Foreword:
“They are breaking International Law!” How many times have we heard this statement? How many times have we uttered this statement? But what if International Law - outside of treaties made between free-acting parties - doesn’t actually exist? What if it is a figment of our collective imaginations? Worse still, what if we have given incredible power to group of ICJ judges - many of whom hail from undemocratic countries and act under dictatorial influence - to arbitrarily apply this “system of law” with serious consequences for the Free World.
It is this vital question which I consider today. You will never view International Law with the same respect again.
“Does customary international law exist?” by Daniel Clarke-Serret
Introduction
Critics have long argued that International Law is a system unworthy of the name. They note the lack of an international legislature and the woefully inadequate enforcement mechanisms.
Such shortcomings are readily conceded by proponents of the system. They counter, not that these defects are unproblematic, but rather that a system cannot be denied the label of “law” merely because it doesn't showcase the features of an efficient municipal legal system. At the heart of the concept of law, they argue, is the idea of obligation. Although States may not always comply with their international duties, they recognise that these obligations exist and that they are legally binding upon them.
The following quote from Herbert Hart is the classic defence of International Law.
“What these rules require is thought and spoken of as obligatory; there is general pressure for conformity to the rules; claims and admissions are based on them and their breach is held to justify not only insistent demands for compensation, but reprisals and countermeasures. When the rules are disregarded, it is not on the footing that they are not binding; instead efforts are made to conceal the facts”.
Professor Hart’s impassioned defence logically follows from his general conclusions about the nature of law. In The Concept of Law, the jurisprudential work from which this quote derives, Hart famously argues that legal systems are made up of rules, both primary and secondary.
He begins his analysis by dismissing the so-called ‘command theory’, propounded by John Austin, which explains the law as a matter of orders backed up by threats. To reject International Law on the basis that it lacks organised sanctions is to equate the notion of having an obligation with the threat of suffering a sanction or punishment. In short, to reject international law on this basis is to tacitly accept the Austinian theory of law, something which Hart, unsurprisingly, was reluctant to do. By way of contrast, Hart’s rebuttal is wholly consistent with the idea that the essence of a legal system is the rules, or obligations, which make it up.
Should one reject Hart’s rule-based theory, the consequence may be to deny the marriage of International and Law entirely. When the vicar asked if anyone objected to the union, domestic law swiftly raised its hand. As did rival legal theorists. Austinians, for example, regard the lack of organised sanctions as fatal to the law classification.
Yet, for the purposes of this essay, I will make two presumptions: that Hart’s rule-based theory of law is correct and consequently that if International Law is a system composed of obligations, it deserves to attract the label of ‘law’. I am prepared to make this concession, not because I necessarily agree with Hart’s theory, but rather because if it can be proved, in contradiction to Hart’s claims, that States do not regard themselves as legally bound by international obligations, it will become untenable for even the most generous observer to argue that International Law is a true system of law.
In this essay, I will focus exclusively on the rules of international custom. My thesis shall be that these rules are not viewed by States as legal obligations and therefore, according to Hart’s own logic, should not be regarded, collectively, as a source of law.
The conditions for the formation of international legal obligations
When discussing the appropriateness of labelling international custom as law, it is important to make a distinction between form and substance. There is no doubt that (most) States, national courts, international courts and international organisations all formally regard custom as a valid source of international law. That’s to say that formal declarations, both written and oral, have been made to this effect.
