~This post has been authored by Amartya Sahastranshu Singh.

As dynamic as society is, certain themes not only recur but are essential to its functioning. One such theme is the legal system. Laws bring order to society, distancing it from chaos, which is inimical to its stability. Laws, in a way, are elaborate expressions of the recognized standards and values of a community that bind its members. Laws both permit and coerce their subjects, i.e. allowing them to form legal relationships while forbidding certain actions at the same time.

In the vast sea of laws, one set that peculiarly stands out is International Law (hereinafter IL). IL is a legal system that primarily deals with nation-states. Occasionally, and in very specific cases, IL also governs international organizations and individuals (citizens of these nation-states).

What sets IL apart from other branches of law is its source and the nature of its enforcement. Laws are typically understood as a set of rules crafted by a competent legislature, enforced by an executive authority, and adjudicated by a judiciary. IL, however, does not fit this model. There is no “world government” with the legitimate power to make, enforce, or adjudicate these laws. A positivist, such as John Austin, might argue that IL is no law at all! Such arguments draw validity from comparisons to domestic models and are thus essentially comparative rather than comprehensive.

IL must be viewed differently. In domestic legal systems, authority is hierarchical and vertical, while in IL, it is horizontal. Nation-states are sovereign, and the concept of sovereignty is paramount. In simple terms, states have exclusive power over their territory and citizens, and no other state can interfere with their exercise of such sovereign powers. Unlike municipal legal systems, in the international legal system, nation-states themselves create laws and choose to obey them. There is no overarching power to impose penalties or punishment in the event of disobedience. (While the United Nations Security Council does have the power to impose economic or military sanctions, in practice, the magnitude, timing, and political dynamics—especially the veto power—make this process tremendously difficult and tedious.)

At this point, a valid question arises: If IL has such weak enforcement mechanisms, why would states follow it at all? Why engage in international negotiations in the first place? After all, it is time-consuming and (damn) costly.

There is no single, one-size-fits-all answer to this question. There are multiple reasons for the existence and functioning of IL. Let us briefly explore a few.

Firstly, IL brings an element of stability. In the international ecosystem, a large number of agreements among numerous nation-states are constantly at play. Some form of regulatory framework, no matter how weak, introduces stability and predictability. IL thus pulls the international community away from complete anarchy.

Secondly, history has shown that every situation may be subject to conflicting interpretations. Often, these misinterpretations lead to gross misunderstandings, which in turn attract tragic consequences. However, such events are avoidable. The IL framework introduces commonalities in negotiating forums, judicial procedures, languages, and various other factors of communication. This may not resolve all conflicts, but it provides a solid starting point.

Thirdly, the long-term approach of IL, coupled with the ease and flexibility of communication and negotiation it fosters, mitigates the uncertainty inherent in the ‘prisoner’s dilemma’ within the international community. Long-term payoffs become a strong consideration over short-term gain. This approach also strengthens the principle of ‘reciprocity,’ which lies at the heart of the IL framework.

Apart from these factors, other considerations also contribute to the functioning of IL, such as swaying public opinion in one’s favor, building coalitions within the international community, and various psycho-social factors.

While these factors explain, to some extent, why states might adhere to IL, the basis of this obligation remains unclear. On what grounds do states feel obligated to follow IL?

In the 19th century, dominated by economy-oriented philosophies, the theory of ‘consent’ or ‘contractual obligation’ was advanced as the basis for obligations under IL. This view found its extreme expression in the ‘theory of self-limitation’ or ‘auto-limitation,’ which simply stated that nation-states are bound by legal obligations because they have consented to them. Consent was seen as the primary basis for legal obligations. Though initially compelling, this theory later attracted significant criticism on three main grounds:

1. The newly independent countries that emerged post-colonization had not truly consented to all the norms established by the IL system. Yet, they became part of this framework.
2. The theory failed to account for the growth and influence of international organizations and institutions in shaping legal norms within the IL system.
3. The consent theory struggled to address situations where consent was ‘withdrawn,’ as the withdrawal itself constituted a consensual act by the state. But does simple withdrawal entirely nullify the legal significance of previous actions?

These theoretical gaps were later addressed by the ‘consensus theory,’ which modernized and expanded upon the old consent theory. The consensus theory refers to the institution of ‘majority’ in the creation and acceptance of new norms in the international sphere. Consent, while still essential to the system, was transmuted into community acceptance through the mechanism of consensus. This became the basis for obligations within the IL framework.

To conclude, we return to the initial premise: communities long for stability, as history has shown. The larger the scale of operations, the harder it becomes to achieve stability. In a world full of heterogeneous cultures, political ideologies, moral values, economic disparities, and societal differences, reaching common ground becomes a true challenge. IL, therefore, sets a framework that is concrete enough to facilitate negotiations but flexible enough to accommodate diverse interests. With this unique nature, International Law strives for the stability of the international community and aids nation-states in creating a better world.