ArtsAutosBooksBusinessEducationEntertainmentFamilyFashionFoodGamesGenderHealthHolidaysHomeHubPagesPersonal FinancePetsPoliticsReligionSportsTechnologyTravel

International Law and Global Justice

Updated on August 7, 2016

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.


    0 of 8192 characters used
    Post Comment

    No comments yet.


    This website uses cookies

    As a user in the EEA, your approval is needed on a few things. To provide a better website experience, uses cookies (and other similar technologies) and may collect, process, and share personal data. Please choose which areas of our service you consent to our doing so.

    For more information on managing or withdrawing consents and how we handle data, visit our Privacy Policy at:

    Show Details
    HubPages Device IDThis is used to identify particular browsers or devices when the access the service, and is used for security reasons.
    LoginThis is necessary to sign in to the HubPages Service.
    Google RecaptchaThis is used to prevent bots and spam. (Privacy Policy)
    AkismetThis is used to detect comment spam. (Privacy Policy)
    HubPages Google AnalyticsThis is used to provide data on traffic to our website, all personally identifyable data is anonymized. (Privacy Policy)
    HubPages Traffic PixelThis is used to collect data on traffic to articles and other pages on our site. Unless you are signed in to a HubPages account, all personally identifiable information is anonymized.
    Amazon Web ServicesThis is a cloud services platform that we used to host our service. (Privacy Policy)
    CloudflareThis is a cloud CDN service that we use to efficiently deliver files required for our service to operate such as javascript, cascading style sheets, images, and videos. (Privacy Policy)
    Google Hosted LibrariesJavascript software libraries such as jQuery are loaded at endpoints on the or domains, for performance and efficiency reasons. (Privacy Policy)
    Google Custom SearchThis is feature allows you to search the site. (Privacy Policy)
    Google MapsSome articles have Google Maps embedded in them. (Privacy Policy)
    Google ChartsThis is used to display charts and graphs on articles and the author center. (Privacy Policy)
    Google AdSense Host APIThis service allows you to sign up for or associate a Google AdSense account with HubPages, so that you can earn money from ads on your articles. No data is shared unless you engage with this feature. (Privacy Policy)
    Google YouTubeSome articles have YouTube videos embedded in them. (Privacy Policy)
    VimeoSome articles have Vimeo videos embedded in them. (Privacy Policy)
    PaypalThis is used for a registered author who enrolls in the HubPages Earnings program and requests to be paid via PayPal. No data is shared with Paypal unless you engage with this feature. (Privacy Policy)
    Facebook LoginYou can use this to streamline signing up for, or signing in to your Hubpages account. No data is shared with Facebook unless you engage with this feature. (Privacy Policy)
    MavenThis supports the Maven widget and search functionality. (Privacy Policy)
    Google AdSenseThis is an ad network. (Privacy Policy)
    Google DoubleClickGoogle provides ad serving technology and runs an ad network. (Privacy Policy)
    Index ExchangeThis is an ad network. (Privacy Policy)
    SovrnThis is an ad network. (Privacy Policy)
    Facebook AdsThis is an ad network. (Privacy Policy)
    Amazon Unified Ad MarketplaceThis is an ad network. (Privacy Policy)
    AppNexusThis is an ad network. (Privacy Policy)
    OpenxThis is an ad network. (Privacy Policy)
    Rubicon ProjectThis is an ad network. (Privacy Policy)
    TripleLiftThis is an ad network. (Privacy Policy)
    Say MediaWe partner with Say Media to deliver ad campaigns on our sites. (Privacy Policy)
    Remarketing PixelsWe may use remarketing pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to advertise the HubPages Service to people that have visited our sites.
    Conversion Tracking PixelsWe may use conversion tracking pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to identify when an advertisement has successfully resulted in the desired action, such as signing up for the HubPages Service or publishing an article on the HubPages Service.
    Author Google AnalyticsThis is used to provide traffic data and reports to the authors of articles on the HubPages Service. (Privacy Policy)
    ComscoreComScore is a media measurement and analytics company providing marketing data and analytics to enterprises, media and advertising agencies, and publishers. Non-consent will result in ComScore only processing obfuscated personal data. (Privacy Policy)
    Amazon Tracking PixelSome articles display amazon products as part of the Amazon Affiliate program, this pixel provides traffic statistics for those products (Privacy Policy)