“The Efficacy of the Modern Institution of International Law ” by Kapok Tree Diplomacy
International law has evolved into a growing and complex body of rules and norms that states consent to based upon their concrete interests in a peaceful, prosperous and stable society. While international law differs and often competes substantively from municipal law, international law plays a predominantly positive role in allowing nations to benefit from the binding obligations derived from its sources. This essay will cover a brief history and definition of international law in Section One to include its sources and evidences followed by a comparison of international law with municipal law in Section Two with an emphasis on treaties. The paper will conclude with some observations on how well the framework of international law actually works.
Section One – A Brief History and Definition of International Law
History. The modern institution of international law has its historical roots in the sixteenth and seventeenth centuries with the evolution of the nation state in Europe. Werner Levi notes, “The feudalistic entities with their relatively uncertain borders gave way to states based upon sharply defined territory” (qtd. in Dunoff, Ratner, & Wippman 5). As states emerged, the need to communicate and coordinate according to definitive norms and principles also emerged as well as the need to delineate authoritative boundaries and interpret binding obligations.
The authority to rule over these sovereign territories was originally understood as a “divine right” proceeding from God or natural law, “a set of divinely ordained principles of state conduct, accessible to all endowed with right reason” (Reus-Smit 282). Through influential philosophers like Hugo Grotius and Alberico Gentili, the concept of “positive law,” created by humans and practiced by states, began to take its place alongside and even supplant natural law as the primary basis for international law (Dunoff, Ratner, & Wippman 6).
The body of international law continued to develop throughout the eighteenth and nineteenth centuries through multilateral treaties like Utrecht (1713) and Paris (1814) which further defined the connection between territorial boundaries and sovereign authority (Reus-Smit 282). The “distinction between “civilized and uncivilized states” rooted in colonization practices and illustrated in the doctrine of terra nullius provided a legal framework for European progress and development (Dunoff, Ratner, & Wippman 11).
The two world wars of the twentieth century convinced most states that armed conflict was not an effective dispute resolution technique. The principle of national self-determination and the need for a “fundamental institutional arrangement not only to address questions of war and peace and human rights but to develop legal norms in other areas, such as labor, health, and communications,” gave rise first to the League of Nations in 1919 and then to the United Nations (UN) in 1946 (Dunoff, Ratner, & Wippman 16).
The peaceful settlement of international disputes has evolved into several other areas such as trade, collective security, civil and political rights, and women and children’s rights. Global interdependence, the extraodinary trajectory of technology, increased privitization and deregulation, and the need to deal with transnational issues like drugs and human trafficking have also contributed to the reality of international law touching nearly every sphere of human activity (Dunoff, Ratner, & Wippman 29).
For all of its noble intentions and great accomplishments, international law has its own conceptual challenges. Some would say that international law really isn’t law at all. International law is not even exclusively confined to states anymore. Non-state actors like non-governmental organizations (NGOs), individuals, multi-national corporations (MNCs), and substate units also practice and implement international law. But just what is international law?