International Law

Could you give us a good working definition of international law?

International law is that body of principles and practices which states follow in their relations with one another, which recognized as having the force of law. Much of it nowadays originates in treaties. Traditionally, more of it originated in the customary practice of states. And customary international law remains important.

Is the work of international law complicated by the diversity of cultures, traditions, and laws that [constitute] the materials that you have to work with? You're in a world that's much more complex than the world of national law.

Yes, we certainly are. International law does not consist of a composite of various national systems of law, but, nevertheless, international law may derive certain fundamental principles from principles common to various systems of law. International law as such is, at least in theory, the same the world over. I must say, today I find in my work as a judge of the court that judges from the world over, with fifteen judges drawn from a diversity of countries and continents and cultures legal and otherwise, all of us speak the same language. I won't say we always mean the same thing by the same word, but we certainly use the same terms and apply the same concepts. There may be variations of perspective, but fundamentally, we speak the same language.

Why does international law matter to the average citizen in a particular country? Or does it?

Oh, it does. He may not see how much it does, but it does because international law regulates so much of the framework and daily routine of state practice and individual affairs. If you get on an airplane to fly from San Francisco to Tokyo, you are implementing a treaty that runs between the United States and Japan which gives American planes the right to fly in and through Japanese air space and more, to land at a Japanese airport. And international telecommunications are dependent on international law. There are a good many treaties that bear on international trade and investment, and the way aliens are treated when they go to a foreign state, and so on and so on. The web of international intercourse is very closely affected by international law.

How is international law distinctive from national law? One answer that comes to mind is that you don't have a police force to enforce verdicts that you've given. Does that make a difference?

Yes, it makes a difference. Mind you, the winning party in a case before the World Court, where the losing party doesn't comply, can go to the UN Security Council and request the Council to enforce the judgment. The Security Council is the Security Council, and whether it will effectively respond is another matter. There is that authority there, that potential, I would say, more than actuality of exercise of authority there. But, essentially you're quite right. There is no international police force. More than that, there is no international legislature making law. There is no international executive applying the law.

So, in such a situation, it's rather remarkable that there's a World Court at all. But it's a court of very limited powers. Most fundamentally, it doesn't generally have jurisdiction over disputes. The problem in a domestic court may occasionally be jurisdiction -- perhaps someone should go to a federal court rather than a state court -- but fundamentally that is not the problem. Normally, some national court will have jurisdiction, at least over persons or activities happening within its reach. That's not true of the International Court of Justice, or of international arbitral tribunals. Fundamentally, the states concerned have to agree to go to court. They can do that after the dispute has arisen, then they conclude a kind of mini-treaty which says, "we'll take this dispute to the court." Well that's simple enough, except that many times when a dispute has arisen, one party is willing to do that but the other is not, so the case doesn't come. They can also agree in advance of a particular dispute to take a certain class or kind of dispute to the court, or provide under a particular treaty that if, in the future, a dispute arises over the interpretation or application of that treaty, either party can take that case to the court. But one time or another, they have to agree to give the court jurisdiction. Often, one time or another, they have not.

Therefore, if State A brings a case against State B before our court, it must plead what we call a "title of jurisdiction," and the court won't proceed at all unless there's a prima facie title that seems to be some plausible basis for jurisdiction, or unless the other party overtly says, "yes, we agree," which sometimes happens.

It sounds to me that it's a mistake to start with a comparison of international law to national law because we seem to be talking more about a consensual process, almost a mutual learning process, to help shape the regulations and rules that guide international life.

Yes, I think in large measure that is so. There are comparable elements, but to apply routinely the perceptions of a national legal system to the international system can be misleading. The fundamental point is that in a country, or a state such as California, there is enough of a sense of community to support a governmental structure to which the citizens are largely responsive. Not totally; crimes occur, quite obviously. But there is a system of law which is, by and large, effective. Internationally, there isn't a comparable sense of universal community, and one doesn't find governmental organs that are comparable to those in a state. We don't have a world government. We're very far from it. Many would say we shouldn't have one, some would say we should. But the fact is we don't. And there's no use in thinking about international law, to say that we [should] have the international law we need because we need it. One has to look at the matter realistically.

"What is international law?" It is an important form of law, a significant form of law, but it's a primitive and weak form of law compared to that one finds within a state.

What materials do you look at to come up with the new definition of law that emerges in a particular case? You mentioned treaties. Do you look at international contracts? Do you look at what states have done? Give us a sense of the diversity of material that you're looking at.

Well, in the first place, we would look to see whether there is a treaty, or are treaties, which contain provisions or principles that govern the immediate dispute between the parties, which must be states. Only states can bring a contentious case to the International Court of Justice. Corporations, individuals, States of the Union cannot. And second, we would look at customary international law as the practice of states which is accepted as law. For example, the Law of the Sea, or the Law of Diplomatic Relations, traditionally was customary international law, built up over the centuries by the practice of states, which states assented to, not necessarily obviously and overtly, but acquiesced in, practically speaking. All provisions, like the three-mile limit, now superseded by new treaty law, and much of what has been customary international law is being progressively replaced by treaty law as the states of the world review and revise certain areas of customary law.

Nowadays, there are many more states than there used to be, some hundred more than there were, and those hundred didn't participate in the development of customary international law, because the weren't states. They didn't exist as states. So they had no influence in the creation of that law. But when they're born, they have to accept the law as it is. Yet, they have a certain unease about that. And so one of the little noticed but beneficial and important processes of the United Nations has been the codification, as it's called, the restatement and revision of certain areas of customary international law, in which these new states participate on an equal basis with the old.

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