International law

International law is the body of rules that states, and to a growing extent international organizations and individuals, treat as binding in their dealings with one another. It covers borders, war and peace, the sea and the sky, trade, diplomacy, human rights, refugees, and the environment. Article 38 of the Statute of the International Court of Justice lists the main sources the Court applies: international conventions (treaties), international custom "as evidence of a general practice accepted as law", the general principles of law recognized by nations, and, as subsidiary means, judicial decisions and the writings of leading scholars.

This page is for learning and discussion, not legal advice.

International law matters on this wiki for three reasons. It bears on problems in living, since war, refugee flows, trade rules, and human rights protections shape ordinary lives. It bears on futurism, since space law, the deep seabed, cyber operations, and the governance of artificial intelligence all depend on rules that are still being written. It is also a rich field for research and teaching, because it forces hard questions about power, consent, and what makes any rule binding.

This topic page is for organizing the development of International law related content on this wiki.

Please, feel free to improve upon what you see; your contributions will be greatly appreciated.

How it is made and enforced

There is no world legislature. Treaties bind only the states that accept them, and customary rules form slowly through the practice of states combined with a sense of legal obligation. Consent is therefore the foundation of most of the system, and it is also its main limit: a state that never agreed to a treaty is usually free of it.

Enforcement is decentralized. States comply because of reciprocity (a state that mistreats foreign diplomats can expect its own diplomats to be treated the same way), because of reputation (a state that breaks its word finds partners less willing to deal), and because of countermeasures, which are otherwise unlawful acts that become lawful when taken in proportion against a state that broke its obligations first.

The United Nations Charter adds a central layer. Article 2(4) prohibits the threat or use of force against the territorial integrity or political independence of any state, and Chapter VII lets the Security Council order binding measures, including sanctions and military action, when it finds a threat to the peace. Under Article 27, however, any of the five permanent members can veto a substantive decision. The result is a security system that can act against small states but rarely against a great power or its close allies.

Courts follow the same pattern. The International Court of Justice decides disputes between states, but only when the states involved have consented to its jurisdiction, by special agreement, by a treaty clause, or by an optional declaration. The International Criminal Court, created by the Rome Statute, tries individuals for genocide, crimes against humanity, war crimes, and aggression. It has no police force of its own and depends on states to arrest suspects and hand them over.

Is international law really law?

The skeptical view

A serious philosophical tradition holds that international law is, in a certain sense, a fiction. The claim is moral and conceptual rather than a denial that treaties exist. It says that what we call international law lacks the features that make domestic law law, and that it functions more like morality, custom, or politics dressed in legal vocabulary.

The classic statement comes from John Austin, who defined law properly so called as the command of a sovereign backed by a sanction. Since no sovereign stands above states, Austin classed international law with positive morality, a set of opinions and sentiments held among nations, rather than with positive law.

H.L.A. Hart rejected the command theory, yet in chapter 10 of The Concept of Law he still found international law unusual. In his account a mature legal system unites primary rules of conduct with secondary rules, above all a rule of recognition that identifies what counts as valid law. International law, he argued, resembles a primitive or prelegal regime: a set of rules accepted as binding, but with no unifying rule of recognition, no compulsory courts, and no organized sanctions.

Realists in international relations, with Hans Morgenthau as a leading figure, pressed the point from the side of power. In a world without a central government, states pursue their interests, and legal rules hold only so long as they reflect a balance of power or a convergence of interests.

Jack Goldsmith and Eric Posner gave this view a modern rational choice form in The Limits of International Law. They argue that apparent compliance is usually explained by a coincidence of interest, coercion by a stronger state, or cooperation that pays, and that international law has little independent pull against a state's interests. On this reading, selective compliance by great powers is what one would predict. Powerful states invoke the rules when it suits them, set them aside when core interests are at stake, and seldom face consequences, while weaker states are held to the letter. Critics from many directions describe this as a double standard. The deepest version of the skeptical claim is that international law is mainly a shared vocabulary for moral and political argument, a way of praising and blaming states, rather than a set of rules that binds in the way a criminal statute binds a citizen.

Martti Koskenniemi offers a related critique from the other side of the spectrum. In From Apology to Utopia he argues that international legal argument swings between two poles: if it tracks what states actually do, it becomes an apology for power, and if it holds to ideals states ignore, it becomes utopian. Koskenniemi does not conclude that international law should be abandoned, but his analysis explains why the skeptical charge keeps returning.

The replies

The strongest reply begins with behavior. Louis Henkin observed that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time", and later work by others has largely supported that hedged description, even if it leaves open why states comply.

Oona Hathaway and Scott Shapiro challenge the assumption that law must be enforced by physical force. In "Outcasting" they show that many legal systems, including international law, enforce rules by excluding violators from the benefits of social cooperation, through trade sanctions, expulsion from organizations, or loss of treaty privileges. On their account, Austin and Hart looked for the wrong kind of sanction.

Thomas Franck argued that rules exert a compliance pull through their legitimacy, meaning their clarity, their pedigree, their coherence, and their fit with a wider system of rules. States obey legitimate rules in part because they and their publics regard them as rightly made. Harold Koh adds transnational legal process: through repeated interaction, interpretation, and internalization, international norms become part of domestic law, bureaucratic habit, and national identity, so that officials obey them without calculating each time.

A final reply is comparative. Much domestic law is also weakly enforced. Many crimes go unsolved, regulators lack staff, and governments sometimes defy their own courts. If enforcement were the test, a good deal of domestic law would fail it too.

A fair synthesis

Both sides capture part of the picture. International law is strong in routine, low-stakes coordination, where every state gains from common rules: aviation, postal service, maritime navigation, telecommunications, and most of trade. It is weakest where the core security interests of powerful states are at stake, which is exactly where the skeptics look. Students can treat international law as a real but partial legal order, more decentralized than domestic law, and judge each claim about it by the field and the stakes involved.

Where it reaches next

The Outer Space Treaty of 1967 declares that outer space is free for exploration by all states and is not subject to national appropriation, yet it leaves open how private mining of the Moon or asteroids fits that rule. The United Nations Convention on the Law of the Sea governs the high seas and declares the deep seabed beyond national jurisdiction the common heritage of mankind, managed by the International Seabed Authority. Cyber operations and autonomous weapons raise the same old questions in new form: which existing rules apply, who decides, and how compliance can be checked.

Learning projects and resources

Learning materials and learning projects can be used by multiple departments. Please cooperate with other departments that use the same learning resource.

Remember, this wiki has adopted the "learning by doing" model for education. Lessons should center on learning activities for participants on this wiki.

Also, select a descriptive name for each learning project. Learning projects can be listed in order by Meta:Naming conventions.

• International law
• Search

Readings

Wikipedia: International law Statute of the International Court of Justice Charter of the United Nations Customary international law

Rome Statute Outer Space Treaty Law of the Sea Convention Legal positivism

Discussion questions, essay ideas, and learning related AI prompt ideas

Discussion questions

• Does a rule need a sovereign enforcer to count as law, or is general acceptance enough?
• Why might states keep most of their promises most of the time even without a world police force?
• Is selective compliance by great powers a flaw in international law or simply a description of its limits?

Essay ideas

• Compare Austin and Hart on whether international law is law, and say which account fits present practice better.
• Argue whether outcasting is a genuine form of legal enforcement or only politics under another name.
• Write an essay on whether space mining is consistent with the rule against national appropriation in the Outer Space Treaty.

Learning related AI prompt ideas

• Ask an AI system to explain the four sources in Article 38 of the ICJ Statute with one historical example for each.
• Ask an AI system to stage a short debate between a realist and a defender of transnational legal process, and then quiz me on the strongest point from each side.
• Ask an AI system to list areas where international law is followed routinely and areas where it is often contested, and to explain the difference.

See also

Law Constitutional law Criminal law Business law International relations Political science Government Philosophy

Ethics Economics History Sociology Artificial intelligence Oceanography Aviation Asteroid mining