There are many problems we cannot solve ourselves, no matter
how powerful our nation or how committed our leaders. International law has
emerged from an effort to deal with conflict among states, since rules provide
order and help to mitigate destructive conflict.
In this article, Professor of Law Ari Afilalo discusses the
origins of international law, and analyzes how international law has evolved in
the past century, focusing on the individualization of international law.
Finally, Ari Afilalo, a tenured Professor of Law at Rutgers Law School who specializes in international laws, examines some of the contemporary criticisms of
international law.
International law began in 1648 with the Peace of
Westphalia, which asserted the sovereign equality of states. Rules concerning
the conduct of war (jus ad bellum and jus in bello) soon emerged, most famously
codified in the Geneva Conventions of the nineteenth and twentieth centuries.
International law has been said to be indirect and
incomplete, the first in relation to individuals, who only appear as mediated
subjects through the direct subjects that are the States, and the second, by
reference to the need that has to take advantage of the States and their legal
order. Today, these criticisms are no longer grounded, because individuals are
acquiring their own direct international personality and the international
order, on the other hand, is creating its own international bodies, however
rudimentary they may still be.
The problem that perhaps has been raised with more
importance has been that of whether the norms of Public International Law are
all of a device nature, or if there are some at least that have a tax or jus
cogens nature, that is, if there are norms that have to be complied with by
those obliged to do so, without being left without effect by their will. Today,
after articles 53, 64 and 71 of the Vienna Convention on treaties, no one
doubts that international law has rules of this nature, although the discussion
has now moved to the specification of what these are.
Another question that Ari Afilalo explores is that of the
relationship between this international norm and the internal systems of
States, as the main subjects of International Law are these States, which, in
turn, have their own legal system. Both doctrine and positive texts have given
very different solutions to these relationships. For some authors, these are
different legal systems, while for others, they are different manifestations of
the same and only legal order, which translates into different systems to place
international standards in internal state systems. The positive solutions vary
greatly, depending on which international norms are involved - customary,
conventional, etc. - and according to the open or more restrictive attitude
that each state system adopts for this purpose.
