The Evolution of International Law
Cleveland State University - Cleveland-Marshall College of Law
Boston College International and Comparative Law Review, Forthcoming
Cleveland-Marshall Legal Studies Paper No. 08-150
Traditionally, international law involved state actors and inter-state relations. Individuals, organizations, regional bodies, non-governmental institutions and the like were left outside the reach of international law. The United Nations was a forum open exclusively to state parties. The International Court of Justice, as well as its predecessor, the Permanent Court of International Justice, were for a reserved for state grievances only. It was inconceivable that a non-state actor would come before such tribunals, or that international law would govern anything but relations among state parties. Today, the converse is true. International law, in its transformed or globalized version, governs all sorts of relations, including those implicating states, regional bodies, non-governmental institutions, trade organizations, commercial actors, and private individuals. It spreads into a myriad of legal fields, including human rights law, international criminal law, and private international law.
The above-described evolution of the international human rights field poses two significant questions. First, what has been its impact on state behavior, and second, how has it influenced individual behavior? States' sovereign powers have been eroded by "new" international legal norms, which have taken on a more predominant role in today's globalized world. States may now obey such international norms willingly, without the threat of sanctions, global ostracism or economic isolation, simply because if states misbehave, they have to account for a variety of different consequences that such misbehavior may produce. For one, states have to consider all the relevant international legal norms that they violated, as well as all the state- and non-state actors that may have been affected by such misbehavior. Moreover, states have to envision all the possible grievances that may be asserted against them, in different international as well as national tribunals, and under many different compliance procedures existing under international and regional conventions. In addition, besides willingly complying with international human rights norms, states seem ready to rely on international law in the domestic sphere in order to ensure that such norms are respected. For example, in the United States an Oklahoma criminal court recently relied on an International Court of Justice ruling to hold that an individual's right had been violated when his consulate was not notified of his arrest. In Europe, countries that are held in disrespect of human rights norms by the European Court of Human Rights routinely rely on those ruling to alter their offending practices.
In addition to states, individuals are also heavily impacted by the globalization of human rights laws. For one, they have a higher expectation of protection of their individual rights, stemming from a distinct, supra-national body of laws. Individuals in this century know that they cannot be tortured, that their ethnic groups cannot be intentionally wiped out, and that they have certain political, religious, as well as educational rights. Conversely, individuals know that their parent states can no longer invoke the label of sovereignty to justify their derogatory practices. Moreover, private parties now have individual rights that are enforceable in different tribunals. In domestic systems, individuals can often rely on human rights conventions to enforce their rights and to ensure that such rights are protected. In addition, individuals can turn to international tribunals, like the European Court of Human Rights or the Inter-American Commission on Human Rights, with similar quests and grievances.
This Article will focus on the impact of globalization of international law on the three above-mentioned fields, and in particular, it will examine how the evolution of international law has reshaped human rights law, international criminal law, and private international law. In its first part, this Article will focus on certain changes in the international law arena, including the proliferation of non-state actors, of international organizations and documents, and the expansion of different basis of jurisdiction in international law. In its second part, this Article will describe the role of globalized international law in the human rights field, international criminal law, and private international law. Finally, in its third part, this Article will examine two paradigms, state behavior and individual behavior, in order to assess the impact of globalized international law on the international arena. This Article will conclude that globalization has reshaped international law through an evolutionary process by transforming it into a global web of supra-national rules and regulations, which have in turn altered state and individual behavior.
Number of Pages in PDF File: 34
Keywords: Evolution, International Law, Globalization, Transformation, Human Rights, International Criminal Law, Private International Law, State Behavior, Individual Behavior
Date posted: March 28, 2008