Document Type

Article

Abstract

Observers of international law are obsessed with trying to explain and predict why and when states comply with international law. Doing so, they have consistently overlooked a logically preceding, but no less important, question: To what extent should states perform their international commitments? Put differently, how strongly should we protect and enforce international law? Worrying as much about over-enforcement as under-enforcement of international law, this article offers a theory of relative normativity. This theory is driven by efficiency, effectiveness and legitimacy concerns rather than a hierarchy of values. It makes distinctions between how international law allocates entitlements, how it protects entitlements and how it reacts when rules of protection are broken (back-up enforcement). My central claim is that, much like domestic law, international law is best protected on a sliding scale between strict inalienability and simple liability. From that perspective, both what I call European ‘absolutism’ and American ‘voluntarism’ must be avoided as extreme and homogeneous normative frameworks.

Date of Authorship for this Version

March 2006