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How Strongly SHOULD We Protect and Enforce International Law?

Pauwelyn , Joost, "How Strongly SHOULD We Protect and Enforce International Law?" (March 2006). Duke Law School Legal Studies Paper No. 105 Available at SSRN:


    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.
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