In Law and Popular Culture

Any decent blog regularly posts a Top-whatever list of whatever. So here is mine. Pay attention, because it may be the first and the last one, unless you come up with good list ideas. This list offers me the opportunity to dispel some common misunderstandings, misperceptions surrounding international law that I have encountered in media, at social occasions and on sites like Quora. These are myths about international law in general, as well as about specific rules of law.

International law is not law at all

Let’s get this painful myth out of the way first. The diehard critics of international law compare international law to national legal systems, and see one important thing lacking: enforcement, the kind in which police takes action, forcefully if necessary. Let’s call them ‘The Deniers’. Without enforcement, they argue, without the command of the sovereign – John Austin’s words – there can be no law. Sure, there is no international police force. The US military is sometimes billed as such but that was always a myth in itself. The tv-show ’Crossing Lines’ depicts a police force associated with the International Criminal Court.  But that is pure fiction as is the connection between the work of the Court, and what the fictional police force does in the show. Neither is here is a world government that spits out law like a country’s legislature. In these circumstances, The Deniers argue that there is no legal system to speak of.

I could give two answers to this. First, one can fundamentally disagree with the idea that a coercive enforcement of a ’command of a sovereign’ is the proper criteria for law. I like to view all law, especially in a democratic society, as a a contractual matter. In domestic law this notion of a social contract may be political and legal theory, but it is very much the reality and practice of international law. Therefore, states are much more ready to comply with obligations they themselves have drafted and signed on to, as a matter of law. Much energy is sometimes put in debating whether such a contract is no more than giving your word in international relations, or a genuine legal obligation. But does that really matter, if the parties to themselves say it is a legal obligation? Secondly, enforcement can take different forms. No government can monitor compliance with the law by everyone or all the time. Other mechanisms are at play as well. So in international law, states can hold each other accountable through courts, sanctions or international institutions, and so on and so forth. But more importantly, as may please some poli-sci critics, the high rate of compliance can be explained by calculations of self-interests and reputation. We can get together on this.

International law is irrelevant

Closely related are what I call ‘The Skeptical Realists’. Lots of people think, when looking at the death, destruction and doom that they see everyday in the media, that international law is nice and all, but ultimately not relevant when it comes to influencing international events. They call themselves ’realistic’, about the world, the behavior of states and the (bad) nature of people. As one person put it on Quora recently, “In reality, a treaty between nations is like the word of a set of eight-year-olds in a school yard.” Although these realists may admit that international is law and therefore binding, according to this sentiment, ultimately international law does not regulate the behavior of states. Law will be used only to apologize for or excuse actual behavior.

But this pessimism is unfounded. Were the so-called realists to look deeper at the justifications for the behavior of states, they would find a constant search for a solid international legal basis for states’ actions. Even in questions of war and peace to which these realists seem to limit their views. More importantly, if they could look behind the closed doors of decision-making processes at the highest levels of government, these would-be doomsday peppers would see that lawyers play a significant role in defining the playing field. That is not to say that international law will never be consciously broken by states. If they do, states will either argue that they are not in fact breaking the law, or that their actions are nevertheless justified as an exception to the existing law. Another fallacy of the naysayers is their blind spot for those rules of international law whose observance or violations do not make it to the top of the news. Much of our day to day lives is infused with international law. Our food is grown all over the world; our clothes and computers are made in multiple countries; and our packages fly half across the globe to get to us, as do we ourselves. All thanks to international law. So stop it already.

International law will save the world

Another big group of people has almost absolute faith in international law as the answer to the ills of the world: ‘The Angry Optimists’. Those people see international law as on a progressive, inevitable march towards global peace and prosperity; as long as there is more of it. In the face of obvious problems with the law – spotty enforcement, democratic illegitimacy – they remain optimistic and faithful. At the same time, such optimists are often most angry at the inability or unwillingness of states and statesmen to stick to or develop fully the necessary international rules. And as with the alleged ’realists’, the optimism of these utopians is also unfounded. Sure, international law is respected to a large extent, but as in any legal system or any normative structure, the rules do not determine the course of events. Law itself is not the goal. It only seeks to regulate life, and compliance will never be 100 percent.

Most of the optimists experience the paradox between anger and optimism in human rights- and environmental law especially. These are what you may call aspirational fields of law in which compliance is still relatively low in the case of human rights or in which truly specific legal commitments are hard to find, to the chagrin of these optimists. However, as with the realists, the international law progressives underestimate the role and purpose of the law they so champion. The legal areas I mentioned, whatever flaws they may hold, have great normative value. Human rights are the touchstone for any government, democratic or otherwise. Environmental law is perhaps less concrete in its obligations, but the topic itself is high on the public’s agenda, so governments feel the pressure of at least appearing to want to tackle the issue. Lighten up.

International law always/never trumps national law

Perhaps this is not so much a myth, but rather a strategic argument used in its two variants by ‘The Angry Optimists’ and ‘The Skeptical Realists’. Particularly the Angry Optimists need international law to be able to override the domestic law of states in order to achieve their lofty, universal goals. The Skeptical Realists don’t need to champion national law as much because international law is in their view ultimately irrelevant anyway, irrespective of the legal relationship between the two legal systems. The position of the two camps on this and other issues, reveal a deeper, theoretical, philosophical divide about the nature of the international system between them. Obviously, I don’t want to dwell on this too much, but suffice it to say that one considers humankind as one, international community; states and individuals are part of one legal order. The other camp views the international order as distinct and separate from the domestic legal orders of states.

In any case, the answer to the question whether international law trumps national law is too nuanced anyway. There are variations and measures of degree in how national legal order deal with international law, and in the end they often look alike. In the United Kingdom, treaties must be implemented through domestic legislation before they can have any effect, i.e. can be invoked for instance by individuals. Customary international law is considered part of British common law. In contrast, the Constitution of the Netherlands allows treaties to have direct effect if the provisions of a treaty ’are binding on all persons’ (Articles 93 and 94). A similar situation can be found in American constitutional law, where treaties are the Law of the Land (Article VI), but can only be directly applied by the courts if they are ’self-executing’, i.e. whether they contain fundamental individual rights. Of course, lawyers feast on such indeterminate categories, and the answer to the question whether international law trumps national law is a familiar one: it all depends. In this case, on each and every state.

Do you know of any possible myths? Or question whether some recurring statement about the law is true? Let me know in the comments below, or through Instagram, Twitter or Facebook.

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