Does international law exist? Or is it a polite fiction? To answer these questions we first need to define “legal fiction”. Here the phrase is not meant to mean fiction written by (say) John Grisham or John Mortimer. Instead, a legal fiction is something which the law assumes to be a state of affairs. And by “the law assumes”, it is meant that lawyers assume, inside and outside of any court.
Legal fictions are common in everyday practice—more common than many realise. Take, for example: if two members of a family die in an accident, the law of succession will assume (if there is no further information) that they will have died in order of seniority, the older person dying before the younger. Or take for another example: that corporations have a real existence as “persons”, just as much as natural persons.
Sometimes these fictions may turn out to be true (like the order of death in a tragedy) or they may never be capable of meaningful verification, like the treating of corporations as persons. The important thing is that they are taken to be correct by courts and by lawyers advising on the law.
In this way, international law can be seen as an elaborate system of fictions: that states and international organisations exist as persons; that such actors have rights and responsibilities; and that these rights and responsibilities should be taken seriously, even when there is no possibility of enforcement by any court or tribunal.
Accordingly, international law is in practice often more lore than law. In effect, international law is what international lawyers determine it to be. To say a country is in breach of international law is usually to state an opinion, not a prediction of what a court would do.
(Here “international law” means the law which principally regulates the relationship between states, or between states and international organisations. Lawyers call this “public international law”. This can be distinguished from “private international law”, which regulates cross-border legal relations between private persons.)
There is a lot of this (public) international law set out on paper: there are volumes and volumes of treaties and conventions. Much of the dry content of these instruments has been carefully negotiated and even more carefully drafted to be as precise or as vague as possible. Anyone looking at any of these documents as a layperson would say, “yes, this looks like law to me”.
But, with exceptions, almost none of this apparent law is enforceable against an unwilling country. If a country submits to a court in respect of a dispute, then it can perhaps be enforced, but not otherwise. And if the country does not submit, then the obligation cannot be enforced, and no remedy can be granted.
This consensual model of law is radically different to the everyday law inside a country. The force of criminal law does not require consent, and much of civil law—such as negligence—is also not optional. The criminal and civil law applies to you whether you agree or do not agree, and the courts will enforce it against you regardless of your preferences.
A “realist” lawyer would therefore say that such domestic law constitutes actual law, as a lawyer can prophesise what a court will do in a given factual situation. But if it is not capable of being enforced or adjudicated, a realist will say, then it may be politics or ethics, but it ain’t law. Similarly, if it is impossible to predict how a court would interpret a provision, a “realist” will aver that that also is not law.
Such a “realist” approach has its attractions and its merits, but it is ultimately misconceived. There are many examples of human groupings—from groups of individuals to groups of nation states—where certain rules of order and conduct apply which are rarely, if ever, enforced. It does not stop those rules being regarded as law—as applicable rules which bind conduct and in respect of which breaches should be avoided. Courts and means of enforcement can be elements of a legal system, but they are not always essential. It is still law, all the same.
And this is why we have situations where, say, the United Kingdom is deciding to sell arms to country X or to join an invasion of country Y or to deport asylum seekers to country Z, and it is said by a lawyer that such a move may be “against international law”.
UK ministers may perhaps say “so what?” and “who is going to stop us—or them?”, and some will clap and cheer at such an attitude. But that ministerial insolence would not make the defiant act any the less a breach of international law. The lack of any means of direct enforcement simply goes to the consequences of breaking it. It may be that the only consequence is that other international actors see a breach and adjust their views and policies accordingly.
So is international law anything a lawyer says it is? Can they just make it up as they go along? No. There are still codes and schedules to have regard to, and articulated customs and practices to observe. An opinion on international law has to be rooted in the relevant authorities and should be reasoned and based on facts.
As such, to say a thing is or is not in accordance with international law is a rational exercise, which requires the application of agreed rules to concrete, evidenced situations. Of course there is a subjective element, and there can also be motivated reasoning; but this is also true of law generally, and not international law in particular.
International law may be called by some a polite legal fiction. But it being either polite or a legal fiction does not render it either meaningless or whatever you want it to mean.
And so when it is asserted that, say, Israel and Russia are in breach of international law, it means—or should mean—something. You should be able to ascertain the applicable rules and apply those rules to an evidenced situation of fact. A conclusion can be formed—even if a preliminary one—as to whether the situation complies with or breaches the rules. All this should be possible even if, as in many cases, there is no serious prospect of the matter ever being judicially determined.
One day, perhaps, if there are courts of universal jurisdiction, then international law will share with domestic law the ability to have judges’ determinations comprehensively enforced, including against unwilling nation states. But that is unlikely to ever happen.
In the meantime, what we have are rules of international behaviour, some established by custom and others set by agreement. And we have acts and omissions by countries that break those rules. It can and should matter when they do. And breaches should carry consequences, even if they cannot be rectified in law. International law may perhaps be a polite legal fiction, but it can also be a rude fact of international affairs.
