International law

The short version: There is no such thing as international law. (By definition of international, I mean every country in the world, as opposed to interregional)

The long version: The reason for this is simply that there is no international police that can carry out sanctions on violators of the law.
No sane country in the world would want to give of it's soverignety to an international police force (For UN operations, see below). Remember; the definition of a state include the ability to use force (as in arresting and prosecuting) on it's people.

There are a lot of international treaties. These are a whole different ballgame. The treaties are higly practical in nature, such as agreements on shipping, distribution of airwaves and such. However, there's no such treaty that forbids a person to kill another, for example. The closest to possibly get to this is the Geneva convention on war crimes. The reason for this is almost the same as above, you can't impose your moral standards on everyone else. Each country has it's own way of dealing with crime, and wants to keep it that way. Remember; countries are amoral when it comes to international politics.

Treaties are binding for the country that signs it. However, a country can say yes to the text of a document and then refuse to ratify it. A good example of this is the US commitment to cut back on air pollution, which simply didn't happen this time.
On the other hand, a country can find ways of including a treaty in their own laws. This is done with international freight regulations. E.g.: If I send a package by truck from Norway to Spain, the law would remain almost equal in each country the package passed, due to the similarities in the national law which is based on the same treaties. And it's still not international law. One of the countries that takes this most seriously in thei law system is the US, where the constitution says that a treaty should be considered equal to "the law of the land".
The EU has a similar way of handeling this. It says that each country has to adapt their laws to fit the EU charter. But does that mean France can send police forces to Sweden if they don't follow the charter? No. That's why it's not international law. The sanctions are carried out on an economical basis, but are highly restricted to the countries that have signed the EU charter.

The UN does have peacekeeping forces, but they are military forces trained for military operations. If a person is to be prosecuted by the war crimes tribunal, the problem is to arrest him/her. That's why so few of the Jugoslav war criminals have been prosecuted.
Another interesting thing is the police officers from various countries operating in some parts of former Jugoslavia. They are given a UN mandate to stand in for the local police until the region is stable enough to govern itself. But the laws are local.

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In response to the WU below: No. The international courts are voluntary. These courts can only decide in cases the indicted countries have agreed to, either in advance or on a case to case basis. The state leader argument must be considered a nullity here, since it bears no relevance to this discussion. What the AAL states, is irrelevant here. International Law is used as term used to describe the different treaties and agreements. That does not mean there is such a thing as a law that govern more than one state at a time, involuntary. Think of the EU. Do they have a parliament that govern all the different countries by single law? No. They have an agreement system that incoorporates the laws EU parliament passes. Each country can, at any given time, dump the treaty and ignore it at a minimal risk. None, actually, except for loss of international respect.

If you disagree /msg me and we'll discuss it in a civilized matter.

International Law replaced the former terminology of 'Droit De Gens' (Trans : Law of Nations) in the first half of the 19th century, from then until the end of WW2 international law was plainly defined as

the law governing relations between states amongst each other.

However after post-WW2 numerous large actors without the representation of statehood became involved in international relations the definition of international law had to be broader and more extended.
This change of definition was given credence by the American Law Institute, which stated: international law

"comprises of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical"

Anyone who disputes the existence of International Law (read the above write-up) for the lack of an international court to cast judgements under the mandate of international law should note the International Court of Justice, the European Court of Justice, the European Court of Human Rights, the Hague, Nuremburg and Rwanda tribunals all casting criminal and civil judgements most of which have been obeyed. Also if International Law didn't exist, then an awful lot of lawyers, publicists and lecturers would be making an an awful amount of money for a topic that didn't exist.

However if one means that the application of Court judgements are relative in terms of power in capture, and power of non-acceptance that is a valid comment. To suggest from this that international law does not exist because of the varying power held by international actors, would be as nonsensical as saying national law doesn't exist because certain citizens (e.g. Mr Bigs, Kings and Dictators) can ignore and avoid the national enforcement agencies.

*Under new EU police co-operation treaties signed in the aftermath of the September 11th attacks soon, on paper at least, France will be able to send it's police forces to Sweden with full jurisdiction. Response the WU above: Just a very quick response which I may extend later.

1. You seem to be changing your argument from "there is no such thing as international law" to "there is no such thing as a law that governs more than one state at a time, involuntary".
2. If the EU Parliament does pass a law which is not voluntarily incorporated into national law by national parliament, the renegade EU state will be sanctioned and punished by other EU authorities. When France refused to accept British beef imports the Commission threatened it with heavy fines. A state could leave the EU, but that is irrelevent to arguments here. EU Institutions are getting stronger and more firmly embedded every year. (NB: perhaps I should do a node on the Europe Union Consitution Convention headed by Valerie Giscard explaining some of the proposals.)
3. The AAL would be most hurt to hear that.
4. There is such a thing as international law.
5) More later, sorry I know this is put together in a very hotchpotch way.

Is international law really "law"?

At its worst, the question at hand simply leads to a flurry of definitional comparisons which reveal nothing about how international law operates in the real world. Law can be seen either as something that encompasses both domestic law, with its particular characteristics, and international law or simply as domestic law on its own. If law is said to include international law by definition, the categorisation of international law as law is tautological. Such a definition is obviously useless, though it is equally useless to say that international law is not law because it is not domestic law. Rather than trying to evaluate law in terms of categorical description, it is therefore more expedient to consider what characteristics are generally possessed by law, as understood by the multitude of people, and then seek to identify the presence or absence of those characteristics within what is referred to, perhaps capriciously, as international law: treaties, international statutes, and the like. Having evaluated to what degree international law meets the criteria law is identified by, the usefulness of international law, and its present and future role, can be more effectively considered.

Dura Lex Sed Lex

The first characteristic attributed nearly universally to ‘law’ is the fact that it is binding. Laws are not followed simply because doing so is the will of those within society, or within the world community. There is a credible threat of retribution should laws not be followed. The binding nature of law therefore necessarily gives rise to the need for an executor of the law. Among those trusted by one another to simply follow a code of morality agreed upon, there can be no sense that what is being followed is ‘law.’ Customs, social norms, and traditions are separated by law from the key characteristic of laws having some power of enforcement. Of course, traditions can be enforced by various means – from social pressure to overt coercion. Law might perhaps be distinguished, then, by being a set of guidelines for legitimate coercion. Thus, the third vital component of law is derived: the requirement that the rules being enforced have some morally legitimate basis. From the one, largely acceptable, premise that law is binding, we are thus able to derive three useful benchmarks with which to evaluate international law: its binding nature, the presence of an enforcer, and the moral legitimacy of its content. The specifics of each of these criteria justify extensive analysis, but for the sake of succinctness, they must be accepted in a prima facie way for the purposes of this analysis.

How does International Law Stand up to the Three Tests?

Binding power, the presence of an enforcer, and moral legitimacy are necessary, but not sufficient conditions to categorise something as law. Any international agreement that does not, at least, meet these three standards cannot be considered to be law. The examination of international law, as it exists now, reveals that much, if not all of it, fails to meet these three criteria. At the same time, the idea that international law either meets these conditions or it does not is oversimplified. In truth, any international agreement meets each of these concerns to one degree or another. The stronger its support, the more that international rule might be considered law.

The degree to which an agreement is binding is tied explicitly to the power of some agent or another to enforce it. Situations where two nations agree to some shared policy, a free trade area for an example, may or may not have a system of enforcement. On one hand, one state may have the power to step in and correct deviations from the agreement on the part of the other state. Domestically, this would be seen more as vigilante justice than as law. The self-interest of the state, and the clear indication that it is more powerful (due to its ability to force compliance in the other state), undermine the degree to which such a relationship can be considered to be governed by law. Simple agreement is not law, even when binding power exists. For something to have the feel of law, there must be some means whereby an actor’s actions are constrained, contrary to their will. If no such situation is made possible under a treaty or statute, its status as law is very weak indeed.

The issue of legitimacy is probably the most difficult to deal with. No international statute has the legitimacy of a domestic one. The people of the Earth are bound to no shared political obligation or social contract. Law is generally seen as deriving legitimacy from some sense of shared obligation and responsibility. The lack of any real global legislative body weakens the argument that any such thing exists on a global scale. Even if justice is not defined by an appeal to the general will, it is not clear that there is some universal standard of that which is considered just. Again, a continuum exists where some things (like genocide) are almost universally condemned and others are more contentious. The near-universal abhorrence towards genocide allows international statutes condemning it to have respect nearly equivalent to domestic laws. Some international law deals with things that are extremely controversial (like trade policy) where international agreements are numerous, often contradictory, and frequently breached with an impunity that contradicts the impression of their being laws in a reasonable sense of the word.

International agreements are rightly seen to be legitimate to various degrees. While the doctrine of dura lex sed lex – the law is hard, but it is the law – applies quite directly within states, there is clearly a broader scope of interpretation for international statutes. To understand the degree to which international law is treated as law, we must therefore examine the behaviour of states.

Forget about Definitions, the Question is: Is it Useful?

While academics and legal scholars may take delight from dancing in circles around definitions of law, categorisation, and predicate logic, the various pressing problems of the world mean that it would be wise to sidestep purely academic examinations of the nature of international law and focus on the role it plays, the role it could play, and the role it ought to play.

Whether or not international agreements are legitimate, in an abstract way, they are often seen to be by people worldwide and the international community. While justice does not arise from a piece of paper, having something written on a piece of paper, by a body seen as having an appropriate mandate, has the power to sway opinion and even create considerable pressure: hence the huge effort to seek a second (or eighteenth, depending on your perspective) United Nations Security Council resolution authorizing the forceful disarmament of Iraq. While such a resolution would do relatively little to establish the legality of the war, it would do much to convince the people of the world of the legitimacy of the actions to be taken by the United States. It would act as a counterbalancing example to the idea that the United States is acting in a wholly selfish and unilateral way. The example of Iraq, however, also shows a great flaw in international law: it is least likely to be observed by those states most in breach of it. While the same may be true of domestic criminals, issues of sovereignty confound attempts to try and punish states as we do individuals. Brutal dictators are unlikely to be deterred from committing atrocities by various charters and treaties affirming the existence and value of human rights. Those states which international law would do best to constrain (if it is to be the arbiter of the behaviour of states) are usually those on whom it has the least impact. This is tacitly acknowledged in the veto system of the United Nations Security Council – it underscores the degree to which truly powerful states are not expected to be bound by international law.

The power of international law, therefore, is not really in enforceability, but in the conferring of legitimacy to certain actions. The trial of Slobodan Milosevic is a key example of a situation where international statutes and agreements are having an obvious effect, and are conferring legitimacy upon the actions taken by international and national actors. It is also an example of the relative weakness of international law, in areas other than public opinion. The various international tribunals and the International Criminal Court are entirely subservient to the governments where they have jurisdiction, in terms of having suspects delivered to trial and assigned punishments carried out. While people have an intuitive sense that international law does not really bind like domestic law does, they nevertheless see the order and fairness it tries to represent as conferring a degree of legitimacy and perhaps acting as a counterbalance to the self-interest of states. If so, the more attention states pay to the decrees of various international bodies, the more just the actions of states ought to become.

The neo-feudal portrayal of the international system is not an inaccurate one. As soon as we leave the borders of our country, we find ourselves in a position of split allegiance. We owe something to our home state, something to the state which we are in, something to our allies, and something to the world at large. International law can help to make sense of those various obligations and establish hierarchies of duty within which just actions can be taken. That situation exists for states as well as individuals; the complexity of the international environment grants a role to any force capable of being seen as powerful or important in the eyes of many. By meeting this criterion, international law gains a power through the support of the hearts and minds of people that is rather dissimilar to the rationale for domestic law.

Conclusion

It will probably never be the case that, in considering the legality of an international action taken by a state or non-state actor, that we will need only consult some grand tome of international statute that sets out in no uncertain terms the letter of the law. Rather, international law will continue to play a role as one dimension of diplomacy and international relations. The growing interdependence of the world may lead to a deepening of its role and importance. At the same time, growing tensions and concerns over security may lead to an abandonment of multilateralism among the strong nations of the world. Regardless of the direction that international law takes, it can properly be recognised as a strange and uncertain beast and as a force that is encouraging a redefinition of our conception of law. A more sensible question than: “Is international law really law” is: “How has law changed alongside the dynamic character of interstate relations.” That is a question that is best answered through careful observation and analysis of actual world events, and not through rhetorical acrobatics. This more progressive approach mirrors the development of international law itself: an often tenuous and universally uncertain progression through uncertain terrain. Through an ongoing and critical assessment of the role played by international law, we can reach a better understanding of the role it ought to play.