Is international law law?

Article 38 of the Statute of the International Court of Justice

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
   1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
   2. international custom, as evidence of a general practice accepted as law;
   3. the general principles of law recognized by civilized nations;
   4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

1. Shaw

Shaw’s non-positivist conception of international law emphasises a theory of legitimacy (which he identifies as depending on the ‘objectively verifiable criteria’ of determinacy, symbolic validation, coherence, and adherence) and is sympathetic with Franck’s conception. He holds that international law is:

“Much more than a simple set of rules … a culture, in the broadest sense in that it constitutes a method of communicating claims, counterclaims, expectations and anticipations as well as providing a framework for assessing and prioritising such demands.”

Shaw’s first two chapters begin by distinguishing the ‘separate system’ of international law from mere international morality or custom in the forms of ‘international comity’ or ‘courtesy’, the latter forms being non-binding in law. He briefly rebuts the Austinian view, before explaining the place of force in international law, noting that there is no universal sovereign that can issue sanctions (barring the UNSC, which only exercises its coercive power on ‘rare’ occasions). Following this observation, he notes that Kelsen’s view of the self-help mechanism of international law as providing for the requisite element of force within a theory of law as mistaken, as Kelsen’s view does ‘misunderstand the role of sanctions within a [legal] system’, for self-help mechanisms are not at the disposal of the system at all but the states themselves.

Shaw identifies what he believes are the salient features of the international system, through the lens of ‘the network of relationships existing primarily… between states recognising certain common principles and ways of doing things.’ These features include:

• The horizontal nature of international law and the sovereignty of its subjects
• The sources of law being treaty and custom
• The regular empirical compliance with international law, and the mistake of overemphasising exceptional categories of cases (Shaw uses the domestic analogy of murder and rape, which he notes can exist ‘within national legal orders without destroying the system as such’);
• Providing for the ‘rules’ of the ‘game’ of ‘international life’, which rules are necessary for stability and predictability reasons
• Providing for a common language, set of principles, and potential solutions in resolving disputes
• Reciprocity, establishing patterns of behaviour that avoid unreasonable behaviour from all parties (e.g. diplomatic immunity)
• States can choose to break international law and accept responsibility for it where this is strictly preferred over compliance
• Incentives for observing international law
• The practical differences in framing of international legal issues in reference to judges, treaties, academic works, rather than ‘morality or ethics’, not only in terms of disputes but also in relation to ‘international business’ more broadly including the work of international institutions
• Consensus to the totality of rules, rather than free contractarian consent e.g. in the form of auto-limitation

On the relationship between international law and politics, Shaw argues that Llewellyn’s ‘law habit’ concept, which relies heavily upon juridical norms and institutions, is not so applicable in the international law context, as there is no ‘machinery necessary to enshrine’ an ‘international legal habit’ in the same way that a domestic political system recognises ‘[a] particular legal atmosphere… [that] recognises the independent existence of law institutions and methods of operation characterised as just or legal’ and which hence ‘operate to conceal and lessen the impact of politics upon the legal process’. Thus, Shaw argues for a closer relationship between international law and politics than that which exists in the domestic setting.

Thus, he argues for a ‘middle road’ between political values and formal international law. Citing the well-known decision in the South West Africa case,

“It is a court of law, and can take account of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.” [South West Africa (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Rep 6, 34, para 49. Source]

Shaw concludes that:

“International law cannot be a source of instant solutions to problems of conflict and confrontation because of its own inherent weaknesses in structure and content. To fail to recognise this encourages a utopian approach, when faced with reality, will fail… [R]ecognising the strength and weakness of international law and pointing out what it can achieve and what it cannot […] offers the best hope. Humankind seeks order, welfare and justice not only within the state in which it lives, but also within the international system in which it lives.”

Reference: Hart’s Concept of Law, Ch 10

Hart dedicates the final chapter of his opus to the issue of international law. His view, as Shaw notes, rebukes Austin’s theory of international law as ‘positive morality’ as ‘confusing the true nature of law within a society and for overemphasising the role of the sanction within the system by linking it to every rule.’

Reference: Franck’s Power of Legitimacy

(See pages 51 to 52.)

Reference: Koskenniemi’s view

(See pages 53 to 56.)

2. Harris’s

3. Lowe

• Historical jurisprudence / Behaviourist.

4. Higgins

“Law in between”: “a particular conjunction of historical forces, preferred subjects, a certain ethos, a concept of society, legal constructs, and a functional architecture”.

5 schools

6. Kelsen

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