Is international law “law” in the true sense of the word?

The question whether or not international law is law in the sense determined above is identical with the question whether or not the phenomena commonly called international law can be described by rules of law of the same kind as the rules by which national law may be described.

International law is true law if the coercive acts of states, the forcible interference of a state in the sphere of interests of another state, are, in principle, permitted only as a reaction against a delict, and accordingly the employment of force to any other end is forbidden; in other words, if the coercive act undertaken as a reaction against a delict can be interpreted as a reaction of the international legal community. International law is law in the same sense as national law, provided that it is, in principle, possible to interpret the employment of force directed by one state against another either as sanction or as delict.

In speaking of international law, reference is made only to general or common international law, not to particular international law. General or common international law is customary law valid for all states belonging to the international community. (Customary law is law created by the habitual practice of the states). Particular international law is valid for some states only, and comprises especially norms created by treaties valid only for the contracting parties.

Hence our problem must be formulated as follows: Is there, according to general international law, such a thing as a sanction, i.e., a coercive act provided for as the consequence of a definite conduct of the state, a forcible interference in the normally protected sphere of interests of the state responsible for this conduct? This question implies the question as to whether there is according to general international law such a thing as a delict. For from previous statements it follows that, legally, conduct of a state can be considered a delict only if international law attaches to this conduct.

 

II. Answer the questions.

1. How can the term “International Law” be defined?

2. What is general or common international law?

3. What does particular international law comprise?

4. In what case can conduct of a state be considered a delict?

5. When shall international law be considered true law?

6. How can the tern “customary law” be defined?

7. Does international law have the same sense as national law?

8. Who is bound by the norms of international treaties?

III. Complete the following sentences. Use the required information from the text above.

1.National or municipal law prevails within the ________.

2. It is, in principle, possible to interpret the employment of force directed by one state against another either as __________ or as ___________.

3. Particular international law is valid for some ________ only.

4. International law is the _________ prevailing in the relations among the states.

5. In speaking of ________ law, reference is made only to ________ or _________ international law, not to __________ international law.

6. Particular international law is ________ for some states only.

7. Particular international law comprises especially norms created by _______ valid only for the __________ parties.

8. General or common international law is __________ law.

 

IV. Define if the following sentences are true or false. Use the required information from the text above and correct the false statements.

1. International Law regulates the conduct of the states.

2. International law prevails within the state.

3. Particular international law is valid for all international community.

4. Conduct of a legal person can be considered a delict only if international law attaches to this conduct.

5. International law is law in the same sense as national law.

6. International law is true law if the coercive acts of states are permitted only as a reaction against a delict.

7. Customary law is law of international treaties.

8. Norms created by treaties are valid for all states.

V. Read the text.

THE NATURE AND FUNCTION OF INTERNATIONAL LAW [2]

International law is not rules. It is a normative system. All organized groups and structures require a system of normative conduct — that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price. Normative systems make possible that degree of order if society is to maximize the common good — and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that that society embraces. Without law at the domestic level, cars cannot safely travel on the roads, purchases cannot be made, personal safety cannot be secured. Without international law, safe aviation could not be agreed, resources could not be allocated, people could not safely choose to dwell in foreign lands. Two points are immediately apparent. The first is that this is humdrum stuff. The role of law is to provide an operational system for securing values that we all desire — security, freedom, the provision of sufficient material goods. It is not. As is commonly supposed, only about resolving disputes. If a legal system works well, then disputes are in large part avoided. The identification of required norms of behaviour, and techniques to secure routine compliance with them, play an important part. An efficacious legal system can also contain competing interests, allowing those who hold them not to insist upon immediate and unqualified vindication. Of course, sometimes dispute-resolution will be needed; or even norms to limit the parameters of conduct when normal friendly relations have broken down and dispute resolution failed. But these last elements are only a small part of the overall picture.

The second point is that, in these essentials, international law is no different from domestic law. It is not, as some suppose, an arcane and obscure body of rules whose origin and purpose are shrouded in mystery. But, if the social purpose of international law and domestic law is broadly similar, there are important differences arising from the fact that domestic law operates in a vertical legal order, and international law in a horizontal legal order. Consent and sovereignty are constraining factors against which the prescribing, invoking, and applying of international law norms must operate.

[…] I will endeavour to show international law as a normative system, harnessed to the achievement of common values — values that speak to us all, whether we are rich or poor, black or white, of any religion or none, or come from countries that are industrialized or developing.

What is International Law

[…] There is a widely held perception of international law as rules — rules that are meant to be impartially applied but are frequently ignored. It is further suggested that these rules are ignored because of the absence of effective centralized sanctions — and, in turn, that all of this evidences that international law is not ‘real law’ at all.

The view that international law is a body of rules that fails to restrain states falls short on several counts. In the first place, it assumes that law is indeed ‘rules’. But the specialized social processes to which the word ‘Law’ refers include many things beside rules. Rules play a part in law, but not the only part. I remain committed to the analysis of international law as process rather than rules and to the view I expressed many years ago, when I said:

When … decisions are made by authorized persons or organs, in appropriate forums, within the framework of certain established practices and norms, then what occurs is legal decision-making. In other words, international law is a continuing process of authoritative decisions. This view rejects the notion of law merely as the impartial application of rules. International law is the entire decision-making process, and not just the reference to the trend of past decisions which are termed rules’. There inevitably flows from this definition a concern, especially where the trend of past decision is not overwhelmingly clear, with policy alternatives for the future.

Thus ‘rules’ are just accumulated past decisions. And. if international law was just ‘rules’, then international law would indeed be unable to contribute to, and cope with, a changing political world. To rely merely on accumulated past decisions (rules) when the context in which they were articulated has changed — and indeed when their content is often unclear — is to ensure that international law will not be able to contribute to today’s problems and, further, that it will be disobeyed for that reason.

The rejection of the perception of law as ‘rules’ entails a necessary consequence. It means that those who have to make decisions on the basis of international law — judges, but also legal advisers and others — are not really simply ‘finding the rule’ and then applying it. That is because the determination of what is the relevant rule is part of the decision-makers’ function; and because the accumulated trend of past decisions should never be applied oblivious of context. Although this reality has been regarded as anathema by many traditionalists, it was well understood by Sir Hersch Lautcrpacht[3]. He rejected the notion that the judicial function meant finding the appropriate ‘rule’ in an impartial manner. The judge, he argued, does not ‘find rules’ but he ‘makes choices’ — and choices ‘not between claims which are fully justified and claims which have no foundation at all but between claims which have varying degrees of legal merit’.

The reasons why some insist that international law is ‘rules’, and that all international lawyers have to do is to identify them and apply them, are not hard to find. They are an unconscious reflection of two beliefs, deeply held by many international lawyers. The first reason is that, if international law is regarded as more than rules, and the role of the authorized decision-maker as other than the automatic applier of such rules, international law becomes confused with other phenomena, such as power or social or humanitarian factors. The second reason is that it is felt by many that only by insisting on international law as rules to be impartially applied will it be possible to avoid the manifestation of international legal argument for political ends.

I want to deal with each of these reasons in turn, and tell you why I do not agree with them. To seek to contrast law with power (in which task the perception of law as ‘rules’ plays an essential task) is fundamentally flawed. It assumes that law is concerned only with the concept of authority and not with power, or control. International law is indeed concerned with authority — and ‘authority’ not just in the sense of binding decisions, but in the broader sense of jurisdictional competence, and more. Myres McDougal[4] has explained:

By authority is meant expectations of appropriateness in regard to the phases of effective decision processes. These expectations specifically relate to personnel appropriately endowed with decision-making power; the objectives they should pursue; the physical, temporal and institutional features of the situations in which lawful decisions are made; the values which may be used to sustain decision, and so forth.

So far, so good. But it is not the case, as is frequently supposed, that international law is concerned with authority alone, and that ‘power’ stands somehow counterpoised to authority, and is nothing to do with law, and is indeed inimical to it. This view — which banishes power to the outer darkness (that is to say, to the province of international relations) — assumes that authority can exist in the total absence of supporting control, or power. But this is a fantasy. The authority which characterizes law exists not in a vacuum, but exactly where it intersects with power. Law, far from being authority battling against power, is the interlocking of authority with power. Authority cannot exist in the total absence of control. Of course, there will be particular circumstances when power overrides authority. On such occasions we will not have decision-making that we can term lawful. But that is not to say that law is about authority only, and not about power too; or that power is definitionally to be regarded as hostile to law. It is an integral element of it.

What then of the other argument — that a perception of international law as other than neutral rules inevitably leads to bias and partiality? A classical statement of this view was made by Judges Fitzmaurice[5] and Spender[6] in the South West Africa Cases in 1962 when they wrote:

We are not unmindful of, nor are we insensible to, the various considerations of a non-judicial character, social, humanitarian and other... but these are matters for the political rather than for the legal arena. They cannot be allowed to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.

This formulation reflects certain assumptions: that ‘the correct legal view’ is to be discerned by applying ‘rules’ — the accumulated trend of past decisions, regardless of context or circumstance — and that ‘the correct legal view' has nothing to do with applying past decisions to current contexts by reference to objectives (values) that the law is designed to promote.

 

VI. Answer the questions.

1. What is international law?

2. How can the term “system of normative conduct” be defined?

3. Can we deal without national and/or international law?

4. Is the role of national and international law common?

5. What are the differences between national and international law?

6. Is international law ‘real law’?

7. Does the author consider law to be rules or process?

8. How did Sir Hersch Lautcrpacht define the role of a judge?