Why is International Law said to be Law?

The concept that 'law' is legislation passed by a nation-state's elected assembly, carried out by a democratically accountable executive through written regulations and enforced by an independent judiciary, has not been accepted by all countries until the end of the Cold War, 35 years ago. However, the idea that international law exists between sovereign states, based on treaty and custom, has been around and enforced for over 400 years. This article aims to explore the validity and enforcement of international law, addressing the common misconception that a lack of a supreme authority makes it invalid.

Justifications for the Existence of International Law

International law provides a framework for acceptable behavior among nations, just as the laws of any nation provide a framework for acceptable behavior among its residents and visitors. Without such frameworks, the potential for anarchy could ensue, as humans are not always adept at cooperation and caring for others. This framework is established through two major forms: treaty law and customary law.

Treaty Law

Treaty law is a binding agreement among two or more nations to adhere to specific rules about interacting with each other. A classic example is the Geneva Conventions, which spell out the rules for distinguishing combatants from non-combatants, the treatment of civilians and prisoners of war (POWs), and symbols that identify healthcare and humanitarian aid, such as the Red Cross and Red Crescent.

Bilateral treaties are between two nations, while multilateral treaties involve three or more nations. These explicit contracts between sovereign nations are often registered with the United Nations. The existence and enforcement of treaties provide a structured means of cooperation and conflict resolution among nations.

Customary Law

Customary law is based on traditional behavior or unwritten agreements. It must be generally agreed upon by many nations and is often enforced out of a sense of legal obligation. Many customary international laws are fundamental to how nations behave toward each other, establishing a normative basis for international relations.

Is International Law "Real Law"?

The treaties are actual contracts, making them feel a lot like "real law." Customary international laws, while not codified into treaties, are based on the international community’s enforcement of traditions. This reinforces the idea that international law is a real and binding set of rules that guide the interactions of nations.

Enforcement and Accountability

It is often argued that the lack of a supreme authority makes international law less credible compared to domestic law. However, this argument overlooks the fact that no authority enforces domestic law 99.9% of the time. Any contract you sign is rarely enforced through court judgments, and you often drive over the speed limit without a ticket.

The enforcement of international law relies on global norms, diplomatic pressure, and international organizations such as the United Nations. Non-compliance can lead to sanctions, diplomatic condemnation, and other measures that maintain the integrity of international agreements.

Conclusion

International law, whether based on treaties or customary practices, serves as a crucial framework for maintaining order and cooperation among nations. While it may not have the same enforcement mechanisms as domestic law, its importance cannot be understated. The existence and effectiveness of international law are not diminished by the lack of a supreme authority; rather, they are sustained through the collective actions and agreements of the international community.