The book: Paul F. Diehl, Charlotte Ku, “The Dynamics of International Law” (Cambridge University Press, 2010) brings a new framework for analysis and a model for legal change and influence of normative change in international law indicating the systemic imbalance of international law.
To my mind this book is probably offering the best academic solutions to the present World crisis.
At the same time, solely the solutions offered in this book cannot bring a new level change to international law unless accompanied by shift in thinking and reconsidering the entire system of international law, where today one can distinguish between at least three imbalances: ● imbalanced decisionmaking within the UN; ● the international law and theory reflect the Western development of human thought; ● imbalance btw. the operating and normative international law systems that may result in ignorance of, say, human rights norms in the absence of enforcement mechnisms.
Yesterday I read Opinio Juris criticizing international law for the possibilities it offers today:
- okay to enter a country that is “unable or unwilling,”
- okay to treat it as armed conflict under jus ad bellum justification of self-defense,
- okay not to undertake the action as law enforcement, versus attack in armed conflict,
- okay to use lethal force,
- okay to attack without warning,
- okay to attack an unarmed, unthreatening, but still lawful target,
- okay to attack without inviting surrender,
- okay to press the attack with lethal force and without pause, the exception being if the target were to succeed in completing the act of surrender — which, in this case, is likely to be never, because there will not be enough time, and
- okay not to give the target time to make an attempt at surrender, even if inclined or even attempting, by pausing or slowing the attack“.
(All contrary to also what I learned at the University of Helsinki, although the Programme supported, for example, Anne-Marie Slaughter’s thought, and thus prevailing in the United States ideological influence. About the visualized idealized expectations from certain persons for fairness see: http://www.youtube.com/watch?v=k85mRPqvMbE&feature=share – translated as: could there be anyone able to tell the truth? (And stay alive after that.))
Coming back to the book: “The Dynamics of International Law”, the book first demonstrates on which basis has international law as we understand it come “so far”, presenting the lists of earlier and today’s most prominent international lawyers (Vitoria, Suárez, Verdross, Grotius, Martens, Oppenheim, Scelle, Friedmann, Henkin, Kennedy, Slaughter, Posner, Anghie, Raustiala, Koskenniemi, Guzman … ), political philosophers (Thomas Aquinatus, Bentham, Machiavelli, Bodin, Foucault … ), policymaking (McDougal, Lasswell, the New Haven School (the policy or process oriented approach), the Yale Journal of International Law). If you look closer at the list, it reflects Judaism based Christianity. The rest of the world is excluded.
Asking for how regimes are designed and what mechanisms exist for their maintenance, at pp. 36-37 the authors refer to H.L.A. Hart who understood international law as a form of social rule (we all know – for lacking legislative law-making component, operating within the consensual adjudication, lacking central sanctional system, at the same time the general character of international law being vague and lacking the rule of recognition). Differently, the authors of the book under revision understand international law as independent of any one norm or regime therefore greater than the sum of any parts derived from individual norms and regimes. Understood that way, the operating system does both serve the normative system (which is quasi-legislative), and shape the development of it. Although consistent with classical international relations theory (Bull, Waltz) according to which theory the international rules can affect behavioral interactions and outcomes, the development based on operating seems to be a “slippery slope” – how far could determination by the operating system extend? If you take as examples killing of Osama Bin Laden (should international human rights law be rewritten now beginning with the concept of human rights as inalienable rights of all human beings? Should we also rethink the principle of universality?), and attacks on the Arab States, would you support such operating developments as conceptualizing and giving effect to future international law? If one has been taught that a function of international law is to advance particular values as central to any world order – are such the values that should be advanced? But despite of critique, international law has moved from lawmaking to implementation.
On the other hand mainly the UN is making and developing norms of international law through the International Law Commission acting under the UN Charter, and also other international organizations have contributed toward development of international law (Alvarez), but (as the recent attacks on ME and NA have demonstrated) the UN is clearly supporting the United States’ foreign policy. As for the EU which cannot be Member to the UN, although its rights in the UN were increased, by such pattern the world politics would be decided by the EU’s single Member States – France, and the United Kingdom who have the right to veto in the UN. This seems to correspond to the legal pluralism school based on the ideas of R. Cover that norms are constructed through competition among various norm-generating communities (p.19) – that way, international norms are seen as product of political process in which multiple actors compete to establish laws and the outcome reflects the preferences of key actors /leading States and prevailing distribution of power (at pp.22-23 the authors refer to the rational design tradition that sees the creation of international institutions as the product of a utility-maximizing process), where another level may be added only by global legal pluralism represented also by supranational actors (pp.19-20).
At p.24 the authors observe that international law cannot be understood without international relations theory (intersection of four international law theories – realism, institutionalism, liberalism, and constructivism) that provides international law arguments. At the same time, until the 1990s writers focused on what law is and ought to be (legal output) rather than understanding how law functions (processes leading to such output), and ignored how change has occurred and might occur.
At pp. 25-26 the authors criticize the past and current frameworks for studying international law as lacking several elements such as being incapable of accounting for change in the law, lacking dynamic elements to the way the law is formed and implemented (also the sense of causal process), lacking attention to the effects of law (what works and what does not work). Therefore, the book has developed a new framework for analysis and a model for legal change in international law: First, the authors divide international law into two influencing each other subsystems: the (1) operating, and (2) normative systems. T h e o p e r a t i n g s y s t e m provides the platform and structure of governance and management of international relations (according to the Westphalian legacy, international law functions between rather than above States) and sets out the consensus on the distribution of authority and responsibilities for governance, ideally a dynamic normative system in order to facilitate the competition of values, views, and actors. The operating system may be associated with formal structures such as the UN, the EU, etc., many actors possess legal personality under operational system. T h e n o r m a t i v e s y s t e m under international law is quasi-legislative mandating particular values and directing specific changes in State and other actors’ behaviors. Defining the normative system entails political and legislative exercise while normative change may occur with evolution of customary practices (which is a traditional source of international law – Hmmm … activities in Iraq as precedence. And theorists already discuss that killing Bin Laden could have set a pattern for future international law). The authors summarize the normative system as defining acceptable issue-specific standards for behavior in the international system (p.43), they see developed international legal system as such where norms may exist without specific reference to the operating system’s functions and capacities (p.44). The world has “general” normative system and single normative systems, an example of the latter being the EU – the authors consider it a mistake to classify the normative subsystems as independent of the broader both normative and operating systems, rather the systems should be viewed as a whole with its interconnected webs (as additional layers of legal operating and normative systems rather than sui generis).
The authors see the change as rapid rather than gradual or slow, but for understanding the change the authors needed a theory incorporating the normative and operating systems, and they offered systems theory as relevant (p.48). Admitting that there are number of systems that can be applied to a wide variety of social, biological, political, communication, and economic processes, and referring to Boulding, 1985, for taxonomy, the authors describe international law as a mechanistic system as having relatively low complexity and being guided by simple parametres. The authors refer here to Higgins who describe this as “hundrum stuff” – “The role of law is to provide an operational system for securing values that we all desire – security, freedom, the provision of sufficient material goods”. The authors indicate that often normative provisions are adopted without accompanying operational provisions, such as the Convention for Elimination of the Worst Forms of Child Labor (1999) that contains no provisions for enforcement at international level (relying on internal enforcement) (p.55).
How international law may change in the future? –
The authors at p.27 name extra-systemic adaptations, such as (1) actions by NGOs and transnational networks, (2) internalization of international law, (3) domestic legal and political processes, (4) “soft law” mechanisms – although those mechanisms do technically not belong under formal international legal system, they keep the international legal system partly functioning. – To my views most correspond the actions by NGOs and transnational networks and “soft law” mechanisms, although I would not view those as the end, but rather as tools for building a pluralist and fair end.
The book distinguishes between six ways that extant provisions or changes in the international legal operating system conditioning inteernational rule creation: (1) setting the parameters of acceptability, (2) clarifying credible commitment, (3) providing flexibility, (4) actor specification, (5) forum specification, (6) direct law-making. The authors talk about the forms and components of change, the forms being treaty, alteration of customary law; as the components are named necessity and political shock (world wars (opened door to, for example, decolonization), terrorism, vast human rights abuses). The change may still be prevented or limited by opposition by leading States, and domestic political and legal constraints. The authors (p.76) also talk about related to the contractualist model of international regime under which regime States cooperate with the aim to lessen the “transaction costs” – here are important efficiency of the structures, an in the case of “global public goods” the actions of a few may benefit all, whereas the failure to act may be harmful to all. The authors distinguish between three separate elements of necessity – insufficiency, incompatibility, and ineffectiveness. When legal norms are dissimilar to existing norms, the legal operating system does not possess relevant provisions to deal with new norms, which is often the case of international law. Solution? – Creation of a relevant committee?
In the end of the book the authors stress three trends representing challenges for international legal change – (1) fragmentation, (2) public-private partnerships, and (3) the role of domestic institutions.