Chances are most of us have at least some conception of what it is and how our society works because of it.
There are police who maintain order, investigate allegations of crimes committed and manage those accused of committing them. There are courts that adjudicate disputes, preside over cases to determine guilt and dispense sanctions. There are legislatures elected by citizens that reflect the will of society and create laws. While we elect people to create the laws that govern our society, we ourselves do not write the laws, nor can we be above the law or unilaterally reject being bound by the law. In our society these bodies are vested with authority over citizens and they’re familiar to us.
We are equals… equals under law that operates vertically. What if this were not the case? What if above the citizen no higher authority existed? What if we were equals, left to create order among ourselves? What would happen to the settlement of disputes or regulation of everyday life? Can it work?
Imagine you arrive home, it’s late and you need to be up early. Your neighbours though have their music turned up. There are no explicit laws in this reality about loud music, nor police to enforce them if they did exist. Instead neighbours have agreed to deal with complaints on a case-by-case basis collectively. As equals they all must agree whether or not to ask this neighbour to turn their music down. Most do agree, but a couple refuse. They like loud music late at night too and wouldn’t want to be told to turn their own music down in the future.
Because a consensus isn’t reached, the neighbour is allowed to continue playing their music.
Night after night you’re kept awake. These neighbours are bit naff so they’ve got 80s power ballads on a constant loop until 4am… it’s not good*. You decide with those neighbours who did agree earlier to do something about it.
You park your car across this neighbour’s driveway, refusing to move it until they agree to stop playing their music so loud. You’re not on speaking terms with this neighbour so another neighbour acts as an intermediary, making negotiations slow and tedious. At first they refuse, but eventually they relent so long as you support them next time they ask the neighbourhood for something they want. A détente is reached.
You may think this scenario is purely hypothetical, yet it demonstrates on a micro scale just some of the challenges and intricacies international law faces on a macro scale. It’s the challenges and intricacies of creating law horizontally among equal, sovereign actors in a global environment.
Let’s consider another scenario. Imagine you’re driving and, being Canberra, you inevitably reach a roundabout. You enter the roundabout, but there’s a problem… a car is going in the wrong direction forcing you to stop. You ask the other driver what they’re doing; they explain they have always objected to this “driving on the left” rule most people have agreed to, so they don’t need to follow it.
What are you to make of this? Perhaps the driver is motivated by self interest, believing that by driving the wrong way, everyone will give way allowing them faster passage. Perhaps it’s ideology, they believe the right side is the correct side. Perhaps it’s cultural, a tradition of keeping to the right[AS1] .
Whatever the reason, they’ve rejected the convention that keeps traffic moving, as is their prerogative where the law operates horizontally. As such a system relies on each person’s consent, there is no higher authority that can force this driver to abide by the convention.
What do you do?
Do you explain to them that their self-interest is better served by keeping to the left, allowing traffic to flow and not endangering themselves and other road users? Do you join with other drivers who follow the convention to block this driver’s vehicle until they acquiesce?
By blocking them and compelling them to abide by a convention you favour, do you undermine your own freedom to consent to or reject what rules you abide by? These are not easy questions for a scenario involving a handful of people by the side of the road, yet they are the types of questions we must answer for a community of over 6 billion.
Growing needs in a shrinking world
We live in an increasingly globalised world. More than anytime in our history, the future of one nation is less of it’s own choosing and more connected to the international community. Commerce, communication, culture, the movement of people and the reach of crime transcends traditional borders.
Let’s go back to the roundabout. As you approach it, you notice the signs giving directions are in another language, one you can’t read. You know the general direction you need to go and you can make out symbols, but the place names are a mystery, as are any potential warnings. We live in a multicultural society, how did this hypothetical society select one language over hundreds of others? How did they decide who should have to learn a new language?
The same scenario is true on an international scale, where aviation allows us to reach all corners of the globe. When a pilot from Chile reaches an airport in Tokyo, or a pilot from London arrives in Moscow, what language are those in the air and those on the ground to speak? The international community through a convention have agreed the standard language is English, a convention to which the majority of countries are party.
More than a mechanism for solving conflicts alone, International Law seeks to answer the growing needs and challenges of a global community that is growing ever more closer and interconnected.
Beyond the law
By now, something should be apparent and that is International Law is not simply rules. It’s a system, one that in practice goes beyond strictly law. In the scenarios above, you’ll recognise bargaining, intimidation, compromise and self-interest. Some actors abide by norms while others reject them. Some actors communicate with one another while others stubbornly refuse.
This reflects the real world in which International Law lives and breathes. Domestic and international politics, commercial interests, ideology and history, cultural and socio-economic realities all play a role.
In International Relations, International Law is sometimes viewed with scepticism, even pessimism. The many examples of states misinterpreting the law, ignoring the law or outright rejecting the law to further their self-interest are seized on. This is true particularly of realists who believe states can accept no authority beyond the sovereign and that the primary goal of the state is the maintenance of the sovereign.
This highlights what is perhaps the most unique feature of International law by virtue of being horizontal… that the “accused” can over time write the law, determine guilt and decide the sanction.
This article isn’t intended to teach any aspect International law, but rather to wake one’s mind up to the questions and bigger picture of International Law. To open one’s eyes to it’s challenges, it’s necessity and it’s potential. I asked earlier what were to happen if a community of equals with no higher authority were left to create order among themselves? Can it work? The answer is, it has to.
*Based on a true story
Image Credit: ICC Headquarters, © ICC-CPI & Mac Koot