International Law and Global Justice

The 2 Major Sources of International Law

  1. Treaties/Conventions
  2. Customary International Law

Treaties - The Easy Part?

  • Treaties seem fairly simple and non-controversial.
  • Treaties are based on the consent of states so it is easy to justify why a state should be held accountable for not conforming with it. After all, the state itself signed up to the responsibility.
  • The UK signed a treaty to be part of the European Union, for example, and this meant it had many responsibilities to comply with EU law and provide its citizens with all the rights and obligations therein.

Some international laws are said to be jus cogens - unavoidable. South Africa clashed with this concept when it resisted the international norm of non-discrimination based on race.
Some international laws are said to be jus cogens - unavoidable. South Africa clashed with this concept when it resisted the international norm of non-discrimination based on race.

Customary International Law: Typically Separated into Two Elements

Regular State Practice

  • For example, there is a certain practice regarding the amount of territorial waters a state can claim based on a certain distance (12 nautical miles) from its land borders.
  • There is also the practice of non-intervention: each state avoids meddling in the internal affairs of the other.
  • It is also a practice that many types of legal immunity are afforded to the heads of state when they visit other countries - you won't find the Queen jailed for shoplifting in France even if she does decide to steal a cheeky croissant.

Opinio Juris - The Belief that it is Law.

  • The second element is the attitude that these practices are actually legally required and not just simple traditions, habits, or customs.
  • Many practices, take rolling out the red carpet for a visiting dignitary, are often performed by states but provide no sense of legal obligation on the states.

Advantages of Customary Law

  • It fills a gap that treaties cannot fill: custom can bind states that do not even consent to it.
  • Customary law works by consensus, not consent.
  • If a new state emerges, it is bound by pre-existing custom - even before it consents to it (and even if it doesn't).

Point of Controversy - Jus Cogens

  • It has been argued that if a state protests enough whilst a custom is being formed, it can opt out of it and not been bound by it.
  • However, South Africa persistently objected to the idea that there should be a norm requiring non-discrimination on the grounds of race.
  • Nevertheless, many people would say that this sort of norm is jus cogens - a type of law so sacred that no state can ever opt out of it.

Is International Law Really Law?

  1. There is no centralised legislative body to create international laws. In other words, there is no clear cut rule of recognition that grants validity to laws.
    - This makes it difficult to accept as law under a Hartian view of law.
  2. There is no reliable system of enforcing international law. There is no court that has universal and compulsory jurisdiction. For example, states must agree to accept the international court of justice, and are free to simply ignore its decisions anyway - there is no one to stop them.
    - This is a fatal feature under Austin or Dworkin's concepts of law since they both lie on a foundation of coercion.
  3. Lastly, with no enforcement mechanism, it is no surprise that there is a big question of whether states actually comply with international law often enough to call it law.
    - Under the Hartian understanding of law, for example, you couldn't say that international law saw general obedience by those under it.

What Kind of Legitimacy International Law Claims

  • International claims to set standards that states should comply with.
  • But how can sovereign states be subject to international law?
  • Two main answers can be given:
    1. Consent
    2. The normal justification condition.

Consent-Based Legitimacy

The traditional answer is that states bind themselves to international law through consent, but unfortunately reality is not as simple as that.

  • Many states are forced into signing treaties - either by necessity (they would suffer great economic loss if they didn't), threat of sanction (other states imposing ultimatums on them) or because it is the only offer on the table (only one in existence) like the WTO treaty.
  • There is also the problem of bureaucratic distance - after consenting to a treaty, the treaty sets up elaborate bureaucratic systems that go on to create laws that cannot be said to be consented to.
  • Customary law is clearly not about consent but consensus. This binds states which never consented to it and in the case of jus cogens, even if the state vigorously objected to it.
  • To the extent that international law lacks proper consent, therefore, it can be said that it lacks legitimacy.

Pictured: international law (left) + sovereign state (right).
Pictured: international law (left) + sovereign state (right).
Raz strikes again.
Raz strikes again.

Joseph Raz's Normal Justification Condition

Raz's normal justification condition states the following:

  • A will have authority over B if by being bound by A, B will be more likely to comply with the reasons that apply to him than if he tried to do it by himself.
  • This template can be applied to international law and has the advantage of being able to pick and choose different parts of international law to be legitimate - some pockets of international law might be binding, like the custom of non-intervention, but others won't be binding. For example, international economic law might not be binding because it is unfairly skewed in favour of richer states and this goes against what a state desires to accomplish.
  • Moreover, one area of international law might simultaneously bind some states but not others.
  • The UK might argue, therefore, that international human rights law binds other countries that do not adequately look after its citizens and would benefit from the guidance, but does not bind the UK because it will handle the matter better by itself due to its higher level of resources and its long history of respecting human rights.

Legitimacy and Sovereignty under the Razian Approach

  • The test is whether international law will help a sovereign state achieve whatever it is that it decided it wanted to achieve, but better than the state could have done on its own.
  • International law on this understanding therefore never impedes on a state's sovereignty: it is helping it do what it wants, and derives its legitimacy from the fact that it can.

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