UC Berkeley

NATO’s military intervention in response to the Federal Republic of Yugoslavia’s violation of human rights was illegal because it neither received the blessing of the Security Council nor was it justified under the rules of self-defense. This interdisciplinary research employs a rational choice approach to international law in order to understand the limits as well as the effects of international law during the Kosovo War in 1999. International law lacked any intrinsic importance within the utilitarian calculus of political decision-making during NATO’s intervention in 1999.

After explaining a rational choice theory approach, this dissertation proceeds in the second chapter in order to outline the theoretical argument of jus ad bellum rules embodied in Article 2(4) of the United Nations Charter. In this chapter, I introduce three ways of thinking about compliance with the use of force in international law that will help us better understand why nations did not conform to the use of force rules embodied in the UN Charter.

The third chapter presents and criticizes the threats of force. International lawyers and the International Court of Justice have concluded that a threat of force is illegal if the use of force followed by a threat did not receive Security Council authorization nor was it justified under self-defense. In contrast to these arguments, by using the logic of strategic literature and game theory, this chapter proposes that threats of force are sui generis and should be treated separately from the use of force rules. Moreover, this chapter shows that military threats can be powerful instruments of coercion and can serve a useful purpose in the crises because they may mitigate the risk of war. Therefore, credible and capable threats should be permitted under international law since they can reduce the likelihood that the confrontation will end in war and therefore, the purpose of the U.N. Charter “to maintain peace and security” can be achieved.

The fourth chapter analyzes customary international law and it has developed two major claims. First, I argue that only the objective element, a state practice, should be considered relevant for establishing customary international law and opinio juris should not be regarded as a necessary requirement because it is a costless signal. Hence, by using logic of the “cheap talk” and signaling games, I suggest that the International Court of Justice should take into consideration only physical acts as a constitutive element of customary international law. My second argument is related to the compliance with customary international law. While international lawyers who use rational choice theory believe that customary international law refers to patterns of cooperative behavior since it requires widespread repetition of similar international acts over time by states and therefore states may build a negative reputation for non-compliance, this chapter argues that the “shadow of future” doctrine cannot be applied to peremptory norms, such as the prohibition of aggressive war. Although jus cogens are part of customary international law and they are fundamental norms from which no derogation is permitted, concern about the future of those norms depends on the temporal sequence of costs and benefits. I go on to show that even in infinitely repeated games, when stakes are high, such as jus cogens norms, cooperation is unlikely.