International Law: Law or Not Law?
It might not forthwith be evident why the nature of international law should be a debate at all. By this third decade of the twenty-first century, given the existence aplenty of literature on the expectations of a global village that animated thinkers with the onset of globalization, as well as consequent disillusionments owing to the oftentimes bewildering changes ushered in by globalization, it would seem as if much about the process has already been understood. Debating its very legal plinths, therefore, may well be analogous to debating the definition of numbers after a lifetime of engagement with complex trigonometry, conics, three-dimensional geometry and complex equations. Even then, mathematics is perhaps the closest discipline to objective truth; a similar enterprise in the social sciences would seem inevitably Sisyphean.
Yet, these legal plinths, while conveying to us no discernible relevance in the immediate run, may well influence bilateral and other relations in the fullness of time. Much, indeed, must be contingent on the very milieux that different countries find themselves in, in terms of their ability to meet the testing standards of such principles as international law mandates to be protected (think of human rights). With regard to international law itself, we appear to have an intuitive understanding of what it consists of; that it is a body of law that oversees international relations in a way that is, ideally, congenial to the unique zeitgeists of all countries, or as analyst Abhijit Iyer-Mitra might term, the unique anthropological stage each country finds itself in. Us ill-read plebes would profit immensely were he to expatiate, preferably in a book, as to the principles and precepts that he employs when he refers to anthropology.
Stated differently, international law ensures a semblance of order at the international level, for if it were not ‘congenial to the unique zeitgeists of all countries’, its very claim to be ‘international’ would have been impugned, and there would not have been ‘order’ at the international level to the extent that it may denote, as D.P. O’Connell would note in his article “The Role of International Law”, a ‘common sense of values and a common goal to be achieved’. Since this is ensured by means of a certain degree of control over state behaviour, it must not be divorced from normative considerations, which is the very leitmotif of O’Connell’s article.
It thus appears that states are of a realist persuasion with regard to international relations; that they are part of the edifice of what we understand as international law because, notwithstanding differences concerning the nature and applicability of laws, all of them apperceive a degree of security that is derived by means of subscription to that edifice. The Pollyannaish avowals that are witnessed in regional and international summits, which might have indicated a liberal perspective on international relations had their utterances manifested in actions, are reserved only for the craft of diplomacy.
Yet, their apperception of security is the reason behind their agreement to be part of the edifice — it is not indicative of their satiety with it. As aforesaid, states appear to be of a realist persuasion, and would thus very naturally be expected to influence the edifice in their favour in order to serve their respective interests. To that end, the more powerful countries might well decree that international law would apply to their territories only in the event that their own respective sovereign parliaments were to ratify it as part of their respective national laws.
It is here that the debate assumes relevance. “Is international law really law, given that its provenience is not a sovereign entity that overrides the nation-state?” “Supposing we do deem it ‘law’ for the purpose of convenience, must there not be an alternate interpretation of the word ‘law’ specifically for international law? For, is not its eventual aim to ensure world order? And were a state’s own interest to be discordant with international law, ought not the sovereign national law to take precedence, so that, the national interest being fulfilled, the said state may be better poised to ensure its part in keeping world order?” “But what about states that are pugnacious and harbour expansionist ambitions? Must not international law overrule national law in that event?” Such questions are quite natural, and in order that intellectual discourse may be better equipped to address them, it is quite important that ‘law’ itself be understood.
Understanding the Nature of Law
In debates concerning law, we refer almost invariably to law as understood by the Western political tradition, which has broadly four schools of thought as to the nature of law, namely, (a) Natural Law School; (b) Analytical Jurisprudence; (c) Historical Jurisprudence; (d) Sociological Jurisprudence.
The Natural Law School holds that law is representative of binding obligations that originate from the moral sphere; that it draws its sanctity or authority from a higher law which is the ‘law of nature’ or ‘natural law’ which exists independently of our will. This law, the school contends, can be discovered by the human faculty of reasoning. It differs from scientific law to the extent that its character is normative as opposed to positive. It conceives of a universal system of ‘justice’, or the notion of what is ‘right’, as distinct from human enactments and rules. This school of law has prevailed in the West for long, particularly since the time of the stoic philosophers (circa 300 B.C.E.) and was developed in the eighteenth century by Immanuel Kant (1724-1804) as an objective standard to which all rational nature should conform. This school of law forms the basis for the claim of universality of human rights in contemporary opinions on international law.
The school of Analytical Jurisprudence, which abides by ‘legal positivism’, regards ‘positive law’ alone as real law. It views law as a positive and direct command of a competent authority, ‘enforceable by effective sanctions’. Its focal point is the technical sense of the term ‘law’, as distinguished from its conception as a moral standard. Such rules as are based on conventions or expectations, and are not enforceable, are not regarded as law. It rejects the natural law doctrine as unscientific. The chief exponent of this school was the English jurist John Austin (1790-1859). In Austin’s view, law was a command of a sovereign person or body. He, therefore, did not regard international law as real law, for it is substantially based on international courtesy and mutual understanding. Other proponents differed. Hans Kelsen argued that the validity of law derived from its proper promulgation and from its conformity to a ‘basic norm’, postulating a ‘hierarchy of norms’, but he separated the questions of morality and moral obligation from those of legal validity and legal obligation; H.A.L. Hart equated law with rules which determined duties, obligations, rights and powers, and which provided for the procedure of both law-making and amendment of the laws, and rejected Kelsen’s conception of the ‘basic norm’; Ronald Dworkin rejected Hart’s conception of law as a structure of rules and reformulated the conception of law by introducing the role of ‘principles’, which may be applied in the event that application of rules by itself could not give a clear answer.
The school of Historical Jurisprudence believes in ‘legal evolutionism’; it emphasizes tracing the essence of legal ideas and institutions to their historical roots. It views legal evolution as the result of the interplay of social forces. Its exponents were F.C. Savigny (1779-1861) and Henry Maine (1822-1888). Savigny identified law as the expression of the spirit of a particular people, which consisted of their race as well as their culture, and he therefore regarded custom as the fundamental form of law. To him, legislation was merely the legal manifestation of popular consciousness. Henry Maine, differing with Savigny, held that progressive societies were characterized by a ‘movement from status to contract’. The historical school, in sum, views that law has no fixed content, for change in social institutions and awareness results in corresponding changes in the substance of law.
The school of Sociological Jurisprudence holds that the state is not the source of law; that it is merely an agency that imputes legal value to the rules that already existed in society. Law, to this school, is prior as well as superior to the state, and it is an important instrument of the resolution of social problems and of achieving social progress. One of its chief exponents, Roscoe Pound (1870-1964), states that the proper function of law is ‘social engineering’; therefore, it must be open to interpretation and revision as and when the levels of social consciousness change.
None of these schools is wrong in its entirety, owing to which there are apt to be differing interpretations of international law. So as to form a subjective opinion, however, it aids to be acquainted with the rationale behind individual interpretations.
Writing for Inquiries Journal, author Constantine J. Petallides contests the notion that international law “cannot be considered “law” when applied to states or state action”, for he regards as elemental the presence of enforcement mechanisms that transcend the consent of state, for such principles and decisions as are commonly regarded as international law, to be properly regarded as ‘law’. In addition, since the consent to treaties and conventions can with ease be rescinded so soon as a state’s interest so dictates, those treaties and conventions cannot accurately be called ‘laws’. For their violation, which a withdrawal from compliance with them technically is, invites no repercussions by a disinterested body. He notes:
“Since state actors are all independent, equal players on the international stage without any higher power governing their actions, there exists no political superior to posit or enforce international law. As this is the case, international law falls into the category of law not established by political superiors that Austin describes as “mere opinion” rather than law. These constitute the combined opinions of how those in the international community would like to see the world governed. Documents like the Declaration of Human Rights and organizations such as the International Criminal Court are highly aspirational and idealistic, but are subject to state consent and are flouted quite frequently. These examples represent a desire, “but where there is not a purpose of enforcing compliance with the desire, the expression of a desire is not a command” and as such cannot be considered law. These “imperfect laws,” lacking enforcement and obligation, serve more as counsel and guidelines than as binding law” (Petallides, Constantine J.).
A similar albeit not identical concern is advanced by D.P. O’Connell in his article “The Role of International Law”, in which he notes that the content which is regarded as international law is devoid of a sound legal theory, and is substantially mere ‘state practice’, which in international law parlance refers to the practices followed by a state’s sense of legal obligation. Such ‘state practice’, he holds, is derived from political decisions divorced from sound legal considerations. However, he seems prepared, perhaps for convenience, to nonetheless regard it as international ‘law’, as is evidenced with the characterization thereof as such throughout his article.
The other objection put forth by Petallides is of great significance. In his view, the compliance of states with international law is owed not to a sense of moral obligation, but merely to the apperception by them of “immeasurable security and economic benefits”. That which is deemed international law, therefore, cannot accurately be regarded as law. For, so soon as circumstances animate states with the opinion that the contravention of international ‘law’, indeed, even subscription to an entirely different system altogether, might be more congenial to their interests, they would not hesitate to act accordingly. The Natural Law School would concur with this opinion, since it holds moral authority sacrosanct.
There exists in legal parlance the term ‘opinio juris’ — short for ‘Opinio juris sive necessitates’ — which translates to ‘an opinion of law or necessity’. It is the belief that an action was carried out as a legal obligation, in contrast with actions resulting from “cognitive reaction or behaviors habitual to an individual”. Some opine that opinio juris drives consent and legitimizes international law. The following is Petallides’s dissent with such a view:
“In the landmark 1996 case regarding the legality of the use of nuclear weapons, the court found itself “profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of an opinio juris.” If 50 years of unanimous precedent could not be considered opinio juris, then how can compliance with international law that has tangible benefits be considered evidence of an obligation? From this point of view, “international law does not pull states toward compliance contrary to their interests” but changes as their interests change. For international law to be “law” states must be, as Kennan hypothesized, “like our own, reasonably content with their international borders and status;” for if they are not, they will disregard whatever legal regime is in place and pursue their ends as they see fit” (Petallides, Constantine J.).
Notwithstanding such grave shortcomings of that which is deemed international law, Petallides regards it as the representation of “an earnest human desire for a better world”, and might in fact serve as a starting point for the eventual formulation of genuine international law. However, he opines that “our world will get significantly smaller” as globalization continuously amplifies political, cultural and economic links across nations — a notion with which the late Samuel P. Huntington would have differed. One of the crucial observations of his book, “The Clash of Civilizations and the Remaking of the World Order” is that globalization, in view of its requirement of prolonged residence in cities, overmuch individualism and consequent disaffection, would catalyse the re-emergence of the forces of nationalism and religion; a view that seems vindicated with the recent emergence of governments of purportedly nationalist persuasions across the world. The exception to this is India, inasmuch as it does not evince an irreconcilability between nationalism and internationalism. As Minister of External Affairs Dr. S. Jaishankar notes:
“India is an exception as we are more nationalistic, but at the same time, we don’t see a tension between being nationalistic and being international, in the sense of engaging more with the world. So, nationalism is not a negative sentiment” (WION).
But one of the immutable traits of what we deem international law is its subjection to state politics. This seems to suggest that it might never attain the status of ‘genuine law’, to the extent that ‘genuine law’ is understood to be sacrosanct, and superior to political expediencies. The contravention of such law invites, as is periodically seen at the level of the nation-states, numerous public protests and spirited animadversions. This is particularly so if the accused happens to be an influential figure with an otherwise positive image. One would well infer from such protests, a grave affront to public conscience — the protesters might not always be able to articulate that which is wrong, but there is an unequivocal perception of grave injustice. Such, however, rarely if ever seem to be the sentiment in events of violation of ‘international law’, for it is rarely if ever deemed sacrosanct.
Such authors as Andrew T. Guzman would differ with this view, to the extent that he seems to suggest in his prefatory remarks at the 103rd Annual Meeting of the American Society of International Law, that the very question whether international law was law, is futile. He notes, “It is clear to all that international law differs in important ways from domestic law. It is equally clear that it provides a set of rules that seek to influence state behaviour”. Since the common objection to international law being called ‘law’ is its inseparability from politics, he notes, “It seems to me that it is better to accept that international law is not easily separable from politics”. This, however, is not, in his view, to be interpreted as something inherently negative, for it is not necessarily supportive of the notion that international law cannot be used to solve the world’s problems. “By thinking more realistically about international law and its place in the world, we can hope to make it stronger and more effective” (Andrew T. Guzman).
He proposes a different parameter for the definition of ‘international law’. While he does not himself offer a definition, he opines that international law must so be defined, as to “include those cross-border legal institutions that affect, or seek to affect, the behavior [sic] of states and non-state actors”. In his view, therefore, the Universal Declaration of Human Rights would, for instance, qualify as international law, for, notwithstanding its ‘non-binding’ essence or ‘soft-law’ essence, there is “little question that it sought to influence state behaviour [sic]”. Moreover, while its impact may much be debated, “it is a part of the legal landscape that international lawyers must work with and understand”. Such is his summation:
“International law is law in the sense that it seeks to influence the behavior of its subjects (in this case primarily states, but also non-state actors). Like any kind of law, international law is not always effective and it is not always just. Nevertheless, the international order does better when international law is working well, and when states are persuaded to comply with their obligations. The study and practice of international law includes the effort to understand the institution better so that it can serve as a tool for cooperation more often and more reliably. To achieve this goal requires that we embrace the study of international law, and why it works, and when it works” (Andrew T. Guzman).
With regard to the objection of enforceability, an article on Law Teacher | LawTeacher.net notes the opinion of Professor L. Oppenheim, namely, that enforcement mechanisms did indeed exist even for international law, which therefore granted it a legal status as opposed to a merely moral status as John Austin would have opined:
“Oppenheim believed that the existence of enforceability and socially organised sanctions led to the ability to be able to [sic] distinguish the international order as a legal order rather than merely a moral order. International law's most "famous" enforcement mechanism is the United Nations Security Council acting under Chapter VII of the UN Charter. The Council is permitted to determine the existence of breaches of the [sic] peace, threats to the [sic] peace or acts of aggression. Accordingly, the Council may impose economic, diplomatic or military sanctions to solve the situation.
Trade and diplomatic sanctions are slow to work. Moreover, their burden often falls most heavily on ordinary members of society rather than the ruling classes. In large part, The Security Council's resort to the use of force, for example in the case of Iraq's invasion of Kuwait, as a sanctioning method has been deemed quite effective” (Law Teacher | LawTeacher.net).
The article acknowledges that the system is far from perfect. “However, doubt surrounding the representative nature of the Security Council calls into question its integrity as an enforcement mechanism”. But it must be borne that the trait subject to question is its integrity; it is an enforcement mechanism all the same, albeit one devoid of integrity. The author of the article admits an inclination to not regard international law as ‘true law’ owing to the lack of an authoritative figure to police the enforcement of sanctions. However, the opinion of Guzman that international law must be judged differently appears more congenial to practice.
Guzman’s opinion might not be supported by the schools of thought spawned by the Western tradition, but the benefits derived from the edifice of international law prompt the idea that, perhaps, a novel theory of international law would serve to ground it in firm foundations, so that it may not be solely contingent, as D.P. O’Connell notes, on the “‘ephemeral’ and ‘vague’ factual circumstances of resistance to tendencies of disorder”.
The traditional definitions of ‘law’ may be too testing to be satisfied with the body of norms and conventions of international law. However, the fact that customs, traditions, religion may also be regarded as sources of law, is supportive of the notion that international law is also law. It is reasonable to conclude that international law, owing to the unique nature of the international order (namely, intercourse between and amongst sovereign entities), is merely of a different nature than state law.
Andrew T. Guzman. “Rethinking International Law as Law.” Proceedings of the Annual Meeting (American Society of International Law), vol. 103, [Cambridge University Press, American Society of International Law], 2009, pp. 155–57, http://www.jstor.org/stable/10.5305/procannmeetasil.103.1.0155.
Gauba, O. P. “Concept of Law.” An Introduction to Political Theory, 8th ed., Macmillan, Delhi, Delhi, 19AD, pp. 309–313.
Huntington, Samuel Phillips. The Clash of Civilizations and the Remaking of World Order. Simon & Schuster, 1997.
“Nationalism Is Not a Negative Sentiment, Says Foreign Minister S Jaishankar.” WION, WION, 3 Oct. 2019, Nationalism is not a negative sentiment, says Foreign Minister S Jaishankar.
O’Connell, D. P. “The Role of International Law.” Daedalus, vol. 95, no. 2, The MIT Press, 1966, pp. 627–43, The Role of International Law on JSTOR.
Petallides, Constantine J. "International Law Reconsidered: Is International Law Actually Law?" Inquiries Journal/Student Pulse 4.12 (2012). International Law Reconsidered: Is International Law Actually Law?.