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Summary on the articles of international law and human rights
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International Law and International Relations –Beth Simmons
1 Scope and Background
International law
o = set of rules intended to bind states in their relationships with each other
o largely designed to apply to states, both to constrain (the laws of war) and to empower them
(law of sovereignty)
o Increasingly, IL has been codified, so that today most intern obligations are contained in treaty
form, although historically customary IL played relatively more important role than it does
today
o role of IL in informing foreign policy decision making has waxed and waned over the past
century
o has also varied significantly across countries
lesson of 1930s and 40s was that of misplaced trust in IL as touchstone for foreign policy-making
post-World War II period unleashed some of harshest critical scholarship on the misplaced role
of law in intern affairs
o ironically, however, it was also a period in which IL was ever more deeply woven into texture of
intern affairs in such areas as use of force and coll security, intern trade and monetary relations,
and intern human rights
It is striking the extent to which intern interactions have become reflected in and regulated by
formal state-to-state agreements. Multilateral treaties have proliferated over the past century
postwar proliferation of state actors post-decolonization has meant that these rules bind more
players, extending the scope of law practically worldwide
Social scientists have been less concerned about whether we want to call these rules “law,”
“agreements,” “conventions,” or something else
o been more focused on explaining why G’s choose to formalize their agreements at all, and what
influence this has on their future expectations, beliefs, understandings, especially, behavior
Hedley Bull
, o many consider to be founder of British English School of IR and early precursor to present day
constructivist theorists
o recognized that the status of these rules was essentially socially constructed
pol scientists for a time eschewed this terminology altogether and in 1970s established a parallel
yet more positive agenda: the study of international “regimes.”
o “Regimes” = defined to encompass rules, norms, and decision-making procedures
By 1990s, many of these same scholars turned their attention specifically to the “legalization” of
IR = increasing precision, obligation, and delegation to be found in treaties and intern custom
Today, divisions remain over the value and scope of IL for purposes of social scientific studies
2 Political Theories of International Law
IL as studied by political scientists is typically embedded in theories of IR
o There are 2 major questions that help to organize the dominant theoretical orientations to IL
1. 1st divide is over what motivates actors in IR
o Realism along w various rationalist approaches
focus on the material incentives for certain behaviors
look for incentives states, other actors may or may not have to create rules & comply w them
Traditional realists take a dim view of the ability of legal agreements fundamentally to alter
the incentives states face in their mutual relationships with one another
o Rationalists
give more play to the eq behavior rules can induce in LT, and often see a + role for
enforcement via reciprocity
o Constructivist approaches
are quite diff in orientation
emphasize social nature of IL, extent to which it reflects normative expectations, and the
persuasive rhetoric as well as identity politics that inform law creation and compliance
2. 2nd divide is over the relevant actors on which our analyses should primarily focus
, o study of IL is influenced by the state-centric focus of IR generally
o Liberal theories, however, place civil society at the center of the analysis
They understand IL’s development and influence as flowing from the interaction of state and
civil society (dom and transnat)
Realist scholars of IR tend to ignore IL in their analyses precisely bc they see no compelling
theoretical reason to do other wise as a consequence, realist studies of IL are few compared
to the much wider array of studies w rationalist, constructivist, and liberal theoretical moorings
o Nonetheless, realist theory deserves attention bc it is typically the “null hypothesis” against
which a variety of alternative approaches compare their insights
2.1 Realism
Realism's hostility to IL - both positive and prescriptive- is well known
The analytic focus here is on state power and state interests
o IL reflects the power and interests of the states that take part in its generation, but does little
to tame the use of power in the name of interests (prescriptively: nor should it)
Compliance against the grain of interests is interpreted as result of coercion on the part of more
powerful states or other actors
These views are well represented among academic realists
Intern agreements lacked restraining power, as Hans Morgenthau argued, since G’s generally
retain the right to interpret and apply the provisions of intern agreements selectively
Traditional realism split in two different directions by the 1970s
o 1. British English School of IR
absorbed centrality of power and interest into their account of intern order, but began to
acknowledge a place for “international society” and the role of shared social purposes among
states, without which IL was unlikely to provide much stability
o 2. Neorealism
as advanced by Kenneth Waltz (1979)
, stripped the essential pol structure down to bare bones of power relationship among states,
though efforts have since been made to restore norms to the relevant intern “structure”
Despite or perhaps bc of their skepticism, realists have made an important contribution to the
way scholars from other theoretical perspectives have come to study IL
o Realist challenges for evidence that IL matters & isnt merely epiphenomenal to interests forced
researchers to confront problems of endogeneity/selection bias in their empirical studies
mainstream realist view: IL compliance is largely explained by coercion or coincidence of interest
2.2 Rational/Functionalist Theories
in the last quarter century eschewed the word “law” altogether
o Instead, cluster of scholars developed a research agenda on “international regimes:”
= rules, norms, and decision-making procedures, around which actors' expectations converge
in given issue area
o most innovative theoretical contribution to understanding of intern regimes idea that
“demand for intern regimes” (Keohane 1983) could largely be theorized to result from a
nonmyopic understanding of the need for rules in order to enjoy the fruits of coop over time
this has since been taken up enthusiastically by some intern legal scholars
Robert Keohane's functional theory of intern regimes has had a profound impact on study of IL
and inst (1984)
o main contribution was to explain something the realists could not why world become so
extensively organized into cooperative structures, especially since WWII
Accepting central realist tenet of rational egoism, Keohane theorized longer time horizons and
denser transactions than realists were willing to assume
o His approach yielded a rational explanation for rules that generate joint gains by reducing
uncertainty, minimizing transactions costs, creating focal points, raising expectations of
compliance
Functionalist theories akin to those pioneered by Keohane dominate much current theorizing in il
o Despite their great variety, rationalist models of law and inst owe good deal to Keohane's
insights about self-interested actors' motives to design laws and inst that solve various kinds of
collective action problems
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