In What Sense Is International Law Law

This panel was convened at 2:45 p.m. on Thursday, March 26, by its moderator, Andrew Guzman of the University of California-Berkeley School of Law, who introduced the panelists: Jose Alvarez of Columbia University School of Law; Antonia Chayes of Tufts University; Thomas Franck of New York University Law School; and Sean Murphy of George Washington University Law School. RETHINKING INTERNATIONAL LAW AS LAW The theme of this year's ASIL conference is International Law as Law. This title reflects, I think, a dual perspective among international lawyers. First, it evidences the belief that international law is very clearly law--after all, the title does not offer any suggestion that it might be otherwise. Second, it evidences a certain kind of insecurity or concern that maybe some people--maybe even some people at this conference--have doubts about whether it is One would not, after all, hold a conference with the theme American Law as Law. This insecurity, coupled with dogged commitment to the notion that international law is and must be law, seems to be inherent in international law and how we think about the subject, and it appears much more often than simply in the theme of this conference. This panel seeks to take on the question of what it means to say that international law is This is a variation on the age-old question of whether international law is law, and reflects the fact that we, international lawyers and scholars, have not succeeded in forming a compelling and persuasive answer to that question. It is appropriate, therefore, that we return to that question and that we try harder to understand and explain what we mean when we say international law is The answer to the question of whether international law is law depends, of course, on how one defines law. If law is defined by the use of coercive force, then international law clearly does not qualify. The instances of force being used to enforce international law are vanishingly few. Furthermore, if enforcement is key, it is not enough to point out that international law is binding on states because, in the absence of enforcement, it is hard to even know what it means for a rule to be binding. The word suggests that it is mandatory--that it must be done--but if there is no penalty for failing to do it, in what sense is it mandatory? Though coercive force is a useful definition of law, and one that is easy to grasp, it is a fair retort to observe that domestic law often operates without coercive force. The Supreme Court lacks the coercive power to enforce its decisions, yet when it issues rulings contrary to the interests of the executive branch these are not only considered law, they are complied with. If law requires a legislature that can enact mandatory rules over the objection of those who will be bound by the rules, international law again falls short. On the other hand, there is no obvious reason why this particular method for creating legal rules should be the criteria for creating Ultimately, this exercise of seeking to demonstrate that international law is or is not law strikes me as futile. It is clear to all that international law differs in important ways from domestic It is equally clear that it provides a set of rules that seek to influence state behavior. This leaves us with a more sensible question: how well does international law do in its effort to influence state behavior? Does it provide a valuable constraint on conduct, or is it too easily ignored? This is the debate that should interest us, without much regard for the question of whether it is assigned the label law. If we want to understand international law we have to understand how it shapes state behavior. States, of course, are influenced by many things that have nothing to do with international law, and these often matter much more than international legal rules. They are influenced by geography, which causes the allocation of land rights to be related to the potential uses of the land. …