| The Treaty of Rome, adopted in 1998, when in force will create a permanent, independent court for the adjudication of violations of international human rights law. The Treaty was adopted in spite of objections from the United States. The question examined in this dissertation is, how did such a significant element of international law come into being without superpower support?; Rather than take up the question of why states behave as they do, this project is concerned with how international law develops. These are different, yet related questions. I argue that law as a social system has a distinctive discursive structure. This structure has a developmental tendency embedded in it that is made manifest over time.; I develop a model of the structure of law based on H. L. A. Hart's conception of law as the union of primary and secondary rules. Legal systems made up of only primary rules are characterized by inefficiency and uncertainty. Secondary rules specify how primary rules are to be applied, and are designed to reduce this uncertainty and inefficiency. International lawyers understand both the deficiencies of primary rule systems and the set of potential remedies developed in municipal systems. The gap between the ideal of a municipal system and the reality of the international system inspires such actors to propose remedies to close the gap. Once proposed, these documents, drafts, and new laws create a strewn of social facts that persists. Well reasoned but unsuccessful proposals can be resurrected as authoritative thought in future negotiations. This accretion of social fact and legal precedent acts as a ratchet, creating a floor from which future attempts to close the gap can be launched.; I therefore hypothesize that the development of international law has a direction; from an immature form consisting of only primary rules, to a more mature one characterized by the addition of secondary rules. I further hypothesize that this process will take place via the gap/ratchet mechanism I then apply this model of legal development to the international human rights regime using a process tracing method. |
