The Expanding Scope and Challenges of International Law

Introduction

Traditionally, international law was defined as "the body of law that governs the legal relations between or among states or nations" (The Free Dictionary). In this definition, the state or nation is assumed to be sovereign, possessing a distinct territory, a population, and a government. If we strictly follow this definition, international law would apply only to relations and interactions between sovereign states. In the current paradigm of increasing globalization, the proliferation of non-governmental organizations, and the growing activities of multinational corporations, however, the scope of international law has become much broader. The jurisdictional and protective reach of international law now extends far beyond traditional state-to-state interactions to encompass international organizations as well as individuals. This paper examines the background of the expanding scope of international law and considers some of the challenges, benefits, and trade-offs that such a growing reach necessarily brings.

The birth of the modern nation-state, which followed the declining influence of the Roman Catholic Church in the 17th century, gave rise to the need for international laws in order to avoid conflicts over land, wealth, and trade rights. Initially, relations between nation-states were governed primarily through bilateral treaties. The concept of an international organization called the League of Nations was put forward by the United States after World War I, but the idea collapsed due to internal opposition within the U.S. government.

The Expanding Scope of International Law

It was only after World War II that the concept was finally realized in the form of the United Nations — an international organization that sponsors legally binding, multilateral agreements between its member countries. Several institutions within the UN umbrella were established, including the International Court of Justice (ICJ), the World Bank, and the World Trade Organization (WTO), all of which promote international law, development, and trade between countries. In recent times, improved communication technology and rapid globalization have given rise to the need to extend the scope of international law beyond sovereign nations to private businesses and even individuals. It is, however, not easy to implement international law effectively, let alone expand its scope beyond state-to-state interaction (McWhinney 5–10).

It is worth noting that environmental NGOs played an important role in the drafting and negotiations of the Kyoto Protocol, and it is now no longer unusual for NGO and corporate officials to serve on governmental delegations at such international conferences.

International law is often perceived as encroaching upon the domestic sovereignty of nation-states. Most governments are protective of their sovereignty and regard any international law that conflicts with their domestic laws as unwanted interference in their internal affairs. It is, however, notable that the most fervent opposition to a more widespread implementation of international law tends to come from coercive, authoritarian regimes — such as China, Russia, and the former military regime of Burma — governments that resist adhering to civilized norms of behavior, particularly regarding the treatment of their own people. Even a number of democratic countries, including the United States, are supportive of international law only insofar as it serves their narrow national interests. The biggest challenge to extending the scope of international law beyond its traditional boundaries is therefore to devise and implement it in a way that does not conflict with domestic laws and does not threaten the sovereignty of nations.

Challenges

John Bolton, the U.S. Ambassador to the UN in 2005–06, is a prominent proponent of this skeptical view and has argued: "It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so — because, over the long-term, the goal of those who think that international law really means anything are those who want to constrict the United States" (quoted in Utley, 2006).

Another formidable challenge to expanding the jurisdictional and protective reach of international law is the absence of a sovereign power to enforce it. The closest thing to an international sovereign is the UN, but even the UN lacks enforcement powers and depends on its member states for the implementation of its resolutions (Hathaway 54). As a result, international law is largely voluntary, which means it will never be as effective as domestic law unless a satisfactory enforcement mechanism is devised.

Conclusion

The expanding reach of international law inevitably requires nation-states to cede a measure of sovereignty, yet this trade-off mirrors the social contract that individuals accept within their own societies in exchange for security and collective well-being. The challenges of enforcement and the resistance of powerful states are real, but the benefits — from prosecuting war criminals to regulating multinational labor practices to coordinating responses to global environmental threats — make the case for a broader, more robust international legal order compelling. As globalization deepens and the activities of non-state actors grow, the expansion of international law is not merely desirable but necessary.