By Aoibhín Spriggs- Law Student @ St Catharine’s College, Cambridge
What is International Law?
First, we must consider what we mean by international law. It is primarily a law between states. It is a legal system, containing rules about what states must and must not do and rules about how to determine what counts as international law. International law is a horizontal system (it lacks a supreme authority) with emphasis placed on state consent.
Is International Law really ‘law’?
This is a somewhat theoretical debate, but international law must be considered true law for states to feel bound by it. There are arguments that international law is not really law, but a normative system that guides behaviour. These arguments have been rehashed recently, given the pandemic international relations has been perceived as taking precedence. I will consider some arguments that international law is not law and argue that these are not as convincing as they first appear.
HLA Hart argues that international law fails to meet the characteristics of law. He argues that the absence of a legislature, court and centrally organised sanctions means that the rules for states are simply a form of social structure. However, this relies on a particular definition of law that is based on a traditional understanding of the discipline. Sir Frederick Pollock argues that the only essential conditions for the existence of law are the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity. Indeed, even if we do accept Hart’s definition of law, the international legal system does have legislative, executive and judicial processes: they just do not look the same as those in domestic law and rely on voluntary compliance.
More recently, Jack L. Goldsmith and Eric A. Posner have put forward a realist argument: power and self-interest will always prevail over international law. This is a compelling argument, especially given recent developments, with Russia breaching one of the most fundamental principles in international law by invading Ukraine.
However, law, in general, is more than just coercion. James Crawford argues that emphasising effectiveness misrepresents the complexity of the reasons we have law, and the plurality of purposes the law serves. He argues that breaching the law is not the issue: ‘the question is: what happens next?’ Similarly, Hans Morgenthau argues that the great majority of the rules of international law are generally observed by all nations without actual compulsion. But why would they observe these rules without sanctions in place? Gerald G. Fitzmaurice argues that the real authority of international law resides in the fact that the states recognise it as binding, given that they must consent to the laws, and state consent plays a large role throughout international law. Morgenthau argues that it is generally in the interest of all nations to honour their obligations under international law, especially given that the obligations on state also create identical or complementary benefits for states.
Considering Crawford’s question, what happens next after a breach of international law will vary greatly depending on the precise breach. The proportionality of the consequences and breach must be measured by reference to the type of breach and the circumstances. The effectiveness of international law in this regard will have to be considered throughout the study of international law.
Further reading
1. International Law as True Law: A new approach to a Perennial Problem, Philip Allott https://www.ejiltalk.org/international-law-as-true-law-a-new-approach-to-a-perennial-problem/
(The EJIL: Talk! Blog in general is a good source of international law information)
2. Whether International law is true ‘law’ or not? (Into Legal World) https://www.intolegalworld.com/article?title=whether-international-law-is-true-law-or-not-
3. Video: What is international law? An animated explainer https://www.youtube.com/watch?v=jTzKgI68VLc&ab_channel=BBCLearningEnglish
4. Book: International Law: A very short introduction (good in general for international law)
5. Feel free to engage in the works of the academics cited but note that their work is often complex and involves the use of difficult language.