For almost a hundred years, international law has been on the receiving end of relentless criticism from the policy and academic worlds. That law, sometimes called the law of nations, consists of the web of rules developed by states around the world over many centuries through treaties and customary practices, some bilateral, some regional, and some global. Its rules regulate issues from the very technical (how our computers communicate internationally or the lengths of airport runways) to areas of common global concern (rules for ships on the seas or ozone pollution) to the most political for individual states (like when they can go to war or the minimum standards for human rights).
The first challenge to international law comes from those politicians, pundits, and political scientists who see it as fundamentally ineffective, a point they see as proved ever since the League of Nations failed to enforce the Versailles Treaty regime against the Axis in the 1930s. But those who really know how states relate to each other, whether diplomats or academics, have long found this criticism an unrealistic caricature. While some rules have little dissuasive power over some states, many if not most important rules, are generally followed, with serious consequences for violators, like ostracism, reciprocal responses, or even sanctions. The list of routinely respected rules is enormous, from those on global trade to the law of the sea to the treatment of diplomats to the technical areas mentioned above. Most international cooperation is grounded in some legal rules.
The second challenge to international law has come from domestic lawyers and some legal scholars who asserted that international law is not really “law” because it lacks the structure of domestic law, in particular an executive or police force that can enforce the rules. But this too is a canard. As the British legal scholar H.L.A. Hart pointed out more than a half-century ago, one does not need to have perfect enforcement for a rule to be “law,” as long as the parties treat the rules as law. With international law, states certainly interact in a way that shows they treat those rules as law. They expect them to be followed and reserve special opprobrium and responses for law violators. Certainly, powerful states can get away with some law violations more easily than weak states, but that has nothing to do with whether international law is law.
Third, international law has faced a challenge from some philosophers and global leaders that it is fundamentally immoral. They claim that its rules reflect self-interested bargains among governments, but lack moral content. It is intriguing that this moral criticism actually comes from two opposite directions. On the one hand, so-called cosmopolitan philosophers, who think people’s moral duties to one another should not turn on nationality or national borders (which they view as morally arbitrary), condemn many rules for sacrificing concern for the individual, wherever he or she may live, for the mere interests of states. On the other hand, leaders of many developing world nations claim that many of international law’s rules are immoral for not privileging states enough, in particular because they see the rules as part of a move by Northern states to undermine poor nations’ national sovereignty.
One example shows the criticism. Consider the rule on secession, a rule that helps us evaluate, for instance, whether Crimea’s separation from Ukraine, and Russia’s engineering of that move, is illegal. International law has a “black-letter” rule that strictly limits the possibility for a group of people disaffected with their government to secede unilaterally from their state, only endorsing it if the government is severely denying them representation in the state. The point of the rule is to avoid the violence that comes from secessions – as we have seen from the break-up of Yugoslavia, the war between Sudan and the recently formed South Sudan, and the Ukraine-Russia conflict today. Cosmopolitan philosophers condemn the rule for not allowing individuals enough choice, by forcing people to remain tied to a state when they would prefer to have their own state, just for the sake of the stability of existing and arbitrary inter-state borders. Developing world leaders, often intolerant of minority groups in their state, criticize the rule for the opposite – for harming states by opening the door, however slightly, for some groups to secede and form their own states.
I think both of these criticisms miss the mark. In my view, many core rules of international law are indeed just because they do what all rules of international law must do – they promote peace, interstate or domestic, while respecting basic human rights. We need international rules to promote peace because the global arena is still characterized by a great deal of interstate and internal violence. At the same time, we cannot tolerate rules that trample on basic human rights, which are a sort of moral minimum for how we treat individuals.
This standard for a just system of international law is different from the more robust form of justice we might expect for a domestic society. The great theory of contemporary justice, that of John Rawls, demands both an equal right to basic liberty for all individuals within a state and significant redistribution of material wealth to eliminate the worst economic inequality. But we can’t really expect international law to do this right (particularly the second) now. Why? Because we cannot assume the domestic tranquility on which to build that more robust justice, and because the international arena does not have the same kind of strong institutions to force those sorts of rules on everyone (even though it can force some rules on recalcitrant states).
To return to my example about secessions, I think the rule we have strikes the right balance between peace and human rights. It promotes interstate and internal peace by disallowing merely unhappy groups to separate unilaterally; but it keeps the door open to that possibility if they are facing severe discrimination from the central government. So the Scots, Quebecers, or ethnic Russians in Ukraine do not have a right to secede, but Estonians did, and maybe Kurds still do. Other rules of international law will also meet this test, though I think some of them do risk undermining human rights.
Why should we care whether international rules are just? Because, as I stated earlier, those norms actually do guide much governmental action today. If a norm of international law is just, we have given global leaders and the public good reasons to respect it – as well as good reasons to be wary of changing it without careful reflection. And for those that are not, we can use an ethical appraisal to map out a course of action to improve the rules. That way, we can develop an international law that can promote global justice.
Headline image credit: Monument. CC0 via Pixabay.