For those who are not familiar with international law, just what it is or how it operates is often a puzzle. Some will doubt whether there even is such a thing, or, as it is often put, whether international law really is law. To answer this question, one must consider the forms that international law takes and how it functions. This analysis begins with a consideration of how law works in general and then proceeds to examine international law to consider how it resembles and how it differs from the law most people—lawyers and non-lawyers alike—are familiar with. Much international law remains customary. Even when a norm of customary international law has been determined with some certainty, the customary form of enforcement—claim and counterclaim among states—does not provide a neutral enforcement mechanism. The mechanism favors those with power and resources. Without a neutral enforcement mechanism, there is always the suspicion that national interest overrides any real commitment to law. And without a neutral enforcement mechanism, international law ultimately has nothing better to offer for punishing violations than the law of the vendetta.
The institutional limitations of international law—including both custom and treaties—have always been most clear during periods of major crisis. International law is not an illusion, but it is a primitive system with definite limits on its effectiveness. As a result, while international law by itself cannot solve the world’s problem, international law is an essential element of any solution. What is necessary to make international law more effective is a fully developed institutional framework, particularly for any serious or enduring crisis, although that framework might not come into being until after the crisis emerges. To get beyond the limitations of current international law, states must combine the sophisticated insights of international lawyers with the practical structures of political actors through institutions for managing or resolving conflicts before they escalates to injurious levels.
Date of this Version
Joseph W. Dellapenna, "The Forms of International Law" (August 2011). Villanova University School of Law Working Paper Series. Working Paper 164.