This is a final exam. I would like somebody to write 5 pages for each question following the instructions below. Your answers should be from your own words after reading the course readings I have attached.

Unit Learning Objectives

After reading this unit, you will:

· Obtain a critical understanding of the nature of 'law' and of what makes law, as a system of rules, norms, institutions and procedures 'legally binding' in society

· Be able to explain how International Law functions in an international environment often characterized as 'anarchic'.

Unit Plan and Summary

This unit introduces International Law to students of International Relations. It begins with a discussion of the nature of international law identifying some key objections leveled by critics, discusses some rebuttals of those criticisms, and provides reasons why the rules of the international legal system, although different from domestic legal systems, can properly be called 'law'.

Outline

1. Nature of International Law: What kind of Law is International Law?

2. The Sources of Legal Obligation

Readings

· Barker, Craig. “ The Development and Nature of International Law .” In International Law and International Relations, 1-36. New York, NY: Continuum, 2000.

Key Concepts

· Adjudication

· Enforcement

· International Society  (of states)

· Law

· Legally Binding Obligation

· Legislation

· Norms, Principles  and Rules

· Public and Private International Law

· Reciprocity

Nature of International Law

What kind of Law is International Law? Let's begin by considering some definitions of international law:

· A body of rules governing the relations among states.

· A body of principles, customs and rules recognized as binding obligations by sovereign states and such other entities granted international personality.

· A body of rules and principles of action that are binding upon 'civilized' states in their relations with one another.

· A framework of rules, principles, and norms that prescribe and proscribe generally accepted standards of behavior for states in international affairs.

Key components in these definitions are that international law consists of norms, principles, and rules. Although there is some inconsistency in the usage of these terms among analysts, we can define a norm as a propositional statement expressing codes of conduct for a group of actors. Norms can be both implicit (unwritten) and explicit (written); principles are simply explicit norms. Rules are more specific than norms and principles, and are explicit statements that define, prescribe, and proscribe specific actions. International law is a body of norms, principles and rules that guide the conduct of states in international affairs by creating legally binding obligations. The question of what makes these norms and rules' 'legally binding' goes to the heart of the criticisms leveled against international law, which is discussed further below.

International law consists of norms, principles,and rules

Public and Private International law

The body of norms, principles and rules that guide the conduct of states in international affairs is properly called public international law to differentiate it from private international law. This course focuses on public international law.

Private international law (also known as the 'conflict of laws') is an aspect of the domestic (or municipal) law of states that deals with how foreign systems of law are interpreted and applied. Specifically, it addresses such issues as when a court should exercise jurisdiction in cases involving a foreign element, when to apply foreign law in cases involving a foreign element, and when to recognize or enforce the judgements of foreign courts. An example of a private international law issue is when a court in one country recognizes and enforces marriage and divorce laws of other countries.

Hence, private international law is based on the notion that under certain circumstances, it is appropriate to apply foreign law or to let foreign courts decide the case. Public international law in contrast, which is what this course is concerned with, deals with norms, principles and rules that apply to states in their interactions with each other, irrespective of differences in their domestic legal systems. In the subsequent discussion, unless otherwise specified, when we refer to international law we mean public international law.

The Requirements of a Legal System

Discussion Question:

– Is International Law Really Law?

Note: In the in-class version of this course, when I ask this question, many students are unsure about how to respond. Take a few minutes to think about this question. Then post your thoughts in your discussion group.

We begin by noting that systems of norms and rules have existed in various forms for thousands of years to order relations among different political units (such as city-states, empires, kingdoms, and ethno-cultural groups). Modern international law emerged with the sovereignty norm and the development of the territorial state system in the seventeenth century. Despite this history, many still doubt the existence or salience of international law. Lawyers, academics, and even members of the general public tend to view international law with skepticism. At least three interrelated sets of objections inform the criticisms of international law. The first is based on a particular conception of a legal system, the second questions the influence of international law on international behavior, events and outcomes; and the third suggests that international law promotes a particular set of values that do not reflect the diversity of values among cultures and peoples around the world.

The first criticism (the requirements of a legal system) is quite easily dealt with. The second and third, however, which question the role and function of international law rather than its nature, raise some fundamental and unresolved issues that remain salient in contemporary international relations. Our discussion below addresses the question as to whether international law is really law, and the other two objections are addressed later in the course.

Questions about the legal status of international law are based on the view that law is "the command of a sovereign."  1  Laws are commands (rules and regulations) made and enforced by governments. Hence, for a legal system to exist, there must but be a hierarchical authority structure (a government) to make laws (legislative function of government); interpret laws, determine if violations have occurred, and settle disputes (judicial function); and implement laws and enforce compliance (the executive function). The source of legal obligation, or what makes laws "legally binding", is centralized enforcement by a government. However, the international system is anarchic (i.e. lacks a central government). In the absence of a world government to make, adjudicate and enforce law, it does not make sense to talk of international law as "law" but at best, as normative or moral principles. How valid is this criticism?

Laws are commands (rules and regulations) made and enforced by governments.

This perspective on law rests on assumptions that do not hold up to close scrutiny. It is based on a comparison between international law and a domestic legal system typically found in Western states, and fails to appreciate that clearly defined legislative, judicial and executive institutions and processes are not requirements for a legal system.

Law Making/Legislation

With respect to law making, many non-Western societies that do have laws, do not necessarily have clearly defined legislative bodies. A good example is the Sharia legal system found in some Islamic societies. Furthermore, even in Western legal systems, there are many bodies of law that are not made through formal legislative processes of government such as administrative law, contract law, and customary law. Indeed, some of the most important constitutional laws in some Western countries including Canada and the UK, have emerged through custom and tradition. Most international laws are similarly made by states through formal agreements calledtreaties, or evolve through historical usage and tradition as customary laws (these are discussed in unit 2). Hence, we can conclude that although all legal systems do require recognized and accepted means for making laws, these need not occur through formal legislative processes.

Adjudication

What about judicial institutions and processes? Are they a necessary condition for a legal system? All legal systems do require judicial processes to ensure the smooth operation of law by assisting in the proper identification and authoritative application of rules, interpreting the content and ramifications of rules, and settling disputes. However, these need not occur through a centralized and hierarchic system of courts. The bulk of adjudication in international law occurs in the domestic courts of states. For example, the trial of Libyan agents accused of bombing Pan Am flight 103 over Lockerbie, Scotland in 1988 was held in a Scottish Court.

Pan Am flight 103  over Lockerbie, Scotland

In addition, various types of decentralized judicial mechanisms are found in international relations, ranging from the more ad hoc dispute settlement involved in mediation to the more institutionalized processes of arbitration panels and international courts and tribunals. Many of the latter are created by international organizations. Furthermore, the emphasis on formal judicial institutions and processes overlooks the fact that the primary means of dispute resolution in virtually every legal system is negotiation, not judicial settlement. In the United States and Canada for example, most legal disputes are settled through negotiation and never reach the formal court system. The same is true in international relations where well-developed bodies of rules guide negotiation and "pacific settlement" of disputes.

Executive/Enforcement

In domestic legal systems, the institutions of the executive branch of government (e.g., police and corrections services, and the armed forces) uphold the law and enforce court decisions. International law by contrast lacks such enforcement mechanisms. Decisions of international courts and tribunals are rarely enforced. When states receive an unfavorable ruling from an international tribunal, they often ignore the ruling as the United States did in 1984 following the ICJ's ruling that its mining of Nicaraguan ports violated international law. This leads to the conclusion that international laws are frequently violated with impunity.

Several observations can be made in response to these criticisms. First, there is no evidence to support the assertion that international law is frequently violated. 2  In some instances, events cited as evidence of international law violations such as abuses occurring in 'civil wars', actually result from failures in domestic law. Second, the fact that violations of international law occur does not imply that no law exists. Laws are violated in every legal system including those in Developed countries such as Canada, and in many cases, the violators are not punished. 3  Does this indicate there is no law in these countries? Violations are not more frequent in international law than in domestic law, but they are more dramatic and visible; and the consequences can be more catastrophic. Third, the focus on violations leads to the inaccurate conclusion that coercion is the sole element in law enforcement.

In reality, there are two interrelated elements in the enforcement of law: What makes people obey the law (i.e., how to elicit compliance), and how to prevent or punish violations. Fear of punishment is only one reason why people obey the law (and indeed, some critics discount the deterrent value of the ultimate coercive tool in any legal system – capital punishment). Most people obey the law most of the time because of voluntary compliance or acquiescence. They perceive laws to be legitimate and authoritative expressions of values they espouse, internalize norms and rules through socialization, and are induced to obey the law through incentives and constraints that need not include the overt threat or use of force. Coercion is used only as a last resort in most legal systems and no legal order can survive for long if it depends primarily on coercion. For example, some highly authoritarian and repressive political and legal systems such as South African apartheid and the Eastern European communist systems ultimately collapsed. 4

Law enforcement is equated with coercion partly because people tend to focus on the "criminal law" model, which consists of rules prohibiting certain kinds of actions with specified penalties for violations. This leads to a restricted view of rules solely as constraintson behavior. However, criminal law is one of many bodies of law in any legal system. Rules and institutions enable or facilitate as well as constrain behavior and social action. They help constitute the identities of actors in international relations and domestic societies, and enable them to pursue goals, communicate, and share meanings. International law as a system of rules facilitates a wide variety of international transactions in such areas as trade, shipping, air travel, and telecommunications

Many activities we take for granted such as sending a letter abroad, or going overseas on vacation are only possible because rules and institutions facilitate them. Furthermore, although centralized enforcement is lacking in international law, decentralized enforcement mechanisms are available to deal with violations. Under specified conditions, international law permits the use of more forceful measures in response to a prior violation, or in self-defense. These range from unilateral or "self-help" measures includingretorsions (e.g., economic sanctions) and reprisals (i.e., military actions), to collective institutionalized measures specified in Chapter 7 of the UN Charter.

To conclude, an international legal system exists even though it differs from domestic legal systems. International law operates in a very different environment than national law. Although international law lacks the centralized legislative, judicial, and executive institutions and processes normally found in domestic legal systems, it performs many of the same functions. International law is made, adjudicated and enforced by states and international institutions created by and for states. States in international society accept these rules as binding obligations because the rules are an inseparable part of their identities, values and interests. As one prominent scholar notes, "The great majority of the rules of international law are generally observed by all nations without actual compulsion; for it is generally in the interest of all nations to honor their obligations under international law." 5

The Sources of Legal Obligation

Discussion Question:

– If you accept that an international legal system exists, what is the source of international legal obligation?

To understand international law better, we need a broader understanding of the nature of law and the functions of a legal system in society. A legal system is one of the primary mechanisms for ordering social life; it establishes a system of communication, determines which actors can make claims, assigns priority to different claims, and sets the range of goals actors can pursue. 6

Viewed from this perspective, the issue of what makes laws "legally binding" becomes clearer. Law can only exist within the context of a society or community 7 . A society is a collection of individuals or groups joined in a framework of relationships to advance common interests and values.

Rules and institutions are the building blocks of societies; and law, as the authoritative expression of those common values and interests, is the cement holding the edifice together. Membership in a society gives actors status and the capacity to realize goals and values, and those actors owe obligations to the society as a reciprocal requirement of membership.

To be accepted as a societal member in good standing, a person must comply with norms and rules deemed essential to the survival, continuation, and smooth functioning of the society.

Although coercion has an important role, legal obligation is more a function of the requirements of membership in a society. In sum, rules are not obligatory because of coercion; it is only because society considers a rule obligatory that a coercive measure is attached to it. 8

In sum, rules are not obligatory because of coercion; it is only because society considers a rule obligatory that a coercive measure is attached to it.

An international society of states exists as an aggregation of norms, rules and institutions that promote the states' interests and values. The essence of this society is reciprocal recognition of each other's rights, and obligations not to infringe unduly on the rights of others.

Reciprocity is at the root of international legal obligation. 9  The fact that states participate in making international law suggests that their interests and values are reflected in those laws. States in international society accept rules as binding obligations because the rules are an inseparable part of their identities, values and interests. As one prominent scholar notes, "The great majority of the rules of international law are generally observed by all nations without actual compulsion; for it is generally in the interest of all nations to honor their obligations under international law." 10  To conclude, an international legal system exists even though it differs from domestic legal systems. Although international law lacks the centralized institutions and processes normally found in domestic legal systems, it performs many of the same functions. Students of international organization should be aware of the rules, norms and principles of international law, and their effect on international relations.