Chapter 1 Audio podcast

Welcome to the first episode of the International Law Podcast, this episode corresponds to chapter one in my textbook. The purpose of this episode is to introduce you, the listener, to a couple of very initial points about the international legal system, and therefore also international law. And what is international law? Well, international law is the legal discipline that covers those legal issues that are of concern to more than one state. Legal issues that are only the concern of one state are dealt with a national law, or domestic law; something I'll return to in a few minutes. Now, the format of this episode is one that you'll recognize throughout my series of podcasts.

Here, I'll limit myself and the presentation of the topic by stressing three points or issues that I find are particularly worth knowing, or at least considering. The first of these points, in this particular episode, concerns some of the vital differences between, on the one hand, international law, and on the other,national law. Because if you, the listener, are only familiar with national law and the way a national legal system looks, you need to understand a few essential things about international law. Things about what it is and what it is not. Because when you compare international law to a national legal system, you’ll find that international legal system is much less developed. And it lacks many of the key features that one finds in international legal systems. For starters, there's not a legislative branch ininternational law. Now, national lawyers are familiar with some sort of national legislator that enacts the laws that govern the state and the subjects.

In some states, this domestic legislature consists of a single chamber, while in other states, it has two chambers. Either way, international law is very different, because there is no legislative body at all. There is no world parliament. What represents us are all the states sit and negotiate and agree on new legislation for the entire world. Instead, new laws, new rules, are primarily created by the adoption of what we call treaties, or conventions.

And unlike domestic law, such international rules are only binding on those states that actually give their consent to be bound by the rules. We’ll return to treaties in a later episode of this podcast. But the lack of a legislator is not the only thing that distinguishes international law from national law. Similarly, there is not a well-established court system in international law as there is in most national legal systems. In the international legal system, there simply is no court that has more or less an automatic competence to deal with a legal dispute once that arises. In fact, it is actually quite rare that legal disputes and international law make it all the way to a court of law. This, however, does not mean that there are no courts at all in the international legal system. There are actually quite a few courts. And in a later episode of this podcast, I'll spend some time on one of those courts, arguably the most important, the International Court of Justice, or the ICJ, as I will call it. The ICJ has a general competence to deal with legal disputes between States, but in reality, it only deals with a very few cases. And similarly, in general, states are not obliged to accept that the ICJ can settle its disputes. There are also various courts in many of the different sub-disciplines in international law. And, later we'll see, for instance, human rights law, that the European Court of Human Rights of Strasbourg deals with complaints that arises under the European Convention of Human Rights. But unlike a court in a national legal system, a court like the one in Strasbourg does not have overall competence to deal with all sorts of disputes. It only deals with the disputes that arise under a particular convention. Of course, in practice, the lack of a well-established court system, as well as a lack of a universal police force, means that enforcement of international law is usually very limited.

And not only is it rare that you will find a court to deal with a case in international law, similarly, there is no police force to actually help bring violators of the law before the court. In essence, the international legal system is a decentralized system of self-help. It is generally up to the States themselves to create, interpret, and enforce the law. Sometimes, what this means is that a state that believes that its rights has been trampled upon, must adopt its own measures to try to make a delinquent state honor its obligations. In fact, in international law, what we call reciprocity is very important, and it can often serve as a suitable way to vindicate rights. For example, if state A breaches its treaty obligations towards state B, the latter may be allowed to suspend its own fulfillment of that treaty. Sometimes, a state may respond to another state's breach of international law by adopting what we call countermeasures. This is when the state breaches its own legal obligations towards the delinquent state.

Now, as I already mentioned here, the lack of a legislature and the very limited means of enforcement means that the international legal system is indeed very different from the national legal system. In fact, the differences are so profound that some even question if international law can be categorized as law at all. Even thoughit’s not enforced, does it even make sense to categorize it as a legal norm? Can you actually have law without enforcement? Here I'll stress, though, that you have to be careful. To me, it's not the issue of enforcement that determines if a norm is a legal norm or not. And I'll maintain that you can have a legal system even if there is no enforcement. The reason why international law is indeed law is because of those who are subject to the law, believe that it is law. States do not question if international legal obligations exist and those that argue that the obligation the question are not somehow of a legal nature, even though the means of enforcement are quite limited.

The second issue I'll spend some minutes on here in this introduction to international law is to give you a quick overview of the different structures of international law; something I dig into more detail in my book. Because international legal system consists of different structures, or layers, of rules that reflect the historical evolution of the law and the way the world is configured. And to make a very long and complicated story quite short, it all began at the Peace of Westphalia in 1648. Here, the European powers decided to try to establish an international order by simply compartmentalizing territory and individuals into sovereign national states. States, that is, that all have the same legal importance. And since then, the centre of the international legal system has been the sovereign state. In fact, the international society that we have today is, first and foremost, a society of individual nation states. And this understanding is what helps us explain the purpose of international law, because it is only when an issue arises that involve the interests of more than one sovereign state, that international law even becomes relevant. Only then, is there a need for something extra, something more than what you will find in national law.

Now, an issue becomes of interest to more than one state, and thus an issue for international law, in one of two ways. And it is those two ways, it is here we find the two substantive and different structures of international law. The first way is when two or more states have an inherent interest in an issue. Here, it is just because there's more than one state in the world that something becomes of interest to international law. These sorts of legal issues are governed by what we called the international law of coexistence. And this is where we find the classic topics of international law. And these topics are classic because they regulate issues where the interests of two or more states collide. For example, the fundamental principles of state responsibility, the delimitation of and title of territory, the conditions for statehood, recognition of new states and governments, the principles and jurisdiction of state immunity, the regulation of the use of force, the conduct of armed hostilities. All of these topics cover areas where states have an inherent interest. Therefore, they are part of the international law of coexistence.

The second way an issue becomes one for international law is when states have agreed in a treaty to make an issue that could otherwise have been dealt with under national law into one of an international character. So such legal issues are dealt with in what we call the international law of cooperation. This legal structure is much younger than the international law of coexistence, because, it was not really until after the end of the Second World War that states began to cooperate on a variety of issues, often of a sort of societal character, that had up until that point been dealt with on a national level. Topics in the International law of cooperation include EU law, for instance, also International Rights Law, and International Economic Law. Because unless states decide to cooperate on those issues and adopt treaties, they remain national issues.

Now, one of the most important things to note here is that the law of cooperation, unlike the international law of coexistence is optional for states. States have to consent to cooperate on these issues. And if they don't want to be part of such a cooperation, they can stay out. Or they can leave again, if they've already decided to become part of a legal regime, they since regret. This, of course, is why the UK can just leave the European Union. And, and this is important, the United Kingdom cannot in the same way, just decide no longer to be bound by the rules of the international law of coexistence, because these rules are always binding by the United Kingdom, simply because there are other states in the world than United Kingdom. Now the third and final issue I'll talk about here in this opening episode of my podcast, concerns the basis of the obligations in international law. In short, why is it that those parts of international law that is not based on a treaty, that is the law of coexistence…why is it that that can binding on a state at all? Because, if it true that all states are really sovereign and that no one stands above the state, why are the same states bound by this form of international law? Here, we need to consider, again, the nature of the international law of coexistence. As I noted a little while ago, it is simply because there are more than one state in the international system that certain parts of the law must be binding on all states.

In essence, to ensure that all states can remain sovereign, the law must limit how sovereign states can exercise their sovereignty. The whole purpose and idea of the international law of coexistence is to have certain basic rules that dictate how states may and may not behave in their mutual relations. And such rules cannot be optional. They must be binding on the states. All states must be bound by the rules of the society in which they are part, and the rules that are required for the sovereign states to simply exist and interact. And this is why the United Kingdom can leave the European Union.