Opinion: Is international law really a law?
Although international law as a concept of general principles and customs has been known for centuries, reaching as back as Ancient Greece or Ancient Rome, discussions concerning its existence and common application reached its apogee only in the 20th century; however, neither the theoretical discussions, nor practical events managed to provide a definite answer to the most fundamental question, which is still being considered now at the time of unprecedented Russian aggression towards Ukraine and in the light of continuous conflicts in the Middle East: is international law, per se, real law?
If international law was considered at a theoretical level, the resistance of legal positivism would prevail in many instances and it would definitely help to conclude that international law is not law at all and, therefore, it should not be obeyed. One of the greatest 19-century positivists John Austin had argued that international law could not be regarded as law due to the fact that it had no sovereign.
According to John Austin, “laws are commands issued by the uncommented commander”, e.g., parliament. Moreover, John Austin claims that “such commands must be backed by sanctions” and, inter alia, the laws must be naturally obeyed. Since international law would not be able to pass such a test, it would be possible to conclude using the modern approach of HLA Hart’s idea that “international law is ‘not real law’ because it lacks effective institutions for making and applying laws, and that it is therefore of negligible importance in international affairs”.
However, as New York University Law Professor Thomas Franck has noted, compliance with international law is not a matter of managerial process, but rather a matter of fairness of international rules. Consequently, the conduct of various parties of international law is constantly monitored by the public which is able to reach reasonable conclusions as to one or the other action of the party, and, hence, in the course of time, such a system creates common practice to comply with the rules.
Thus, this type of system makes parties of international law obey “international rules not because they are threatened with sanctions, but because they are persuaded to comply by the dynamic created by the treaty regimes to which they belong” (Thomas M. Franck). Therefore, international law is a matter of practicality and not theory.
However, in order to analyse the state of international law, it must be remembered that “states may often violate international law, just as individuals often violate municipal law, but no more than individuals do states defend their violations by claiming that they are above the law” (Koh, Harold Hongju). Therefore, although international law is rarely enforced, it is usually obeyed. Thus, the examples of successful operation of international law could be seen by unprecedented events of the 20th century.
Soviet war in Afghanistan could be given as a starting point of an example of rather complex involvement of international law. It is generally known that threat and the use of force by one state against another is prohibited by international law as sovereignty is a jus cogens right. Besides that, this prohibition is contained in Article 2 (4) of the UN Charter, which is a source of international law under Article 38 (1) of the Statute of the ICJ.
Nevertheless, in 1978, the communist-backed government led by President Karmal managed to get rid of legitimate Afghan leader and subsequently the USSR brought 4,000 troops into Afghanistan, which soon was increased to 100,000 troops. Although very similar situation did not get any attention by the international community in 1936, this time, following Soviet veto on a UN Security Council resolution, which deplored the USSR intervention, the General Assembly stated: “Respect for the sovereignty, territorial integrity and political independence of every state is a fundamental principle of the Charter; and the recent armed intervention in Afghanistan which is inconsistent with that principle”. Soviets had not complied with these principles for a long time; nevertheless, in 1989 Soviets withdrew their army. Although the process of restoration was slow, international law and justice prevailed.
Nevertheless, one of the greatest achievements of the 20th century for international law was the successful establishment of new states after the dissolution of the Soviet Union. Perhaps the greatest example of this success is the restoration of independence of the Baltic states. It is not a secret that the Baltic states had been annexed illegally and, therefore, that situation had to be remedied. With an extraordinary strength of resistance both in the Baltic states and abroad, the Baltic states were never officially found to be a part of the Soviet Union. Therefore, the annexation had been defined as ex injuria jus non oritur (law cannot arise from unjust acts) rather than ex factis jus oritur (the law arises from the facts). In addition to that, all the three states without any difficulties fulfilled the requirements under Montevideo Convention. A year later the Baltic states started being recognised as de jure states, therefore, at that point they became both de facto and de jure countries.
Although international law seems to work in many instances, it nevertheless has very limited capacity to impose sanctions. As it was seen in the previous examples and many other examples that have not been listed here, international law is often dependent on particular situations: had Mikhail Gorbachev not become president of the USSR, the Soviet army would have remained in Afghanistan; had the Soviet Union not collapsed, the Baltic states would not have gotten their independence, etc. In other words, international law requires a certain plot in order to work.
Since there is no compulsory compliance with international law, very often one found to be at fault can walk free without any sanctions imposed. The list of examples of such incidents is broad and most of them are rather political. Nevertheless, it is important to highlight the one which established a “precedent” of non-compliance. In Nicaragua v US, even though the ICJ held that international law had been breached by the United States on many occasions and even though the sanctions had been imposed, the US blocked its enforcement in the UN Security Council using its veto power. Besides that, the US claimed that the ICJ had not had a jurisdiction to rule on the matter and, therefore, the US refused to participate in the proceedings.
Although the decision of the court could be seen and, in fact, is seen by some commentators as contradictory, a non-compliance with it had very strong indirect future implications.
Following strong public pressure, evidenced by the “Euromaidan” movement, there was a strong suggestion that Ukraine would create closer ties with the EU; however, Viktor Yanukovych – the then president of Ukraine – betrayed the whole country and gave power to Russian President Vladimir Putin to initiate further actions, which led to unprecedented breaches of international law.
The list of the breaches is a lengthy one but, perhaps, the most important breach is the one which occurred in Crimea. Following strong financial support from Russia, which had been found to be an “intervention in another state’s affairs”, to local pro-Russian activists, a referendum was held in order to annex the peninsula of Crimea to Russia. Therefore, the referendum had been ‘successful’ and Crimea was annexed to Russia; however, neither under international law, nor under domestic law was it legally possible. In addition to that, Russia had breached the Budapest Memorandum, which was signed by Russia in 1994, which according to Article 38(1) of the Statute of the ICJ, is a source of international law.
Finally, there were clear breaches of Article 2(4) of the UN Charter on many occasions by various means: by providing military and financial support to rebels; by annexing Crimea; by sending the military to eastern Ukraine; and even by giving commands via rebel’s leader Igor Strelkov, who was, in fact, a Russian citizen.
Although there is no factual connection between the Nicaragua case and the situation in Ukraine, the matter of international law is the same. The problem is that, in the Nicaragua case, proceedings at least were started; however, the situation evolved and now it is clear: even if the proceedings were started and even if Russia were found to be an aggressor, there would be no compulsory compliance with the decision. Therefore, international law would not have any power to remedy the situation.
Sadly, the situation in Ukraine is not a one-time accident. Similar situation had been seen in Georgia in 2008 when Russia without any interference invaded the country, financed local rebels and killed many ordinary citizens. However, no proceedings have ever been initiated. Thus, the aggressor walked free.
Nevertheless, it is not a coincidence that no one was able to give a final answer to the question whether international law is a real law. Perhaps, it is even impossible to answer such a question, especially when military actions are being considered. In addition, positivists are absolutely right in saying that international law is not law in the sense that it is not issued by the “uncommented commander”; however, it does not have to be issued. International law per se refers to the principles of natural law rather than to the principles of domestic law. Rights such as jus cogens and principles such as pacta un servanda are elements that come from nature. Some of these principles might not be absolutely binding in terms of international law; nevertheless, these principles are moral obligations that all states are deemed to obey by nature.
Situations such as the one in Ukraine might indicate that international law is not law; however, it would be a mistake to think so. Unjustifiable military actions, such as those discussed above, mean that there is a lack of political and moral will to act against the aggressor. International law has proven to be working in many instances. Nevertheless, in order to make it work in every instance, sovereign states - as a community - must punish the aggressor without any exceptions.