What is International Law?

● International law is the set of rules that countries follow in dealing with each other

● This basic definition, however, must be supplemented with three more complex
explanations:

1. Is international law really law, the way the law of Canada, enforced by courts
and police, are?
2. Where do we find the rules of international law? Are they written down
somewhere?
3. How is international law enforced, if there is no world government?

1. Is international law really “law”?

There are several ways to think about law. In the domestic legal system, we think of law as
the rules that the government issues to control the lives of its citizens. Those rules are
generally created by Parliament, interpreted by the courts, and enforced by Parliament,
using the police, if necessary, to force citizens to obey. What is law for the international
community if there is no one government, court, or police force?

Imagine a school playground with several children at play. The “law” is the set of playground
rules that the teacher tells her students. For example, she might tell them, “Don’t hit your
classmate.” Two different reasons can explain why the children will follow this rule. On the
one hand, they may follow the rule only because they are afraid of being punished by the
teacher. On the other hand, the students may believe that it is a bad thing to hit their
classmates. Since it is a bad thing to do, they will follow the teacher’s rule.

In the first case, they will obey the rule only if the teacher is there and ready to punish them.
In the second case, students will obey the rule even if the teacher in not there. In fact, even
if the teacher is not present, the children may obey the rule because they have become
used to not hitting each other and have therefore enjoyed playing with each other.

Just as certain common understandings between children may make it easier for them to
play, collective agreement on certain rules can often serve the interests of all the members
of a community. Just as on a playground without a teacher, in the international setting there
is no central authority. For the most part, however, states will follow the rules they have
agreed to follow because it makes their interactions easier than not following those rules.

Thus, the fact that there is no overall authority to force compliance with the rules does not
necessarily mean that there is no law. Law still exists in this setting, though it may be
practiced and enforced in different ways. International law can therefore be called “real
law,” but a special type of law with different characteristics from the law practiced in
domestic settings, where there is a system of government, courts, and police force.

2. What are the sources of International Law?

Since there is no world government, there is no world parliament to make international law
the way domestic legislatures create laws for one country. As such, there can be significant
difficulty in establishing exactly what is international law. Various sources, however—
principally treaties between states—are considered authoritative statements of international
law. Treaties are the strongest and most binding type because they represent consensual
agreements between the countries who sign them. At the same time, as stated in the
statute of the International Court of Justice (ICJ), rules of international law can be found in
customary state practice, general principles of law common to many countries, domestic
judicial decisions, and the legal scholarship.

Treaties. Treaties are similar to contracts between countries; promises between

States are exchanged, finalized in writing, and signed. States may debate the
interpretation or implementation of a treaty, but the written provisions of a treaty are
binding. Treaties can address any number of fields, such as trade relations, such as
the North American Free Trade Agreement, or control of nuclear weapons, such as the
Nuclear Non-Proliferation Treaty. They can be either bilateral (between two countries) or
multilateral (between many countries). They can have their own rules for
enforcement, such as arbitration, or refer enforcement concerns to another agency,
such as the International Court of Justice. The rules concerning how to decide
disputes relating to treaties are even found in a treaty themselves—the Vienna
Convention on the Law of Treaties.

Custom. Customary international law (CIL) is more difficult to ascertain than the
provisions of a written treaty. CIL is created by the actual actions of states (called
“state practice”) when they demonstrate that those states believe that acting
otherwise would be illegal. Even if the rule of CIL is not written down, it still binds
states, requiring them to follow it.

For example, for thousands of years, countries have given protection to

ambassadors. As far back as ancient Greece and Rome, ambassadors from another
country were not harmed while on their diplomatic missions, even if they represented
a country at war with the country they were located in. Throughout history, many
countries have publicly stated that they believe that ambassadors should be given
this protection. Therefore, today, if a country harmed an ambassador it would be
violating customary international law.

Similarly, throughout modern history, states have acknowledged through their

actions and their statements that intentionally killing civilians during wartime is
illegal in international law. Determining CIL is difficult, however, because, unlike a
treaty, it is not written down. Some rules are so widely practiced and acknowledged
by many states to be law, that there is little doubt that CIL exists regarding them; but
other rules are not as universally recognized and disputes exist about whether they
are truly CIL or not.

General Principles of Law. The third source of international law is based on the theory
of “natural law,” which argues that laws are a reflection of the instinctual belief that
some acts are right while other acts are wrong. “The general principles of law
recognized by civilized nations” are certain legal beliefs and practices that are
common to all developed legal systems. For instance, most legal systems value
“good faith,” that is, the concept that everyone intends to comply with agreements
they make. Courts in many countries will examine whether the parties to a case
acted in good faith, and take this issue into consideration when deciding a matter.
The very fact that many different countries take good faith into consideration in their
domestic judicial systems indicates that “good faith” may be considered a standard
of international law. General principles are most useful as sources of law when no
treaty or CIL has conclusively addressed an issue.

Judicial Decisions and Legal Scholarship. The last two sources of international law are
considered “subsidiary means for the determination of rules of law.” While these
sources are not by themselves international law, when coupled with evidence of
international custom or general principles of law, they may help to prove the
existence of a particular rule of international law.

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 Especially influential are judicial decisions, both of the International Court of Justice
(ICJ) and of national courts. The ICJ, as the principal legal body of the United Nations,
is considered an authoritative expounder of law, and when the national courts of
many countries begin accepting a certain principle as legal justification, this may
signal a developing acceptance of that principle on a wide basis such that it may be
considered part of international law.

Legal scholarship, on the other hand, is not really authoritative in itself, but may
describe rules of law that are widely followed around the world. Thus, articles and
books by law professors can be consulted to find out what international law is.

3. How is international law enforced?

A treaty may be incorporated into its own text enforcement provisions, such as arbitration of
disputes or referral to the ICJ. However, some treaties may not expressly include such
enforcement mechanisms. Especially in situations where the international law in question is
not explicitly written out in a treaty, one can question how this unwritten law can be
enforced. In an international system where there is no overarching authoritative enforcer,
punishment for non-compliance functions differently. States are more likely to fear tactics
used by other states, such as reciprocity, collective action, and shaming.

Reciprocity. Reciprocity is a type of enforcement by which states are assured that if

they offend another state, the other state will respond by returning the same
behavior. Guarantees of reciprocal reactions encourage states to think twice about
which of their actions they would like imposed upon them. For example, during a war,
one state will refrain from killing the prisoners of another state because it does not
want the other state to kill its own prisoners. In a trade dispute, one state will be
reluctant to impose high tariffs on another state’s goods because the other state
could do the same in return.

Collective Action. Through collective action, several states act together against one
state to produce what is usually a punitive result. For example, Iraq’s 1990 invasion
of Kuwait was opposed by most states, and they organized through the United
Nations to condemn it and to initiate joint military action to remove Iraq. Similarly,
United Nations imposed joint economic sanctions, such as restrictions on trade, on
South Africa in the 1980s to force that country to end the practice of racial
segregation known as apartheid.

Shaming. Most states dislike negative publicity and will actively try to avoid it, so the
threat of shaming a state with public statements regarding their offending behavior is
often an effective enforcement mechanism. This method is particularly effective in
the field of human rights where states, not wanting to intervene directly into the
domestic affairs of another state, may use media attention to highlight violations of
international law. In turn, negative public attention may serve as a catalyst to having
an international organization address the issue; it may align international grassroots
movements on an issue; or it may give a state the political will needed from its
populace to authorize further action.