How Strongly Should We Protect and Enforce International Law
The most up-to-date version of this piece can be found in the Duke Law Scholarship
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
Pauwelyn, Joost, "How Strongly Should We Protect and Enforce International Law" (2006). Duke Law School Faculty Scholarship Series. Paper 44.