International law never claimed to solve all problems. Like practically all law, it seeks simply to be a lesser evil compared to no law at all. – Jean Bricmont
Walking on campus to get an after-class-coffee with fellow students, I shared my surprised feelings about the scepticism at ANU towards international law. Our professor in a Masters course in International Relations had just mentioned “the threat of the use of power” – by which he meant the threat of the use of force, as expressed in article 2(4), UN Charter, 1945. According to him, this threat should be used much more often in international relations. In addition, he stated that international law only applies to powerful states when they see fit. My fellow students were not surprised at this attitude, arguing “it does not apply because states do what they want anyway”, and if I disagreed, maybe it was “because you are European.” In combination with earlier discussions about the function, righteousness and even existence of international law, this confirmed the scepticism amongst students, academics and government representatives I have spoken to in Canberra.
The scepticism that I encounter at ANU seems to be based on a fundamental misunderstanding of the concept of (international) law. In essence, international law is a means to govern relations between sovereign states. In the aftermath of World War II, a strong need was felt to establish a system providing the possibility of peaceful dispute resolution. As Higgins put it, “There is no more important way to avoid conflict than by providing clear norms as to which state can exercise authority over whom, and in what circumstances.” The sociological question of whether a system of rules or norms forms a body of law, is separate from the question of whether and how law functions. Equally, the philosophical question of whether the law is just or moral, is separate from the question of whether and how law functions. The confusion of these separate questions blurs the distinction between what law ought to be and what law is.
So how does international law govern the relationships between sovereign states? In 1945, the United Nations was established, based on an agreement between 50 states called the ‘United Nations Charter’, which today has 193 member states. This subsequently meant the establishment of the International Court of Justice, which was given jurisdiction over disputes between states on the basis of several sources of international law. There are multiple sources of international law, for example treaties, which can be seen as a type of ‘contracts’ between states. The Genocide Convention is an example, as well as the founding treaties of the European Union or the World Trade Organization. In that sense, international law also has the capacity to create new entities. Other sources are international custom and general principles of international law.
The system of international law is based on a so-called Westphalian notion of states. The idea that states form the legitimate concentration of power in today’s world is increasingly challenged, and maybe rightly so. However, that does not challenge the existence nor the relevance of international law as a means to govern international relations. It is unavoidable that states do not always act in a way that can be morally approved, which does not say anything about the validity of international law. Although there is a correlation between some norms in international law and morality, the idea that law equals justice cannot be upheld. The fact that governments rely on legal grounds to justify their behaviour does not undermine international law. If anything, it affirms a states’ belief that there is a need to act in adherence with international law. Interpretation on the application of specific laws may differ, and result in different behaviour. Especially when states threaten or use force, they have to persuade the ‘international community’ on the basis of legal arguments. One of many examples is the argumentation to use force based on self-defence, as put forward by the USA and its allies to justify Operation Enduring Freedom in 2001 in Afghanistan.
In addition, the fact that states do violate international law does not undermine the existence of the system itself, nor does it challenge the application of the law. As in any domestic legal system, the law cannot (and is not designed to) guarantee total adherence to it. When a criminal group (continuously) violates legal norms, it does not mean that these norms do not exist. In short, legality does not necessarily equal legitimacy. One should not be sceptical about the concept of international law as such, but rather ask what the world would look like if we did not have international law.