The Secret Life of International Law

Abstract

Let me say at the outset, particularly as this is being recorded, that you will all be disappointed about the ‘secret life’ of international law. It will not be nearly as illuminating as the title suggests. I hope, though, that it will be revealing, not in a classified way, but revealing about some appreciations that I formed over the course of the past five years in the Foreign Office Legal Adviser’s seat. As will become apparent, aspects of what I will be talking about could benefit from greater academic study and consideration. Let me start off with a number of introductory remarks before I get to the meat of the topic. My opening observation, or question, is what constitutes international law as we know it? I do not here refer to Article 38 of the Statute of the International Court of Justice. We all know what this says. The question is rather an enquiry in practical terms about what it is that constitutes the law or legal obligation. It seems tome that in fact there is a rather smaller subset of what constitutes the law and legal obligation than Article 38 of the Statute suggests. In practice, this comprises, first, treaties, namely, the text of the treaties. Second, there are principles of customary international law that have been declared by courts or by other authoritative bodies. By courts I mean both international courts and national courts. By other authoritative bodies, I mean, although with a question mark, bodies such as the treaty monitoring bodies in Geneva. Third, there are binding decisions of the UN Security Council. And fourth, perhaps, although a smaller category, there are binding decisions of other international organisations. In reality, everything else does not constitute law; it constitutes