International law is surely an imperfect solution to the world’s many problems.
But since the end of World War II it has been a vital force for peace and stability. Indeed if we think about the major global changes in over the last 70 or so years, it is truly remarkable how peaceful they have been. Peoples of the world experienced the decline of empires, the change from 51 states in 1945 to 196 countries today, and the rise of American and perhaps now Chinese hyper-power, without the outbreak of World War III.
International law has been a key reason for this relative peace.
We should differentiate what law can do and what law is not. Law is not the guide to ethical behavior. Respect for the law is not the same thing as justice. Law does not replace morality, empathy and compassion as a guide to the betterment of human kind. And since governments and legislatures write the law, it really is no surprise that law reflects and instantiates power.
The United Nations is the cornerstone of the international legal order. The supreme political and legal body of the United Nations is the United Nations Security Council. Governments can bring their concerns to the Security Council, which has the power to authorize a collective or unilateral response that can include sanctions, embargoes and the use of force.
The system often works as planned.
But there are many problems with this UN response system. One problem is surely the ability of the permanent five — the United States, Russia, China, France and Great Britain — to veto any Security Council action.
Another problem is that this system favors governments over people. Governments support international law in part because their concerns are given more weight than that of citizens.
When push comes to shove, international law and the international community of states prioritize maintaining current borders over the right to self-determination, for example.
It is at this point that politics enters the process. Those who behave badly but legally, invoke the law to suggest that their action is acceptable. Ambiguities within the law make it difficult to cut through these politics. This is currently the situation we face in Syria and the Ukraine.
In addition, sometimes international law contains provisions that are in tension with each other.
To demand respect for the law still leaves many political questions on the table. However, if we just understand international law as only part of a chain of advice in a political decision, then legal reasoning under international law is no different from political reasoning.
Justifications based on state consent are also insufficient. If states are bound only by international laws they agreed to, they remain legally and morally free to pick and choose which laws result in obligations for them. This is hardly a satisfactory alternative.
And IR theories have enriched our understanding of treaty design, judicial behavior, and whether and when states comply with the rules and norms of international organizations they choose to join.
But, at the same time, IR scholars have critiqued Louis Henkin’s famous dictum that “almost all nations observe almost all principles of international law and almost all their obligations almost all the time.” They have paid substantially less attention to Henkin’s insight that layers should think “beyond the substantive rules of law to the function of law, the nature of its influence, the opportunities it offers, the limitations it imposes.”