The concept once known as the ‘Law of nations’-“a body of background understanding regarding the rights and duties of sovereign states”- preceded what is now referred to as ‘International Law,’ a term which, contends Jeremy Rabkin, gained prominence at the dawn of the nineteenth century (Rabkin, 25). International Law (IL) appears to some as a “pure conception, a conception from which the external factor of superior political power is excluded, and is therefore difficult […] to grasp” (Foulke 436). Lack of political power notwithstanding, a forthright deduction based on the above definition, is the assumption that states’ powers are both inherent and unrestrained, in principle, and that the unrestrained exercise of this power would result in anarchy. IL therefore constitute a lawful restraint of states’ behavior but the task of determining its definition, nature and scope is further complicated by both the traditional and modern proliferation of sources of International Law and their possible implications (Matheson, 422). The purpose here has been threefold: IL was analyzed as “repertory of normative theory” (Hoffman, 211) -each of which reflects the structure of the world as it was when the norms first appeared- and determine what could be a definition fit for the post-Westphalia, global era in Part One One; its legal nature as it relates to the domestic arena assessed in Part Two; now comes the tasks of evaluating its relative success as a complex operative system with an increasing number of participants (Part Three).
International Law as an Operating System: An Increasingly Universal Language in the Post-Westphalian Era
An Undeniable Influencer of States’ Behavior and Policies
IL has been invoked by all states, ‘rogue’ and accepted alike to either further self-interests (as did Libya in the Aouzou Strip case before the ICJ) or to establish their legitimacy within the family of Nations. As Diehl and Ku suggest, “the structure […] of International law prevents the pursuit of multiple national or private interests from dissolving into anarchy […] It provides a framework for the international system to operate effectively […]”. International Law”, they accurately conclude, “promotes the creation of a normative consensus on international behavior” (Diehl and Ku, 2).
Proliferation of Non-States Actors in the International Legal System
Dunoff, Ratner and Wippman identify four categories of “non-state actors” who were not participants to the traditional international legal system first envisioned by Grotius and the Positivists (189). Non-governmental organizations (NGOs), corporations, states of the United States and the individual are the new ‘shakers’ of the international system. Some argue that terrorists organizations, indigenous populations and certain marginalized social groups are bona fide parts of the process, each bringing new types of challenges in their interactions with each other and most importantly, with states. It is nonetheless evidence that IL is becoming –has become?- the prime foreign policy tool in a now global world.
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