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Erga Omnes Norms, Institutionalization, and Constitutionalism in International Law

29 Pages Posted: 8 Aug 2008  

Eric A. Posner

University of Chicago - Law School

Date Written: August 7, 2008

Abstract

Erga omnes norms are those that give third-party states, rather than just the victim, legal claims against states that violate them. This paper argues that ordinary two-party norms arise when states recognize that a norm violation injures only one state and that other states that seek to retaliate on that state's behalf are likely using the violation as a pretext for predatory behavior. Erga omnes norms arise when states recognize that a norm violation injures multiple states and that states have an incentive to free ride rather than retaliate against the violator. Erga omnes norms reduce the incentive to free ride but at the same time reintroduce the risk that some states will use a norm violation as a pretext for engaging in predatory behavior.

Suggested Citation

Posner, Eric A., Erga Omnes Norms, Institutionalization, and Constitutionalism in International Law (August 7, 2008). U of Chicago Law & Economics, Olin Working Paper No. 419; U of Chicago, Public Law Working Paper No. 224. Available at SSRN: https://ssrn.com/abstract=1211424 or http://dx.doi.org/10.2139/ssrn.1211424

Eric A. Posner (Contact Author)

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