I’ve noticed that “transnationalism” is trying to change the meaning of international law. Whenever I read a debate over law, I realize we are using two different definitions. I see the laws as a man-made construct that is non-binding and has no moral value.
International Law functions best when it resolves coordination problems, but is usually fails to resolve conflicts of interests. This is why the Laws of Transaction work better than the Laws of War. Laws help cooperation in special cases but are too inflexible to handle conflicts, where diplomacy is more useful.
For starters, International law is not true “law” in the normal sense. Domestic laws are issued by a legitimate government with incentives and sanctions and are enforced through law and order.
International Law is a form of primitive law. The world exists in anarchy so there is no sovereign power to write and enforce laws. States protect their own interests through their own means. Customary practice is the basis of international law. Nearly all the “laws” come from customary practice and state treaties, which function as contracts.
I think only legal positivism is useful in analyzing international laws. Laws must be separate from morality and normative values. So law only regulate what is, not what should be. International laws are man-made, non-binding and changeable, not sacrosanct and eternal.
International Law is really a form of cooperation for certain kinds of iterated distribution problems. solve certain kinds of iterated distribution problems.
Customary Law is based on common, long-term practices of states. The law does not change the behavior of states, it formalizes them to reduce uncertainty. States handle individual disputes through diplomacy. Repeated cases of the same dispute would be too time consuming to repeatedly negotiate. The “Law” of a treaty is really a diplomatic contract between states.
Using this framework, this is why the Law of Transactions is much more reliable and useful than the Laws of War or other laws dealing with conflict.
There are two common interactions between states which allow cooperation: When states have a coincidence of interest and when they have coordination problems.
These are both coordination problems, but it helps to distinguish a slight difference.
Coincidence of Interest
AA: 3, 3
AB: 1, 0
BA: 0, 1
BB: 0, 0
Each state sees a higher value in an A strategy over a B strategy. If they both select A strategies, they benefit even more. This is a coincidence of interest. Neither stands anything to gain by deviating from an A strategy. Without any diplomacy or law, both states will eventually settle on AA. This becomes customary practice. Customary Law formalizes the AA strategy and tells new states they should comply with it rather than experimenting with B strategies. New states quickly realize there is nothing to gain from a B strategy, so self-interest motivates them to A.
AA: 3, 3
AB: 0, 0
BA: 0, 0
BB: 3, 3
States are indifferent between strategies A and B, but will only benefit if they coordinate their strategy with the other states. The problem occurs on the first move – do you know if the other state will pick strategy A or strategy B? If you pick randomly, there is a chance your choices will differ and you both lose. So you negotiation to select A, then remain at strategy A for the duration of the games.
States have self-interest to abide by the terms of the laws of transactions. This means the international law is self-enforcing. That’s why it works – it does not require trust or policing powers.
So here are two concrete examples.
First a coordination problem: States need to use the standard gauges for many technologies. Railroad gauges measure the width of the track and standardized parts for locomotives. If every state created its own independent gauge, trains could not travel beyond their national borders. So corporations and states negotiated and agreed upon standard gauges for railroads, telephones, and other technologies. Very often, corporations decide on the type gauges they will use for business and by-pass their states entirely.
A coincidence of interest problem: Diplomatic immunity. States are obliged to take reasonable steps to protect foreign ambassadors from harm. If there is a dispute between the states, they expel the diplomats back to their home countries instead of taking them hostage. For the longest of time, foreign diplomats were held to ensure protect of your diplomats in that country. If he kills your diplomats, you kill his. Neither of you benefit. Today, states hold foreign property as collateral.
States freely violate international law when interests change. In the above examples, states were drawn to A strategies out of coincidence of interest or through negotiated coordination. What if a new technology is invented to make B strategies more enticing to states?
So for example, the coincidence of interest game breaks down.
AA: 1, 3
AB: 1, 0
BA: 5, 1
BB: 5, 0
State 1 has a very high incentive to use the B strategy instead of A and there is no longer a coincidence of interest. State 1 will freely change strategies and disregard international law and state 2’s protest. Now over time, the technology will spread to other states, so eventually a coincidence of interest will return and settle on a BB strategy (with a payoff of 5, 5) which was better than the original AA.
This just reflects a change in customary practice that deviates from the older practice. Customary laws and treaty laws should never be considered binding. States need to be flexible to pursue their interests. Laws only work so long as they formally recognize these interests.