Norm Robustness and Contestation in International Law: Self-Defence against Non-State Actors

27 Pages Posted: 14 Jun 2017

See all articles by Jutta Brunnée

Jutta Brunnée

University of Toronto, Faculty of Law

Stephen J. Toope

University of Cambridge

Date Written: May 15, 2017

Abstract

This paper is part of an interdisciplinary project on 'Norm Robustness and Contestation', convened Nicole Deitelhoff and Lisbet Zimmermann. Using the example of the right to self-defense under customary international law, we engage with questions concerning the linkage between norm robustness and legality. We draw out important differences between validity contestation and applicatory contestation within law. In so doing, we connect the IR debate over norm robustness with our framework of interactional international law, bringing together constructivist insights into social normativity and a theory of international legality. We hypothesize that norms that meet the requirements of legality and are upheld by practices of legality enjoy 'validity' and 'facticity' (as defined by Deitelhoff and Zimmermann), and are 'robust.' This model reveals that law operates through a continuing process of contestation. The requirements of legality impose a discipline, such that legal contestation will normally be applicatory contestation. Through practices of legality, therefore, legal norms can be maintained or shifted. However, legal norms may decay when practices of legality weaken, or when challenges amount to validity contestation. The currently heightened contestation surrounding the circumstances under which the right to self-defense can be exercised against non-state actors allows exploration and illustration of these dynamics.

Keywords: Contestation, Customary Law, Interactional Law, International Law, Non-State Actors, Norm Robustness, Self Defence

Suggested Citation

Brunnée, Jutta and Toope, Stephen J., Norm Robustness and Contestation in International Law: Self-Defence against Non-State Actors (May 15, 2017). Available at SSRN: https://ssrn.com/abstract=2985655 or http://dx.doi.org/10.2139/ssrn.2985655

Jutta Brunnée (Contact Author)

University of Toronto, Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-946-7353 (Phone)
416-978-7899 (Fax)

Stephen J. Toope

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

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