Week 7
Week 7
International Law
• International law as institution: norms, rules practices created by states & actors to
facilitate goals for order, coexistence, justice, development (prescribe behaviour,
constrain activity, shape expectations)
• States primary subjects and agents, move towards global governance with
individuals, groups, org’s becoming recognised as subjects e.g., human rights laws
with recent moves to hold individuals criminally responsible (non-state actors
shaping normative environment, encouraging redefinition of state interest.
• Increasingly concerned with global as regulate within domestic e.g., environmental
laws. Broadening to address global justice.
• Transformation to supranational law
• Law deemed legitimate to extent authored by those subject to it or their reps,
applied equally, mutual will of the nations concerned
• Pluralism: overlap of various actors and influences on FPA
• Behavouralism & rationalism: examining process of decision making not outcomes
• Domestic structure: material attributes of a country & nature of state shape its FPA
e.g., Democratic peace theory
• Constructivism: normative & ideational structures as nb as material as sustained
through human practice, how actors’ identities shape interests & behaviours nb.
Treat rules and norms as constitutive, importance of discourse, offer resources for
understanding actors’ behaviour.
•
• If international law doesn’t matter, why do states & actors devote such effort to
negotiating, avoiding legal regimes/commitments? Why is compliance so high
despite fact that it often hinders?
• Those who break it claim they didn’t not that’s its illegitimate
• Principle site of rights such as sovereignty, source of legitimacy
• non-western countries played key role in arguing for and codifying these human
rights and norms
• The practice turn: nb knowledgeable social practices. Feelings of legal obligation
derive from engagement in legal practices, socially constructed. By participating in IL
practices, actors develop internal commitment when conditions of legality met.
•
• IL does not keep pace with changes e.g., nature of warfare
• No central authority or enforcement so not legitimate.
• Only serves interests of powerful states (gets weaker states to comply)
• Present IS has European roots (western biases, imperial institution? ’Standard of
civilisation’- only granted sovereignty if exhibited certain characteristics)
• Western powers accused of using privileged position on Security Council to brandish
human rights norms, intervene in domestic politics of developing countries
• Realists: power struggle, centres on organised violence/ war. Sceptic to IL & liberal
idealist notion of ‘peace through law’, is it real if no central authority to legislate &
adjudicate, few sanctions entered
• Neoliberal institutionalism: States rational egoists with law intervening in goals, a
regulatory institution which does not condition states identities and interests.
Develop IL to achieve their own objectives
• Critical legal studies: challenge liberalism of modern IL thought & practice, IL can’t
civilise the world of states. Logic incoherent (denies objective values of states but
attempts to resolve conflict with objective rules), operates within confined
intellectual structure, can twist IL to justify competing outcomes, authority of IL is
self-validating.
• 3 levels of institutions
1. Deep constitutional (principle of sovereignty) primary rules & norms, core of IS
2. Fundamental (international law, multilateralism) employed when common ends or
clashing interests to contain, basic norms & practices
3. Issue-specific institutions/regimes (e.g., UNFCCC, NPT) enact institutional
practices in realm of inter-state relations, decision-making procedures, constate
legitimate action & actors
• 4 Characteristics:
1. Multilateral form of legislation: use multilateral diplomacy as formal method to
legislate IL, reciprocally binding rules of conduct (tied to liberalism), cooperation
in/formally. Norms & rules constantly evolve
2.Consent-based form of legal obligation: observe law as consented expect
customary (considered binding), tacit consent?
3. Peculiar language of reasoning & argument: rhetorical (interpretation) &
analogical (establishes similarities/differences), structures arguments about bounds
of legitimate action
4. Strong discourse of institutional autonomy: political & legal realms different logics
& settings, legally reasoning & arguments are legitimate form of action. Liberal
separation of powers for structure and discipline
Humanitarian intervention
- Should humanitarian intervention be exempt from ban on use of force?
- Clash of humanitarian principles with principles of sovereignty and non-intervention
(states expected to act as guardians of citizens security) should tyrannical states be
recognised as legitimate members of international society
- What responsibilities to other states or institutions have to enforce human rights
norms?
- Attitudes shifted post-cold war
- Effect of domestic public opinion, pressuring policy-makers but capricious
- Attempts to build consensus around R2P (prevent, react, rebuild)
- Peacekeeping mandates by UNSC protect, force only if necessary
- Use of sanctions, ICC in Libya
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- Human security reconceptualization, broaden, state as threat
- Legal argument: counter restrictionist based on UN charter commitment, customary
IL
- Moral duty: common humanity, globalised world so affects other parts
- Shift away from rights of interveners to need of protection for victims
- Look at long- and short-term consequences, need to facilitate conflict resolution &
construct viable polities. UN failed in Somalia when UN troops used to provision
law and order
- 3 pillars: primary responsibility of state to protect population, international
communities’ responsibility to help states fulfil this by preventing, addressing,
decisive action through peaceful means
- SC more likely now to respond to atrocity crimes for protection of civilians
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- Rhetorical device to justify forcible interference of strong in affairs of weak, justify
wars, open potential abuse, how bad does crisis have to be before intervention?
- Mixed motives, only willing to sacrifice is self, national interest (do states have right
to risk soldiers’ lives, R2P own citizens)
- intervention may worsen situation by causing violence
- Selectivity of response
- lack of international consensus can create proxy opp
- e.g., French gov. intervene Rwanda, restore waning French influence in Africa or
other concerns for European refugee crises or spreading conflict
- Can outsiders impose human rights when states established through citizens
informed consent or is this neo-colonialism
- Pluralist concern on lack of consensus, states may impose cultural values
- Restrictionists, realists & liberals, (international order where state is best guardian)
maintain ban unless UNSC authorised
- Lack consensus, differing ideologies e.g., China
Is an ethical foreign policy possible and should states have ethical foreign policy?
Foreign Policy: Strategy or approach chosen by a state/national government to achieve its
goals with external entities (state or non-state). (Links domestic and international, what
states do and how we understand that) Can be towards a state or a region.
Foreign Policy Analysis: Subfield of International Relations that aims to explain foreign
policy and foreign policy behaviour with a focus on human decision making.
• Key elements: - Below state level analysis (state as clear unitary actor)
-Actor-specific theory (roles of actors whereas IR tends to be more
structures) (what influences specific actors, psychological factors, pressure from
domestic publics and how this plays out in democracies vs non-democracies.)
-Multicausal explanations
-Interdisciplinary
-Focus on process and outcomes
“The study of the conduct and practice of relations between different actors, primarily
states, in the international system. Diplomacy, intelligence, trade negotiations and cultural
exchanges all form part of the substance of foreign policy between international actors. At
the heart of the field is an investigation into decision making, the individual decision makers,
processes and conditions that affect foreign policy and the outcomes of these decisions.”-
Chris Alden and Amon Aran, ‘Introduction’, Foreign Policy Analysis, pg 3.
Analysing Foreign Policy
Individuals: Impact of particular leaders on foreign policy, Studies in personality, Role of
neuroscience? (Do ideas, history and identity, experience, understanding matter as much as
material power or is it confined by how state is organised) e.g., Trump vs Obama with Iran
Group Decision Making: How are situations framed and represented? How does a group
learn or change established ways of thinking? Can it be driven by bureaucracies; can this be
an outcome of group processes/thinking.
Structures: What are the sources of change in shared perceptions? How does a changing
context impact on the attitudes of leaders? Systemic or cultural changes and their impact.
Are democracies more apt to gage in military intervention than authoritarian states e.g.,
humanitarian intervention tends to be more with democracies.
Actors and Structures
• IR tends to lean towards Structural confines of the international system
• FPA focuses on process of foreign policy formulation (processes behind foreign policy)
• Role of decision makers
• Nature of foreign policy choice
• Both lead stronger emphasis on agency (tensions between role of individuals and how
they interact with the structures around them)
“The Labour Government does not accept that political values can be left behind when we
check in our passports to travel on diplomatic business. Our foreign policy must have an
ethical dimension and must support the demands of other peoples for the democratic
rights on which we insist for ourselves. The Labour Government will put human rights at
the heart of our foreign policy and will publish an annual report on our work in promoting
human rights abroad. The next twelve months provide the greatest opportunities in a
generation for Britain to take a leading part on the world stage.”
“Collective expectations (or understandings) for the proper behaviour of actors with a given
identity” -Peter Katzenstein, 1996, pg 5
“Interests are not just out there waiting to be discovered; they are constructed through
social interaction” -Martha Fennimore, 1996
Patterns of norms
Norm Emergence
Norm Cascade (how they spread)
Norm Internalization (norms emerge through social interactions with states)
Finnemore and Sikkink, 1998
Responsibility to protect started as norm for how states might relate to one another and
their own population but has become less of an international law but codified more strongly
than a norm.
What is the effect and impact of laws, when and why do states adhere to them and are
some states more likely to adhere than others. Adhere until costs? Norms restrict and
encourage certain types of behaviour.
How can states practice ethical foreign policy if it comes at the expense, or is perceived to,
of national interests?
Is it in national interest to have a foreign policy which may reflect a state’s culture and
history? Or are morality and ethics opposed to other state interests such as survival, security
and wellbeing of citizens with ethical foreign policy adjacent to that? Are states willing to
have ethical foreign policy if it compromises that? Is it good in its own right or only if it
doesn’t lead to costs in other areas.
Examples:
• Iraq, 1991, Operation Provide Comfort
• Somalia, 1992, Operation Restore Hope Unified Task Force
• Haiti, 1994, Operation Uphold Democracy
• Rwanda, 1994, UNAMIR
• East Timor, 1999, UNTAET
• NATO bombing in Kosovo 1999
• British military intervention in the Sierra Leone Civil War, 2000
There was no appetite in the international community for such an effort. I might add, not
just among other governments -- and of course, some of the governments that had troops
there were extremely anxious to get out and stay out -- but in the whole international
community -- editorial writers, legislatures, other African governments, even NGOs. …
Yugoslavia History
• Post WWII, Yugoslavia was set up as a federation of 6 republics
• Borders drawn along ethnic and historical lines:
• Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia.
• Led by Josep Tito 1953-1980
• Defied Soviet hegemony with market socialism
• Ethnic tensions rise towards end of 1980s
• Slobadan Milosovic becomes Serbian leader and becomes increasingly nationalistic
Yugoslavia Disintegrates
• Croatia/Slovenia declare independence June 25th, 1991
• Bosnia moving towards independence
• Serbians throughout region are tense as new ethnic based states start to emerge
• UN failed to demilitarize Serbian forces in Bosnia
• Bosnian War 1995-1995
• NATO intervenes with bombing campaign
• Srebrenica Massacre 1995
“People are not little stones, or keys in someone's pocket, that can be moved from one
place to another just like that... Therefore, we cannot precisely arrange for only Serbs to
stay in one part of the country while removing others painlessly. I do not know how Mr
Krajisnik and Mr Karadzic will explain that to the world. That is genocide”
General Ratko Mladic, Bosnian Serb Army
Kosovo Feb 1998 – June 1999
• Had been autonomous region in Yugoslavia.
• Ethnic Albanian Kosovo Liberation army launches guerrilla warfare against Serbian Rule
• Fears of imminent genocide as oppression of Albanians takes place.
• March 1999 - NATO bombing campaign begins under guise of humanitarian intervention
• Mass expulsion of Albanians
• June 1999 - NATO threatens full intervention and
Milosovic backs down and Serb forces withdraw
• No UN mandate but considered legitimate….
Tony Blair and the Doctrine of the International Community - April 22, 1999, Chicago
Economic Club
“No-one in the West who has seen what is happening in Kosovo can doubt that NATO's
military action is justified…. This is a just war, based not on any territorial ambitions but on
values. We cannot let the evil of ethnic cleansing stand. We must not rest until it is reversed.
We have learned twice before in this century that appeasement does not work. If we let an
evil dictator range unchallenged, we will have to spill infinitely more blood and treasure to
stop him later.But people want to know not only that we are right to take this action but
also that we have clear objectives and that we are going to succeed. We have five
objectives: a verifiable cessation of all combat activities and killings; the withdrawal of Serb
military police and paramilitary forces from Kosovo; the deployment of an international
military force; the return of all refugees and unimpeded access for humanitarian aid; and a
political framework for Kosovo building on the Rambouillet accords. We will not negotiate
on these aims. Milosevic must accept them.”
“Looking around the world there are many regimes that are undemocratic and engaged in
barbarous acts. If we wanted to right every wrong that we see in the modern world, then
we would do little else than intervene in the affairs of other countries. We would not be
able to cope. So how do we decide when and whether to intervene? I think we need to
bear in mind five major considerations.”
“First, are we sure of our case? War is an imperfect instrument for righting humanitarian
distress, but armed force is sometimes the only means of dealing with dictators. Second,
have we exhausted all diplomatic options? We should always give peace every chance, as
we have in the case of Kosovo. Third, on the basis of a practical assessment of the situation,
are there military operations we can sensibly and prudently undertake? Fourth, are we
prepared for the long term? In past we talked too much of exit strategies. But having made
a commitment we cannot simply walk away once the fight is over; better to stay with
moderate numbers of troops than return for repeat performances with large numbers. And
finally, do we have national interests involved? The mass expulsion of ethnic Albanians
from Kosovo demanded the notice of the rest of the world. But it does make a difference
that this is taking place in such a combustible part of Europe. I am not suggesting that these
are absolute tests. But they are the kind of issues we need to think about in deciding in the
future when and whether we will intervene.”
What are the criteria for intervention on a humanitarian basis? Trying to establish type of
norm for how states should treat their citizens.
139. The international community, through the United Nations, also has the responsibility to
use appropriate diplomatic, humanitarian, and other peaceful means, in accordance with
Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes,
ethnic cleansing and crimes against humanity. In this context, we are prepared to take
collective action, in a timely and decisive manner, through the Security Council, in
accordance with the Charter, including Chapter VII, on a case-by-case basis and in
cooperation with relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities manifestly fail to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity.
UN as founded on attempt for ethical foreign policy but not set up to deal with domestic
issues.
“Make freedom and the development of democratic institutions key themes in our bilateral
relations, seeking solidarity and cooperation from other democracies while we press
governments that deny human rights to move toward a better future”
“We knew that if we waited one more day, Benghazi—a city nearly the size of Charlotte—
could suffer a massacre that would have reverberated across the region and stained the
conscience of the world,” Barack Obama
Putin view that authoritarian leaders may be holding more
dangerous forces e.g., ISIS at bay
Responsibility to protect missing clauses for what to do after intervention. No western
appetite for occupying or engaging in state building because of chaos in Afghanistan and
Iraq
4 Overlapping Conflicts
• Forces loyal to President Bashar al-Assad and the rebels
who oppose him.
• Over time, both sides fractured into multiple militias,
including local and foreign fighters
• Syria’s ethnic Kurdish minority took up arms amid the chaos. The Kurds carved out
a de facto ministate and have gradually taken territory they see as Kurdish.
• Opposed by Turkey, sometimes backed by the US
• ISIL seized large parts of Syria and Iraq in 2014 declaring that territory its caliphate.
• No allies and at war with all other actors in the conflict.
• Foreign powers intervening
• Assad receives support from Iran and Russia, and the Lebanese militant group
Hezbollah.
• Rebels backed by the US and oil-rich Arab states like Saudi Arabia.
• All have different agendas/interests
• Tension between stability and western approved democratic order
Concluding questions
• How would you best explain what contributes to a state’s foreign policy?
• Should foreign policy be guided by ethics and morality? Or state interests?
Who decides when a foreign policy is or isn’t ethical?
• Can war ever be an ethical foreign policy?
• Is UK/US/other states’ support for Ukraine an example of ethical foreign policy?
• Is Russia’s special military operation an example of ethical foreign policy to defend ethnic
Russians?
• Is the practice of humanitarian intervention ethically/morally justified?
• Can you think of some examples where it is? And some where it is not?
• What should ‘we’ do when crimes against humanity, oppression, or genocide are taking
place?