Summary
Summary IPC2601 - International Organisations International Law
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- University Of South Africa (Unisa)
Summary IPC2601 - International Organisations International Law
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International law has emerged from an effort to deal with conflict amongstates, since rules provide order and help to mitigate destructive conflict. It is
developed in a number of ways. First, law often comes out of international
agreements and treaties between states. Treaties are the most important
source of international law and also serve as the origins of IGOs, which in turn
are important sources of law. Second, customary practices that have evolved
over time often become codified in law. Third, general legal principles that are
common to a significant number of states can become part of the corpus of
international law. Finally, law arises from the community of international legal
scholars. Particularly on more technical issues, their expertise is often accepted
by political leaders.
The existence of law, however, does not mean that conflict is any easier to
resolve.[1] Instead, as law becomes more elaborate and constraining, it
becomes increasingly contentious. The powerful do not wish to be constrained
in their ability to respond to threats. At the same time, developing countries
see much of international law as being crafted largely without their input,
primarily due to the so-called democratic deficit in intergovernmental
organizations (IGOs), which now are typically the negotiating venues for the
creation of new law.
In this essay, we discuss the origins of international law, and analyze how
international law has evolved in the twentieth century, focusing on the
individualization of international law. Finally, we examine some of the
contemporary criticisms of international law.
Is International Law Real Law?
Perhaps the first question to ask is whether in fact international law is law at
all. The primary distinction between domestic and international law is that the
latter often lacks an enforcement mechanism. There is no government to
, enforce the law, as there is in domestic situations. International law is often as
much a source of conflict as it is a solution to them. Most forms of
international law are contested. Rarely is it agreed upon universally. As will be
seen below, it is not enforceable unless powerful countries see it in their
interest to do so. What is more, cross-cultural differences make its
interpretation and implementation difficult. Another question is whether
international laws can be considered law if they are not translated into
domestic laws where there is greater potential for enforcement. By adapting
international law into domestic statutes, governments theoretically provide
enforcement mechanisms. There are also instances in which domestic law not
only does not contain international law, but is in fact in contradiction to it.
Despite all of this, international law is often followed. This can be attributed in
part to Great Power backing, but also much of international law is based on
customary practice. International law may be enforced by states taking
unilateral action if it is in their interest or through multilateral measures where
sufficient consensus exists. Reciprocity can play a role, as benefits in other
areas may be gained from following laws. In addition to ad hoc efforts to
enforce international laws, a number of formal courts have been established
for that purpose.
International Courts
Historical Origins
It can be argued that international law began in 1648 with the Peace of
Westphalia, which asserted the sovereign equality of states. Rules concerning
the conduct of war (jus ad bellum and jus in bello) soon emerged, most
famously codified in the Geneva Conventions of the nineteenth and twentieth
centuries. Organizations soon emerged to facilitate the creation of law and to
mediate disputes. The League of Nations sought unsuccessfully to effectively
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