The Internationalization of American Domestic Law
For many years, some critics of international law (mostly but not exclusively on the political right) have argued that international law is not "real law" because rulings by international tribunals lack the kind of enforcement mechanisms that one sees within domestic legal systems. If a state or federal court orders defendant Jones to pay plaintiff Smith $100,000 in damages for negligence, Jones must comply. If Jones fails to comply, Smith can obtain a lien on property Jones owns and the government will use force if needed to ensure that Jones pays. By contrast, if Sovereign A is found to have violated an international law duty owed to Sovereign B, no supra-sovereign military or police force will enforce the judgment against a recalcitrant Sovereign A. Sovereign B can resort only to its diplomatic and political remedies.
The foregoing critique is, in my view and in the view of most mainstream scholars of international law, misguided. As a theoretical matter, it appears to rest on Austinian positivism, which defines law as commands backed by force. To my mind, the kind of positivism associated with Kelsen or, even better, Hart, makes more sense. As Hart explained in The Concept of Law, Austin's view doesn't distinguish a legal system from a street gang.
Meanwhile, the skeptical view of international law also relies on a false picture of actual international law practice. International law does not simply apply literally inter nationally, i.e., between nations. Much international law applies to non-state actors who are subject to coercive enforcement mechanisms.
And even taken on its own terms, the skeptical view is mistaken. The absence of an international police force to enforce international law obligations on sovereigns does not mean that nation-states don't comply with international law. There are powerful reasons why they do, at least most of the time.
My late friend, mentor, and co-teacher Louis Henkin (who was arguably the greatest American international law scholar of the second half of the 20th century and the principal architect of modern human rights law) famously wrote: "Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." Even if that was a bit of an exaggeration, Professor Henkin's observation rightly sought to dissolve the sharp dichotomy between international law and domestic law. After all, he and others noted, there is hardly 100 percent compliance with domestic law either.
Despite all of that, I want to grant, at least for the sake of argument, that there is a difference in degree, if not in kind, between international law as directed at sovereigns and domestic law directed at private actors. The key to that difference, however, is not necessarily between international and domestic law but between private and sovereign defendants. And once we recognize that, we can begin to see that insofar as one thinks the international law applicable to sovereigns isn't "real law," domestic law as applied to sovereigns is also not real law. Indeed, domestic law directed at the sovereign may be even less real (in the Austinian/skeptical sense) than international law directed at a sovereign.
If a sovereign state is adjudicated to be in violation of international law, the remedies are typically some form of diplomacy, economic coercion, and in extreme cases, military force. A sufficiently powerful sovereign determined to flout international law can often do so because other sovereigns will not want to risk a mutually devastating military conflict. But at least there's something of a fair fight: the international-law-violating sovereign will be subject to sanctions by other, sometimes more powerful, sovereigns.
By contrast, private actors contesting the legality of a sovereign's conduct can rely only on the good faith of the sovereign to comply. There is no external force to which a citizen suing their government can turn to engage in diplomacy to induce compliance by the government.
That point has long been obvious (if we bothered to notice) in cases in which a citizen sues their government for retrospective damages. In the U.S. (which is the only country I'm interested in for these purposes), such a suit is completely barred by sovereign immunity unless the government chooses to waive such immunity.
Meanwhile, as we are now learning, a citizen suing the U.S. government or a government agent for prospective relief in the form of an injunction is, as a practical matter, also at the mercy of the government. To be sure, statutes like the Administrative Procedure Act (APA), 5 U.S.C. § 702, and the judge-made equitable remedy recognized in Ex Parte Young and clarified as such a judge-made remedy in Armstrong v. Exceptional Child Ctr. provide for the legal ability to sue to enjoin illegal and/or unconstitutional acts by executive branch officials. But that just means that one can go to court and get an order. Neither the APA, Ex Parte Young, nor any other provision of law does or even can function as a means of ensuring executive branch compliance with that court order.
Until very recently, we could nonetheless take comfort from the fact that, notwithstanding the unreality (in an Austinian sense) of domestic law against the sovereign, something like Professor Henkin's observation was true in this setting as well: Almost all presidential administrations comply with almost all of their legal obligations almost all of the time, especially if so ordered by a court.
But while that was a true maxim before 2025, it appears no longer to be. A substantial subset of U.S. law is now unreal.
---Michael C. Dorf