Is international law really "law"?
At its worst, the question at hand simply leads to a flurry of definitional comparisons which reveal nothing about how international law operates in the real world. Law can be seen either as something that encompasses both domestic law, with its particular characteristics, and international law or simply as domestic law on its own. If law is said to include international law by definition, the categorisation of international law as law is tautological. Such a definition is obviously useless, though it is equally useless to say that international law is not law because it is not domestic law. Rather than trying to evaluate law in terms of categorical description, it is therefore more expedient to consider what characteristics are generally possessed by law, as understood by the multitude of people, and then seek to identify the presence or absence of those characteristics within what is referred to, perhaps capriciously, as international law: treaties, international statutes, and the like. Having evaluated to what degree international law meets the criteria law is identified by, the usefulness of international law, and its present and future role, can be more effectively considered.
Dura Lex Sed Lex
The first characteristic attributed nearly universally to ‘law’ is the fact that it is binding. Laws are not followed simply because doing so is the will of those within society, or within the world community. There is a credible threat of retribution should laws not be followed. The binding nature of law therefore necessarily gives rise to the need for an executor of the law. Among those trusted by one another to simply follow a code of morality agreed upon, there can be no sense that what is being followed is ‘law.’ Customs, social norms, and traditions are separated by law from the key characteristic of laws having some power of enforcement. Of course, traditions can be enforced by various means – from social pressure to overt coercion. Law might perhaps be distinguished, then, by being a set of guidelines for legitimate coercion. Thus, the third vital component of law is derived: the requirement that the rules being enforced have some morally legitimate basis. From the one, largely acceptable, premise that law is binding, we are thus able to derive three useful benchmarks with which to evaluate international law: its binding nature, the presence of an enforcer, and the moral legitimacy of its content. The specifics of each of these criteria justify extensive analysis, but for the sake of succinctness, they must be accepted in a prima facie way for the purposes of this analysis.
How does International Law Stand up to the Three Tests?
Binding power, the presence of an enforcer, and moral legitimacy are necessary, but not sufficient conditions to categorise something as law. Any international agreement that does not, at least, meet these three standards cannot be considered to be law. The examination of international law, as it exists now, reveals that much, if not all of it, fails to meet these three criteria. At the same time, the idea that international law either meets these conditions or it does not is oversimplified. In truth, any international agreement meets each of these concerns to one degree or another. The stronger its support, the more that international rule might be considered law.
The degree to which an agreement is binding is tied explicitly to the power of some agent or another to enforce it. Situations where two nations agree to some shared policy, a free trade area for an example, may or may not have a system of enforcement. On one hand, one state may have the power to step in and correct deviations from the agreement on the part of the other state. Domestically, this would be seen more as vigilante justice than as law. The self-interest of the state, and the clear indication that it is more powerful (due to its ability to force compliance in the other state), undermine the degree to which such a relationship can be considered to be governed by law. Simple agreement is not law, even when binding power exists. For something to have the feel of law, there must be some means whereby an actor’s actions are constrained, contrary to their will. If no such situation is made possible under a treaty or statute, its status as law is very weak indeed.
The issue of legitimacy is probably the most difficult to deal with. No international statute has the legitimacy of a domestic one. The people of the Earth are bound to no shared political obligation or social contract. Law is generally seen as deriving legitimacy from some sense of shared obligation and responsibility. The lack of any real global legislative body weakens the argument that any such thing exists on a global scale. Even if justice is not defined by an appeal to the general will, it is not clear that there is some universal standard of that which is considered just. Again, a continuum exists where some things (like genocide) are almost universally condemned and others are more contentious. The near-universal abhorrence towards genocide allows international statutes condemning it to have respect nearly equivalent to domestic laws. Some international law deals with things that are extremely controversial (like trade policy) where international agreements are numerous, often contradictory, and frequently breached with an impunity that contradicts the impression of their being laws in a reasonable sense of the word.
International agreements are rightly seen to be legitimate to various degrees. While the doctrine of dura lex sed lex – the law is hard, but it is the law – applies quite directly within states, there is clearly a broader scope of interpretation for international statutes. To understand the degree to which international law is treated as law, we must therefore examine the behaviour of states.
Forget about Definitions, the Question is: Is it Useful?
While academics and legal scholars may take delight from dancing in circles around definitions of law, categorisation, and predicate logic, the various pressing problems of the world mean that it would be wise to sidestep purely academic examinations of the nature of international law and focus on the role it plays, the role it could play, and the role it ought to play.
Whether or not international agreements are legitimate, in an abstract way, they are often seen to be by people worldwide and the international community. While justice does not arise from a piece of paper, having something written on a piece of paper, by a body seen as having an appropriate mandate, has the power to sway opinion and even create considerable pressure: hence the huge effort to seek a second (or eighteenth, depending on your perspective) United Nations Security Council resolution authorizing the forceful disarmament of Iraq. While such a resolution would do relatively little to establish the legality of the war, it would do much to convince the people of the world of the legitimacy of the actions to be taken by the United States. It would act as a counterbalancing example to the idea that the United States is acting in a wholly selfish and unilateral way. The example of Iraq, however, also shows a great flaw in international law: it is least likely to be observed by those states most in breach of it. While the same may be true of domestic criminals, issues of sovereignty confound attempts to try and punish states as we do individuals. Brutal dictators are unlikely to be deterred from committing atrocities by various charters and treaties affirming the existence and value of human rights. Those states which international law would do best to constrain (if it is to be the arbiter of the behaviour of states) are usually those on whom it has the least impact. This is tacitly acknowledged in the veto system of the United Nations Security Council – it underscores the degree to which truly powerful states are not expected to be bound by international law.
The power of international law, therefore, is not really in enforceability, but in the conferring of legitimacy to certain actions. The trial of Slobodan Milosevic is a key example of a situation where international statutes and agreements are having an obvious effect, and are conferring legitimacy upon the actions taken by international and national actors. It is also an example of the relative weakness of international law, in areas other than public opinion. The various international tribunals and the International Criminal Court are entirely subservient to the governments where they have jurisdiction, in terms of having suspects delivered to trial and assigned punishments carried out. While people have an intuitive sense that international law does not really bind like domestic law does, they nevertheless see the order and fairness it tries to represent as conferring a degree of legitimacy and perhaps acting as a counterbalance to the self-interest of states. If so, the more attention states pay to the decrees of various international bodies, the more just the actions of states ought to become.
The neo-feudal portrayal of the international system is not an inaccurate one. As soon as we leave the borders of our country, we find ourselves in a position of split allegiance. We owe something to our home state, something to the state which we are in, something to our allies, and something to the world at large. International law can help to make sense of those various obligations and establish hierarchies of duty within which just actions can be taken. That situation exists for states as well as individuals; the complexity of the international environment grants a role to any force capable of being seen as powerful or important in the eyes of many. By meeting this criterion, international law gains a power through the support of the hearts and minds of people that is rather dissimilar to the rationale for domestic law.
It will probably never be the case that, in considering the legality of an international action taken by a state or non-state actor, that we will need only consult some grand tome of international statute that sets out in no uncertain terms the letter of the law. Rather, international law will continue to play a role as one dimension of diplomacy and international relations. The growing interdependence of the world may lead to a deepening of its role and importance. At the same time, growing tensions and concerns over security may lead to an abandonment of multilateralism among the strong nations of the world. Regardless of the direction that international law takes, it can properly be recognised as a strange and uncertain beast and as a force that is encouraging a redefinition of our conception of law. A more sensible question than: “Is international law really law” is: “How has law changed alongside the dynamic character of interstate relations.” That is a question that is best answered through careful observation and analysis of actual world events, and not through rhetorical acrobatics. This more progressive approach mirrors the development of international law itself: an often tenuous and universally uncertain progression through uncertain terrain. Through an ongoing and critical assessment of the role played by international law, we can reach a better understanding of the role it ought to play.