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Mercenaries: Strong Norm, Weak Law
Published online by Cambridge University Press: 11 April 2007
Abstract
In this article I examine how a weak international law can be created
despite the presence of a strong norm, and I use weak law to probe the
relationship between social and legal norms. International law dealing
with mercenaries is notoriously flawed. These flaws have been attributed
to the idea that state interest (or lack of interest) led to the
development of intentionally weak law. In fact, ineffective anti-mercenary
law is the result of the influence of norms. A strong norm against
mercenary use has led states to devise a definition that indicated what
they found problematic about mercenaries, and differentiated mercenaries
from other actors. This definition followed the anti-mercenary norm but
created a number of loopholes, which were made worse by the fact that
commitment to the norm was so strong that states were unable to make
adjustments necessary to create more effective law. The development of the
law against mercenaries was further undermined by the pressures of a
competing norm. During the 1980s, creation of a UN Convention to deal with
mercenaries was stymied by the fact that many states were seeking to
protect the norm of state responsibility, and the conflict between this
norm and the anti-mercenary norm delayed the Convention to such a degree
it was superseded by events. Weak anti-mercenary law, created in the
presence of a strong anti-mercenary norm, can demonstrate four things
about the relationship between social and legal norms: that states
advocate the creation of law because of what it is rather than what it
does; that legal institutionalization is not necessarily good for the
further development of a norm; that strong commitment to a norm can lead
to the creation of weak law; and that social and legal norms might not
differ because the latter is more effective.
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- Research Article
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- Copyright
- © 2007 The IO Foundation and Cambridge University Press
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