Volume 51
Issue 3
Spring '20

International Law as Project or System?

Written By: Ryan Martínez Mitchell

Abstract

Classical authors on international law tended to understand it as an immanent system of norms, emerging from natural reason, self-interest, and/or customary state behavior. This view largely kept hold well into the Vienna System era of multilateral diplomacy, indeed becoming more conceptually clear even as the language of natural law grew increasingly marginal. By the early twentieth century, however, international law had turned into a domain for intentional legislative projects on a global scale. Ultimately, this new legislative function of international law was endowed to permanent organizations focused on norm-development in specialized areas.

With this transformation, international law’s forms of legislation and, later, also of interpretation and adjudication transitioned from assuming “unwilled” to “willed,” intentional norms. This Article traces the conceptual history of this shift in the self-understanding of legal actors. It also argues that the now-prevalent epistemic model of international law as a collective project necessarily raises questions, including those rooted in Third World critique, as to whose project it is in practice. Finally, it suggests that further attention to international law’s “problem of authorship” can aid in understanding the way that legal discourses—such as those concerned with norms of freedom of navigation, trade, or international human rights— produce specific forms of knowledge and political possibilities.

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