Government S-1740 Lecture 2: Explaining the “Legalization” of International Relations INTERNATIONAL LAW Summer 2006.

Government S-1740Government S-1740

Lecture 2: Explaining the “Legalization” of International Relations

INTERNATIONAL LAWINTERNATIONAL LAW Summer 2006

OUTLINEOUTLINEI. Legalization: a growing trend?

II. The Debate over “Law”

A. J. Austin: Rules backed by force

B. H.L.A.Hart: Primary & secondary rules

C. H. Bull: subjective acceptance

III. An alternative conception - “Legalization”: Obligation, Precision, Delegation

IV. What explains the legalization trend?

V. What explains the form agreements take?

I. Legalization: A Growing I. Legalization: A Growing Trend?Trend?

Coverage

0

500

1000

1500

2000

2500

1900-25 1926-50 1951-75 1976-95

Years

Number of New Multilateral Treaties Concluded

Other

Environment

Cultural

HumanWelfare

Economic

Military

Political/Diplomatic

Source: Charlotte Ku, 2001

Growth of international Growth of international trade lawtrade law

19461946 19919955

World trade:

Of which, % covered by multilateral agreements

$10 billion$10 billion

20%20%

$150 Billion$150 Billion

90%90%

I. Legalization: A Growing I. Legalization: A Growing Trend?Trend?

Coverage

Institutionalization

0

50

100

150

200

250

300

350

400

1909 1951 1972 1984 1992

Number of International Organizations

I. Legalization: A Growing I. Legalization: A Growing Trend?Trend?

Coverage

Institutionalization

Judicialization

0

10

20

30

40

50

60

70

80

Nu

mb

er o

f b

od

ies

1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000

Growth in International Judicial, Quasi-judicial, and Dispute Settlement Bodies

Quasi-judicial and other dispute settlement bodies Judicial bodies

Number of ICJ Decisions

0

5

10

15

20

25

Years

decisions

International Criminal International Criminal Tribunals since World Tribunals since World

War IIWar II 1993: Yugoslavia

1994: Rwanda

2000: East Timor

2001: Sierra Leone

2003: Cambodia

1998-2003: International Criminal Court

III. The Debate over III. The Debate over “Law”“Law”

J. Austin: Rules backed by force

H.L.A. Hart: Primary & secondary rules

H. Bull: subjective acceptance

IV. An alternative IV. An alternative conception - conception -

“Legalization”“Legalization”

IV. An alternative IV. An alternative conception - conception -

“Legalization”:“Legalization”: Obligation: States are legally bound to a particular rule or commitment; bound to do something or refrain from so doing.

IV. An alternative IV. An alternative conception - conception -

“Legalization”:“Legalization”: Obligation: States are legally bound to a particular rule or commitment; bound to do something or refrain from so doing.

Precision: the exactness, definiteness of a rule.

IV. An alternative IV. An alternative conception - conception -

“Legalization”:“Legalization”:Obligation: States are legally bound to a particular rule or commitment; bound to do something or refrain from so doing.

Precision: the exactness, definiteness of a rule.

Delegation: Acceptance of 3rd party authority in dispute settlement, rule making, and rule interpretation.

V. What explains the V. What explains the legalization trend?legalization trend?

More transactions, more to regulate?

Trade and International Organizations in the Twentieth Century

0

50

100

150

200

250

300

350

400

450

1909 1951 1972 1984 1992

Year

# of

IOs

0

2

4

6

8

10

12

14

16

Exp

orts

% o

f wor

ld G

DP

Number of IGOs Exports as % of World GDP

V. What explains the V. What explains the legalization trend?legalization trend?

More transactions, more to regulate?Complexity of interactions?Demands of smaller states, newer states?Increased perceptions of interdependence?New norms that require codification?End of the Cold War?Democratization?

Democracy and International Organizations in the Twentieth Century

0

50

100

150

200

250

300

350

400

450

1909 1951 1972 1984 1992

Year

# of

IOs

0

0.05

0.1

0.15

0.2

0.25

0.3

0.35

0.4

0.45

0.5

% o

f cou

ntri

es d

emoc

rati

c

Number of IGOs share of Dems

V. What explains the V. What explains the legalization trend?legalization trend?

More transactions, more to regulate?Complexity of interactions?Demands of smaller states, newer states?Increased perceptions of interdependence?New norms that require codification?End of the Cold War?Democratization?US leadership/hegemony?Too many lawyers?

VI. What explains the VI. What explains the form that international form that international

agreements take?agreements take?Hard versus soft law

Duration and renegotiation provisions

Hard versus Soft LawHard versus Soft Law

HARD:– clear, legally binding obligations– precise language– high delegation– Parties “shall”, “are obligated”, “must…”

SOFT: States should “strive to…” “Efforts will be made to…” “to the best of their abilities…” “as conditions permit…”

Legalization: Hard v Legalization: Hard v Soft LawSoft Law

Sovereignty costsContracting costsUncertainty

Non-self enforcing,Transactions costs

Hard law

Soft law

Transition from Soft to Transition from Soft to Hard LawHard Law

Trade: broad liberalization principles specific barrier reductions

Arms control: from confidence building measures to weapons reductions

Environmental agreements: adjustments to small non-binding agreements.

Summary:Summary: Increasingly, states are making more highly “legalized”

agreements to regulate their mutual relations By legalization we mean agreements with greater

precision, obligation, and delegation This is probably due to the density of interactions and

growing interdependence Rational perspective: governments make strategic,

purposive decisions about what form these agreements take.

The form these “contracts” take depends on sovereignty costs, transactions costs, contracting costs, and the structure of the information environment.

Next: what about compliance?