The decay of international law: A reappraisal of the limits of legal imagination in international affairs, With a new introduction

Series editors’ foreword to the 2019 edition

First published in 1986, The Decay of International Law? unsettled international legal thought. Ushering in the critical turn of the 1990s in international legal scholarship, Decay was received as a polemical objection to dominant thinking about international law. In Decay, and in contrast to the subsequent critical streams who made Lévi-Strauss, Foucault and members of the Frankfurt School their inspiration and philosophical guides, Carty explicitly rejects post-structuralism as the bedrock of his critique and, instead, develops an external critique of international law that, in his view, takes morality seriously. In that sense, Decay is a trailblazer of critical scholarship which flourished in the 1990s as well as an original intellectual contribution whose insights remain invaluable for the twenty-first-century international lawyer.

The new introduction that accompanies the republication of this seminal work manifests similar sharpness of thought to the 1986 edition, and demonstrates that the critique provided by Decay has lost neither its thrust nor its lustre. Indeed, from the perspective developed in Decay, international law in 2019 is more decadent than ever. As Carty argues in his new introduction, the price of the ‘disaster’ caused by Vattel and his disciples and the consequent hijacking of the concept of the international law by the positivist idea of the State is outrageous. The decadence of international law is apparent in the continuous theoretical poverty of scholarly debates about international law which, even if the world is burning around it, is still practised and discussed as if it needs neither proof nor justification. The decadence remains at work in ‘the monstrous concept of the State as legal person’ as well as the anthropomorphism of international legal thought whereby States are claimed to have both a juridical conscience and inherent rights. This decadence, according to Carty, is exacerbated by the increasing reliance on the ever illusory idea of an international legal community. The new introduction also gives Carty the opportunity to rebut some of the criticisms raised against his 1986 challenge to international law while simultaneously rejecting some of the dominant orientations of contemporary critical thought.

Never anti-legal but always compellingly critical, the claim of the decadence of international law articulated by Carty in Decay still resonates today and should leave no reader indifferent.

Jean d’Aspremont and Iain Scobbie

January 2019

Series editor’s foreword to the 1986 edition

The Melland Schill Fund was established by the will of the late Miss Olive B. Schill in memory of her brother, Melland, who was killed in the 1914–18 war. The present series of Melland Schill Monographs in International Law replaces the earlier series of Melland Schill Lectures, published by the University Press. Miss Schill’s generous bequest was motivated by her wish to contribute to scholarship and learning as they affect the relations of States, in the hope, we may surmise, of increasing the role of law in those relations and of decreasing the likelihood of further devastating armed conflicts.

It is fitting, from this perspective, that Dr Carty agreed to the publication of his present work in the Schill series. For he has attempted a penetrating critique of the methodology of international law as it has come to be understood and accepted by the generality of international lawyers. His concern is for a realisation by international lawyers of the crucial role which they should play in reflecting on the nature and implications of the principles and arguments used by governments and other actors on the international stage.

Dr Carty has written an illuminating and, at times, provocative study of the essential nature of international law and of the deep and largely unacknowledged influences upon its development of legal doctrine and nineteenth-century theories of the State. He maintains that States exist in a state of nature, and that international society lacks a comprehensive legal system defining their mutual rights and duties. Major international issues, including the impact of nationalism, the basis of States’ ‘rights’ to their territory and the nature of their obligations under treaties, have been excluded from true legal analysis by positivist legal method. Lawyers have separated the issues of territory and treaties, on an analogy with national legal concepts of property and contract, and have developed a view of the State as an order of competences, delimited from other such orders by ‘the international legal system’ which the writers posited. In the nineteenth century, international law failed to accept as legally relevant any necessary connection between a territory and its inhabitants. The principle of self-determination of peoples introduced into such a conceptual system produces shock waves and fundamental disturbance.

The basic question posed is whether ‘a frame of meaning resting on the State’ is appropriate for the analysis and normative governance of international relations. Dr Carty confronts the issue, which he sees as a crisis of method in international law, in terms of the role of legal doctrine in the creation and refinement of fundamental concepts of that law. The concepts selected are indeed fundamental: general customary law, territory, treaties, and the principle of non-intervention in the territory or affairs of another State.

The virtual consensus of lawyers that international law is a purely formal framework, with its goals being set by its subjects, the States, from time to time as a matter of voluntary decision, was manifested, according to Dr Carty, in the debate on the concept of jus cogens, or ‘peremptory norms’ of international law, which took place at the Vienna Conference on the Law of Treaties. The lawyers’ role is conventionally regarded as an inquiry into the extent to which legal regulation of a given topic or area has occurred, and the exposition and interpretation of relevant legal rules. The normative study of international relations demands the admission of cultural and ideological factors into this formalistic model. Dr Carty urges international lawyers to reconstruct conflict situations to take account of principles of possible understanding. The appropriate method would be discourse and the development of argument, rather than a search for what he considers the ‘pseudo-objectivity’ of the testing of the legal arguments made by governments against the traditional criteria of general customary law. Arguments about the application of self-determination in the context of disputes relating to the Falkland Islands and to Israel’s invasion of the Lebanon in 1982 are reworked or reconstructed as illustrative examples.

The cherished thought-patterns of international lawyers, with their municipal law training and their acceptance of general custom evidenced by State practice as the ultimate source of international law, are subjected to critical reappraisal. Dr Carty sees the present situation as one in which international law has been marginalised; hence, the title which he has chosen in interrogatory form: The Decay of International Law? He expressly denies that he is denying the legal nature or the existence of international law. It is the international lawyers’ categories of thought which define their reality. We cannot distinguish between ‘the international legal world as it somehow actually exists’ and our way of looking at it. They are one and the same. Dr Carty has sought to test the dominant basic concepts in their own terms and against other possible approaches to international relations. There is provocative meat here for all who profess an interest in and concern for the relations of States and peoples in our troubled world.

Gillian White

Professor of International Law

Director of the Melland Schill Fund

Faculty of Law

University of Manchester

July 1985

Preface to the 1986 edition

This is a study written by an international lawyer for international lawyers. Yet it purports to tackle what are issues of legal theory and their implications for international relations. At every turn I have gone beyond the bounds of my discipline and wandered into areas in which I might expect others to be more competent. Yet I see no alternative, given the deeply problematic quality of the tools with which the international lawyer is supposed to work.

I have not set out to prove that international law does not exist. Such an undertaking is bound to fail because it is too vague. Instead I have tried to take up most of the basic concepts of international law and tried to see how useful they are as a means of analysis of the objects and resolution of the problems to which they appear to refer. My conclusion is that these concepts allow for only a very fragmented and partial view of world society.

The basic concepts of international law are not for such reasons alone invalid, but the task of making them truly viable is no mean one. The way forward is to realise that the tools of what international lawyers consider to be legal analysis have their origin in what the same lawyers regard as legal doctrine. This is not an historical assertion that the origin of what are now seen as practices accepted by States is to be found in old writings. Rather I assume that ways of thinking which now appear arcane can be found to have had some sense when seen in an historical perspective. It should follow that when the legal concepts are understood in their original sense, it might be possible for modern legal theory to develop and adapt them to new situations. This is a course which is as hazardous and problematic as the existing situation. Above all one can hardly expect unanimity among legal writers about how best to proceed. Yet, in my view, there lies the great adventure of international law at the present time. The opportunities and responsibilities for legal reflection are never greater than when legal practice is confused and at sea.

I began work on the nineteenth-century textbook writers on international law when I was in Cambridge from 1969 to 1972. A good part of the argument of chapters 2 and 3 made up the core of my Cambridge Ph.D. While at the Max Planck Institute of International Law in Heidelberg from 1973 to 1975 I reworked these chapters and did the groundwork for chapters 4 and 5. I received the benefit of an Alexander von Humboldt Fellowship while I was there. Chapter 6 is a product of reflection upon my teaching in the University of Glasgow since 1977 and was written in 1981. The last chapter is very largely a response to the encouragement of Gillian White, who has kept prodding me to work out the more positive implications of a general line of argument to which I have myself reacted rather negatively.

It may appear to have taken rather a long time to have written what is quite a short work. Surely one could have poured out volumes on the international law doctrine of the main countries touched upon here – France, Germany, the United States and the United Kingdom. Yet this study is not intended to be a history of nineteenth-century textbook writing. There was a lot of it and one would need much space to reproduce it. I have merely tried to highlight features of the past which appear to me to throw some light on present difficulties. This has meant neglecting many writers who, though very able and reputable at the time, have not contributed, perhaps regrettably so, to the development of the basic concepts with which we try to work at present. Heffter in Germany and Holland in the U.K. are two who spring to my mind. Other writers are, in my view, deservedly neglected. I have done what I could with Mamiani, Halleck, Creasy, Stockton and numerous others in my Ph.D. and would be grateful if I could forever leave them in peace.

Anthony Carty

Glasgow

November 1983

Introduction to the 2019 edition

Decay as unilateralism – fragmentation as the normal

The Decay of International Law has a clear message now, as in 1986, that there is no effective international legal order to restrain the unilateralism of States. The book provides, in quite clear terms, the basic reasons which make unilateralism inevitable. States owe their existence to a matter of historical fact and do not have their statehood conceded to them by a higher authority. Their relations are, in some measure, regulated by treaties, but these do not provide guarantees to cover their existential anxieties, a fact which shows itself in the incessant State declarations that their primary ‘Law’ is the ‘national interest’.¹ It is not just a matter of ‘America First’. It is ‘Israel First’, ‘Britain First’, ‘Russia First’ and so on. The ‘law of the Charter’ (excluding the use of force) is just one more treaty.

Roots of legal fragmentation in the definition of the State

The Decay says it is essential for the discipline of international law to recognise that international society consists of frightened ‘independent States’, embroiled in an anxiety-ridden drive to secure their own existence, while enveloping themselves in the ‘lawfare’ of the valuenihilism which underlies modern legal positivism.²

The roots of this disaster lie already in the subjectivism of Emer de Vattel’s doctrine of the auto-interpretation of treaty obligation, i.e. the sovereign right of states to refuse external judgment of the extent of their obligations. That is to say modern international law is, in its very conception, a unilateralist system bound into the Hobbesian disdain for the idea that there are any objective ethical standards rooted in ‘natural reason’ or natural law. Such language merely expresses the personal preferences of the speaker and amounts to no more than personal abuse.³ Nominalism is nihilism.⁴

The most profound confusion in the conceptual framework of international law surrounds the very concept of the State as a legal person in international law. It is supposed to have a two-dimensional character, as flat as the Earth of medieval Christendom. The State has three elements, government, population and defined territory. Yet there is no actual international law of territory, except for ‘extra European empty spaces’.⁵ Even the law of occupation of ‘territorium nullius’ (occupation of land not owned by a civilised State, whether or not inhabited) was contested in the nineteenth century and remains a source of confusion today.⁶

How could there be an actual law of territory if the existence of every State was a matter of fact? The great nineteenth-century jurists insisted there could be no legally rational justification for the configuration of States. This is the profound meaning of the concept of the State as a fact. Indeed, what is even more anti-human is the governing international-law concept of territorial sovereignty as expressing the jurisdictional competence of so-called State organs to dispose of State territory as simply a space for the exercise of the functions of a state, such as legislative, executive and judicial capacities. These can always be transferred elsewhere through the instrument of a treaty.⁷

International law cannot understand the idea that a territory could be the home of a community of living people, who give themselves representative institutions in order, among other things, to participate in international society. Instead it enunciates, on behalf of existing States, that the principle of self-determination of peoples must never be allowed to disturb the territorial integrity of the State.⁸

The illusory international community resting on customary law

For these reasons The Decay has to deconstruct the illusory fabric of an international legal community supposedly resting in a common consciousness of a customary international law. International law doctrine asks us to imagine that States have a juridical conscience (an opinio juris) which evolves historically, as they become aware of how their repeated conduct reflects a juridical conviction that this conduct is required by Law. This view of international law as rooted finally in custom is an illusion of nineteenth-century legal historicism which was already bankrupt by 1914, with the disintegration of European civilisation in the Great War.⁹

However, it is not enough simply to deconstruct the impossibility of the notion that such conceptual monstrosities as the ‘international law State’ could never have an opinio juris. One has to turn to the whole idea that there is an international legal community, supposedly grounded in the customary law, i.e. the practice of States, which has acquired the character of Law through the legal conviction of the States.

This is the fundamental fiction of legal doctrine which above all marks the utter decay of the discipline. In fact what has happened, as a matter of the history of legal doctrine, is the following. The natural law writers of international law, Vitoria and Grotius, and more recognisably Vattel, made an intellectual construction of Princes, or Nations, in a ‘state of nature’, where continuing traces of humanism allowed them to say that such a ‘state of nature’ accorded Nations (or whatever one wants to call the legal subjects of international law) certain rights – such as independence, equality and respect – and imposed certain restraints such as the obligation to keep promises and to refrain from violating others’ rights through the use of force.

The elaboration of these natural rights of States is what provided the whole structure which international law now has. It could not be extracted from instances of actual State practice.¹⁰ Now what happened next is merely a lecture in the history of jurisprudence. In the course of the nineteenth century, textbook writers of international law decided that natural law or law-of-nature thinking was now out of fashion, that the new way of thinking was to realise that all Law was a product of the organic, historical development of a world community. So now the sovereignty of States, their equality, their independence, their duty to keep their promises, their duty to refrain from violating others’ rights – were all principles and maybe even rules of general customary international law.¹¹

The fundamental mark of this so-called Law was that it was so obvious and self-evident that it did not require any proof and that was why no proof, i.e. State practice as evidence of legal conviction, was offered or needed to be offered. This is the most serious sense in which it has to be said that international legal science is decadent. A rule of general custom is by definition a rule which is generally recognised as so obvious that it does not need any proof at all.¹²

This is to take international legal nonsense even further than Morgenthau did when he showed his contempt for the jurisprudence of the P.C.I.J. He never asserted that it was a peculiar feature of customary law that, by definition, it did not need to be proved. He merely said that anything the judges liked they would call customary law.¹³

Nonetheless, Morgenthau does firmly pin down an even further extreme of legal positivism in his critique of the conceptualisation of international law by his former doctoral supervisor Hans Kelsen. Kelsen was too clever to assert in the 1920s and after that there existed an international legal community as an outcome of an historical situation. Instead, he simply turns all of the substantive propositions of the natural-law school into a legal, hypothetical a priori proposition for the legal validation of legally relevant aspects of international society. One of Kelsen’s conclusions was that the State was a legal fact – that is to say an international legal order conferred on States which satisfied the three elements of doctrine already mentioned, certain marks of sovereignty, certain competences. Indeed, international law was a systemic legal structure which, by its essence, conferred competences among States. It was an order of competences.¹⁴

Morgenthau’s comment on this was quite simple. What empirical evidence was there that such a world order of competences actually existed and could be tested as having the capacity to produce ‘events in the real world’?¹⁵ The same argument from within the international-law community is presented by Arangio-Ruiz. With the latter the ‘conversion’ of natural-law concepts into so-called positive customary law is achieved through the fiction of positing an international legal community, something Vattel had explicitly rejected in his disputations with his mentor Christian Wolff.¹⁶

Of course Kelsen would reply that Morgenthau and Arangio-Ruiz did not understand him. He was speaking only hypothetically. International lawyers could choose to describe the world as he says. Yet he was the first to recognise that they could choose not to. Constitutional lawyers might prefer not to, giving total priority to the national legal systems of their own States, a total subordination of world legal reality to a single national perspective. For Kelsen that was also an option. This would accommodate extreme nationalism, which Kelsen knew to be a reality by the 1920s.¹⁷

Nonetheless the key point is that the so-called principles and rules of international law that Kelsen invokes are the same as those of the traditional natural lawyers. He is merely carrying on a textbook tradition changing the jurisprudential labels supposedly backing up this tradition. He is not adding anything substantive to it which might connect with any social reality in any way, constructive or destructive. And that is intellectual decay.

Are treaties legal or diplomatic instruments?

The false pathways taken in the so-called law of treaties can help to explain again the bewilderment felt at present at the unilateralist denunciation and disregard of treaties in economic, political and military matters. While there is in fact no international constitutional, quasi-federalist (or whatever) order, the law of treaties, above all the Vienna Convention on the Law of Treaties, is premised on the existence of some such order, a law of contracts for States, or as Clive Parry used to say to me, ‘A Cheshire and Fifoot for States’.

It was recognised by Montague Bernard that international law could say nothing about such common events as unjustifiable violence or change of circumstances, writing as the first Chichele Professor of International Law at Oxford in 1868. Nations observe treaties because they are satisfied they ought to, and not because they are commanded by international law.¹⁸ Indeed, Westlake, from Cambridge, put it that the question whether a major political treaty could be rescinded did not admit of a legal solution, ‘because the appreciation of the circumstances on which its true value depended could not be reduced to a rule, but was a question for statesmen’.¹⁹

The classical jurist van Bynkershoek equally recognised that there was no legal compulsion for independent nations to observe treaties. Nonetheless, he observed that the contracts of princes bind in honour, which, when once lost, never returns. So the ‘dictates of good faith and expediency require that international agreements should be observed’.²⁰ Of course they were not in practice, but the principle should remain that only where a prince’s power had evaporated could he be excused from abandoning his pledge.²¹

Yet when one comes to Hersch Lauterpacht, one is faced with the ‘imaginary’ or ‘fantasy’ world of the judge as global legislator. The vital national interests of States vanish in the face of the complete international legal order, where judges can always find municipal law analogies to deal with the contingencies of international affairs.²² E. H. Carr’s critique of Lauterpacht’s The Function of Law in the International Community is that it did not go from showing that any question could be determined by jurists if States wish, to explaining how arbitration could be promoted in a non-institutional system, where political disagreements are basic. As for municipal law analogies, Carr commented that there was no principle of law which enables one to decide whether a municipal law analogy can be applied internationally.²³

For Morgenthau, Lauterpacht’s way of thinking is a very basic example of the failure of liberal political theory’s municipal-law analogy as applied to international power politics. The domestic actors are roughly equal in strength and subordinated to a Statebacked judiciary. International society has subjects widely different in power, in constant rivalry and unstable in the foundations of their power. Discretion is essential to maintain balance, while, of course, a reputation for good faith is an integral part of the conditions for peaceful relations.²⁴

It is part of the intellectual failure of the discipline of international law that its post-1945 leader in Britain never responded effectively, or indeed at all, to Carr. Lauterpacht avoided at the same time any critical consideration of the power-politics dilemmas of the declining British Empire.²⁵ However, recently an extremely important article has been published, which shows that surprisingly little has changed since the middle of the nineteenth century. Donaldson shows how the attempted institutionalisation of treaty practice in the League Covenant and U.N. Charter was tied to the publication of treaties, as a condition for citing them before international bodies. However, States mostly prefer to keep their agreements secret and this calls into question what international law actually is. The very significant practice calls into question ‘the very notion of international law as a knowable corpus of rights and obligations’.²⁶ She quotes Anzilotti, the most famous Italian legal positivist of the early twentieth century, that apart from the obligations of registration of treaties under the League Covenant which gave them a legal character,