In thinking about my Ph.D. thesis, one thing that sparked everything was a foundational question between unity and fragmentation, which underlined a more nuanced question, why something is fragmented, and why something is united? However, which leads me to a follow-up question, is, in reality, international law a system? and if international law is a system, then what kind of system it is? Then the question was, what is a system?
What is a system then sparked another set of questions, if international law is a system, what kind of system is international law is, can be, should be, or could be understood? In general terms, we can see international law as a system departing from the cumulative series of norms, principles, rules, written and non-written policies, etc… However, the regulations themselves do not have nor create their own behavior. It is like entering into a room, throwing a series of papers to the floor, aiming for the papers to be reshuffled in perfect order by themselves. However, the papers don’t do it. They will stay there until someone makes an effort to arrange it, then sparking the second law of thermodynamics (but that is another story).
So, if the system of international law is looked at as a series of norms, then the construction will follow possibly one that was developed by Hans Kelsen. A norm cannot free float. It is tied to a system or a series of rules. So that international norms, rules, etc… do not free float. They are tied together to other norms. This could be an example of “emergence,” a series of standstill norms tied together lead to the possibility of the existence of a system of norms. However, this has some type of limitations. It does not admit easily change and does not admit contradiction. This is not in itself bad. However, it could lead to the far cry that the system of international law is fragmented.
If international law is looked at from a system’s theory perspective. It is possible to see it as a complex adaptive system. What becomes essential are not the rules per se (sorry to use Latin here, but I felt that it was an excellent time to use it). Somewhat are the agents. Who are the agents in international law, as Sachter said, the “invisible college of international law.” And, it is something important here, the depiction of the invisible college resembles that of the invisible hand by Adam Smith. From this point of view, Smith thought that the market was moved by the will of independent agents, who caused the market to self-regulate, thanks to the competition of the people, that the collection of agents is what creates a market.
In that same way, the collection of agents that comprise the “invisible college” is what causes the emergence of the system of international law as a complex adaptive system. What becomes then essential is to understand who are the agents, what properties do they have, where do they work, how their actions affect the world, what memory is constructed, and how this memory causes the agents to rely on past data to act in the present and in the future, what are the intended and unintended outcomes.
The agents could be the invisible college, if you want to see it from the most atomic point of view, however, it can also be seen from the stand-point of the different countries, being agents, and the intergovernmental organizations, in this point of view, what you have is that the countries, the intergovernmental organizations, etc… are comprised by agents, which causes a double understanding, a nation is both an agent and a complex adaptive system.
If international law is understood as a complex adaptive system, then what you have is from one side order and, in other extremes, chaos, under which each agent acts due to the feedback from other agents and from the environment. Causing each agent to adapt and change, a new strategy is put forward. Suppose there is a change in the plan by an agent. In that case, this can change the context upon which another agent will act or react, having then multiple populations of agents adapting to each other, causing a coevolutionary process. That is the system. It never stops. It is in continuous change. The efforts to adapt from some agents generate other agents as well adapt. In between then, the system changes.
If international law is then looked at and framed as a Complex Adaptive System, what we have is that international law is embedded into a coevolutionary process, thanks in significant part to the agents that comprise international law, that is, professors who propose new policies that affect international law, recent academic articles, opinions, students who are train and understand international law, the persons that work within international and intergovernmental organizations that create and understand international law from a different vantage point, of course, the judges seating in courts, and arbitrators sitting in arbitral tribunals, deciding a particular case, however, affecting the system of international law. So we have then conscious agents that affect international law, and we have agents that unconsciously affect international law.
In sum, international law is under a continuous coevolutionary process.
Derecho Internacional y otras ilusiones 