ELC 2025: Norms All the Way Down by Josh Galperin

We can take international law seriously. Where much international law stands merely as a symbol of international norms but falls short of enforceable law, now domestic law, in the United States, at least, has ceased to have the force of law, putting the two on equal footing. 

If you disagree with my caricature of international law, don’t fret. I don’t really know anything about it. I’m not in a position to make a serious assessment. Indeed, these are the first words I have ever written about international law. If we are to believe AI (and we emphatically should not), GPT 4o says I have never used the word “international” or the phrase “international law” in any of my published work, while Gemeni 2.5 Pro says I have used these terms in combination 121 times, but then gives examples from two articles and a book chapter that I didn’t write and, in fact, none of the three exist. Given that GPT’s response fits with the hook I want for this post, I will accept it as incontrovertible fact. Not only have I never written about international law, I have never even used the words “international law.”

The main reason I’ve never written about international law is there are so many amazing scholars writing in the field that I’ve always felt a bit intimidated (and unneeded). I am dipping my toes into international law today to, admittedly, set up a straw man. In many respects, international law is real, enforceable law, international trade and investor-state dispute settlement mechanisms are a notable example with particular relevance for environmental law. In other respects, international law is softer. In the instances where international law is not strictly enforceable, international law is nevertheless an important institution for developing shared principles and norms.

I will return to the normative capacity of international law, but before I do, I should add that another reason I’ve never written about it is my general sense, however uninformed, that for all international law offers, it does not have the same institutions or expectations for enforcement as domestic law. As Dean Krigis wrote decades ago, the fact that international law is fundamentally different from domestic law has made it the subject of “tiresome” skepticism. But things are changing. I, for one, am coming around to the importance of international law.

You might think I am coming around only in the wake of the International Court of Justice’s Advisory Opinion on the Obligations of States in respect of Climate Change. Perhaps I have been persuaded that international law is flexing its muscles and taking up domestic law’s slack regarding climate change mitigation. I do think this is a watershed development. But that’s not it. 

The reason I’m starting to pay attention to international law is that domestic law no longer carries the weight it once did. Where I might have dismissed international law claiming its value was rooted only in its norm-building capacity, that distinction no longer works because domestic law is now also basically unenforceable.  

The most precise indictment of international law as not “real” law is that international law is often voluntary. An international body like the United Nations can legislate positive legal rules—something as plain and direct as “…the sentence of death shall only be imposed for the most serious crimes…” But, with the arguable exceptions of jus cogens and general principles of law, a state can escape enforcement simply by disclaiming its responsibility under the law. You think we’re violating an international treaty? Well then, we are no longer party to the treaty. Needless to say, this jurisdictional flexibility is not historically available under domestic law. You think I was driving too fast? Well then, I am no longer a party to your speed limit. Unlikely.

In this vein, John Austin famously described international law as law “improperly so called” because international law merely resembles positive law. It cannot be law, Austin argued, because, as sovereigns, states do not have legal power over one another in the same way a state has power over its people. In international law, we may only be speaking about “rules set and enforced by mere opinion, that is, by the opinions and sentiments held or felt by an indeterminate body of men in regard to human conduct.” Austin goes on to critique Fyoder von Martens for even using the term international law. Austin contended that had von Martens “named that department of the science ‘positive international morality,’ the name would have hit its import with perfect precision.” 

Austin’s view is not the last word on this subject. Written in 1885, it was closer to the first and arguments about the realness of law are, in and of themselves, not very helpful. What is important is the focus on moral or value-based agreement as an important and distinctive aspect of governance. Austin devalues it. 

So had I. The voluntariness that permeates international law is not limited only to international dealings, of course. One might find a similar scheme in voluntary private governance regimes. For instance, in my article Governing Environmental Governance, I wrote about the Forest Stewardship Council (FSC), which is a private, multi-lateral, club that sets standards for forest management and allows members to label and market their products as FSC-certified. FSC has a mechanism to handle complaints alleging that participants have not met their obligations. It likewise has an enforcement mechanism when there is a violation. All very well until the club attempts to enforce an apparent violation, as was the case in 2023, when the recalcitrant member simply terminated its affiliation with FSC. After all, FSC establishes “a policy of shared values.” 

Just because a rule is voluntary does not make it valueless. Some policies follow norms and depend on a priori collective agreement. Other policies drive norms, helping to establish and support progress. The ICJ’s climate change opinion may not bind states, but as Judge Tladi implied in his Declaration accompanying the Opinion, the constructive, generative effects of a robust and unanimous advisory opinion are central to the Advisory Opinion’s value. 

Here in the United States, our law no longer even rises to the level of shared values, let alone binding and enforceable commands. And the softening of domestic law is happening across sources of positive law. In late August, for instance, the Trump Administration issued an executive order directing the Department of Justice to prioritize prosecuting people who burn American flags. This despite Texas v. Johnson, Supreme Court precedent directly on point, holding that flag burning is protected speech under the First Amendment. Perhaps, you might say, the Executive Order is tailored to fit within the small gaps, such as incitement of violence, that remain in the wake of Texas v. Johnson, or that a president has the authority to test the boundaries of law and seek opportunities for the Supreme Court to reevaluate past precedent. Both would be plausible rebuttals had the Vice President not explicitly said courts may not second guess the President’s power. And in any case, failing to abide by what is apparently merely a norm of protecting speech and adhering to judicial precedent is hardly the only example of the Administration’s disinterest in judicial orders. In early September, after a court ruled that the President may not use the military to enforce domestic law in American cities, the President’s first response was to announce he was readying to send troops into Chicago. This is the softening of Article III, of judicial power. And for what it is worth, this is not just my critique from the left. Justices Kavanaugh and Gorsuch recently wrote to chastise federal judges whom they believed were ‘defy[ing]” to Supreme Court precedent. 

Then there is the softening of statutory law. Where once Congress made laws that bound the public and the government alike, today the Trump Administration, at least, merely takes Congress’ statutes (and by implication, Article I of the Constitution,) as suggestions. There are now multiple examples of President Trump firing federal officials despite statutory provisions providing those officials tenure protection. Worse still, Congress has established a process for asylum seekers, requiring a review of certain applications, which the Trump government has refused to heed. Congress directs spending on all types of issues, including environmental concerns, and the government refuses to distribute the money. The list of ways federal statutory law is disintegrating continues.

We know that Congress makes law (which the President must follow) and the courts interpret law (orders of which the President must follow) because that’s the structure the Constitution establishes. But, no surprise here, even the Constitution is no longer law properly so called. When a journalist asked President Trump if he was bound by the Constitution, specifically the Due Process Clause, his response was equivocal. “I don’t know,” he said. And why should he know? The Supreme Court has been much harsher with lower courts trying to constrain the President’s—erm—equalization of international law, than it has been with Trump himself. So, we can blame the President’s ego, foolishness, or simple disinterest in our constitutional system, we can blame the Supreme Court for wielding a partisan, ideological cudgel, or we could blame Congress for bowing down to a supreme leader rather than defending its own constitutional authority. It doesn’t really matter where we place the blame because in any case, it solidifies the collapse of enforceable domestic law and in turn it puts international law on a more equal footing. By turning domestic law into voluntary standards, current American politics have undercut the criticism that international law is only norms. Now it’s all norms all the way down.

This is obviously a condemnation of the state of partisan politics and judging in the United States. It is far from the first such critique, so what’s the point? The point is that folks like me, who in the past might have look at something like last summer’s ICJ Advisory Opinion, smiled, and then forgotten about it, now know we should not forget about it. Law is not what it once was, but that’s not all that matters. What also matters is the persuasiveness of reasoning, the generative capacity of articulation, and the ability to change minds, build norms, and in turn build power. Domestic law may have once had a more cutting edge, a more direct power to control behavior. But that is no longer the case. An argument, even my own straw man argument, that international law is somehow lacking no longer works. Both domestic and international law have normative weight, but the normative direction of domestic law is now signaling anarchy and distrust. International law is a beacon of partnership and progress. It may not control our behavior, but it can light a path forward in dark times.

Josh Galperin is an Associate Professor of Law at the Elisabeth Haub School of Law at Pace University.