How International Rules Die
53 Pages Posted: 6 Jul 2005
A rule's abandonment through nonenforcement or noncompliance is known as desuetude. This article presents a theory of desuetude that applies to international legal regimes, taking into account the broader context of obligation, causation, and social norms in a consent-based system. The UN use-of-force regime is an example. The theory is that excessive violation of a rule, whether embodied in custom or treaty, causes the rule to be replaced by another rule that permits unrestricted freedom of action. The two rationales commonly given for obligation in the international order, the naturalist and positivist theories, are unconvincing. The rational choice model is a preferable explanatory tool because it provides practical reasons for supposing international rules to be obligatory, and it uses a more reliable means of assessing practical obligation, namely, frequency of violation. Two competing claims - that international legal rules are all that matter in shaping state conduct, and that those rules do not shape state conduct at all - are examined and rejected. Whether a particular rule falls into desuetude depends in part upon the presence of conditions necessary for international cooperation. Those conditions are associated with social norms that undermine or reinforce international legal rules, and also inject elements of coercion into a consent-based system; an infrastructure of reinforcing sub-legal norms is a necessary condition for law's effective operation. The article concludes by considering the dilemma faced by an international law scholar who recognizes that commenting upon the desuetude of a preferred rule can hasten the rule's demise.
Keywords: Desuetude, obligation, use of force, social norms, United Nations, custom, treaty, norms, compliance, positivism, naturalism, realism, causation
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