Karen_A._Mingst,_Ivan_M._Arregu_n-Toft]_Essentia

(Amelia) #1
International Law 241

ing the use of force by a government to maintain order. Law provides a mechanism for
settling disputes and protecting states from each other. It serves ethical and moral
functions, aiming in most cases to be fair and equitable and delineating what is
socially and culturally desirable. These norms demand obedience and compel be hav ior.
But what is the difference between domestic law and international law? At the
domestic level, law operates in a hierarchical system. Established structures exist for
both making law (legislatures and executives) and enforcing law (executives and judi­
ciaries). Individuals and groups within the state are bound by law. Because of a general
consensus within the state on the particulars of law, compliance with the law is wide­
spread. To maintain order and predictability is in every one’s interest. But if the law is
violated, the state authorities can compel violators to judgment and use the instru­
ments of state authority to punish wrongdoers.
In contrast to domestic law, international law operates in a horizontal system. In
the international system, authoritative structures are absent. There is no international
executive, no international legislature, and no judiciary with compulsory jurisdiction.
States themselves are largely the enforcers of law. For realists, that is the fundamental
point: the state of anarchy. So can there be international law, given the absence of a
sovereign body with enforcement power and the inability to compel compliance with
effective physical coercion? The legal scholar Christopher C. Joyner argues yes: bind­
ing legal rules are created, states recognize their obligations, and resorting to force is
not necessary for the international legal system to operate. After all, “international
legal rules obtain their normative force not b ecause any superior power or world gov­
ernment prescribes them but because they have been generally accepted by states as
rules of conduct, with the expectation that states will follow suit.”^12 To most liberals,
international law not only exists but it also has an effect in daily affairs. They cannot
imagine a world in which it was absent.


the sources of International law


International law, like domestic law, comes from a variety of sources. Virtually all law
emerges from custom. Either a hegemon or a group of states solves a prob lem in a par­
tic u lar way; these habits become ingrained as more states follow the same custom, and
eventually, the body codifies the custom into law. For example, Great Britain and later
the United States were primarily responsible for developing the law of the sea. As great
seafaring powers, each state adopted practices— establishing rights of passage through
straits, methods of signaling other ships, conduct during war, and the like— that
became the customary law of the sea and were eventually codified into treaties. The laws
protecting diplomats and embassies likewise emerged from long­ standing customs.
But customary law is limited. For one thing, it often develops slowly since multiple
cases are needed to demonstrate the existence of a new customary practice. British

Free download pdf