| The debate in the United Nations leading up to the 2003 intervention in Iraq highlighted two very different interpretations of the same principle of international law: the use of anticipatory action in self-defense. On the one hand, a number of states argued that existing understandings of anticipatory action required a concrete, imminent threat, which was not present. On the other hand, a second group of states argued that, given the changed circumstances of a post-Cold War, post 9/11 world, our understanding of when anticipatory intervention is allowed must change. This clash between the two groups was cause for much discussion about a rift between Europe and the U.S. What was at the heart of the disagreement, however, was not a great shift in alliances, but rather two different, but plausible, interpretations of the same principle of international law. The question this project seeks to address is why states can recognize the same principle of international law, but ascribe to it such different meanings. Put another way, why is it that states arrive at different interpretations of international law and how does this influence their foreign policy decision-making?; Building on existing literature on the role of ideas in foreign policy and the process of norm internalization, and integrating the field of comparative law, I theorize that the method of interpretation a state adopts is constituted by the legal tradition of that state. Legal tradition is the historical development of law within a state that results in socially-constructed beliefs about the role of law in society, the proper creation of law, and the sources of law that are binding. Legal tradition has a dual influence on state decision-makers in formulating a policy position. First, it provides socially-constructed understandings about the meaning of law and the appropriate action under law. Second, it determines to what extent a state may consider its interests in its decision-making process. To test this theory, I conduct a number of case studies examining the way legal tradition shapes interpretation of three international legal principles in a contemporary context: the use of anticipatory intervention in self-defense in the case of Iraq in 2003; the prohibition on use of one's territory to the detriment to others under the Kyoto Protocol; and universal jurisdiction for crimes against humanity as outlined in the Rome Statute of the International Criminal Court. |
