Can International Law Be Called

True Law International Law Essay

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 overemphasizing 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.

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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.

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Disclai

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 selfhelp. 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.