Iʻve written about the Law of Occupation recently, but what of international law in general? Specifically, how “real” is it? And why should states obey international law? These questions were the subject of an issue of International Legal Theory journal in 2005. Enrique de Revago Bustamante a Peruvian legal scholar introduced the concept and origin of international law:
The Peace of Westphalia of 1648, which put an end to the Thirty Years’ War, marked the birth of modern international law, giving rise to the so-called collective treaties and organizing multilateralism (as opposed to the bilateralism that had previously dominated treaty law until that time).
As to the question “why obey?” he quotes Rivero (1947):
The nation is not alone. A few others coexist with it all over the world … Force, however, is not a principle of constructive of human coexistence … under the shadow of peace, the awesome concept of the international community begins to take shape, broadening the horizon of harmony to the outer reaches of the earth. Treaties ban conquests and frontiers are discussed on conference tables rather than on battlefields.
Utopian as this may sound, much of what Rivero presaged in 1947 has come to pass. I noticed when I was involved in international human and indigenous rights movements that those who moved in those circles had a certain vocabulary which was shared across national boundaries and used in international forums. The term international community was often used, and this was quite surprising to me, have come up think of the international realm as one of conflict. In fact, one of the problems we may be facing is that Rivero’s idea is too true – international consensus may have overcome national autonomy to too great a degree in the form of international trade agreements. These actually produce so much consensus across national boundaries they undermine democratic processes within countries. Be careful what you wish for.
Harold Koh of Yale summarizes state obedience to international law thus:
Most compliance comes from obedience. Most obedience comes from norm internalization. Most norm internalization comes from process.
Norms are a major feature of international law and regimes. In my study of the “Indigenous rights regime” (James Anaya’s book formed the backbone of my paper), the idea of norms was central – to make a certain behavior normal is more effective than coercion. The norms of human rights have largely taken hold in the international community despite resistance and claims that they are laden with Western values and a disguised form of (neo)colonization.
Another emerging idea is that of “compulsory” international law. The idea itself seems quixotic, but in fact it already exists. While leftists decried the rise of the World Trade Organization, a silver lining was overlooked – its enforcement power. If trade regimes can have “bite” (in the form of fines), so then can humanitarian or state-centric regimes. In other words, the mechanisms already exist (or are beginning to) to enforce punishments for violations of international law. We are at the point, nearly, of having to ask if we in fact have too much international law. Iʻm not suggesting we do, but simply raising a question that hasnʻt been raised in this light.