Both sides claim large stakes. Those who defend the binding quality of international law understands that law compliance is not just the consequence of strategic calculation by parties in particular agreement, for example the one establishing the United Nations, that compliance is to be to their advantage. Instead, general compliance reflects most state’s belief that freely incurred obligations should be met. This belief that rule adherence is essential to the existence of an ongoing normative system of relations between sovereign states.
It stems from the value states imbue upon the law’s ability to make interactions predictable. This faith in law’s ability to predict state behavior is the key to its ability to pull nations toward voluntary compliance. And this is true of all law, not just the law of nations. The real power of law to secure systematic compliance does not rest on police enforcement, not even in police states and especially not in ordinary societies and certainly not in the society of nations. Rather, it rests on the general belief of those to whom the law is addressed that they have a stake in the rule of law itself.
Ergo, the law is binding simply because it is the law. This of course is a fragile psychological belief that is hardly verifiable. While, in every community, it constitutes an essential social construct, it is easily deconstructed. If only one were able to ask the bumblebee, with its aerodynamically unviable body-to-wing ratio, how it manages to fly, it might as well fall to the ground. There is, then, a grave responsibility incurred by those who undermine the general belief in the independent capacity of law to affect compliant behavior, even if they directly attack one particularly vulnerable subset of laws.
Take for example, the debate about Article 2(4) of the UN charter. It is not just about whether a universal treaty adhered to by 191 countries is a disposable instrument in the light of serious state interest. It is about weighing power against legitimacy. It is the struggle for the soul of the community of nations. That struggle is waged with the an arsenal of facts and also with perceptions. When a community loses faith in law’s power to restrain and channel conduct, this perception propers the descent into anarchy.
Such loss of faith may indeed by based at least in part, on the perceived prevalence of unlawful behavior on the failure of law to secure consistency of compliance. But instances of non-compliance do not, in themselves prove the inefficacy of the law. Law is never perfectly obeyed. If the Security Council was perfectly capable of exercising its mandate to defend world peace then there would be no need for a “Uniting For Peace” resolution . When intellectual and political leaders speak and act as if unlawful behavior had nullified the law, or demonstrated its “limits” they help create the ensuing anarchy.
Still, it is the perception that law has lost its value, not the unlawful behavior itself, that propels the descent into social chaos. The Charter’s relevance. The U. N. Charter then is of doubtful relevance in a world where international law is only obeyed if there is a related state interest in obeying it. The question of whether the Charter rules have lost determinacy can be addressed only by reference to state practice: the conduct and opinions of a world of states. By recourse to state practice, it can be shown that the U. N. charter is still relevant to the world at large.
Care must be taken in defining the universe of state practice. In matters of usage and perception, the U. S. government can profoundly effect the world’s senses being the world’s only super power and the prerogatives that supposedly entails. Yet the rest of the nations, some two hundred of them may see the rules and acts on them quite differently. For example, the UN Security Council’s persistent refusal to validate the 2003 invasion of Iraq demonstrates most states’ continued reliance on the Charter rules, conduct that does not adhere to any theory of their obsolescence or delegitimation.
There is also value in counting perceptions and usages. For instance, things states do not do or which they say they are not doing, or not saying they are doing, may be as important a gauge of rules’ efficacy as what they actually do. If those who violate the rules are highly visible, the preponderant majority of law abiders is less so. But compliant behavior should count as much as noncompliant, in determining prevalent perceptions and usages. The behavior of the noncompliant also requires close scrutiny.
Professor H. L. A. Hart, although keenly aware of the shortcomings of international law as a system of normative obligations, nevertheless acknowledged that even in this imperfect system, nations behave as if the law were binding; not, he said, by always obeying its strictures but by acknowledging a “general pressure for conformity to the rules .... When the rules are disregarded, it is not on the footing that they are not binding; instead efforts are made to conceal the facts. ”
Hart identified another important, but hidden, indicators of a law’s legitimacy: that those who violate its structure invariable claim not to be doing so. We need to overlook the tribute paid by scofflaws to the law they are breaching. If violators defend their actions either by distorting the law’s meaning or by lying about the facts of their violations, that strategy of denial tells us something. Perhaps it tells us that even the violators think that there is some life left in those rules.