing the separation of law and politics (studying specific legal rules and
decision-making processes)
● International relations scholars → ignoring IL, focused on regimes, norms and institutions (all but using
the world ‘law’)
However, after WWII there were a lot of international institutions established (UN, GATT, WTO, EU). So does this mean that IL is
resilient? Or that IL is distinct from power relations?
,Lecture 2: International law and the Readings:
international relations theory The main problems of international law (Morgenthau)
● IL is constrained by the anarchic structure of the international system and the pursuit of national interests, however it
could still play a role in regulating the behavior of states.
● IL is unable to prevent or deter war/aggression, because states act in their own interests, states do comply with IL, but
that is because of the power of the enforcing party (not IL norms itself).
● IL is often unable to address the power imbalances that exist between states, so IL’s role in facilitating cooperation and
resolving disputes is limited.
● IL should be grounded in a realistic understanding of the motivation and interests of states (not the utopian vision of
global governance).
The politics of IL (Reus-Smit):
● Realism, Liberalism and Constructivism are all insightful theories that explain the role of politics in shaping IL, however,
none is sufficient on its own.
● IL is created and enforced by states, and it reflects their interests and values, IO’s and civil society groups also play a
role in shaping IL.
● Non-state actors and the complexity of global governance make it difficult to enforce international law.
● IL can play a role in promoting global justice and human rights, but this requires a critical engagement with the political
nature of international law.
The demand for international regimes (Keohane):
● International regimes are created in response to the demands of actors in the international system.
● Actors demand international regimes when they face collective action problems.
● Issue linkage (= connections between different issue areas) is important for the design of international regimes.
● International regimes facilitate cooperation and resolve collective action problems by providing information and reducing
transaction costs.
● International regimes might be undermined by power imbalances and the changing interests of actors.
The politics of IL - chapter 2:
● The relationship between sovereignty and IL has been a key source of tension in the international system.
● Sovereignty emerged in the Westphalian system of international relations, now there is tension between the ideal of
absolute sovereignty and the reality of increasing interdependence.
● Traditionally, IL is subordinate to state sovereignty, however this is now challenged by the growth of international legal
norms and institutions.
● New forms of sovereignty have emerged:
- Responsible sovereignty = emphasizes the responsibilities of states to their citizens and the international
community
- Shared sovereignty = emphasizes the need for cooperation and coordination among states in addressing
global problems
● There will be tension between IL and global governance in the future, so there must be a balance between these two
ideals/
Realism:
● The most critical of IL’s potential to constrain state behavior → if you insist on the compliance of legal
, rules war might be more likely.
● Law has a moderating function within states, because of hierarchy of authority and enforcement.
● State compliance does not mean that IL is effective → states comply when the cost-benefit calculus is
preferable.
Liberalism/Institutionalism:
● Shares most of the assumptions of realism when it comes to the nature of international space.
● Law has the role of facilitating collaboration (preventing of cheating, share information, lower transaction costs).
● State behavior vis-a-vis IL is explained by looking at maximizing interests/
Constructivism:
● Emphasis on the socially constructed nature of state interests.
● IL and international politics are in a mutually constitutive relationship.
● Law is viewed as an institution of the international system with its own agency.
● IL is distinctive from social norms because it obeys certain criteria of legality.
Critical approaches:
● Post-colonialism, Marxism, Feminism etc.
● Share the desire to expose what they see as the fundamental failings of IL and to destabilize its core assumptions.
● TWAIL = Third World Approaches to International Law
● Radical indeterminacy: any given course of action is both permitted and prohibited by law, so that legal arguments can
be made both for and against any proposed of state conduct
Lecture 3: History of the Readings:
development of International Law (I) The epochs of international law:
● The history of IL can be divided into distinct ‘epochs’ each with their own principles, institutions and practices.
● Ancient Greece/ Rome
- Natural law & jus gentium
● Medieval period
- Catholic church
● The first epoch → emergence of the modern state system
- Emergence of the sovereign state and state sovereignty as a concept.
● The second epoch → European colonial expansion (19th century)
- Expansions european states
- Establishment of new legal norms to govern relations with non-European societies.
● The third epoch → International cooperation and organization after WWI
- Development of international institutions → League of Nations
- Emergence of new legal principles → international responsibility
● Contemporary era of IL
- Globalization of legal norms
- Increasing importance of NSA
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