Sebastian

The notion of international law prompts strong opinions.

(Here is meant what lawyers call “public international law” – in general, the law which governs nation states and international organisations. There is also “private international law” which is generally dull and uncontroversial – cross-border contracts and what-not.)

Some even doubt international law exists.

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I once heard a very distinguished legal academic – whose name is on the spines of volumes in every law library throughout the land – aver the following:

“In court, the laws of England and Wales are a matter of law. You just have to show the relevant legal authority or instrument and the court should accept that as what the law is.

“Foreign law – say the law of France – is different. This is a matter of evidence – expert evidence. You get an expert in that foreign law and their evidence is put before the court.

And international law, well. (Pause.)

International law is a matter of fiction.”

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There is perhaps no other branch of law which is the subject of such scepticism, if not outright denial, among even lawyers themselves.

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From one perspective, this rejection is perhaps understandable.

A great deal of what is called (public) international law will never be determined or enforced by a court of competent jurisdiction – it will never be litigated, and the nation state (and head of state) breaching that law will feel confident there will not be any consequences.

As one famous jurist once put it: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

And if there ain’t a court that will “do” international law then it is little or nothing more than a polite political fiction – a set of normative assertions with no positive existence.

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But.

There is more to law than its determination or enforcement by a court.

Even domestically, the vast majority of statutory provisions – and indeed many statutes – have never been litigated and will probably never be litigated. Yet they are still the law.

And this is because – in very general terms – they are recognised to be the law and parties regulate themselves accordingly.

As the greatest of all contract law academics G. H. Treitel put it in his classic definition of a contract (emphasis added):

“A contract is an agreement giving rise to obligations which are enforced or recognised by law.”

Enforcement – and thereby the possibility of enforcement – is not the only test of whether a thing is a law or not.

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In (public) international law, many of the obligations are created and agreed by nation states themselves. These are usually in the form of treaties.

There can be treaties between states for particular purposes – and there can be treaties of general of general application. Sometimes the latter are called conventions, as in the Geneva convention. And there can be charters to which member states subscribe – sometimes to create international organisations. There are many ways in which obligations in public international law can be created and agreed.

And then there is what is called customary international law – the international laws which are said to govern nation states regardless of whether the nation state agrees to those laws.

Taken together all these laws constitute (public) international law.

The problem is, however, very little of that law can or will ever be litigated.

But it is treated generally- that is, recognised – by many nation states as law nonetheless.

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One may have sympathy with the view, to adapt the famous aphorism attributed to Gandhi about western civilisation, that international law would be a good idea.

And generally, when nation states recognise it and regulate their conduct accordingly, it is a good thing as well as a good idea.

But what happens when a nation state – a superpower no less – goes rogue?

Where just because it can – like a dog licking itself – it breaches international law again and again, with barely a shrug?

One response is to say that such (mis)conduct discredits the notion of international law entirely – that the polite fiction of international law has been undermined by the (to say the least) impolite.

It is certainly the case that the current administration of that superpower – the United States – do not seem to care less about international law when it would restrain them.

(No doubt they would plead international law against another country if it suited them.)

But the notion of being in breach of international law is not the same as international law not existing.

International law is still there – it is just not being complied with.

International law is still there – it is just not capable of being enforced in these instances (at least not yet).

Other nations will recognise and abide by those laws even if the United States will not.

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An eminent professor may say international law is a matter of fiction, but unfortunately the many breaches of international law by the United States are a not a matter of fiction.

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