5: International Law

International law is an important area to understand and much of it is theoretical or historical in nature – building on themes explored in the previous chapters. You have seen in the preceding chapter that some of the discussed theories regard ‘norms’ as a regulatory force in international relations, although the theories differ in their understanding of the relevance and function of these norms. This chapter takes up this notion and introduces you to the role of international legal norms as a particular means for the social regulation of international affairs.

Imagine a small settlement with a number of properties on each of which stands one house in which lives one family. This settlement has no common government, parliament, court system or police force. The internal affairs of each family as much as the borders of each property are respected as inviolable. The families have predominantly bilateral relations with each other and engage in commercial exchanges of goods and services. It is commonly accepted that if the head of a family dies, the established promises to other families and agreed exchanges are respected by the heirs. When children decide to delineate a new property or when a new family from elsewhere wants to settle in, the other families must agree first and recognise this new property. When disputes between families arise, they may result in violence, especially if someone challenges an established border or intervenes with a family’s interests. It is commonly accepted that one may have recourse to force to defend one’s interest in family and property. Other families do not intervene in these disputes as long as their interests are not affected or they have formed a special alliance with another family.

Ask yourself now whether you would call this settlement a ‘legal system’? Would you even speak of ‘laws’? Perhaps intuitively you would say no. Yet, consider for a moment which kind of rules and principles must exist even in such a setting. How does any form of regulation work? Why does it work? If you delve a little on these questions, you will encounter some of the foundational legal institutions that exist in most legal systems. The concept of property, title, territory and border are there; a principle of autonomy and supreme authority seems to apply to the families; and the institution of contract certainly exists. You will also detect rules of some sort in the form of established customs and you might even identify a principle that says that ‘agreements need to be kept’. Lawyers make use of the Latin phrase ‘pacta sunt servanda’ to express this basic principle. Thus, even in such a rudimentary setting, some customary rules and principles exist even if they are not called ‘law’ or written down in any form.

You will also note that some characteristics of what you may intuitively regard as essential to a legal order are missing: There is no authority ‘above’ the families which makes laws for all, adjudicates conflicts or enforces laws and judgements. There is no government, parliament, court or police system. The rules and principles seem to stem from established practices motivated by the functional needs of cohabitation, pragmatism or mere common sense. Whatever rules exist in this settlement, their validity and effectiveness are routed exclusively in the will of the families and their members.

This settlement resembles many peculiarities of the international legal order. In fact, the settlement resembles a certain depiction of the international legal order that most international lawyers today would call outdated, even though it is precisely this depiction of a primitive legal order that haunts international law even today. If you translate the situation of the settlement to the international plane and substitute the families with states, you will get a picture of international law characterised by states as the principal actors. In this depiction, states hold the supreme and exclusive authority over their polities and follow predominantly customary and contractual rules in the relations between them but have no world government above them.

The principle of sovereignty expressed this supreme and exclusive authority of states over their territory, and it confirmed the equal status of all states. It developed its current meaning through the writings of legal and political philosophers between the sixteenth and eighteenth century. Sovereignty continues to be the foundational pillar of the international legal order. For many decades this foundational pillar of international law read: sovereign states are the masters of international law with no world government above them. This meant that the validity of any legal rule depended on the will of states or, conversely, that states are only bound by authoritative legal precepts (norms) that they have consented to. In a famous judgement in the Lotus case, the Permanent Court of International Justice in The Hague – the principal judicial organ of the League of Nations, the predecessors to the International Court of Justice (ICJ) of the United Nations (UN) – stated in 1927 (The Case of the S.S. ‘Lotus’, judgement of the Permanent Court of International Justice, 7 September 1927, 18):

International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.