In my last post I spoke highly of international law as a defining feature of the modern world, in almost a betrayal of my Machiavellian roots, and I now feel a need to delve into the topic briefly. Specifically, I want to ask, is international law in fact law? What follows are some thoughts of an IR student exploring this question in the field of jurisprudence.
The central anomaly of course is the decentralized nature of international law, something that remains an inescapable problem for all authors on the subject. Nationally, the brute force of the state lurks ever-present behind every law it makes. Theoretically, this power is completely absent in the international arena. (We shall get to the practical reality of this shortly.) To escape this definitional problem, there is a general drift toward defining the grounding of international law as a shared dominion of cooperation, a move which rather ironically only increases the theoretical divide.
The argument here is rather simple. International law lacks two fundamentals possessed by its domestic counterpart: compulsory jurisdiction and the hierarchy of judicial decisions. They arise out of the two characteristics missing internationally: centralization of power and uniform law enforcement. Realists gleefully point out that powerful states cannot be consistently coerced into following the will of the international community, ICJ remains isolated and ineffective, and the instruments of international law remain of doubtful efficacy and even more doubtful validity.
Reality of course is more complicated. There is in fact little doubt that international law exists and is being grudgingly followed by many states, even if currently more in rhetoric rather than practice. As Louis Hankin has famously wrote in 1979: ‘‘Almost all nations observe almost all principles of international law, and almost all of their obligations all of the time,” sentiment echoed by Morgenthau almost thirty years later when he noted that “the great majority of the rules of international law are generally observed by all nations without actual compulsion…” But are these rules law in a traditional sense?
John Austin defined law, rather simplistically, as a series of commands originating from the sovereign and reinforced with sanctions, force, or coercion. Legal positivism rests both upon the view that power is necessary for law to be applied and for that power to be centralized within a commonly recognized sovereign. In this Hobbesian view of “where there is no common power, there is no law,” international law, as practiced today, fails on both accounts. Yet treaties have been observed, and continue to be observed, even when not backed by threat of sanctions or other application of force. International law cannot thus be bound exclusively to distribution of power.
The first of two responses to this problem is the extension on the idea of coercion as limited to that of a sovereign. Hans Kelsen argues for the point that power remains a central requirement of all law by extending the definition of power and coercion implied by John Austin to include softer version of imposition and application of power. His thesis is based on the idea that while power remains decentralized within international community, there remains a monopoly of force by the powerful states which is similar to the monopoly of force exercised by the sovereign powers within states.
What such a purist legal theory misses is the fact that all laws, that is all rules and norms, are affected by political, economic and, most importantly, social factors. As Hedley Bull points out in his work The Anarchical Society, Kelsen’s isolation of law as bound to the idea of force, no matter how extended, is “fiction which, when applied to reality, strains against the facts”. States follow international law not only because of coercion, but also because of self-interest, reciprocal obedience, and sense of obligation. This is the second argument against Austin’s narrow view of law as requiring coercion, which Bull takes up by expanding the idea of law beyond command/threat dichotomy.
Bull draws upon the work of H. L. A. Hart who distinguishes between two sets of rules, primary and secondary, and argues that ‘law’ is a fusion of the two. Both writers, however, are unable to conclude that international law possesses this fusion and admit that it is remains a ‘primitive’ system of primary rules only. Bull readily acknowledges that secondary rules, those adjudicating the codification of primary rules, are clearly absent.
The existence of primary rules, those which are nearly universally shared and understood, if not codified, can be identified in the international system long before the creation of the modern Westphalia system. Rules and norms against murder and theft can be traced back thousands of years. According to Hart, such a system cannot be labelled as ‘legal’ because there are no secondary rules to adjudicate and manage the primary ones. By this definition, international law cannot be ‘true’ law since it is permanently locked in a ‘primitive’ state which owes its existence to the “identical or complementary interests of states and the distribution of power between them”. It lacks a structure of recognition, rules for managing change, and a universally accepted system of adjudication, the three factors necessary for what Hart called ‘secondary’ rules, that is, rules for managing the ‘primary’ ones.
While Hart still defers to Bentham’s original postulation that international law is “sufficiently analogous” to municipal law to retain its title, this is true only in a sense of obedience of the states to the international law. It remains decentralized and hinges on Kelsen’s view that international law is that of customs, where states act the way they do because they have done so before, encoded in the notion of jus cogens within Article 53 of the 1969 Vienna Convention of the Law of Treaties. Because if there are no secondary rules of adjudication and recognition, as Hart himself readily admits, than the principle behind jus cogens remains as the only viable explanation for the prevalence of international law as logically linked imperative propositions.
Is international law then just a set of customs that are simply too inconvenient to break by nations more and more concerned with their long-term survival in a globally connected world? Or is there something more behind this? A moral imperative perhaps? Or natural laws, a set of universal norms, asserting themselves in an international form? I'm not sure I'm ready yet to jump in bed with legal interpretivists over this quite yet, nor legal realists for that matter. But from where I sit, law it is not. A gut feeling says that international law, which exists and is coercive, has yet to encounter a true test of its validity and reach, a test which I'm not sure it could pass in its current form.