The depth and breadth of international law.

Kal Raustiala:

I think international law is one of these things that’s a little bit like the air where it’s everywhere. We don’t really notice it so when you get on a plane and you fly to Europe the ability to get on that plane, cross over the air space of other countries, sometimes you see the little map when you’re in the plane that shows you’re crossing over Greenland or whatever, all of that is governed by international law in different ways. Different treaties are in place to take care of all the questions that might arise about aviation. So that’s a really mundane example and then at the other extreme we’ve got much more contentious examples like--  Let’s take the war in Iraq. So as most of us remember in the run up to the war the Bush administration went to the security council at the United Nations and tried to get a second resolution, and they’re doing that because there is a legal framework in place that governs the ability of countries to enter in to armed conflict. So between those two bookends a zillion other examples but I think the thing to recognize about international law is in a globalized world, in an integrated world, you are constantly dealing with things that are crossing borders or you’re crossing borders and international law is usually playing some role in shaping that.

Question: What dictates international law?

the most common thing are treaties and most of us are familiar with--  I mentioned aviation. There are treaties governing that. The UN itself was created by a treaty. So treaties are kind of the backbone a little bit like we think of statutes in the domestic context, but we do have something like common law. We call it customary law so a good example would be the law of the sea. There’s all kinds of rules about ships and their ability to go on the high seas and who can board and where they can cross. Most of that is governed by custom and the idea is this custom kind of a cruise over time like the common law becomes entrenched and accepted as law, and then there is also courts. Right. So we have--  The International Court of Justice sits in The Hague and we’ve got a series of other courts. Right. The World Trade Organization has a court and so forth. So there is a set of judicial institutions much like in our domestic system so in a lot of ways it’s a very similar system. There isn’t I suppose a constitutional equivalent. There isn’t a kind of grand governing thing but there are literally tens of thousands of treaties so a surprising amount of topics are covered.

Question: Who are the governing bodies?

There are a whole set of international organizations so from the United Nations being the most broad, the most elaborated, probably the most famous. The World Trade Organization is a little more specialized and then you’ve got dozens and dozens and dozens, thousands probably, of these subsidiary international organizations, international maritime organization dealing with law of the sea questions and so on down the line. And these have been created over the years. Some of them date back to the nineteenth century but for the most part that’s a kind of twentieth-century phenomenon so one of the things we see in the last century or so has been one, the rise of these international organizations, the UN being the paramount example, and two, the use of treaties. Treaties existed in the past but when we talked about custom and common law that was much more common. Now we tend to codify that in to treaty. So those two things are sort of two major trends of the last century.

Question: How will globalization affect international law?

in the sense that you can have a treaty for example in which every country is a member of that treaty and so would be governed by that, and in fact we have lots of treaties that are pretty close to what you’ve got in virtually every single country. The Convention on the Rights of the Child I think is a good example where only the United States and Somalia when I last checked were not parties to that treaty. The United Nations Charter comes pretty close. Right. So virtually every country--  Switzerland for a long time was a holdout. Virtually every country is part of the UN system and so governed by the rules of the UN Charter so there is no barrier to that and we do see it.