27th June 2025
There was once an eminent and erudite law professor – whose name is on the spines of books on the shelves of legal practitioners and academics throughout the land – who said in a lecture:
“In court, the laws of England and Wales are a matter of law. You just have to show the relevant legal authority or instrument and the court should accept that as what the law is.
“Foreign law – say the law of France – is different. This is a matter of evidence – expert evidence. You get an expert in that foreign law and their evidence is put before the court.
And international law, well. (Pause). International law is a matter of fiction.”
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This is not an uncommon view in legal circles, though often said off the record. International law, this view insists, is essentially made up: it is whatever you believe it to be.
This is not the view of this blog, but there is an important distinction to be made between the recognition of international law and its enforcement.
And some will maintain that if a law ain’t enforceable, it ain’t law – just like some say that there is no such thing as alternative medicine, just medicine that works and medicine which does not.
Anyway, I have written about International law at perhaps its lowest post-war point at Prospect – click and read here.
You can also discuss the post in the comments below.
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“.. International law, this view insists, is essentially made up: it is whatever you believe it to be..”
I’ve much sympathy with this view especially as the old aphorism ” might is right” is not only back in vogue but is being used mercilessly by the likes of the US, Russia and China as modes of operations to get what these nation states want.
The international legal order didn’t really exist much before the end of WW 2 – for a long period the new post-war international order survived and, arguably has been broken by the likes of Russia, the US and China.
The WTO, is an intergovernmental body on its last legs courtesy of the US and China – it will be interesting to see its successor with the Euro Commission President potentially looking at the CPTPP as a candidate replacement body – who’d of thought of that even 6 month’s ago – an organisation has neither sought to join 🫣.
There is also truth in your post about enforcement – if rules aren’t enforced or can’t be enforced – What’s the point of signing up?
It’s hard not to see parallels with Net Zero & it’s global enforcement – we already know that the US, China and India do not feel bound by any COP conference targets – they are more than happy to see the UK and EU go further and faster to effectively meet the targets and to effectively bankrupt themselves – with the potential, at later dates, for the UK and EU to be suitably economically taken to the cleaners.
It’s really hard without the global policeman ( & friends) to see how international law will be developed, maintained or enforced to all parties satisfaction.
Well, the USA are mad for a few years yet, the survivors may yet be more like California, and believe they are on a ball-shaped planet with one atmosphere.
China has passed peak oil, and likely to be pleased about it, are reducing coal use, and are turning out planetary quantities of solar panels and wind generator cores. They might say never mind being bound, try to catch up!
India I know little of, do they have a religious attachment to smog and desire to be hotter?
Given that the fact the current government are not only cosying up to the Israelis and ignoring their legal obligation to act to prevent genocide, choosing instead to criminalise protest and proscribing Palestine Action, in total disregard for the wishes of the general public, it’s hard to have any faith at all in either the law or notion that we live in a democracy. Most of the EU are the same. Fourteen years for saying you support Palestine Action? Ironically, I just discovered that the painted planes don’t even belong to us, but to an untraceable hedge fund, so it’s not even about protecting our assets. It’s all deeply depressing tbh.
I am a member of the general public and do not wish to demonise Israel but do wish to have Palestine Action proscribed. Please read, at least, General Andrew Fox and Natasha Hausdorff before making further comments.
What we really have is a convenient fiction, it suits Kings, Emperors, Presidents etc to have some form of law for subjects. Helps commerce and thus the flow of gold into the treasuries. But no self respecting King or President or War Lord or Drug Baron is going to be tightly bound by such petty matters. Subject only to money flows and Rooftop Voters.
“And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?” Fine words, but they do ring a bit hollow against reality and a large cannon.
You don’t need enforceable law when custom is strong enough. I suggest that both the post and its criticism are correct. Effective international law exists–as unenforceable customs to which almost everybody adheres, even without a cop. There is also a lot of hortatory stuff that people know when and how to ignore. (Think of all the dictatorships or invaders that put on a show of legality.) And occasionally, there are a few rogues who deliberately flout strong customs, often to their own detriment.
Is there a case to be made here for some gentle bifurcation? For example, I rather have the impression that Maritime Law and Air Law are broadly accepted and supported and seem to be largely successful.
To a certain extent, international criminal enforcement practices – support for things like “Red Notices” seem to be somewhat effective, if a little less consistently applied.
At the other end of the spectrum then I think we have things like trade law and the “big stuff” – the handling of nation-vs-nation soveign disputes for land.
For example, the conflict in the former Yugoslavia resulted in arrests and trials in the Hague for many of the protagonists… but when western nations, led by the US and the UK, prosecuted a completely baseless war in Iraq in 2003, the consequences were non-existent. It similarly seems likely that President Putin of Russia will not have to answer for the war crimes committed in Ukraine… and it seems inconceivable that Prime Minister Netanyahu of Israel will ever be asked to account for the genocide he is committing in Gaza.
I would venture that there is a direct correlation between the effectiveness of international law and the degree with which the subject being adjudicated is of direct interest to or relevance for politicians. My conjecture would be that the effectiveness of international law is inversely proportional to political participation in its exercise.