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110 Cards in this Set

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first theorist of international relations and also the first realist. His work incorporates a theory of the system, the effects of domestic politics on foreign policy, and the influence of individuals on decisions of state.
Niccollo Machiavelli
Author of The Prince, He argued that politics is not about abstract virtue, but power and power meant the ability to satisfy interests. He felt that the prince gives the lives of others meaning through religion, morality, ideology, and mythology. He gives his own life meaning by creating a state. The founder of the state becomes immortal. There are times, however, when doing what is necessary to promote the interests of the state contradict the morality of the community. A prince knows when to obey the morality of the state, the morality of politics which dictates that right behavior maximizes the power of the state and the national interests.
The Prince
Machiavelli argued that politics is not about abstract virtue, but power and power meant the ability to satisfy interests. He felt that the prince gives the lives of others meaning through religion, morality, ideology, and mythology. He gives his own life meaning by creating a state. The founder of the state becomes immortal. There are times, however, when doing what is necessary to promote the interests of the state contradict the morality of the community. A prince knows when to obey the morality of the state, the morality of politics which dictates that right behavior maximizes the power of the state and the national interests.
Thomas Hobbes
Wrote Of the Natural Condition of Mankind, He described a “state of nature” in which we have unrestricted freedom. Hobbes’s state of nature is a place where life is constantly endangered. We want to preserve ourselves but cannot. Because life is constantly threatened, because death is always lurking over our shoulder, the state of nature is an irrational place to be. Once we realize this, we will join with others to form a state. One of the most important steps we take when forming the state, is to transfer the right and means to defend ourselves to the state. With this power that we have given it, the state has the ability to compel our obedience to the law. The state forces us to behave ourselves by threatening to use force against us if we choose to not obey the law.
Of the Natural Condition of Mankind
Hobbes described a “state of nature” in which we have unrestricted freedom. Hobbes’s state of nature is a place where life is constantly endangered. We want to preserve ourselves but cannot. Because life is constantly threatened, because death is always lurking over our shoulder, the state of nature is an irrational place to be. Once we realize this, we will join with others to form a state. One of the most important steps we take when forming the state, is to transfer the right and means to defend ourselves to the state. With this power that we have given it, the state has the ability to compel our obedience to the law. The state forces us to behave ourselves by threatening to use force against us if we choose to not obey the law.
Political Power
Hans Morganthau - Defines the realist view of power and that power is always the immediate aim of man be it political or military
Six Principles of Political Power
Hans Morganthau
Morgenthau summarizes his theory with six principles.

1) Politics functions according to objective laws rooted in human nature
2) Interest is defined in terms of power
3) Interest defined as power is universally true
4) There is a natural tension between politics and morality
5) Morality is not universal
6) Politics is autonomous
Hans Morgenthau
Realist, Wrote Political Power & Six Principles of Political Power
Morgenthau, and others, believes that balance characterizes the international system. In fact, all competitive systems establish equilibrium, whether economic, biological, or domestic or international political systems. Although balance can take different forms and balance can be upset, according to this way of thinking, it is always restored. States may be defeated, but balance will be restored; the identities of the major actors may change, but balance persists because of the ubiquity of power.
Four Functions of Force
Describes the uses of military power: defense, deterrence, compellence, and swaggering.
Robert J. Art
Realist, Wrote the Four Functions of Force.
Four international changes that led to the inclusion of non-military power into the realist equation
1. Signs of apparent American decline: the end of the dollar based world monetary system, the domestic Watergate crisis, the US defeat in Vietnam and the Iranian hostage crisis. 2. The first détente with the Soviet Union, and the increasing demands by the countries of the Global South for reform of the world economic order. 3. Two oil shortages in the North, which contributed to both recession and inflation in precisely those economies which had “boomed” in the first decades after World War II. 4. The “rise” of Japan and other Asian newly industrializing countries (NICs) as economic powers.
Difference between Neorealists as opposed to classical realists.
Acknowledged the increasing importance of interdependence and economic questions in world politics, but they argued that each state’s policies in all areas continued to be determined by a desire to maximize its relative power.
Political Structures
Written by Kenneth Waltz, introduced the theory of the system, which is by nature anarchic. The units or states within the structure are ranked by their level of capability. Another way of thinking about this – since structure is based on state capabilities, states constrain and limit each other. By understanding the structure and the impact of the structure on the system it is possible to not only explain state behavior but also predict it. By understanding where a state is in the structure, it should be possible to predict the behavior of that state, although we cannot know with certainty what a state will do. Too much and too little power are both dangerous. If a state has too little power it can be destroyed; if too much, it becomes a threat to others and invites attack.
Structural Causes and Military Effects
Written by Kenneth Waltz. Discusses the disadvantage of having a multipolar system. A system with only two great powers is the most stable.
Structural Realism After the Cold War
Written by Kenneth Waltz, alleges that a system is unstable with only one pole. The one pole will use it's power to frequently and make the system unstable. This was written as a description of the world after the Cold War.
Hegemonic Stability Theory
a subset of realism. A hegemon is a country that is much more powerful than all of the nations in the international system. When a hegemon exists, the balance of power is said to be unipolar.

According to the theory, hegemonic leadership has four distinct phases: 1. Global War: Global war does not have to be a war in the traditional sense--it could also be a trade war large enough to significantly change the world's economy. Typically, these global wars are fought between groups with very different ideas of how the world ought to be ordered (sound like World War II to anyone?) 2. World Leadership: In this phase, the winner of the war establishes international organizations. These organizations help the new hegemon institutionalize its vision of the world order and legitimize its position as the world leader. 3. Delegitimization: During this phase, the hegemon begins to lose power and rising states challenge its authority to lead. 4. Deconcentration: The world leader uses force to maintain its domination. This, in turn, hastens the end of hegemony because military confrontations are expensive to finance.
The Theory of Hegemonic Stability
Written by Robert Gilpin. Describes the role of the hegemon and its responsibility to lesser states to maintain international order. Encourages liberal trading principles within the system. The economic success of the hegemon carries over to other states.
Robert Gilpin
Leading proponent of Hegemonic Stability theory. Wrote The Theory of Hegemonic Stability.
International political economy: Beyond hegemonic stability
Written by Helen Milner, States that international political economy is a growth industry. Aspects of the
international political economy; Factors in explaining the openness and stability of the
international economy; Institutions to govern the world economy; Pressures of
Helen Milner
Wrote International political economy: Beyond hegemonic stability.
Hegemon without Challengers?
Written by Reinhard Wolf. As the only remaining superpower, the United States currently commands a degree
of global influence unparalleled since the demise of British hegemony a century ago. America´s world-wide military engagements and its leadership in all kinds of international institutions increasingly incite international criticism, even among former or
current allies such as China and France which call for a multipolar system that could
put an end to unchecked U.S. predominance.
Lockean Liberalism
Human beings are economic beings interested in acquiring property. Rational beings are aware that they possess natural rights to life, liberty and estate or material property. They realize that these rights are bundled and interdependent. We need liberty to acquire property to support our lives. Rational beings are aware of a natural law, according to which we protect our natural rights while respecting the rights of others. For Locke, this means that the state of nature is not a hellish war of all against all. We can live in relative peace and harmony because the rational will respect and tolerate each other.
Collective Security
based on the assumptions that states want peace and that they will seek peace rather than war if given the option. It assumes that state have a primary interest in security and that peace is a consequence of providing security. In effect, collective security is another mechanism for dealing with the security dilemma. Collective security further assumes the existence of an international community of sates willing to form a collective response to threats to the peace. It assumes an ability to identify such acts and take appropriate countermeasures.
To Perpetual Peace: A Philosophical Sketch
Written by Immanual Kant. This essay is broken into two sections. The first lays out the steps to be taken to acquire perpetual peace between nations. The second section contains articles for the maintenance of international peace.
Immanuel Kant
Classical Liberal. Philosopher, author of To Perpetual Peace: A Philosophical Approach. Originator of the idea of democratic peace.
The Fourteen Points
Speech to Congress prior to end of WWI which discusses his vision of a post WWI world. Most notably he calls for the establishment of a permanent body (League of Nations, UN) for the purposes of collective security.
Liberalism and World Politics
Written by Michael Doyle.Democratic Peace theory. Promoting freedom will produce peace. Liberal countries generally enjoy freedom, political participation, private property and equality. Doyle quotes Scumpeter’s Sociology of Imperialisms (1914) by stating that capitalism produces an unwarlike disposition, its populace is “democratized, individualized, rationalized.” Democratic capitalism leads to peace. This only works between liberal states. Liberal states will fight wars with non-liberal states.
Collective Security as an Approach to Peace
Written by Inis L. Claude Jr.
collective security is used to suppress aggression by any state against any other state, by presenting to potential aggressors the credible threat and to potential victims of aggression the reliable promise of effective collective measures, ranging from diplomatic boycott through economic pressure to military sanctions, to enforce the peace.
Collective Security versus Balance of Power
Written by Inis L. Claude Jr. Peace would not be based henceforth on a precarious uncertain, unstable equilibrium, with minimal deterrent effect, but upon a force so much greater than the force of any nation or any alliance hitherto formed or projected that no nation, no probable combination of nations could face or withstand it.
Inis L. Claude Jr.
Author of Collective Security versus Balance of Power & Collective Security as an Approach to Peace. Leading proponent of collective security.
Why Democratic Peace?
Written by Bruce Russett. Realists view the world as zero-sum and feel that the internal workings of the state are of no importance. Using the structural realist view democracies will eventually enter a state of war with one another. DPT provides theories as to why democracies avoid war with each other. Transnational and international institutions make peace. Distance prevents war. Alliances make peace. Wealth makes peace. Political stability makes peace.
Bruce Russett
Liberal author of Why Democratic Peace? Explains why democratic peace works.
Game theory
Game theory is a way of illustrating and testing propositions developed by rational choice theory. Assumptions, interests, preferences and consequences are included in the structure of the game. The players are the actors whose behavior is being modeled. The classic example of a rational choice game is the prisoner’s dilemma.
Four simple rules or laws explain how cooperative behavior evolves
1) Do not be envious - Players will not cooperate if they see the world as zero-sum, the solution is to see the world as variable sum so that more than one player can win. 2) Be nice - This is the most important rule. Demonstrate a willingness to cooperate and do not be the first to defect. 3) Reciprocate - Always cooperate on the first move and then mimic every other move. 4) Do not be too clever - Players should focus on their own goals and interests, not those of others.
The Evolution of Cooperation
Written by David Axelrod starts a competition between computer programs to determine which approach to the prisoner’s dilemma is most effective. Tit for Tat is most effective.
The Rational Actor Model
1.) Take into account the foreign policy goals of the nation and determine which ones take priority over others.
2.) Identify and analyze the various options available, trace the costs and benefits associated with each option, and estimate the likely consequences of making particular choices while estimating the relative likelihood of various outcomes.
3.) Rank the options from the most preferred in the following order: on the bottom go options that are costly and unlikely to produce benefits close to the important goals, and on the top are options that are quite likely to work at no great cost.
4.) And choose the option that is ranked highest among the alternatives. This option is called the optimal choice.
Individual limitation critique
Ask the following questions—how much do the actors know about the environment in which they act? How capable are they of processing this information efficiently? Do they have enough time to ponder the alternatives? Are they operating under stress, or under mistaken assumptions?
Principal-agent problem or the organizational critique
This arises in situations where the decision maker, the principal, has to delegate to an agent the execution of the policy. In other words, you want certain goals achieved but your agent (who is usually better informed about the implementation details) is the one who actually has to do it. If your preferences are perfectly aligned with those of the agent, there is no problem. On the other hand, very often the preferences may be different, perhaps drastically different. The agent may not simply sabotage your goals, or may implement the action in a way that thwarts other goals you have in mind.
Social aggregation critique
groups composed of entirely rational individuals can behave quite irrationally
Introduction to Decision Making Models and Conceptual Models and the Cuban Missile Crisis
Written by Graham Allison.
Allison’s Three Models of Decision Making (in brief!!)
Model I: A Rational Policy
Model II: Organizational Policy
Model III: Bureaucratic Politics
There is a great chart on page 654 that dumbs all three models down. Allison’s models were not given much attention in the lecture, but we discussed them at length in the discussion postings.
Introduction to Regime Theory and Cooperation and International Regimes
Institutionalists vs. others: According to realists, both traditional and structural, states are the dominant actors in international relations and will use force to pursue their interests and defend themselves. Cooperation between states, according to this view, is deviant behavior since the nature of the system is biased against cooperation. Cooperation and interdependence erode sovereignty and are contrary to the ethic of self-help. Institutionalists however, believe that cooperation is not only desirable and achievable, but also necessary. The world inevitably becomes interdependent and relationships must be cooperative; this need to cooperate necessitates the development of institutions and rules. This idea is closely related to functionalism, the idea that building cooperation in one or a few policy and interest areas leads to a progressive knitting together of interests leading ultimately to a multifunctional interdependence which promotes a more peaceful and orderly world. Furthermore, institutionalists, as opposed to realists and those that favor the hegemonic stability theory believe that it is possible, under certain circumstances, for a regime to outlast the hegemon that created it. In effect, the institutionalists argue, the regime alters patterns of behavior to such an extent, that states will continue to maintain those relationships after hegemony.
Political economy
Political economy can simply be defined as the pursuit of power and wealth or the relationship between power and money. Keohane defines political economy using cooperation, that is, political economy refers to satisfying self-interest defined in terms of wealth and power through cooperative relationships. Contemporary political economy is concerned with the foreign policy of the welfare state.
Keohane vs. Waltz
Waltz believes that states will resist interdependence since, despite changes in economies and societies; states still live in an anarchic world where self-help is the name of the game. Waltz believes that interdependence means mutual dependence; this relationship can exist only between equal powers. A cooperative relationship between unequal powers is not interdependence, but dependence since the relationship is controlled by the greater power. Keohane agrees with Waltz that a systems approach is the only way to properly understand international relations. The problem with the unit level of analysis is that there are simply too many variables to allow for generalizations. Keohane believes, as does Waltz, that the system shapes state behavior; consequently, change the system and the behavior of states will also change. Unlike Waltz however, Keohane emphasizes the role of institutions as regulators of state behavior. In effect, Keohane introduces a level between the system and the state, the international regime.
The international regime.
A regime is a set of “implicit or explicit principles, norms, rules and decision-making procedures around which actors' expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice.” Regimes affect the decision-making process within a state by affecting information. Where Waltz allowed only for the system and its structure, and depended on the state to understand the system, Keohane adds regimes, which affect the understanding and perception of the system and structure. Within a regime system such as the global environment, states still have differential levels of power and influence which they bring to bear in determining how the regime will be structured and who pays its costs. Furthermore, there is some historical evidence that though regimes are often created and initially sustained by a leading power, they may be able to survive changes in that power's status or foreign policy.
Foundations of Radicalism
Written by Thomas F. Lynch III. Seen from the Marxist viewpoint, the world economy as a whole is capitalist, as are almost all the national economies within it. In a capitalist economy the capitalist class receives the largest share of economic benefits; and the workers, those who actually produce goods, receive proportionately less. Marx, Lenin and others felt that the tendency of capitalist systems to overproduce would eventually so impoverish workers that they would unite to revolt against their "oppressors" and would take the means of production into their own hands and create a socialist society. For Marxists, this world capitalist economy is structured in terms of a center of highly developed industrial states with strong political institutions and integrated societies, and a dependent, vulnerable periphery of underdeveloped, largely agricultural, raw material producing states with weak political institutions and divided societies. Marxists emphasize that this structure is inherent to a capitalist system of production, that the class tensions within countries and between the center and periphery countries will continue and increase as long as the structure persists, and that the inevitable result is the simultaneous enrichment of a very small global elite and the impoverishment and alienation of the majority of the world's people. Though Marx expected a series of Socialist revolutions to follow the collapse of capitalist economies in Europe, Lenin explained that the “global reach” of capital put off the system's final crisis and ultimate collapse by expanding into peripheral areas. This was the phenomenon of imperialism.
Dialectical Materialism
Marx regarded materialism as a great step forward over the various religious and idealist notions of history that existed during his time. He concluded that the “engine” of human history was class conflict because power (on all levels and at all times) derives from ownership of the means of production; therefore, classes are constituted by their relationship to these means. This is what Marx called the substructure; the real structure of society. Other things, such as cultural and political institutions, are derived from and reinforce this structure; and he called these the superstructure.
Lenin’s influence
Lenin argued that that conflict, the states system in general and its ideology of nationalism, all served to reinforce the control of the bourgeoisie in society by dividing the workers along national lines. He went further to suggest that that conflict was the inevitable result of the process of imperialist expansion of the time (see below), and pleaded (unsuccessfully) that workers should not fight for their countries, but rather establish “international proletarian solidarity” and struggle together to overturn the international capitalist order.
World System Theory
An off shoot of the Marxist tradition is world system theory, originally formulated by Immanuel Wallerstein. For Wallerstein the world system is “a muliticultural territorial division of labor” in which the production and exchange of basic goods and raw materials goes on. The division of labor refers to the forces and relations of production of the world economy as a whole and it leads to the existence of two interdependent regions: core and periphery, one focusing on labor-intensive, and the other on capital-intensive production. The core-periphery relationship is structural. There is, therefore, a power hierarchy in which the wealthy “core” societies dominate and exploit weak and poor peripheral societies. Technology is a central factor in the positioning of a region in the core or the periphery—advanced or developed countries are the core, and the less developed are in the periphery. Each new generation of productive technology creates new winners and losers, and offers the opportunity for certain states to “leap” ahead of others. Wallerstein believes that the current stage will eventually lead to a socialist world government: presumably after the manifold crises of globalizing capitalism become intolerable.
Dependency Theory
Introduction to Dependency Theory and the Structure of Dependence, Theotonio Dos Santos. In short, much of the Third World, or the Global South, sees itself in a condition of “dependency” vis a vis the Northern, industrialized, and in many cases former Imperialist powers. They see the world capitalist system and their historically defined place within it as the “problem.” As one side gets richer, the other necessarily gets poorer.
Introduction to Dependency Theory and the Structure of Dependence
Written by Theotonio Dos Santos. In short, much of the Third World, or the Global South, sees itself in a condition of “dependency” vis a vis the Northern, industrialized, and in many cases former Imperialist powers. They see the world capitalist system and their historically defined place within it as the “problem.” As one side gets richer, the other necessarily gets poorer.
Social Forces, States and World Orders: Beyond International Relations Theory
Written by Robert W Cox. The Marxist tradition has also given rise to “critical theory”, which has its roots in a materialist conception of knowledge; i.e. the idea that concepts and ideas reflect the class interests and perspective of the thinkers who promote them. Marxist and Leninist scholars insisted that the social status quo should not be taken as fixed, but that there was always potential for change in the direction of more social justice and more human values. Robert Cox, who draws on Gramsci's Marxism (as opposed to Lenin's more orthodox approach), illustrates how “historic blocs” representing distinct forms of capitalist interest form and consolidate throughout the planet. He focuses on the tension between domestic politics, which is increasingly about democratic demands for social protection, and the neo-liberal pressures in the global economy toward re-structuring and de-regulation. He concludes, that these two trends are incompatible and they will precipitate crisis after crisis in national economies and in the system as a whole.
The Retreat of the State: The Diffusion of Power in the World Economy
Written by Susan Strange.
Strange argues that the conventional wisdom of realism is wrong. Her focus is not on states but people; people want security and the state exists to provide security and solve social problems. According to Strange, the people are right; states cannot provide security and political power is becoming increasingly diffused. Markets, not states are the dominant actors in contemporary international relations.
Three propositions for Strange's Retreat of the State.
1) Power Asymmetry: There is a growing power asymmetry in the world.
2) Finance and Technology are eroding the authority of all states: States become vulnerable to those technologies they cannot control.
3) Power Vacuums: This applies especially to international political economy, where there is no regulation.
Strange's concept of Power and the State
For Susan Strange, power is the ability to control or influence others and outcomes. Strange does not believe power is tied to resources; power is different from resources. Structural power is Strange’s main interest. With structural power, a state (or any political actor) can exercise control without intending to. In other words, the mere presence of an actor can change or manipulate the behavior of others. The United States is a good example of this assertion. Strange also, to an extent, redefines politics. For Strange, politics is about organization, it is about collective action, it is concerned with bringing into being a “stream of wills.” Power is important in politics since creating and directing collective action means an ability to control and influence outcomes. Powerful political actors are those able to find common ground and organize others around it. All of this means that politics is inherently social. It also means that politics is what most people think of when the think of politics: Deal-making.

The bottom line is that international relations has always been about people and how they organize themselves. People are most concerned with security and once upon a time it was the state that provided security. Today, the ability of the state to perform this function is being eroded and the risks people face are not just military but also economic and cultural.
Toward a Nongendered Perspective on Global Security
The third “great” debate was a debate between the positivists and those whom it is convenient to call post-positivists. Positivists believe in an objective, value-free reality and accept the dominant Western approach to knowledge rooted in rationalism and materialism. Perhaps most importantly, positivists make a distinction between the subject and the object of study. Post-positivists reject the dominance of Western empirical science and argue that there are many logics and ways of deriving knowledge. They maintain that the social world is not objectively “there”, but rather constructed by those who act in it and subject to a variety of interpretations depending on the viewpoints of those involved. Furthermore, post-positivists argue that there are political considerations –– that is, questions of power –– involved in every social question. The main effect of the third debate has been a general acknowledgment that the field of international relations is characterized by “entrenched paradigmatic diversity,” a realization which we believe has had a salutary effect on both its scholars and its scholarship. There has been a movement toward accepting a wider diversity of analytic modes in the field through an increased emphasis on: (1) reflexivity (2) dialogue (3) humility. The third debate has resulted in other “voices” being more often “heard” in the study of international relations.
Constructing International Politics Written by Alexander Wendt who believes the rationalist, scientizing, modernist project has been a failure. American, modern, contemporary IR has failed to know, understand and predict IR. The constructed world is not objective, but subjective, reflecting the interests, culture, biases of those who make it. The constructivist argument is that we create, make, construct, our reality. This sounds empowering. After all, if we make reality, and we are dissatisfied with it, we should be able to unmake what is and create what we think ought to be. The problem, however, seems to be that steps once taken cannot be retraced.
Public international law
Concerns the legal relations of states and their political interactions.
Private international law
Relates to foreign transactions of individuals and corporations.
Municipal law
national or domestic law
International law
Includes both customary rules and usages to which states have given express or tacit assent and the provisions of ratified treaties and conventions.
The history of international law
has roots back to the ancient Roman times. It can be referred to as the law of nations. Skeptics such as John AUSTIN have argued that international law is not really law because there is no sovereign body to enforce the law. But as our studies show, states do observe international law through various means including sanctions, intervention, compliance and war.

The law of nations also known as IL developed in Europe after the 1643 Peace of Westphalia which started the modern nation-state system we have today. For most of its history, IL concerned the mutual relations, fundamental rights and obligations of these theoretically equal sovereign nation states.
Material Sources of IL (where one goes to look up an international rule)
1. The major source is the explicit or the written agreement between states such as treaties and conventions. Consent is therefore bound.
2. Customary practices which are common usages which create the expectation of repetition. Consent is assumed unless asserted to the contrary.
3. General municipal practice of states that comprise general principles of law seen as fundamental because many states practice them domestically. Consent might be assumed from the idea of natural laws so fundamental as to be universally observed.
Golder Case
1. Golder Case- the UK signed and ratified a treaty subjecting her to the rules of the treaty. She was taken to task over her handling of a prisoner and held accountable by the prisoner. The European Convention of Human Rights agreed with the prisoner arguing that Britain must comply with their opinion as she had ratified and agreed on the original treaty. The UK exercised her sovereignty by entering into this treaty, but in a manner limited her sovereignty as a result of the decision.
Filartiga v. Pena-Irala case
Torture is pretty much outlawed by custom and IL. The case revolves around torture and the prohibition of torture as a violation of fundamental human nature and norms. The case discusses the widespread use of torture and state acceptance of the practice. Should states acceptance or custom be binding or is torture a clear violation of natural law thus making it illegal regardless of where it is practiced.
Formal Sources of IL
1. Treaties as expressions of explicit consent by states to be bound.
2. Article 38 of the Statute of the International Court of Justice including opinions of judges and publicists, evidence of general practice accepted as IL, international conventions establishing rules and international custom.
3. Natural law, fundamental norms, jus cogens, principles of equity, resolutions of international organizations such as the UN.
The reasons states make treaties
1. establish predictability of behaviour (Jews and Romans, Westphalia)
2. to strike a bargain (Treaty of Paris, Cession of Alaska, Hull-Lothian Agreement)
3. to set up common rules among or within states (Westphalia, Kellogg-Briand)
4. to establish common goals (Kellogg-Briand)
Disadvantages to treaties
1. Treaties will never contain all the rules needed in the legal system
2. All states will not consent ie. Switzerland not party to UN Charter.
3. Treaty provisions will be interpreted in light of other sources.
What is the enforcement arm of treaties?
the latest in time rule
The US Supreme court has ruled that legislation subsequent to a treaty may trump the treaty, leaving it to the political branches to resolve.
Treaty between the Jews and Romans (Circa 160 BC)
shows antiquity of treaties. A treaty of peace and alliances, similar to NATO today. Important elements of reciprocal good faith, agreement in writing, those not sharing the same religion may make binding treaties, was not between two state entities as the Jews were not a state.
The Peace of Westphalia (1648)
Two treaties between Many European states and Holy Roman Empire. States agreed to limit their sovereignty in order to assure their sovereignty. The group of treaties that make up the peace set the stage for the modern system of sovereign nation states we know today.
The Treaty of Paris
Between UK and USA ending the American Revolution and constituted Britains recognition of US sovereignty.
The Cessation of Alaska
US and Russia. A classic contract in which US paid Russian Tsar over 7 million in gold for Alaska. Russia ceded and left territory.
The Kellogg- Briand Pact
A treaty forswearing war as recourse in international affairs. Failed. Agreement did not create real obligations and did not stipulate the hoe of things agreed upon. Thus failure.
Hull-Lothian Agreement
an executive agreement between FDR and Churchill. UK needed destroyers, but no time to build them. Purchased them from the US in contravention of various US neutrality laws. US worked out how to lend destroyers and lease land from UK as to not violate neutrality laws.
Paquette Habana Case (USSC 1900)
an example of a US domestic court finding a customary rule of IL and applying it against its own government. Rules of customary law are often expressed by judges or other legal commentators as opposed to states themselves. The court traced evolution of customary law in this case looking at English Monarchy decrees, legal compilations, precedents and general practices of states. This case involved the seizure of vessels fishing in US waters by US military. The court ruled that civilian vessels could not be seized by US navy.
The Lotus Case (1927)
France and Turkey went to Permanent court of International Justice PCIJ at the Hague to settle on the matter of whether Turkey violated the Lausane Convention after Turkey seized the captain of the French Vessel for trial after a mid sea collision in Turkish waters (jurisdiction). The courts stated that in collisions on the high sea, only the flag state or the national state of the accused may prosecute the offender. Therefore France would prosecute its own captain and not Turkey.
The Texaco/Libya Arbitration (1977)
Dispute between state Libya and private party Texaco. An arbitrator brought in to resolve dispute and determined through use of rules from IL and precedents that arbitrators can settle international disputes. In this case Libya ordered to pay Texaco $76 million. The arbiter used general principles of law, natural law and equity to resolve this matter. When treaties and custom don’t provide rules for a case, look to non consensual sources such as general principles of law.
AM&S Case ECJ (1982)
where the disputants turned to the national legal systems of various member states of the European Community. This is considered non consensual as opposed to customs and treaties.
Cayuga Indians Case (1926)
where the arbitration between US and Britain on Cayuga Indians occurred. The arbitration panel looked to cases of justice and equity more than the treaty. In this case a monetary amount was awarded to them based on a treaty between the Indians and the State of NY.
The US Constitution
- Supreme law of the land
- Treaties are equal to Federal laws.
- The Supremacy Clause Article VI Section 2 states, “this constitution and the laws of the US which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the USA shall be the supreme law of the land.” This clause was devised mainly to assure the supremacy of treaties to state law but has been interpreted to allude that treaties are the law of the land of their own accord and do not necessitate an act of Congress to translate them into law.
Self Executing Treaties
- Those treaties that become directly effective upon ratification with regard to signatory states.
- A treaty containing a term that says it is directly effective within the signatory states upon ratification.
- There must be clear evidence of intent for the terms set forth in the treaty to be applied as enforceable laws without the aid of legislation, generally self executing treaties are much more specific than those that are not self executing.
Non-Self Executing Treaties
A treaty that requires states or parties to enact enabling legislation before it becomes effective domestically.
Are States Under Obligation to abide by IL?
- if the US is found in violation of particular IL, even if the United States action in the case was based on the IL’s variance within the constitution, the US would be considered in violation of IL. The fact that the US would be prohibited from obeying the particular IL by its constitution would have no weight at the international level.
Hierarchy among US laws
1. The US Constitution trumps all.
2. Treaties and Federal laws are EQUAL in effect
3. Treaties trump State/ local laws (provided the treaties are incorporated into US law) either because they are self executing or implemented by congressional legislation.
4. This hierarchy is clear cut, but self executing treaties and the first in time principle makes a difference. .
Disagreement on a Treaty
- It must be noted that when Congress and the President agree that a treaty is still in force, the courts because of deference to the other political branches will not ordinarily challenge the treaty’s validity or enforceability
Treaty Making Process in the US
- Article II Treaties US Constitution Sec 2 (2) He the president shall have power, by and with the advice and consent of the Senate to make treaties, provided two thirds of the Senators present concur.
- Treaties must be approved by the Senate 2/3 vote before the President signs the document of ratification. The President RATIFIES the treaty by signing it, while the Senate APPROVES the treaty before signature.
- Executive Orders, may be done by the President alone or may be done by the President pursuant to Congressional approval whether implicit or explicit. Controversial powers.
President Power for Treaty Negotiation
- In Curtiss-Wright, the Presidents role in foreign affairs is explained. The President alone has the Constitutional power to negotiate with foreign nations and the Senate are not to intrude on this power. The reasons for this are that the President, not Congress has the knowledge and better opportunity to know the conditions which prevail in foreign countries because of his information sources such as diplomatic chains, other officials and the secrecy of information gathered is highly necessary so as not to impede future negotiations or cause embarrassement.
Baker v. Carr, 369 US 186 (1962)
in which Justice Brennan discusses a six part test determining whether an issue presents a non justiciable political question (Lecture 4 wrap up covers this).
Public International Arbitration: Public v. Private
- We saw public international arbitration in the Cayuga Indian Case and the Eastern Greenland case.
- In private the courts of the state can exercise some oversight.
- In public the process of international arbitration is denationalized and set up and controlled by the parties themselves or some international institution.
- Rulings in private arbitration are widely enforceable through municipal courts. A states decision to comply with an adverse ruling of a public arbitral tribunal will often depend on many factors.
- Texaco Libya case is a good example of an arbitration where a neutral location was set as the forum.
Dogger Bank Case
involving Russia and Britain, presents the government an opportunity to look at other ways to resolve disputes. Diplomatic negotiations, unilateral economic countermeasures, use of force, national inquiries, In the end arbitration was most suited as it diffused public anger as to why their state was not defending its position, it provided a forum to protest innocence while complying with an arbitration decision.
Rainbow Warrior Cases
three cases to review, essentially outlining that arbitration can be used to receive compensation, apologies, remedies.
Minquiers and Ecrehos Case
- the countries in this dispute turned to the ICJ (International Court of Justice) to help solve geographical and economic interest issues. A considerable amount of the ICJ’s time is deciding and providing legal guidance for settling disputed land and maritime issues. The court is chosen over public arbitration as it holds more weight, is considered prestigious.
Diplomatic and Consular Staff Case
- The Iran hostage case documents how the US used the court ICJ as a forum to influence domestic and international public opinion. Iran was non compliant in the ICJ decision. The US has also been non compliant in the past as can be viewed in the Nicaragua Case. This resulted in the US not being able to bring any cases to the ICJ if it wished to as it would not comply in this instance.
ICJ vs. UN Security Council
-Both have different mandates.
-UN SC has authority to approve military action
-ICJ is a judicial institution, a means of peaceful settlement of disputes
-States bring issues before ICJ to AVOID WAR.
-The ICJ may sanction military action through UN SC, but this has never happened.
ICJ Advisory Opinions
-There are few requests for ICJ advisory opinions, most states prefer to settle out of the public eye and ICJ decisions are publicized.
-The ICJ tries to provide guidance rather than being formal or technical.
-Western Sahara Advisory Opinion is one example.
Reform of ICJ
-Some ideas include expanding the advisory side of the courts
-There are many other courts in existence dealing with maritime issues, and human rights issues that bypass the ICJ.
UN Charter Article 2(4)
No member state shall threaten or use force against the territorial integrity or political independence of another state.
(Consider if an embargo or other sanctions is a type of attack on the political independence. What about liberating hostages?)
UN Charter Article 51
: Nothing shall impair the inherent right of individual or collective self-defense if subjected to an armed attack. Report any such use of self-defense to the security council.
(Consider preemptive self-defense, NATO, preemptive action. What of providing military assistance to other states?)
The Nicaragua Case
Nicaragua filed against the US in the International Court of Justice to contest the legality of the US support for the rebels fighting against the Nicaraguan government. Prior to the official filing of the claim the US withdrew its acceptance of the court’s jurisdiction. This case, in part, demonstrated the inherent flaw in the international court system, a lack of enforcement without willingness of each nation.
UN Charter Article 24
The UN is responsible for world peace and security.
Does chapter VII of the charter allow the UN to interfere in internal matters?
-International organizations are subjects of international law.
-The UN was born of the League of Nations and the reactionary desire for collective security after WWII.
The Universal Declaration of Human Rights
- Right to life and liberty and security
- No slavery
- No torture
- Freedom of movement
- Property rights
International Criminal Court
has the same difficulties as any international court, enforcement. The ICC was established through the Treaty of Rome, though the US is not a ratifying nation. This reluctance on the US’s behalf is indicative of a larger pattern of American isolationism when it comes to participation in such international agreements
Individual & International Law
States should provide protection to and take responsibility for individuals that they have a legitimate tie with. Filartiga (from week 1) and Paquete Habana (from week 3) illustrate that U.S. courts are willing to treat individuals as subjects of international law for the purposes of claims against their own governments, or the U.S. government. Also covered were the Nuremberg Trials and the use of international law to provide not only remedies to individuals, but punishment of individuals.
The most common use of law to regulate an economy
The Trial Smelter Case
established a nation’s responsibility to another in terms of cross-border pollution. This trial was unique in that all parties were involved with and amicable to the decision. A beginning step in viewing the environment and events related to it, as an object of international law.
The Antarctica Treaty (1959)
- Peaceful purposes only
- Freedom of scientific investigation
- Territorial claims are frozen (no pun)
- No nuclear explosions or waste
- Signing nations are responsible for enforcement
- The 12 original parties have decision authority
It is not firmly established which laws apply to Antarctica, national or international. Argument that the treaty says it is intended to benefit all but in actuality only benefits the 12 original nations is a continual debate.
The Outer Space Treaty (1967)
A UN effort, vice a multilateral / multinational
- Space is for peaceful purposes
- All should benefit
- Each nation is guaranteed 1 geostationary orbital position
The Law of the Sea (1982)
Originated from technological advances that prompted nations to make broad territorial claims on the oceans.
- Freedom of navigation, over flight, research and fishing (to name a few)
- High seas are for peaceful purposes
- No sovereign claims of any part of the high seas
Question: Who maintains order in the broader sense of the word on the seas
National integrity
Jurisdiction and territorial boundaries were first codified in 1648 in the Treaty of Westphalia. A distinct territory with an independent acting government both internally and externally.
The concept of nationality gives a nation the power to apply its laws to a citizen regardless of their physical location.
Also mentioned was the Effects Principle. This is an action of intent by a party which allows a nation to apply its laws if the action were intended towards that country or one of its citizens.
Question: Where does municipal law stop and international law take over? And vice versa.