Adv. Anuradha Nashikkar
The study of international law has enjoyed something of a renaissance in the last two decades. Of course, international affairs have long been assumed to include international legal issues. Yet, in the first third of the twentieth century, analysts did not sharply distinguish ‘‘international law’’ from ‘‘international relations.’’
International relations courses were often about international law and frequently confounded the prescripts of international law with the way states were said to behave in fact. By the time the United States entered the Second World War, that illusory mistake was exposed: it was clear that international legal rules and processes had not operated the way many had hoped.
The failure to contain German and Japanese aggression, the weakness of agreements to keep the international economy functioning, and the humanitarian disasters of the Second World War made most observers acutely aware of the limits of law in international affairs. For more than thirty years after the end of the war, American political science turned its back on international law, focusing its study of international relations on the material interests and observed behavior of states. Yet by the early 1980s, many international relations scholars had rediscovered a role for law in interstate relations.
Reflecting on the postwar order, many recognized that it was built not only upon power relationships but also on explicitly negotiated agreements. These agreements in themselves increasingly piqued scholarly interest. One reason may have been the sheer proliferation of such agreements. A century ago, most international law was said to arise from custom – evidenced by continuous, recurrent state practice and opinion juris (i.e., the practice was compelled by legal obligation).
For a number of reasons – including the growth of independent states, the lack of consent implied by many approaches to customary law, the increasingly detailed nature of international agreements, and the rise of multilateral treaty-making capacity, e.g. by various working groups of the United Nations – today, many (if not most) international legal obligations are expressed in treaty form. Some treaties codify customary law, but in a way that respects the express consent of the states that are parties to them.
Figure 1 shows the number of new multilateral treaties concluded in each quarter of the last century. While the number of new multilateral treaties grew from 1900 to 1975 and then began to decline in the 1976– 95 period, Figure 1 strongly suggests that the aggregate number of multilateral treaties in force has grown rapidly in the last hundred years. Not only has the number of treaties grown, so has the scope of topics and subjects addressed by treaty law.
As Figure 1 suggests, treaty growth has been especially marked in economic affairs, as well as in areas of human welfare and the environment. Moreover, in the late nineteenth century, most international law defined the rights and responsibilities of states toward each other – purely ‘‘public’’ international law. Over the course of the twentieth century, international law increasingly began to address the responsibilities of states toward individuals and nonstate actors (characteristic of human rights treaties), and set forth rules governing the relationships of private individuals and nonstate actors toward each other – an expansion of private international law. This latter development is reflected in such important treaties as the United Nations xxx Preface Convention on the International Sale of Goods, which is essentially a global commercial code, and the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which has enhanced the effectiveness of private international dispute settlement. In this context, it is perhaps not surprising that the authority to adjudicate international disputes has been delegated increasingly to international courts.
Figure 2 shows that the number of international judicial, quasi-judicial, and dispute settlement bodies has grown from just a handful in 1900 to nearly a hundred today.
Moreover, the rate at which dispute settlement bodies are growing has accelerated in the last 25 years. Interstate disputes over territory, trade, human rights, environmental protection, intellectual property, labor protection, and criminal matters may now be resolved in international institutions that more or less resemble well-developed domestic legal systems in the way they apply legal standards, procedures, and norms to dispute resolution. Some of these institutions, such as the European Court of Justice (ECJ) and the World Trade Organization’s (WTO) dispute settlement system, have compulsory jurisdiction over member states or territories and enjoy impressive rates of compliance with their decisions. What explains the explosive growth of treaty law, the broader scope of international law topics and subjects, and expansion of international venues for law-based dispute resolution? Does international law affect the behavior of individuals, states, and non-state actors? How Figure 1.
Number of New Multilateral Treaties Concluded Years 2500 2000 1500 1000 1900–25 1926–50 1951–75 1976–95 500 0 Other Environment Cultural Human Welfare Economic Military Political/ Diplomatic Preface xxxi does international law – and how do particular international rules and procedures – affect interstate relations? These are some of the questions addressed by social science and legal scholarship, of which the articles in this volume are examples.