International law is a system of law that is predominantly created by, and designed to govern the actions of, states. Public international law, the subject of this entry, can be distinguished from private international law, which addresses aspects of private legal relationships that span national borders. International law is a horizontal system of law in which states, at least in legal theory, enjoy sovereign equality. Lacking a legislative body or a law enforcement agency, international law functions very differently than a system of law in a modern liberal democracy. International law has grown enormously in scope and complexity since World War II. The number of states has expanded through decolonization and disintegration, international law has come to address a far wider range of subjects than ever before, and there has been a considerable increase in the number of international courts and tribunals. This entry first looks at how international law is created and enforced, and reviews some of the most significant recent developments in specific fields of international law, before considering competing explanations of the impact of international law on the behavior of states and the attitude toward international law of developing countries, the United States, Europe, and China.
Some scholars consider that the predictable patterns discernible in the interstate relations of the ancient world, including the Greek city-states and Mesopotamia, could be regarded as forerunners to the current system of international law, and systems of international law are also said to have developed in precolonial Africa and South Asia. The modern system of international law is, however, usually dated from the Peace of Westphalia of 1648, and the term international law did not come into use until the late 18th century. By the 20th century, international law had evolved into a global system of law. There are contrasting views as to the political significance of the contemporary system. Since the emergence of international relations as a field of study in the early 20th century, the dominant realist paradigm has downplayed the impact of international law on the course of world events. Liberalism assumes an important role for international law as an agent of world peace, but World War II stymied hopes that international law could triumph over military might, especially where accompanied by a political determination to use violence. As international law continues to grow in sophistication, so we are seeing more nuanced theoretical approaches to explicating its impact.
There are at least three ways in which the term source is used in relation to international law.
States have a legal obligation to comply with international law. The theoretical source of this obligation is state consent. Legal positivism, the philosophical foundation of international law since the 19th century, assumes that law is made through human agency as opposed to deriving from the metaphysical or religious realms. States are bound by international law because they have agreed to be bound by that law. Although legal positivism underpins the “real world” of international law, it has plenty of critics in the academy, who regard it as inadequate for the contemporary world. Particularly in the 1990s, much of the scholarship critical of legal positivism and the system of international law founded on legal positivism went under the banners of “critical international legal studies” and “new approaches to international law.” This scholarship emphasized the indeterminacy of legal argument and found fault with legal positivism for not taking sufficient account of the role of nonstate actors, the concerns of women, those in postcolonial societies, and indigenous peoples. Heightened awareness of the masculinist bias of international law has given rise to changes in specific fields of international law, including refugee law and international humanitarian law. Liberal scholarship in international law emphasizes the plurality of actors in the international sphere, including transnational networks of judges and government officials.
The formal sources specify the ways in which international law is made. Article 38 of the Statute of the International Court of Justice, which sets out the sources of international law that the Court is to apply, is usually understood more generally as a statement of the formal sources of international law. Although the statute specifies no hierarchy, the order in which the three sources are listed provides a guide as to the relative practical importance of each source. Listed first are conventions, or treaties, which are legally binding agreements between states and, to a lesser extent, between states and intergovernmental organizations. Second is customary international law. States create custom through their actions, where that practice is accompanied by opinio juris, a belief that international law requires the state to behave in that way. The third of the formal sources is general principles of international law. The formal sources of international law permit us to distinguish between rules, principles, and concepts that are, strictly speaking, part of international law and those that are not. Article 38 also specifies two subsidiary means for determining what international law permits or does not permit on a certain subject. These are the writings of distinguished international lawyers and judgments of international courts and tribunals.
If the formal sources elucidate the ways in which international law can be made, the material sources are the specific documents in which a particular point of law is set out—the Charter of the United Nations (UN) or a resolution of the General Assembly, for example. To state that a text constitutes a material source of international law is not to assume that it has legal status as a formal source of international law: The material source may have set out a rule that then becomes binding through another process.
The doctrine of sources suggests the processes by which international law evolves. There is no single formal source of international law that serves as the motor of change. International customary law is often codified into treaties. The Third UN Convention on the Law of the Sea, for example, put into written form international law that had already emerged in custom. Usually in such cases, however, the treaty not only codifies custom but also represents the “progressive development” of international law; through this process, international law is updated. Two general principles of law are relevant here: Where the terms of two material sources of international law appear contradictory, the more recent prevails, and where apparently contradicting law can be found both in specific and broadly applicable instruments, the more specific overrides the more general.
Compliance with international law is aided by the fact that, at least in theory, states choose the law to which they wish to be bound. States are not bound by a rule of customary law if they have been persistently objecting to the emergent rule, although, in practice, the crystallization of a rule may be clear only in retrospect. States are bound only by those treaties to which they agree to be bound. Participants in treaty negotiations have an opportunity to help shape the terms of the agreement, although in large-scale negotiations the impact of any one delegation may not be as significant as the theory of state consent might suggest. Compliance with international law is also enhanced by the fact that multilateral treaties commonly permit reservations, which allow states to exclude from their undertakings any provisions with which they disagree. Even those states that have signed a treaty can choose not to proceed to ratify and hence not be bound by the final text of the treaty. The fact that international law is a horizontal system means that one of the most important factors promoting compliance is reciprocity: If one party to a conflict treats the prisoners of war of the other combatant according to international humanitarian law, it is much more likely that its own nationals will in turn be treated appropriately.
There are two alternative approaches to maximizing compliance with international law, and each has its supporters within the academy. One approach takes as its starting point the assumption that states have a propensity to comply and generally only fail to do so when there are financial or bureaucratic impediments. This, the managerial approach, is associated with the writing of Abram Chayes and Antonia Handler Chayes (1995) and emphasizes the continuity of policy choices, to which changes are made only incrementally when perceived as necessary. The second approach is that of enforcement, by which it is assumed that states will only comply where they see a direct benefit from doing so. If a decision to comply is the product of a cost-benefit analysis on the part of national decision makers, rates of compliance should be significantly affected by the presence or absence of enforcement mechanisms. In practice, most fields of international law contain elements of both the “carrot” and the “stick” approach.
There are several methodological problems associated with attempting to determine with precision the rate of compliance with international law—most basically, the fact that there may not be a clear divide between compliance and noncompliance. Many treaty provisions are worded in such a way that it is a matter of interpretation as to whether a particular party has complied with its obligations. It is not difficult to assess whether a state has or has not complied with an obligation to submit a report on its implementation of a human rights treaty, for example, but it may be more difficult to assess on the basis of that report whether the state has implemented the treaty fully, in both letter and spirit.
A notable feature of the system of international law over recent decades has been the growth in the number of international courts and courtlike bodies. Historically, states—or at least their decision-making elite—have been far from keen on the idea of being required to abide by the outcome of a third-party decision in relation to issues with high political stakes. The dispute resolution process within the World Trade Organization stands out because it is compulsory. Any member state that believes that another member has breached an agreement can initiate a case. The dispute is heard by a panel whose report is then adopted by the Dispute Resolution Body unless there is a consensus against adoption. Appeals are heard by an appellate body. Should a member not comply with the outcome of this process, retaliatory trade sanctions may be imposed. Despite the fact that a considerable proportion of trade disputes are settled informally, there is strong scholarly interest in the workings of the dispute resolution process because its establishment in an intergovernmental organization with such large membership is a historically significant development.
The two international courts with the greatest potential impact on world politics are the International Court of Justice (ICJ) and the International Criminal Court (ICC).
The ICJ is one of the principal organs of the UN. The ICJ can hear cases on any subject matter brought to the Court by states, so long as it finds that the states concerned have consented to the jurisdiction of the Court. Expressions of consent may have been open-ended or relate only to the case in question. The Court can issue an order for provisional measures—the equivalent of an interim injunction—which are designed to protect the rights of parties during the period before the Court decides on the case itself. The Court has averaged less than three cases per year but has become increasingly busy in recent years. States have complied with the judgments of the Court in a majority of, though not all, contentious cases, but compliance with provisional measures has not been good. In its 2001 decision in the LaGrand Case, the Court confirmed that orders of the Court indicating provisional measures are binding. Should a party to a dispute heard by the Court not comply with the decision of the Court, the other party/parties may request the assistance of the Security Council in obtaining compliance. This would clearly politicize the question and would not be useful if the grievance were against one of the permanent members of the Security Council. The Council has never formally declared that it is acting to enforce a decision of the ICJ.
In addition to hearing contentious cases brought by states, the ICJ can respond to requests by certain bodies within the UN for advisory opinions. These are nonbinding responses to questions of law. Examples include the 1995 opinion on the legality of the threat of use of nuclear weapons and the 2003 opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory.
The establishment of the ICC in 1998 was one of the most momentous international law developments of the late 20th century. The ICC exercises jurisdiction over individuals who commit serious breaches of international law through the crimes of genocide, war crimes, and/or crimes against humanity, and it will have jurisdiction over the crime of aggression once a definition of the crime has been agreed on. A key principle in the statute is that of complementarity; the ICC was not intended to replace national courts but to operate in situations in which states are either unable or unwilling to act. The ICC is set to have significant political impact, in large part because, despite its having jurisdiction over individuals rather than states, this necessarily gives rise to broader political implications. This is particularly evident in the case of aggression. Aggression was included in the Statute of the ICC at the insistence of developing countries, but there was no agreement during the negotiations as to how aggression was to be defined. Historically, aggression has been considered a crime committed by states, but the Nurem burg and Tokyo tribunals after World War II declared that individuals were accountable for crimes against peace. It would be very difficult for the Court to find that an individual had committed the crime of aggression without passing judgment on the actions of the state in question.
The issue is similar in relation to the trigger mechanisms by which a case can be brought before the Court. A situation may be referred to the ICC Prosecutor by a state party or initiated by the prosecutor with the authorization of a pretrial chamber. In both these situations, the state in whose territory the conduct in question occurred or of which the person accused of the crime is a national must have given its consent. A situation can also be referred to the prosecutor by the Security Council, and if brought by this means, the Court will have jurisdiction even if the crime was committed in a nonstate party by a national of a nonstate party and in the absence of consent by the territorial state or the state of nationality of the accused. The United States has not become a party to the statute of the Court, one of its principal objections being that, contrary to the principle of state consent, the Court can hear a case against an individual whose country is not party to the statute. The United States did not, however, veto Security Council Resolution 1593 (2005), which referred the situation in Darfur to the ICC despite Sudan being a nonparty to the statute. The first four situations referred to the Court were all African.
The ICC complements the work of national courts as well as other types of bodies, including criminal courts established on an ad hoc basis and truth and reconciliation commissions. Truth commissions have no prosecutorial powers and are not courts. They attempt to acknowledge and document a history of human rights abuses within a particular country or area—often those that took place under a regime, or during a period of turmoil or civil war—as a step toward healing wounds within that society. They represent a midpoint between a blanket amnesty for perpetrators of human rights and international humanitarian law violations and formal criminal trial. More than 20 truth commissions have been established since 1970, including in Uganda, Nepal, and South Africa. Both a Truth and Reconciliation Commission and a special court established jointly by the Government of Sierra Leone and the UN operated concurrently in Sierra Leone in the wake of its civil war. Other ad hoc tribunals include the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Both Timor and Cambodia have hybrid courts in which criminal justice is being pursued through what can be understood as internationalized domestic courts.
International law can be divided into a number of overlapping subfields or regimes. While this is useful as a way of classifying the vast and growing amount of international law, it should be remembered that any single material source may well have relevance to more than one of these fields. Enforcement methods vary between fields and in their mix of carrot and stick approaches.
This field of international law specifies the circumstances under which a state may or may not use force against another state. One of the most striking features of the current system of international law is its incorporation of a general prohibition on the threat and use of force in interstate relations. The Covenant of the League of Nations attempted to delay and, if possible, avoid a state resorting to war, but the Charter of the UN goes further and permits states to use force only in self-defense or if authorized to do so by the Security Council. The Charter recognizes the inherent right of a state to self-defense if it is a victim of an armed attack. Having responded in self-defense, the state concerned is expected to report its actions to the Security Council, and it is assumed that the Security Council will then take appropriate action. Although the initial plan was for individual states to make military forces available to the UN, this has not occurred, and in practice, the Council authorizes others to use force on its behalf. What had previously been regarded as the sovereign right of a state to choose to go to war in pursuit of its political objectives was removed by the Charter and in its place was established a system of collective security in which the whole international community is to work together to prevent, and respond to, threats to international peace and security.
The international law of the use of force is not so clear as to how states should respond to acts of violence by nonstate actors, including terrorists. Nor is it well equipped to deal with internal wars. The Charter of the UN upheld sovereignty as a fundamental principle of the international system; according to Article 2(7), the UN is not to interfere in the domestic affairs of states. While a strong affirmation of sovereignty is welcome from the perspective of a developing country being able to strengthen its position against external meddling in its political and economic affairs, it is less useful in safeguarding human rights. This raises the controversial question of the legality of humanitarian intervention. Although the vast majority of international lawyers would agree that humanitarian intervention authorized by the Security Council in response to a threat to international security is legal, only a few believe that contemporary international law permits unilateral acts of humanitarian intervention. Those who do believe that humanitarian intervention is not covered by the general prohibition on the use of force in Article 2(4) of the UN Charter generally seek support for their views in international customary law.
International legal scholarship in this field examines particular instances of the use of force to assess their legality and any likely possible impact on customary international law. In recent years, for example, a focus on the legality of the North Atlantic Treaty Organization's (NATO's) use of force during the Kosovo crisis was followed by debate regarding Operation Enduring Freedom as a response to the terrorist attacks of September 11, 2001, and the scope for a state to justify the use of military force in response to a terrorist attack as a valid act of self-defense. Such debate was then overshadowed by the 2003 Iraq War, which most legal scholars deem to have been illegal. While the United States, the United Kingdom (UK), and Australia claimed to derive authority for their use of force from Security Council Resolution 678 (1990), the vast majority of international lawyers question the assertion that Iraqi noncompliance with Security Council Resolution 687 (1991) could have reactivated the Council's authorization for the First Gulf War. Indeed, both the United States and the UK had written letters to the Council regarding Security Council Resolution 1441 (2002), in which they emphasized that any further Iraqi noncompliance would need to be considered again by the Council.
One of the criticisms most commonly leveled at international law within political science is its apparent inability to enforce rules, particularly those concerning the use of force, against the most powerful. This was a recognized weakness of the UN Charter from its earliest days. Security Council enforcement can ensure compliance on the part of less powerful states and those without an ally among the permanent members of the Council, but international law arguably relies on “carrots” to ensure the compliance of the most powerful. The illegality of the 2003 invasion of Iraq became so clear that, for example, it served to delegitimize and weaken international support for U.S. foreign policy.
International economic law (IEL) regulates international economic activity. While many aspects of international law have economic implications, IEL is generally understood as incorporating those legal regimes with the most direct economic consequences, such as the international law of trade, investment, currency, and finance. The growth of this field of international law is reflected in the establishment in 2008 of a Society of International Economic Law. International trade law is the most developed branch of IEL. The breakdown of the Doha Round of negotiations in the World Trade Organization and the associated turn to bilateral and regional trade negotiating processes is one of the most significant recent developments in IEL.
For many years, few other than the specialists kept track of what was happening in the periodic negotiating rounds of the General Agreement on Tariffs and Trade and the World Trade Organization. The protests at the 1999 ministerial meeting in Seattle marked a new era. The International Monetary Fund, World Bank, and World Trade Organization have moved to enhance their accountability through increased transparency, and some legal scholars are promoting the need to develop a body of international administrative law to address governance questions in intergovernmental institutions. IEL regulates multinational corporations only indirectly, and developing countries have since at least the 1970s called for more effective regulation of the behavior of multinational corporations, especially in relation to human rights and environmental matters.
As a field of international law, international environmental law is relatively recent. Key global treaties include the 1985 Vienna Convention for the Protection of the Ozone Layer and its 1987 Montreal Protocol, the 1992 UN Framework Convention on Climate Change and its 1997 Kyoto Protocol, the 1992 Convention on Biological Diversity, and the 2001 Stockholm Convention on Persistent Organic Pollutants. Climate change is arguably the most significant issue in international environmental law today, with considerable scholarly focus being directed toward the architecture of the post-Kyoto regime and the implications of climate change for other fields of international law, including the international law of human rights and the law of the sea.
There are clear implications of measures taken to protect the environment for international economic relations, and from the perspective of a developing country, this field of law has often been criticized for perpetuating Western colonial dominance. Where an environmental issue—such as ozone depletion—is of a truly global nature, developing countries have, however, found themselves in a stronger negotiating position and able to secure differentiated responsibilities. Types of differentiated responsibilities have included, inter alia, those that distinguish between industrial and developing countries with respect to the central obligations contained in the treaty and those addressing aspects of implementation, such as delayed compliance schedules, and financial and technological assistance.
This is a far older branch of international law and addresses all aspects of ocean use. Historically, customary international law evolved to address navigation and fishing. One of the most fundamental principles in the law of the sea is that of the “freedom of the seas,” by which the oceans are a global commons available for use by all. Naval powers—the United States now as with the UK before it—emphasize the importance of this principle. Over time, however, coastal states have increased the extent of their regulatory reach into the oceans adjacent to their territory. The primary material source of international law on the oceans is the 1982 Third UN Convention on the Law of the Sea, which entered into force in 1994 and sets out just who has what sort of rights in which parts of the ocean and seabed. It defines a number of zones, including those of the territorial sea, continental shelf, and exclusive economic zone. The United States has not ratified the Convention but respects most of its provisions, which are also found in customary international law. Topical within the study of the law of the sea in recent years have been questions of maritime boundary determination, protection of fish stocks from over-fishing, delimiting the outer edge of the continental shelf, and maritime security. Climate change is raising new questions, including those relating to the melting of polar ice and the future of the maritime zones associated with states that may disappear as sea levels rise.
International human rights law (IHRL) is concerned primarily with the protection of individuals from threats to their human rights stemming from the state. The Universal Declaration of Human Rights, together with the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights together make up what is informally referred to as the International Bill of Rights. There are a considerable number of more specific human rights treaties at a global level, including the 1951 Convention Relating to the Status of Refugees, the 1965 International Convention on the Elimination of all Forms of Racial Discrimination, the 1979 Convention on the Elimination of all Forms of Discrimination against Women, the 1989 Convention on the Rights of the Child, and the 2006 Convention on the Rights of Persons with Disabilities. Global IHRL is complemented by many regional treaties.
Human rights law has traditionally assumed a distinction between public and private spheres of human activity and focused on the first of these to the detriment of those who suffer human rights abuses in the private sphere. Recent years have seen increased recognition within IHRL of the need to increase human rights accountability for corporations, international organizations, multilateral development banks, multinational peacekeeping operations, and individuals. Compliance mechanisms in IHRL often consist of a regularized collection of self-reported data, with review by an international committee. The number of human rights treaties continues to increase, but the focus has shifted to the need to work for better compliance with existing human rights treaties rather than their continued proliferation.
International humanitarian law (IHL), also known as the international law of armed conflict, addresses human rights in wartime and thus overlaps with IHRL as well as with international criminal law. Traditional means of ensuring compliance with IHL include appeals by the International Committee of the Red Cross, prosecution before international tribunals, training programs in military academies, and condemnation by other states. The war on terror launched by the Bush administration gave extra vigor to debate regarding the relevance of IHL to conflicts involving fighters not representing states and a perceived need to rethink ways of ensuring respect for IHL. The increasing privatization of war has also raised questions regarding the IHL accountability of private security firms.
International criminal law (ICL) overlaps both IHRL and IHL as well as other fields such as the law of the sea—consider, for example, the crime of piracy. Transnational offences addressed by international criminal law include drug trafficking, money laundering, and cybercrime. Some actions are specified as international crimes in the relevant treaty. Article 1 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide states in that the Contracting Parties “confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Other treaties, including the 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, do not explicitly describe the conduct in question as an international crime but require all parties to make the offence a crime in national law and/or to prosecute or extradite the alleged offender.
There is no agreed definition of terrorism in international law, but a number of counterterrorism conventions have been negotiated in response to particular forms and acts of terrorism. These include the 1979 International Convention Against the Taking of Hostages, the 1998 UN Convention for the Suppression of Terrorist Bombings, and the 2000 UN Convention for the Suppression of the Financing of Terrorism. Most counterterrorism conventions define the elements of the offence and incorporate provisions requiring the state in which an alleged offender is found to proceed with extradition or prosecution.
Amazing as it may seem to most international lawyers, political scientists are divided over whether international law does or does not influence the way in which states conduct their affairs, particularly as regards the “high-politics” issues of war versus peace and even in relation to “middle-range” political issues in which some degree of national interest is at stake. Fundamental questions concerning state behavior in relation to international law necessarily reflect broader theoretical positions regarding the relationship of international law to world politics. At the time when the discipline of international relations emerged after World War I, liberal internationalists painted a picture of the possibility of a world in which war was not inevitable and promoted international law and institutions as the way to achieve such a world. The idealists shared a moralistic, optimistic outlook on world affairs. The establishment of the League of Nations and the Permanent Court of International Justice could be regarded as embodiments of this idealist perspective. But as the inevitability of world war became apparent in the late 1930s, Edward Hallett Carr spoke out against what by then appeared to be the utopian dreams of the liberal internationalists. In The Twenty Years' Crisis, 1919-1939, Carr claimed that it is not that ethics and international law have no place in world politics but that the bottom line is always power.
World War II ushered in an era in which realism dominated the discipline. The United States has functioned as the hegemon of the international relations discipline since World War II, and in the United States, the discipline of international relations is firmly embedded in political science (rather than, e.g., history or philosophy). The leading postwar U.S. realist, Hans Morgenthau, had been disillusioned by the failure of international law to prevent World War II, and the focus of classical realism on power politics and national interest typically leaves little room for international law. Where realists do refer to international law, it is generally to downplay any independent influence of international law on the course of world politics. Realists believe that they deal with the world as it really is rather than as it ought to be.
The seeming mismatch between the hard-line approach of Cold War realism and the reality as lived by government international lawyers encouraged some lawyers to seek to demonstrate that international law did have a real-world impact. One approach was to recount the experiences of foreign policy legal advisers. It appears that there is a wide range of experiences here, from being intimately involved in the decision-making process, as was the case in the United States during the Cuban Missile Crisis, to not even being consulted before a major policy decision with legal ramifications is taken. The role of foreign policy legal advisers can be characterized as generally being that of a neutral professional when first asked for advice on the legality of a proposed course of action, with that role shifting to one of a policy advocate once a policy decision has been taken.
Another approach toward demonstrating the relevance of international law was to speak in terms of the “functions” or “roles” of international law. U.S. scholars tended to focus on crisis situations, at which times international law was shown to be valuable in choosing between and legitimizing policy options and in providing language and institutions through which the parties could communicate with each other. Hedley Bull, associated with the so-called English School of International Relations, believed that despite the anarchical nature of the international system, there is such a thing as international society. According to Bull (1994), international law serves to identify the idea of a society of sovereign states, state the basic rules of coexistence, and help mobilize compliance with the rules of international society. International lawyers, and those international relations scholars with an interest in international law, have generally not needed to justify their respect for international law as much in the UK and Europe as in the United States.
Regime theory flourished in the United States and elsewhere in the 1980s and early 1990s. Regime theory began as an approach to analyzing processes of international cooperation that may or may not incorporate a formal organizational structure of which the particular focus of much research was the General Agreement on Tariffs and Trade. Recognizing that intangibles are integral to processes of formalized and less formal processes of international cooperation, regime theorists referred to norms, principles, rules, and decision-making procedures. The fact that international regimes are generally founded by multilateral treaty opened up possibilities for interdisciplinary cooperation, although there is no single regime theory approach to international law because the regime vehicle has been used by theorists across the spectrum, including those of an essentially realist persuasion.
The primary ongoing use of regime theory is in relation to questions of regime design and effectiveness in the study of environmental cooperation. Even perfect compliance may not mean that a treaty is effective if the provisions it contains are inadequate to meet the objectives for which it was established. It is generally accepted, for example, that even if all parties were to fully comply with their Kyoto commitments, the emissions reduction targets in the treaty were inadequate to make a significant impact on the problem. Names associated with regime theory include Kenneth Abbott, Stephen Krasner, Duncan Snidal, Volker Rittberger, Jørgen Wettestad, and Oran Young.
From the perspective of those who view international law as a largely coherent system of law, much of the international relations literature that does recognize norms—including within a regime framework—remains inadequate because it does not attempt to distinguish a legal norm from any other norm. In 2000, a special issue of the U.S. journal International Organization presented a framework within which to analyze “legalization,” the increasing amount of law evident in international institutions and process. Current research questions on legalization include those of its causes and consequences and why it is that governments favor legalization in some institutions, issue areas, and regions more than in others. Europe, for example, is much more highly legalized than some other regions of the world.
In recent years, scholarship on the political functioning of international law has been influenced by constructivism. Although, as with realism and liberalism, there are many variants of constructivism, they share a perspective on norms and identity as central to the social and political sphere. Constructivists break down the divide between social structures and agency, regarding structure as being continually recreated by agency, just as norms create identity and expectations. Constructivists acknowledge the interrelationship between international law and world politics. They do not deny the functions of international law as identified by liberals but more consciously point to international law as having a socially constitutive function.
Many of the most ardent advocates of international law have been inspired by the ideal of a rule of law functioning in the international sphere to the benefit of all states and people. Given the increasing scope and complexity of international law in the early years of the 21st century, it is thus timely to consider the attitude toward international law of those most and least powerful in the international political system.
The rapid process of decolonization resulted in many new states joining the system of international law as political and legal entities in their own right. Acutely aware that their formal legal equality as sovereign states did not equate with economic equality, these states in the 1970s launched a campaign for a New International Economic Order (NIEO). The NIEO agenda included recognition of the right of every country to adopt the economic and social system that it deems most appropriate for its own development, full permanent sovereignty of every state over its natural resources and all economic activities, and the regulation and supervision of the activities of transnational corporations. The campaign failed, although a number of its elements have resurfaced in other contexts. Developing countries are finding new levels of negotiating weight in areas in which their consent and participation are essential to the industrialized world, including in global environmental regimes. Although they have not yet been able to steer the international economic agenda in the direction that they would like it to go, developing countries are now more able to recognize the implications and resist some of the demands of the developed world. It is, nevertheless, necessary to distinguish among developing countries. While the leading developing countries are increasingly becoming active participants in international dispute resolution bodies and in the development of new legal regimes, the least developed simply do not have the legal expertise and financial resources at their disposal to play a full role in international law.
There remains a clear North American and European dominance in international legal scholarship, but there have been a number of influential international lawyers who have voiced a developing world perspective on international law. Most of these scholars prefer to retain the term Third World. Some of those who established a strong tradition of Third World scholarship on international law include Georges Abi-Saab, Francisco Garcia-Amador, R. P. Anand, Mohammed Bed jaoui, and Taslim Elias. In recent years, a number of scholars, including Anthony Anghie, B. S. Chimni, Makau Mutua, and B. Rajagopal, have self-identified their work as TWAIL or Third World Approaches to International Law. They have been influenced by postcolonial theory and critical approaches to international law and have contributed to reinvigorated interest in the history of the discipline and its subject matter. TWAIL scholars have emphasized that colonialism was not simply an unfortunate episode in the history of international law but rather constitutive of international law and that international law cannot be separated from its colonial past.
The United States played a leading role in establishing most of the key institutions that make up the contemporary international order, including those of the UN, the Nuclear Non-Proliferation regime, and the General Agreement on Tariffs and Trade. From 2001 to 2009, under President George W. Bush, the United States came under considerable criticism for what was seen as an increased tendency toward unilateralism and associated decline in support for international law and institutions. Evidence for this charge included U.S. failure to support the International Criminal Court, the Kyoto Protocol, and the Comprehensive Nuclear Test Ban Treaty. Some practices of the United States for which it came under criticism, such as that of ratifying human rights treaties only to the extent that their provisions corresponded with rights already existing within the U.S. legal system, were not new to the Bush administration. President Barack Obama, elected to office in 2008, recognized that his administration would need to work hard to restore the reputation of the United States so far as its commitment to international law and institutions was concerned. To further this goal, at the time of this writing, the Obama administration was seeking Senate approval for ratification of the Comprehensive Nuclear Test Ban Treaty.
Europe was the birthplace of modern international law. During the administration of George W. Bush, some observers contrasted what appeared to be strong European support for international law with the more instrumentalist approach of the United States. The United States was accused of using international law as a tool when it chose to do so, without lending its weight to strengthening universal support for human rights and respect for the international rule of law as something far greater than a U.S. policy tool. The allegedly undesirable U.S. attitude toward international law can be seen reflected in several strands of U.S. scholarship, including recent applications to international law of rational choice and game theory that purport to prove that international law serves as no more than a weak exogenous constraint on state action. And yet, if the U.S. attitude is attributable to its position of hegemony, so could European attitudes be interpreted as a product of relative power. From this perspective, Europe has been determined to shore up its moral and legal weight because it is unable to match the United States in terms of sheer military and economic muscle. Setting aside transatlantic tensions, it cannot be denied that the European Union has a highly effective legal system and the most highly developed system of human rights protection in the world and that Europe remains a bastion of intellectual support for an international law that purports to be of universal value.
With its rising power, China and its attitude toward international law are subjects of increasing interest and speculation. In common with most developing countries, China places greater emphasis on sovereignty than does the rhetoric of Western liberal democracy, but China has nevertheless been supportive of multilateralism and collective security. Some critical commentators see China as drawing on its dual identities of major power and developing country to accept many of the benefits of its increasing economic weight without an associated cost. Cynics also suggest that the apparent commitment of China to multilateralism may be a function of its relative power, a strategy to be pursued until China's position in the international order is such that it can operate unilaterally if it so chooses. And yet, particularly given that nondemocratic countries are generally assumed less likely than democratic countries to uphold international law, China's attitude toward international law and the extent of its integration into the international system have been noteworthy.
International law is transforming from a minimalist body of law addressing selected aspects of interstate relations toward a much more dense web of law affecting all aspects and levels of governance and under increasing pressure to tackle issues of normative and institutional hierarchy. Some fields of international law, notably IHRL, do not seek to regulate the external conduct of states but set standards for the internal functioning of states, and international law is thereby permeating domestic legal systems to an increasing degree. The growth in the number of international courts and courtlike bodies is creating the potential for states to “forum shop” as well as for competition between legal regimes. Tensions between, for example, international trade and human rights or the environment may be exacerbated by the degree to which the state's actions in one of the regimes in question—in this case, trade—are subjected to third-party dispute resolution.
One contemporary approach to international law and its place within world politics that is arguably responding to the growing complexity and centrality to world politics of international law is that of international constitutionalism. Writers on international constitutionalism have in common the use of constitutional language derived from the domestic context to interpret the growing complexity of the contemporary system of international law and its constituent regimes. While the language of constitution has long been used within international law—the Third United Nations Law of the Sea Convention has often been referred to as a “constitution for the oceans,” for example—the constitutional metaphor is now being employed much more tightly and, in many cases, with a more clearly normative agenda.
Theorists differ as to the extent to which international law is able to function independently of the international distribution of power, but few, if any, would claim that it could disengage completely from fundamental geopolitical shifts in the balance of power. This suggests that with the rise of Asia, including China and India, international law is set to undergo further significant change in the 21st century.
Compliance, Constructivism in International Relations, Idealism in International Relations, International Organizations, International Regimes, International Society, Liberalism in International Relations, United Nations
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