That International Law was created to bind civilized states is now an acceptable principle, for the realm it covers is the conduct of states with respect to each other in their interrelations. But what is a state? When is an entity fit to be considered a state? Is it necessary for other states to recognize a state for it to be one? How many recognizing states are enough to make an entity a state?
These questions strike at the very root of international law. It doesn’t help that divergent practices tend to colour our minds – while on the one hand, Andorra, Lichtenstein and Monaco are all deemed states, while Kosovo, Palestine and Scotland are not considered thus. It is hard to answer this – especially because of the role of vested interests and politics, two factors that obliterate the notion of anarchy and level-playing-fields in international relations.
International Law has often been brought into question – especially as to whether it is a law or not. No matter what arguments maybe advanced in an attempt to punch holes in its existence, the fact is that international law exists: whether in its observations in obedience or in its observations in breach, whether in that states try to justify their conduct in keeping with the law or its interpretation, rather than questioning its existence. That new ‘legal provisions’ under international law are a product of breaches of old ones, is not an acceptable basis to denounce its status as law. After all, human rights laws have evolved by breaching early practices that encouraged the violations of basic human rights, best examples being slavery and torture.
One may argue that a body of legal rules can come into existence only when it is legislated by a legislative body, executed by an executive body and studied and interpreted by a judicial body from time to time. These elements are not entirely absent in international law. The UN makes for a fairly close attempt. The General Assembly is akin to a legislature. The Security Council, the executive wing, and the International Court of Justice forms the judiciary. In addition to this system are several other international organizations that handle different aspects of state conduct and streamlines them through a legal document (or more) of its own.
It may appear like International Law is a prerogative of those in power – there are states that participate in creating the legal order, but subvert it themselves. Though it may appear like this knocks the wind out of the sails of its status as a law, in truth, it remains to be a law – quite like how legislators aren’t necessarily obedient to the laws they make.