INTERNATIONAL LAW NOT A 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.