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

OUTLINE I. 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 Trend? Coverage

Source: Charlotte Ku, 2001

Growth of international trade law World trade: Of which, % covered by multilateral agreements $10 billion 20% $150 Billion 90%

I. Legalization: A Growing Trend? Coverage Institutionalization

I. Legalization: A Growing Trend? Coverage Institutionalization Judicialization

International Criminal Tribunals since World War II 1993: Yugoslavia 1994: Rwanda 2000: East Timor 2001: Sierra Leone 2003: Cambodia : International Criminal Court

III. The Debate over “Law” III. The Debate over “Law” J. Austin: Rules backed by force H.L.A. Hart: Primary & secondary rules H. Bull: subjective acceptance

IV. An alternative conception - “Legalization”

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

IV. An alternative conception - “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 conception - “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 3 rd party authority in dispute settlement, rule making, and rule interpretation.

V. What explains the legalization trend? More transactions, more to regulate?

V. What explains the 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?

V. What explains the 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 form that international agreements take? Hard versus soft law Duration and renegotiation provisions

Hard 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 Soft Law Sovereignty costs Contracting costs Uncertainty Non-self enforcing, Transactions costs Hard law Soft law

Transition from Soft to Hard 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: 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?