International Law Reconsidered: Is International Law Actually Law?

By Constantine J. Petallides
While in many cases it serves as a stabilizing factor in the international system, and can even be called a force
for good, international law cannot be considered law when applied to states or state action. To be considered
law these principles and decisions require enforcement mechanisms that go beyond state consent or the trust
and goodwill among parties to a treaty. Law must also create a true obligation rather than serve as a convenient
means to an end as it does for most states in the current system.

As it stands now, states obligations are outlined in treaties and customs, but enforcement relies on vague
clauses and empty threats found within the documents, or in international bodies like the UN Security Council
(UNSC) where power asymmetries grant the more powerful states significant influence. Consent is very
important, but international laws status as law cannot rest on consent alone. As rational, unitary actors, states
make decisions that are in their best interests, and more often than not, consenting to various conventions and
treaties is in a states interest, but that consent can be rescinded as soon as the states priorities change or a
better option appears. When considering the sources of international law, one finds that general principles are
usually shifting and too vague to form the basis of an international legal system; customary law is based on state
practice and opinio juris which can be mistakenly ascribed to a state merely taking a course of action because
it is convenient for the time being; and treaties are only enforceable so long as one party or group of parties is
strong enough to impose compliance on another. Examples of the latter can be found during the decades when
Cold War rivalries held the UNSC hostage. It is at times like these when the system more closely resembles a
political protection racket than an international legal regime.

This paper examines what constitutes law and why enforcement is necessary. Attention is also be given to the
concept of opinio juris and how it is much more difficult to demonstrate than proponents of international law
admit. Second, this paper examines how the current state of international law cannot be considered law using
various examples, but paying particular attention to the failures of the United Nations Convention Against Torture
(CAT) and the actions of the United States regarding enhanced interrogation post-9/11. The final section
discusses why this distinction matters, what its implications are, and where the international system can go from
here.

What Is a Law?
If international law were to be boiled down to two keywords, we would be left with consent and sovereignty.
Under this system, states are free to act as they wish in domestic matters and pursue their interests
internationally. Limits on sovereignty must be consented to by states when signing treaties or joining international
legal conventions; however, this consent can always be rescinded and there are few if any mechanisms in
existence that can compel a state to act or keep an obligation. By Austins broadest definition, law is a rule laid
down for the guidance of an intelligent being by an intelligent being having power over him.1 Laws, as they are
usually conceived, are established by political superiors2 and imposed on those over whom the superior has
the authority to enforce them. In these situations, the superior creates a command through his/her willingness
to harm a violator in the case of noncompliance.3 Without this credible threat, a law is not a command, but
merely an articulation of a wish or desire.4 Since state actors are all independent, equal players on the
international stage without any higher power governing their actions, there exists no political superior to posit or
enforce international law. As this is the case, international law falls into the category of law not established by
political superiors that Austin describes as mere opinion rather than law.5 These constitute the combined
opinions of how those in the international community would like to see the world governed. Documents like the
Declaration of Human Rights and organizations such as the International Criminal Court are highly aspirational
and idealistic, but are subject to state consent and are flouted quite frequently. These examples represent a
desire, but where there is not a purpose of enforcing compliance with the desire, the expression of a desire is
not a command6 and as such cannot be considered law. These imperfect laws,7 lacking enforcement and
obligation, serve more as counsel and guidelines than as binding law.

This distinction is more easily accepted with a clearer understanding of what motivates compliance with
international law. The reason almost all nations observe almost all principles of international law and almost all
of their obligations almost all of the time8 is not because states feel obliged to under the law, but because the
systems and benefits created by the laws are favorable. States reap immeasurable economic and security
benefits from the relatively peaceful borders, global trade, and open air and sea navigation that the international
legal regime provides; and they will continue to follow its tenets so long as they cannot find a greater opportunity
outside the system. International law was born from the practice of states pursuing their interests to achieve
mutually beneficial outcomes9 and it survives only to the degree to which it continues to serve those
interests.10 Through this lens, international law can be examined from the perspective of the domestic interests
of states and how these dictate international law rather than vice-versa. The WTO stands as an example of an
institution that is best understood as resolving bilateral disputes between states11 and the UN helps to
coordinate cooperation between the states. However when the UN tries to impose other restrictions such as the
charters obligation regarding the use of force, they are easily sidestepped or outright ignored with few, if any
consequences, and absolutely none for the great powers. This system places countries such as the P-5 in the
UNSC or the United States in the IMF above the laws of the system, and unless all are subject to it equally,
international law cannot be considered law.

Some believe that opinio juris is what drives consent and gives international law its legitimacy, but this sense of
obligation cannot itself be explained.12 In the landmark 1996 case regarding the legality of the use of nuclear
weapons, the court found itself profoundly divided on the matter of whether non-recourse to nuclear weapons
over the past 50 years constitutes the expression of an opinio juris.13 If 50 years of unanimous precedent could
not be considered opinio juris, then how can compliance with international law that has tangible benefits be
considered evidence of an obligation? From this point of view, international law does not pull states toward
compliance contrary to their interests14 but changes as their interests change. For international law to be law
states must be, as Kennan hypothesized, like our own, reasonably content with their international borders and
status;15 for if they are not, they will disregard whatever legal regime is in place and pursue their ends as they
see fit.

Pulling Back the Curtain: The Darker Side of International Law

International law reaches every aspect of life in the international system from trade and navigation to warfare
and torture. Heralded by many as the harbinger of a new age of cooperation in international humanitarian law,
the United Nations Convention Against Torture presents an interesting case study for why international law is
not law at all. Adopted by the UNGA in 1984 and entering effect in 1987 the CAT is certainly a revolutionary
document. While Article 2 calls for signatories to take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction16 and Article 4 requires signatories to
make torture illegal within their domestic systems,17 Article 5 establishes universal jurisdiction by allowing any
state to take such measures as may be necessary to establish its jurisdiction over such offences in cases where
the alleged offender is present in any territory under its jurisdiction.18 It is this element of enforcement that gives
the CAT its claws.

At first glance, one would think that the CAT represents a success for humanitarian law and establishes that
international law can truly hold the force of law, but recent studies have surprisingly found that some countries
that enter into the CAT subsequently experience higher levels of torture than countries that do not ratify the
convention.19 Eric Niemeyers work found that the experiences of democracies and dictatorships under the
CAT are qualitatively different.20 The question quickly becomes: Why? The answer lies in why these states are
signing the CAT to begin with and what goals they are hoping to achieve. While some would argue that the CAT
forces states to cede some of their sovereignty through its universal jurisdiction, that very same threat seems to
be what is motivating these dictatorships to join the CAT knowing they will violate the treaty. Strong dictatorships
that torture can use the CAT to send a credible signal of their resolve to stay in power to their constituents.21
After signing, a dictator is subject to arrest outside of his country if he continues to torture. With his hands tied,
the only way the dictator can avoid imprisonment is to remain in power; as such, he will continue torturing his
citizens and crushing all pockets of dissent to ensure he will avoid his ouster for as long as possible.22

In the above theoretical, signing the CAT is not meant to signal an affirmation of human rights to the international
community, but is instead meant to signal, to a domestic audience, the leaders resolve to remain in power by
any means necessary. Before signing the CAT, Cote dIvoire had but a few isolated incidences of torture from
1985 to 1989;23 however the human rights watchdog CIRI reported frequent levels of torture in 1995, the same
year Cote dIvoire signed and ratified the CAT.24 Similar trends can be seen in Mexico and Egypt. Entering the
CAT under such circumstances demonstrates a disregard for the mission of human rights protection and a
complete lack of opinio juris on the part of such signatories. These dictatorships are not ceding their sovereignty,
but using the CAT to achieve their own ends which are in and of themselves completely antithetical to the goals
of the convention.

The fact that this manipulation is possible without any punishments or reprisals; that with 147 parties (as of 2010)
torture is still well documented and widespread; that the arrest of Augusto Pinochet under the CATs universal
jurisdiction came to naught; and that countries like China are allowed to torture their own dissidents and support
the regimes of high-profile human rights abusers such as Robert Mugabe in Zimbabwe because of political clout,
economic strength, and a UNSC veto,25 signal not only weaknesses in the CAT and international humanitarian
law, but call into question whether or not such conventions can be considered law under the worlds current
circumstances. The CAT and other attempts like it to create binding principles of international law are, at this
point, aspirational guidelines. Even when an explicit attempt to create a universal enforcement mechanism was
made, the convention fell short of its goal of actually affecting state action. While supporters may point to
international norms or the promise of legitimacy creating pressure to join and obey the CAT, these factors are
little more than negative externalities that can be dealt with either through explicit or backroom politicking. In
cases such as these, international law may have a great deal of moral legitimacy, but the ability of states to
disregard it in pursuit of their own interests demonstrates international law to be a guideline rather than true
law.

Turning to the actions of the United States in the period after the attacks of September 11th, one sees a marked
shift in the administrations stance on international law. During the conflicts in Afghanistan and Iraq, the Bush
administration sought to delegitimize Al Qaeda and Iraqi insurgents claims to Geneva Convention protections
once captured, and to defend the administrations policies of enhanced interrogations. Before continuing, it is
important to remember that the United States had a leading role in the authorship of the Geneva Conventions
and the institutions that emerged after WWII. As such, the United States had a great deal of influence in the
framing and guiding of the Geneva Conventions and is well acquainted with the true intent behind tenets such
as Common Article 3 which states that certain minimum rules of war apply to armed conflicts that are not of an
international character26 and Common Article 2 which states that the Geneva Conventions apply to all cases
of international conflict, where at least one of the warring nations have ratified the Conventions.27

In spite of these requirements of the Geneva Conventions, the Bush administration used legal arguments
regarding Al Qaedas noncompliance with the Laws of War, the insurgents ambiguous status as non-state actors
under Common Article 3, and the voluntary nature of many of the United States obligations to justify the
annulment of Geneva protections for those captured. While this does not disprove international laws claim to be
law, it does reveal a troubling sentiment within the administration. As John Yoo said the primary enforcer of
the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does
the same with American POWs.28 This does not demonstrate a feeling of obligation under the law or even a
belief in the conventions legitimacy; it is in fact closer to a Mexican standoff and a perfect example of the
Prisoners Dilemma that the Conventions were designed to solve. If the United States as guide, author, and
defender of the Geneva Conventions does not believe they carry their own obligation outside of reciprocity, then
their legitimacy as law is unquestionably shaken.

As time went on, the United States began to flout its obligations under the Conventions in order to achieve its
own ends. Having successfully stripped those captured in the War on Terror of POW status, the administration
had to address its obligations under the Geneva Conventions and the CAT, which forbade torture. In keeping
with these obligations, US domestic law prohibits any person outside the United States [from] committing or
attempting to commit torture29 under 18 USC 2340A. With swiftness and precision, this international obligation
was loosened, as the United States unilaterally changed its interpretation of torture under domestic law. After
consulting with the Office of Legal Council, to qualify as torture, severe physical pain as stated under the statute,
would need to rise to the level of death, organ failure, or the permanent impairment of a significant body
function.30 Short of damaging an organ system, nothing that interrogators would do to detainees counted as
torture under the new interpretations. The same went for psychological damage. To be torture, the psychological
damage needed to be severe and had to last for months or even years.31 Through these unilateral
redefinitions of torture, the United States was able to get around the Geneva Conventions, CAT, and other
treaties in order to ensure it met its goal of preserving flexibility32 in fighting the War on Terror. The state held
this goal so dear that it went out of its way to diminish the influence of the Geneva Conventions and even went
so far as to declare that the new paradigm renders obsolete Geneva's strict limitations on questioning of enemy
prisoners and renders quaint some of its The fact that such cornerstones of international law like the Geneva
Conventions can be so easily dismissed with no ramifications is deeply troubling, and indicative of the fact that
international law is in fact not law, but an expression of states will. When a state seeks to achieve a goal that
lies outside of what is allowed under international law, it will disregard some or all of its obligations and continue
regardless. Had the US openly disregarded the Geneva Conventions and the rest of the international community
united against the US in outrage and condemnation, there would exist a strong case for international law to be
considered law. Unfortunately, this did not happen. The US instead took t is the perfect example of a state
determining the extent and the very existence of iunilateral action to change its obligations to suit its interests
from within the system. Its obligation.34 This move in fact, tarnished the image of the Geneva Conventions and,
in raising questions regarding where and when they apply, cheapened Geneva as a whole. Despite a few cries
of outrage, and the threat of a Swiss arrest warrant for President Bush under the CAT,35 nothing was done and
the violation went unpunished. In a recent reversal, the European Court of Human Rights ruled that five detainees
currently held in Great Britain could be extradited to a supermax prison in the United States without violating the
EUs rules and stance against enhanced interrogation and US policy. This ruling is in fact a tacit approval of on
the part of the ECHR of US actions.

Despite these violations, why is it that Pinochet was arrested and President Bush was not? The answer lies in
the unequal application of international law. In many cases, political and economic power dictate who is innocent
when international law is violated. While the United States may find itself before the WTO in a trade dispute or
defending against a NAFTA complaint, as hegemon, the US will never have an official or head of state facing
charges in the ICC or find itself the subject of a UNSC sanction. The same goes for countries like China and
Russia. Despite denunciations of Chinas human rights record, neither President Hu Jintao nor any Communist
Party official has been called to answer for the alleged crimes. With this unequal application, international law is
at best, a set of aspirational guidelines, and at worst a set of impositions by the strong onto the weak. Taken to
its logical end, the international system comes to resemble the island of Melos where the strong do what they
will and the weak suffer what they must.36

The Silver Lining: Realizations for the Future

While the above assessment of international law is admittedly bleak, all is not lost. International law is indeed
aspirational, but it is these aspirations that represent the best of humanity. These conventions and treaties may
be violated or ignored, but they represent an earnest human desire for a better world. While these desires are
not enough for these principles to be considered law, they are a starting point. As globalization continues to
link us and political, cultural, and economic ties come to line up in the international system, our world will get
significantly smaller. With looming resource scarcity, a booming population, unprecedented communication and
information sharing tools via the Internet, and an upswing in grassroots political movements, we stand on the
event horizon of great change across the world.
To face these changes, whatever they may be, it is imperative for people and states to admit that the current
system of international law is not law so that we can try to do better. States already recognize that they can
ignore their obligations whenever it suits them and this system will certainly fall apart when air pollution becomes
a greater concern, precious resources are found in the global commons, etc. Without stronger enforcement
mechanisms and a way to create obligations that truly supersede state sovereignty, the international system as
we know it will crack under the new stressors. The first step to avoiding this crash is to admit that the system we
currently have is not enough.

The admission that international law is not law will certainly send shockwaves through the system, but most
arrangements will remain at or near their status quo because many of these systems provide states with benefits
they cannot get elsewhere (ie: the reduction of transactions costs, trust in trade, a reduction of uncertainty, etc).
Helping international law become law is a worthy, if not necessary endeavor over the next decades to help
states coordinate to face the impending challenges that will flare up across the world. As economies grow more
intertwined, one countrys problem soon becomes everyones problem. As such, the processes of globalization
are already starting to affect international law in ways that will bring it much closer to the status of law.
Individuals are being recognized as subjects of international law;37 international law is beginning to deal with
more global issues such as the economy, the environment, and humanitarian concerns without the consent of
states;38 and international law is exploring new frontiers such as the cyber domain and how technology will
impact the international system in the near future.39

In the end, while shocking, the admission that international law is not law will allow us to determine why some
aspects have failed, which sources and mechanisms should be replaced, and provide the spark for a global
movement to build a new, stronger international legal system. The enemy of international law is state
sovereignty, and while this cannot be undone any time soon, international law can be stronger than it is today,
and should be revamped while we have this unprecedented opportunity.