Is International Law True Law?

Despite the fact that international law is the predominant method for organising an increasingly globalised and complex international community, it has not had an easy time facing sceptics who question its credibility as a legal system which has difficulty in the enforcement of its rules.

Over the past several centuries, states have created legal rules to regulate their conduct in a wide variety of areas ranging from economic transactions to outer space. Nevertheless, international lawyers have to face a recurring question. Is International Law true Law?

For many international lawyers this question has become both old and tiresome. [2] Nevertheless, legal theorists, scholars and practitioners are by no means unified in their response to this question. It is usually those who put the element of force to the forefront of their theories that faces the most difficulties in describing the legal nature of international law due to, what they view, as its lack of a 'coherent, recognised and comprehensive framework of sanctions.'[3]

This viewpoint has been criticised for over-emphasizing the role of sanctions and for confusing the nature of law in society.[4] Others disagree with this viewpoint, as they do believe that international law does possess a system of sanctions and that it can be enforced. Coherent in most corners of the debate is the usage of a framework that compares international law to municipal law. My argument is that without a proper system of enforceable sanctions international law does not exist and therefore cannot be termed ‘true law’.

I will begin by assuming that international law does not in fact own a credible system of sanctions. That assumption made, I will analyse whether this constitutes sufficient grounds on which to negate International Law as ‘true law’ Is it in correct to assume that international law does not possess a credible system of sanctions? The question must be asked, if international law is in custody of a successful enforcement mechanism or not? And is it irrelevant to its nature as a legal system.

Having made this argument, however, it will then be necessary to highlight the characteristics of international law that do deem it "law". Following the example of Hart, let us assume that international law enforcement provisions are few and inadequate.[5] Does this necessarily mean that international law should be denied a legal quality?

John Austin would answer this question in the positive. At the turn of the nineteenth century he constructed a theory of law that required the existence of a sovereign issuing a command backed by a sanction or punishment.[6] As international law was not found to meet this requirement, Austin and his followers considered that it ought to be called "positive international morality" instead.[7]

The important issue when enforcing positive law is who has the power to define an offence, establish whether it has occurred and issue the relevant punishment. It thus stands that a credible system of sanctions starts with an over-riding authority able to issue the sanctions.

In our national legal system the creation and modification of law generally lies with Parliament. Courts determine whether the law has been breeched and police officers enforce the law. This, for international law, provides a problem. Unlike municipal law which has a vertical structure of authority and power, the international community is comprised of a horizontal structure. No state or group of states hold overwhelming authority, rather power is fragmented and dispersed.

Under the process of globalisation, the importance of non-state entities has augmented and it is increasingly difficult to locate a central point of authority or power. This decentralised horizontal structure essentially means that there is no clear authoritative body in international law that can effectively create law, determine breeches and sanction accordingly.[9]

The absence of centrally organised sanctions from the international system as a cause for doubt regarding the general legal status of international law is an issue that H.L.A. Hart has given deliberation to. Hart argues that to view international law as not binding because of its lack of organised sanctions is tacitly to accept Austin's theory of law and obligation.[10]

This theory derives obligation from the notion that to do otherwise would be met with punishment. For Hart, however, this theory does injustice to all legal thought, not only that of international law. He argues that the concepts of obligation and duty are distorted. For Hart there exists an external predictive notion of obligation which indeed does prescribe punishment for failure to obey, but this must be distinguished from the 'internal normative statement 'I have an obligation to act thus' which assesses a particular person's situation from the point of view of rules accepted as guiding standards of behaviour.

For Hart, this distinction is key, as it calls into question the necessity of limiting the normative idea of obligation to rules supported by organised sanctions. Thus he establishes the existence of alternative sources of obligation to obey law other than threatened sanctions.

Again making a comparison between domestic law and international law, one can find another source for the belief that the lack of a sanction system leads to a weaker legal status. This relates to primary rules of obligation. A good example of such is the prohibition of violence in our municipal system. The necessity of such rules in a domestic legal system derives from the need to protect those who have voluntarily submitted themselves to the law from those 'too wicked, too stupid, or too weak to obey the law.'[12]

It seems logical that this would also be needed by the international legal system. However, due to the characteristics of a society of individuals it is far more likely that a system of sanctions may successfully be implemented with relatively small risk and high expectation of success in domestic law. The same cannot be said of the international arena. Although it may be desirable to implement a system of sanctions, the characteristics of the international order do not provide the same assurance of low risk and high efficacy if sanctions were to be used.

Firstly, there is no guarantee that violence between states in the international order will remain solely between the aggressor and the victim, as would be the case with a murder in domestic law, for example.

Secondly, due to the inequality amongst states, there can be no assurance that those in favour of order will have the strength to defeat those professing aggression. 'Hence, the organisation and use of sanctions may involve fearful risks and the threat of them add little to the natural deterrents.'[13]

Furthermore, whilst there may be no doubt that without a police force, burglaries and crimes of the like would take place regularly, the international arena have enjoyed long periods of relatively peaceful relations in between devastating wars. It is therefore questionable if a system of sanctions would serve a useful and enhancing purpose in the international legal system or rather if it would be counterproductive and create more chaos than order.

Fitzmaurice has further more to say on the question of enforcement and its role in making rules legally binding. He agrees that it is often believed that rules of law become binding because of the ability to enforce them. Yet, he argues that this view is clearly incorrect. It is rather the reverse argument that holds. 'The law is not binding because it is enforced: it is enforced because it is already binding.'[14]

Under this view the whole issue of enforcement is raised already having presupposed the existence of a legal obligation. Fitzmaurice raises another interesting point when making a distinction between enforcement and authority. He likens authority to prestige.[15] Akehurst, for example, does not deny that international law is clearly weaker than its municipal counterpart, but, he argues this is not sufficient grounds on which to question its legal status.[16]

So far, I have touched on the theoretical debate as to whether sanctions are a necessary component for a system to be termed ‘True international law’. For simplicity, it was assumed that international law does not have a credible system of sanctions. Yet, this is a claim that must be investigated further.

Oppenheim believed that the existence of enforceability and socially organised sanctions led to the ability to be able to distinguish the international order as a legal order rather than merely a moral order. International law's most "famous" enforcement mechanism is the United Nations Security Council acting under Chapter VII of the UN Charter. The Council is permitted to determine the existence of breaches of the peace, threats to the peace or acts of aggression. Accordingly, the Council may impose economic, diplomatic or military sanctions to solve the situation.[18]

Trade and diplomatic sanctions are slow to work. Moreover, their burden often falls most heavily on ordinary members of society rather than the ruling classes. In large part, The Security Council's resort to the use of force, for example in the case of Iraq's invasion of Kuwait, as a sanctioning method has been deemed quite effective.[19]

However, doubt surrounding the representative nature of the Security Council calls into question its integrity as an enforcement mechanism. International law recognises various enforcement mechanisms short of Chapter VII sanctions.

The most recognised, yet most problematic, is self-help. This involves reprisals against the government that is thought to have breached its legal obligations. The use of force is not a lawful reprisal unless authorised by the Security Council. Lawful mechanisms include economic countermeasures to put pressure on governments to honour their legal duties. Not all measures are unilateral, International and regional organisations have developed procedures that allow pressure to be brought against governments that do not comply with recognised standards of conduct. Multilateral treaties, particularly in the human rights field, require states to report on their compliance and to send representatives to appear before treaty-monitoring bodies to explain how they have complied or why they have not.[20] An important potential enforcement organ of the United Nations is the International Court of Justice.

However, the Court can only function as a decisive organ if the states involved in a dispute have accepted its jurisdiction, either on an ad hoc basis for a particular case or for one or more classes of disputes. It may also be said that there is no guarantee that the decisions of the Court will be carried out and there is no machinery for enforcing them.[21] The most obvious sanction of force is becoming less and less accepted in the international order, although judging by current conflicts such as that in Afghanistan, some members of the international community are more preoccupied with verbally condemning than actually openly criticising such actions. Yet as the use of force becomes more illegitimate it creates the ironic and, in the opinion of Shaw, absurd result that the more force is controlled in international society, the less legal international law becomes.[22]

If I am to reject the theory that international law's is not ‘true law’ due to its lack of a credible system of sanctions then it leaves an obvious question begging. If it is not an effective system of sanctions that makes international law ‘true law’, then what does? As I have already stipulate, d Austin preferred to call "international law" "international positive morality." It therefore remains examine the relationship between international law and morality.

Both morality and law lay down, to a large extent, similar rules for human conduct. Austin's reluctance to apply the notion of "law" to international law without it having a credible system of sanctions can be understood if one takes Oppenheim's view on the distinction of morality and law. Namely that rules of morality can only apply to the conscience, where as even though the rules of the law can apply to the conscience, they also require an external power of enforcement. Moral rules are only required to be enforced by the internal power of the conscience.[23] Harris, on the other hand, argues that it is 'both practically inconvenient and also contrary to the best juristic thought to deny (international law) its legal character.[24]

The inconvenience stems from the fact that if international law is merely international morality, confusion is created when attempting to discern the difference between "international law" and admittedly other moral standards that are used to characterise the "rightness" of states' conduct.

For example, Harris expounds the situation of a state realising an injurious act on another that does not run contrary to international law. Despite the fact that the act may be permitted by international law, we still do not deem the act "right".

Furthermore, Harris points to the insistence of theorists not to discern between international law and morality as pedantic. This is due to the fact that questions of law are habitually treated as legal questions. This is true in the case of national and international courts and in judicial and proceedings. It is also illustrated by states continual practice of shrouding their behaviour in terms of legal rules rather than moral rules. When an alleged breach of international law takes place, the party rarely attempts to defend itself in terms of the moral virtue of its actions, but rather by attempting to prove that it has broken no rules.[25]

Conclusion

I am more inclined to be on the side of the theorists who question international law as ‘true law’. International law can only work if there are sanctions that can be enforced on the international stage. The lack of an authoritative figure to police such sanctions leads me to conclude and in accordance with the above arguments, that international law is indeed, not ‘true law’ at all.

[1] Anthony C. Arend and Robert J. Beck, International Law and the Use of Force, (Routledge: London & New York, 1993) p. 4

[2] Frederic L. Kirgis, Jr., 'Enforcing International Law', ASILInsights.

[3] Shaw, Malcolm N. Shaw, International Law 4th Edition, (Cambridge University Press: Cambridge, 1997) p. 5

[4] Ibid.

[5] H.L.A. Hart, The Concept of Law 2nd Edition, p. 217 Hart takes it that 'neither Article 16 of the Covenant of the League of Nations nor Chapter VII of the United Nations Charter introduced into international law anything which can be equated with the sanctions of municipal law.' Furthermore, he assumes that the law enforcement provisions of the Charter are likely to be paralysed by the veto and must be said to exist only on paper.

[6] Shaw

[7] Henry Sidgwick, 'The Elements of Politics: International Law and Morality'

[9] Ian Brownlie, Principles of Public International Law.

[10] Hart.

[14] Fitzmaurice, 'The Foundations of the Authority of International Law and the Problem of Enforcement.

[16] Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th Revised Version, (Routledge: London & New York, 1997) p. 7 (online)

[17] D.J. Harris, Cases and Materials on International Law

[18] Frederic L. Kirgis

[21] Fitzmaurice

[22] Shaw

[23] (Ed.) H. Lauterpacht, International Law: A Treatise by L. Oppenheim (ONLINE)

[24] Harris.