Is International Law Really Law?

What honesty requires. The absence of a legislature is real. It means international law changes slowly and unevenly, and that new problems can wait decades for a rule.

2. There is no compulsory court

The objection. Article 34 of the Statute of the International Court of Justice allows only States to be parties, and article 36 makes jurisdiction depend on consent, whether by special agreement, by a compromissory clause in a treaty, or by a declaration under the optional clause. A State that has consented to none of these cannot be sued.

The answer. Consent is required to start a case, not to be bound by the law. A State that refuses to appear is still in breach if it has broken a rule; it has merely avoided an adjudication. And the picture is far less bleak than the objection suggests: the World Trade Organization has a standing dispute settlement system that has decided hundreds of disputes between States, the International Tribunal for the Law of the Sea and Annex VII tribunals decide law of the sea cases, including the two your syllabus names, and regional human rights courts give judgments against States as a matter of routine.

What honesty requires. Some of the most serious disputes never reach any court, and a State can withdraw its optional-clause declaration when it fears a case.

3. There is no police force

The objection. When a State breaks the law nothing happens to it, so the rule was not really a rule.

The answer. Something does happen, but it happens differently. Self-help is lawful within limits: an injured State may take countermeasures, meaning conduct that would otherwise be unlawful, to induce the wrongdoer to comply, and the limits on that are in [Circumstances Precluding Wrongfulness, and Reparation]. Collective measures exist: under article 41 the Security Council may impose measures short of force, including complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic and radio communication, and under article 42 it may authorise the use of force. Those are stronger sanctions than most municipal legal systems apply to anybody. And the ordinary sanction is reciprocity and reputation: a State that repudiates its treaties finds its treaties repudiated and its future agreements distrusted.

What honesty requires. Enforcement is selective, and the veto means it is selective in a way that favours five States. That is the strongest form of the objection and it should be conceded.

4. The rules are broken

The objection. Wars are fought in defiance of article 2(4), so the rule is not real.

The answer. This proves less than it looks. Murder is committed daily and nobody concludes that the law of murder is not law. What matters is not whether a rule is broken but how the breach is treated. States that use force almost never say they are entitled to break the law. They argue self-defence under article 51, or invitation by the government, or Security Council authorisation. The very fact that a State in breach constructs a legal justification is evidence that it regards the rule as binding; a State that thought there were no rule would not bother.

What honesty requires. The breaches in this field are of a scale and consequence unlike those in a domestic system, and pointing to murder rates is a debating answer rather than a complete one.

5. It is really politics

The objection. Decisions in the Security Council are political, so international law is politics with legal vocabulary.

The answer. Some of it is, and the Council is a political organ. But most of international law never goes near the Council. Aircraft land, letters arrive, ships pass, patents are respected, extradition requests are processed and treaties are performed, every day, according to rules whose content is technical and whose application is not seriously contested. The politically charged fraction of the subject is the visible fraction, which distorts the impression.

The jurisprudential answers

The objection is a claim about what law is, so the answers are claims about that too.

Hart

H.L.A. Hart answered Austin by rejecting the command model altogether. In The Concept of Law he argued that a developed legal system is a union of primary rules, which tell people what to do, and secondary rules, which are rules about the rules: a rule of recognition identifying what counts as law, rules of change for making new law, and rules of adjudication for settling disputes.

Hart's own view of international law was mixed. He accepted that it is law rather than morality, because its rules are argued about in legal terms and are not felt as merely moral. But he doubted whether it had a rule of recognition, and thought it resembled the primary rules of a simple society more than a developed system.

That doubt is now weaker than it was when he wrote. Article 38 of the Statute of the International Court of Justice looks very much like a rule of recognition: it tells you what counts as international law and where to find it. The Vienna Convention on the Law of Treaties is a set of rules of change: how a rule is made, amended and ended. And the courts and tribunals named above are rules of adjudication, imperfect but real.

Kelsen

Hans Kelsen put international law at the top rather than the bottom. In his pure theory, every legal norm derives its validity from a higher norm, up to a basic norm, the Grundnorm. Kelsen argued that the basic norm of the whole legal order is international, and identified it with the principle pacta sunt servanda, meaning agreements must be kept, or with the principle that States ought to behave as they customarily have behaved.

On that view municipal law derives its validity from international law, not the other way round. This is the strong form of monism and it is dealt with in [International Law and Municipal Law].

The Austinian answer on its own terms

Even accepting Austin's framework, the modern answer is that sanctions do exist. Article 41 measures are sanctions. Countermeasures are sanctions. Suspension or expulsion from an organisation under article 6 of the Charter is a sanction. They are decentralised and unevenly applied, but Austin's own test asked whether an evil is likely to be visited on disobedience, not whether it is certain.

The argument that settles it in practice

Leave theory aside and ask what States do.

Every State maintains a legal adviser's department in its foreign ministry. Every State, when accused of a breach, answers in legal terms rather than saying the accusation is meaningless. Every State enters into treaties in the expectation that they will be performed, and performs the overwhelming majority of its own. Every State pleads international law in its own courts when it suits, and complains when another State ignores it.

A rule that nobody regarded as binding would not be argued about in this way. That is the practical answer, and it is stronger than any of the theoretical ones, because it is a fact about behaviour rather than a claim about definitions.

Distinctions that carry marks

Comity is the one students most often confuse with law. Comity means practices States follow out of goodwill or convenience, without regarding themselves as legally bound. When a State stops, the other State may be annoyed but cannot say a legal wrong has been done. The distinction is exactly the distinction between practice and custom in [Custom]: whether the practice is accompanied by a belief that the law requires it.

A worked example

State X and State Y share a river. For sixty years State X has released water from its dam every March so that State Y's farmers can irrigate. This year State X keeps the water. State Y protests, calling it a breach of international law.

Ask the three questions this chapter has been building towards.

Is there a rule? That depends on whether the sixty-year practice was accompanied by a belief on both sides that it was legally required, or was a neighbourly courtesy. If there is a treaty, the question answers itself. If there is not, State Y must show custom, and the test is in [Custom].

If there is a rule, is it law even though no court can be seized? Yes. If neither State has consented to the jurisdiction of the International Court, State Y cannot sue, but State X is in breach and owes reparation. Absence of a forum is not absence of an obligation, which is the answer to the second objection above.

What can State Y actually do? Protest formally, which preserves its position and prevents its silence being read as acquiescence. Propose negotiation, good offices, mediation, conciliation or arbitration under article 33 of the Charter, which is [Pacific Settlement of Disputes]. Take proportionate countermeasures, such as suspending its own obligations to State X under the same arrangement. Raise the matter in a regional organisation or the General Assembly.

Notice that the answer to "is it law" made no practical difference to any of that. What made the difference was whether a rule existed and what remedies were available, which are legal questions in exactly the ordinary sense.

What it does NOT mean

Saying it is law does not mean it is effective. Effectiveness and legal quality are different. A statute that is widely ignored is still a statute.

Saying it is weak does not mean it is optional. A State that breaks a rule and escapes consequences has still broken the rule, and the breach can be relied on against it later, in a claim, in a negotiation, or before a tribunal it eventually accepts.

The absence of a sanction in a particular case does not prove the absence of a legal rule. Municipal systems are full of legal obligations with no practical sanction, including many constitutional obligations of the State.

Limits and criticism

The strongest version of the sceptical case is not Austin's. It is this: international law is law, but it is law that operates most reliably where least is at stake, and least reliably where most is. Its enforcement machinery is structurally unavailable against five States and their close allies, and no amount of jurisprudence about rules of recognition changes that.

The honest answer is not to deny it but to say what follows. The subject remains worth knowing and using because the fraction of international relations that is contested by force is small, because the law shapes even the arguments of those who break it, and because the alternative to an imperfect legal order between States is not a perfect one but none.

Quick revision

The objection is Austin's: law is the command of a sovereign backed by a sanction; international law has no sovereign, no command and no reliable sanction, so it is positive international morality, not law.

The five heads of objection: no legislature, no compulsory court, no police, the rules are broken, it is really politics.

Answers: consent is not a defect, and custom, jus cogens and binding Security Council decisions already go beyond it; consent is needed to start a case, not to be bound; sanctions exist as countermeasures, article 41 measures and article 42 force; a State in breach argues self-defence or authorisation, which shows it accepts the rule; and most of the subject is technical and uncontested.

Hart: law is a union of primary and secondary rules. Article 38 of the ICJ Statute functions as a rule of recognition, the Vienna Convention as rules of change, the courts as rules of adjudication.

Kelsen: the Grundnorm of the whole legal order is international, identified with pacta sunt servanda.

The practical answer: States employ legal advisers, answer accusations in legal terms, and perform the overwhelming majority of their obligations. Nobody argues that hard about a rule they do not regard as binding.

Distinguish law from morality and from comity. Comity is courtesy, and its breach gives no legal claim.

Test yourself

1. State Austin's objection precisely, and identify the definition of law it rests on.

Austin defined law as the command of a determinate sovereign, habitually obeyed by the bulk of society and itself obeying nobody, backed by a sanction. International law has no determinate superior above States, its rules arise from agreement and practice rather than command, and no centralised sanction enforces them. Austin therefore classified it as positive international morality rather than law properly so called. The objection rests entirely on the command theory; it disappears if that theory of law is rejected.

2. How does Hart's account change the answer?

Hart rejected the command theory and defined a developed legal system as a union of primary rules of obligation with secondary rules of recognition, change and adjudication. On that account international law is law rather than morality, because its rules are treated and argued about as legally obligatory. Hart himself doubted whether it had a rule of recognition, but article 38 of the Statute of the International Court of Justice performs that function, the Vienna Convention on the Law of Treaties supplies rules of change, and the standing courts and tribunals supply rules of adjudication.

3. "International law cannot be law because it is constantly broken." Answer this in three sentences.

Frequency of breach does not determine whether a rule is law, or the law of murder would not be law. What matters is how breaches are treated, and States that use force almost invariably plead a legal justification such as self-defence under article 51 or Security Council authorisation, which shows they accept the rule and dispute only its application. A State that believed there was no rule would not construct an argument under it.

4. Distinguish law from comity, and give the test.

Law is a rule regarded as legally obligatory, so its breach founds a claim of illegality and a right to reparation. Comity is a practice followed out of goodwill or convenience without any sense of legal obligation, so its discontinuance gives ground for complaint but not for a legal claim. The test is the same as the test that separates practice from custom: whether the conduct is accompanied by a belief that the law requires it.

5. What sanctions does international law actually have? Name four.

Countermeasures by the injured State, meaning conduct otherwise unlawful taken to induce compliance, subject to proportionality. Measures not involving force decided by the Security Council under article 41, including interruption of economic relations and of communications. Force authorised by the Security Council under article 42. And institutional sanctions such as suspension of the rights of membership or expulsion under articles 5 and 6 of the Charter, together with the everyday sanctions of reciprocity, retorsion and loss of reputation.

6. Give the strongest form of the sceptical case, and the best reply to it.

The strongest form is not Austin's but this: international law works most reliably where the stakes are lowest and least reliably where they are highest, and its collective enforcement machinery is structurally unavailable against the five permanent members and their allies because of the veto. The best reply concedes the point and adds three things: most international relations are not contested by force and are governed effectively; the law shapes the conduct and the arguments even of those who breach it; and the alternative to an imperfect legal order between sovereign States is not a better one but none at all.