Baylis, Smith & Owens:

The Globalization of World Politics 5e

Chapter 17
International law
 Introduction:
the paradox of international law
• States have strong incentives to free
themselves from anarchy’s insecurities
• But: face common coordination and
collaboration problems
• Therefore, they create international
institutions
– Constitutional institutions
– Issue-specific institutions, or ‘regimes’
– Fundamental institutions (international law)
 The modern institution of
international law
• Produced by post-French Revolution changes
in European governance
• Before: ‘Age of Absolutism’
– Law: the command of a legitimate superior
– International law: God’s command, derived from
natural law
• Modern:
– Law: contract between legal subjects, or their
representatives
– International law: expression of nation’s mutual will
 The modern institution of
international law
• Distinctive characteristics informed by
the values of political liberalism
– Multilateral form of legislation
– Consent-based form of legal obligation
– Language and practice of justification
– Discourse of institutional autonomy
 From international to
supranational?
• Designed to facilitate order, so
circumscribed
– States as principal subjects and agents
– Concerned with the regulation of interstate
relations
– Scope confined to questions of order
 From international to
supranational law?
• Global governance is pushing
international law into new areas
• New subjects/agents (individuals and
some collectivities)
• Non-state actors affecting development,
codification of legal norms
• International law increasingly affecting
domestic legal regimes/practices
• Questions of justice in addition to order
 Theoretical perspectives
• Considers law’s nature, function, and
importance
• Realists: law important only when it
serves powerful states’ interests
– But then how does law constrain strong
states? How do weak actors use it? Why
has international law expanded?
 Theoretical perspectives
• Neo-liberals explain how self-interested
states construct international legal
regimes
– How does law develop in areas without
self-interest? How did it originate? How
does law constitute state identities and
interests?
 Theoretical perspectives
• New liberals: emphasize domestic origins
and need to disaggregate state
– Prioritize international humanitarian law
– Neglects international law’s role in constituting the
domestic
• Constructivists: international law as
normative structure conditioning state and
non-state agency, constituting identity,
interest, strategy
– Account of law is under-specified, esp. social vs.
legal norms
 Theoretical perspectives
• New Haven School: points to emergence
of global public order, embedded in law
– These processes and values provide law’s
authority
– But doesn’t transcend
positivism/naturalism
• Critical legal studies: how law’s inherent
liberalism curtails its radical potential
– Fails to recognize the already
emancipatory effects of international law
 Case Study
Is international law an expression of Western dominance?