The Reality of International Law

February 23, 2013

Much of the response to concerns about the legal implications of the U.S.’s use of unmanned drones in programs of targeted killings repeats the refrain that international law is not “real.”  Setting aside the issue of the legality of the targeted drone attacks, the fact is that it is a commonly accepted precept in American law schools that the U.S. has no need to abide by or participate in international conventions. This creates the implication that there is no such thing as “real” international law. However, while international law is not entrenched in the governmental structure of nations, it is important to understand that international law, just as with domestic law, is a system of consent-based governance.  A law is simply a representation of behavior that a particular community deems acceptable or desirable.

Consent-based governance is illustrated by the example of a busy traffic intersection. In this example, the majority of the motorists obey the traffic signals and conform to the law: they go on green and stop on red, even when no police are present to enforce the traffic laws. This consensual conformity to certain types of behavior results in the achievement of common goals: increased safety and order in the intersection. Similarly, the international community operates on this same system of consensual governance, with the goal of achieving an international legal order. States routinely observe international law, even in the absence of enforcement mechanisms or governmental infrastructure.   The international legal system is founded on the ability and willingness of States to abide by norms of accepted behavior, akin to an individual’s willingness to conform to the behavioral expectations of domestic law. 

Thus, the fiction that there is “no such thing” as international law is an unfounded oversimplification of the issue.  The U.S.’s use of drones should accordingly be held to standards of international humanitarian law.