“The Efficacy of the Modern Institution of International Law ” by Kapok Tree Diplomacy
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Introduction
International la
w 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). Read more
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“belligerents to remain under the protection and the rule of the principles of the law of nations” until such time as custom becomes statutory in some form or fashion (qtd. in Mertus & Helsing 219-220). Thus, custom serves as a “gap-filling” measure that universally binds all states and may apply to scenarios where IL has not yet been formalized into statutes (Mertus & Helsing 220). Read more
