Is International Law Really “Law”?

The "Enforcement" Argument

• Many legal scholars question whether international law is truly "law" due to the perceived lack of enforcement mechanisms.

• They argue that unlike domestic law, there's no way to effectively enforce rules against sovereign nations, especially powerful ones.

• Roger Fisher counters that much of domestic law is also unenforceable in practice, particularly against the state itself.

• For example, when the United States loses a case, it complies voluntarily, not because it can be physically forced to do so.

• Criminal law also presents a similar situation, where the state could theoretically disregard an acquittal and imprison the defendant anyway.

• The argument that the U.S. routinely complies with adverse judgments is countered by Louis Henkin's assertion that nations generally observe international law, as it aligns with their collective self-interest through a Darwinian process.

• A critique of Fisher's analogy is that most domestic litigation involves private parties, with the state's enforcement power clearly applicable. Cases involving the government are seen as exceptions.

• Skeptics argue these exceptional cases are considered "law" only because they share attributes with typical cases, but are ultimately unenforceable, aligning with John Austin's view of international and constitutional law as merely

The "Enforcement" Argument

• Many legal scholars question whether international law is truly "law" due to the perceived lack of effective enforcement mechanisms, which distinguishes it from domestic legal systems.

• Critics argue that unlike domestic law, where there are established procedures and authorities to enforce rules, there is no equivalent mechanism to compel compliance among sovereign nations, particularly among those with significant power and influence on the global stage.

• Roger Fisher provides a counterpoint, suggesting that much of domestic law is also unenforceable in practice. For instance, in scenarios where the United States loses a legal case, it often complies voluntarily, indicating that enforcement is not always a matter of physical coercion or existing punitive measures.

• The dilemma is further illustrated in criminal law, where the state could, in theory, ignore a legal judgment like an acquittal and proceed to detain the defendant anyway. This highlights the complexity of state sovereignty and legal responsibility.

• Louis Henkin counters the argument that the U.S. and other nations routinely comply with unfavorable judgments by asserting that compliance with international law generally arises from collective self-interest. He frames this compliance within a Darwinian process, where states adhere to rules that benefit their national interests and foster stability in international relations.

• A critique of Fisher's analogy is that most litigation within domestic law involves private parties with the state's enforcement power being a fundamental aspect of the process. Cases that involve the government are often seen as exceptions rather than the norm.

• Critics argue that situations perceived as exceptional are regarded as "law" solely because they share certain formal attributes with typical cases but may ultimately lack enforceability. This aligns with John Austin's perspective, where international and constitutional law is considered a series of directives rather than law in the strictest sense, reliant on consent rather than coercion; thereby complicating the understanding of what constitutes legal authority in an international context.

Notes from the PDF

• But it cannot be true law because it can’t be enforced: how do you enforce a rule of law against an entire nation. especially a superpower such as the United States or the Soviet Union?

• Roger Fisher: much of what we call law in the domestic sense is also unenforceable; a great deal of what we normally call law in the United States is unenforceable by private parties arrayed against the state

  • International law is merely “positive morality”

• Louis Henkin: almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time

• Critique of Fisher: international law is no more ‘law” than constitutional or criminal law; the cases where the state is a party in

• Law is not a rationale for the application of force

• Positivist pov of law: a command of the state that is backed by the state’s enforcement power; the potential for enforcement must be present even if never invoked; international law is not ‘law’

The Verbal Argument

• much of the content of intergovernmental communications is self-consciously grounded in legal terminology

• the very utilization of legal language is an argument that governments resort to ‘law’ in order to influence each other

• Professor McDougal: has a very broad definition of law; international law is a process of authoratative decision making; legal rules exhaust their effective power when they guide a decision-maker to relevant factors and indicate presumptive weightings; international communication is law regardless of it its couched in legal terms or not

• Policy oriented jurisprudence school: international law is nothing more than international communication

• The verbal argument: the prevalenance of legal language in international communications adds to that international law is properly called law for most purposes

The “Reciprocal Entitlements” Argument

• Enforcement: consists of some form of legally imposed sanction; the possibility of punishment is supposed to deter a rational person from violating the law in the first place; not always physical or violent

• Sanctions: the law has removed one or more of your entitlements

• Entitlements: in order to sanction through deprivation, you have to be entitled to things in the first place; as a construct of international law, a nation is noting more than a bundle of entitlements

• Consent (a critique of international law being law): if international law is truly grounded in each nation’s consent, then what is it to stop a nation from withdrawing its consent at any time?

• the content of international law depends upon the recognition of what the entitlements are by all the states in the system

• the tit-for-a-different-tat pattern makes sense in a legal system that does not have a central court of compulsory jurisdiction, a world legislature, and a world police force

• the absense of compulsory jurisdiction, a world legislature, and a world police force doesn’t mean that international law isn’t law, but rather that it is enforced in a different way

• the fact that law can become ineffective doesn’t mean that it isn’t law in the first place

• While international law could destroy itself through runaway series of violations of entitlements, until then it polices itself by the meta-rule: that it is legal to deter the violation of an entitlement by threatening a counter-violation of the same or different International law is enforced by reciprocal-entitlement violation

• occasionally people or states will break laws that there were no laws to begin with

• entitlement

Conclusion

• international law is enforced by reciprocal-entitlement violation

• occaisonally people or states will break laws despite the prescence of enforcements machinery, but that does not measure that there were no laws to begin with

• there is enforcement resulting in a stable system of international entitlements

• a state cannot be described without reference to its entitlements not can its actions be fully understood without reference to the steps it takes to preserve those entitlements