International Law as an Adaptive System: Implications and Opportunities

Abstract

The language of treaties and international organizations shapes most thinking about international law. States and formal institutions play the primary roles in creating, enacting and giving force to these texts. These “products” are the natural focus of attention, because they carry some form of authority or weight. This also means that they are used as reference points by all involved with the issues they deal with or touch upon.

What happens, however, when other forces and relationships increasingly shape the normative landscape? The institutional system and the texts the institutions generate remain important, but in this new context they form only parts of a larger set of relationships. I suggest that this is the situation in which we find ourselves. Relationships on the international level are now interactive and adaptive, and a perspective that does not capture these forces and their consequences cannot be adequate for understanding transnational normative relationships. Moreover, it is unlikely to be a solid basis for policy decisions. When applied alone it misses and distorts much that is important for understanding the relationships that international law seeks to regulate. The core change is the revolution in communication brought about by digital technology. The relationships it creates are
generating a new dimension in the operation of international law.

A “global adaptive system” has emerged to reshape the contours of international law. The traditional elements are part of it, but they are increasingly enmeshed in an evolving set of interactive relationships among states, institutions and individuals that provides much of the normative dynamic at the transnational level. Recognizing the emergence of this adaptive system makes these dynamics visible! It allows us to see more clearly what is happening and to analyze more effectively relationships among all actors that participate in the global arena. This, in turn, provides the basis for decisions and policies that are sounder and, above all, more inclusive of interests that are commonly not taken into consideration.

This brief essay identifies the basics of this evolution, explains what a global adaptive system is and how it functions. It then explores some of the consequences for the operation and evolution of international law.