Emergence & Definitions of International Law
International law, though seemingly molded on modern nation-state’s laws; in reality, it is very different in a number of key areas. International law is similar to modern Western national systems in as much as they are rooted in a democratic discourse based on posited idealism that manifested itself in constitution-like declarations. The UDHR for instance, is not much different from national constitutional documents adopted by the US, Britain, or France. The fundamental differences are in the applications and enforcing the law.
In the US for instance, The Supreme Court may interpret the constitution to find that alien workers cannot be discriminated against in employment, reject a lower court’s decree that limits the press access to public records, or intervene to curb the power of an executive reaching to take away from the authority of the legislature. Once that happens, the executive branch, state governors and police agencies, will immediately work towards implementing that interpretation of the law and towards protecting the rights of that alien, the media, or the legislator. Even the states cannot challenge that juridical ruling.
Similarly, the congress may pass a law barring all aliens from entering the United States. All individuals and states would need to mold their behavior to keep aliens out of the country. Doing otherwise would bring about pecuniary and other forms of penalties.
In the International law framework, the World Court needs special authorization to become involved in a dispute. Once it is authorized to act and it issues a ruling, there is no guarantee that the world community would enforce the court order. Short of an action by the five super powers, any World Court decision is as good as any worthless opinion. In other words, in international law, once a ruling has been pronounced, it becomes more the case of compliance than enforceability.
On the legislative front, there is no legislative body that enjoys the recognition to the level of obligation by all member states. Even if all 189 nations or so members of the UN were to agree on a rule, a five percent could reject it under the principle of national sovereignty. Further more, even if all nations were to adopt a particular agreement, one nation could later withdraw from a treaty obligation without any enforcement mechanism that would prevent it from doing so. In short, the three necessary bodies that allow for an effective rule of the law: standard legislative body, standard interpretive authority, and standard police or military force; are all absent in the international law scheme.
However, the above obstacles should not be taken as a pronouncement of the inaptitude and ineffectiveness of international law in working for peace and solving conflicts. In fact, overall, International law was very successful. It is successful, because it created its own system that allowed it to make up for the previously mentioned problems. International law has developed some features that are not existent in typical national legal systems, and that allowed for its relative success. These features are expressed in the process of making an international law element: (a) the formal statement of a rule, (b) and authoritative process and source, (c) generating a sense of obligation, and (d) establishing a set of expectations. The combination of these formalistic and dynamic elements of international law made it very successful given the limitations.
a. The statement of rules’ function is to clearly state what is acceptable and what is not as behavior by individuals and states.
b. Determining the recognized authoritative source is the most important element in bringing about effective rules. Executive decisions by government heads for example would not constitute a recognized and authoritative source of law. But a decision by the World Court, or a ratification of a treaty by a nation might be considered a recognized and authoritative source.
c. States must conform to something they perceive as a legal obligation, not just a habitual response. Legal obligation is generally dependent on the authoritative source of the law. The legal obligation may stem from customary practice, a sense of rightness, natural reason, social necessity, will of the international community, common purpose, mutual benefit, or even concern for consequences for not behaving according to the rule.
d. If a state were to express a sense of legal obligation, then it must fulfill certain expectations that were expressed in the rule or the treaty. This final step is usually the most important one. If a state were to take actions to conform to the rule of the law, then the world community would achieve its purpose of maintaining peace and minimizing conflicts.