International Law: Unlike Domestic Law

Yes, I'm still posting on this boring topic.

I want to quote again from Joseph S. Nye's Understanding International Conflicts: An Introduction to Theory and History, this time on how international law differs from domestic law:

Domestic law is the product of legislatures and customs, sometimes called common law. Domestic law involves provisions for enforcement, adjudication for individuals (you can go to court yourself and bring suit), and orderly revision by legislation. (162-163)

Law within a state thus ordinarily requires a government with executive, judicial, and legislative powers. In America, we're aware of these as the three separate branches of government, each of which can 'check and balance' the other two. Not every state separates the powers in this way, but the three powers must exist for a legal system to function.

Nye points out that "[i]nternational law is not like domestic law" (162) even though there may exist a rough parallel to the legislative power of a state:

Public international law is similar in the sense that it consists of treaties, which are agreements among states, and customs, which are the generally accepted practices of states. (163)

I previously quoted this statement about treaties and customs in my posts asking and answering what international law is. In these two posts, we've already seen some of the problems with international law in this 'legislative' sense.

Nye notes other problems, specifying two ways in which international law differs from domestic law:

[I]t differs dramatically in enforcement and adjudication. On enforcement, there is no executive to make a state accept a court decision. International politics is a self-help system. In the classic ways of international law, enforcement was sometimes provided by the great powers . . . . Adjudication in international law is by states, not by individuals . . . . Instead of any of the world's billions of citizens bringing cases to the international court, only the states can bring cases, and they are unlikely to bring cases unless they want to get them off their dockets or think they have a reasonable chance of winning. (163)

And even if a state lost, it could simply ignore the international court -- and probably would unless a stronger state intervened with force.

What are the consequences of these dissimilarities and weaknesses? Nye tells us:

International law basically reflects the fragmented nature of international politics. The weak sense of community means there is less willingness to obey or restrain oneself out of a sense of obligation or acceptance of authority. The absence of a common executive with a monopoly on the legitimate use of force means that sovereign states are in the realm of self-help and in the realm of force and survival. And when matters of survival come up, law usually takes second place. (164)

So . . . is the international system a Hobbesian one where life is "nasty, brutish, and short" (Leviathan, Chapter 13)? Not quite, for agreements among nations do exist. But we shouldn't have any illusions about the 'international community' since that cloaks the self-interest of states, nor should we imagine that a system of 'international law' similar to domestic law regulates international relations.

We might hope for the day of a legitimate international law grounded in a democratic community of democratic nations, but that day is long off.