x INTERNATIONAL LAW “Tue idea of a union of primary and secondary rules to whieh 1 important « place has been assigned an this book may be regarded as a mean between jursic extremes. For legal theory fas sought the key tothe understanding oflaw sometimes i the simple idea ofan order backed by thrests and sometimes in the Complex idea of morality. With both of these law has certainly ‘any affinities and connexions; yer, as we have seen, theres & Ferennial danger of exaggerasing these and of obscuring the {pecial features which distinguish law from other means of {Deal control, Its a vstue of the idea which we have taken ae fentral shat it permite us to see the multiple relasonships Eetween law, coereion, and morality for what they are, nd to consider afresh im what, If any, sense these are necessary "Though the idea of the union of primary and secondary rules bar there virtues and though twould accord vath usage to treat ‘ie existence of thie characteristic union of rules asa suficent Condition for the application of the expresion “legal system, ‘ve have not claimed that the word ‘law’ must be defined in ts tums, Its because we make no such claim %0 identify or ‘ogulate in this way the ute of words like law" oF ‘legal, that tis book is offered as an elucidation of the concept of lave, father than a definition of Taw which might natorally be expected 10 provide a rule or rules for the use of these expressions. Con Eoatly with thir aim, we invertigsted, m the last chapter, the Claim madein the German eases, thatthe uitleof valid law should be withheld from certain rules on account of their moral sosquity, even though they belonged to an existing system of ‘primary and secondary rules. In the end we rejected this claim but we did so, not because it conflicted with te view that rales ging o such a system mut be called ‘law’, nor because it conflicted with the weight of Usage, Instvad we enticized the ‘tempt to narrow the clats of valid laws by the extrusion of \ INTERNATIONAL LAW 0 Seer nema ee fone ‘examination to be adequate, " ae “ina wn eae et te expresion ‘aw bere, the absence of sn interstansl legislators, cours with compulsory Juratcdon, and centrally breasts fla teonsts, The absence of teense means Argoable, ss we stall show, cht interaona law nt ont lacks eee han i ie gee Sonne aie Suita teliten aneereme te Se Cee Seog ie thaentndieherama EeINTERNATIONAL Law clear and well knw, the only question t be settled i whether ‘We should observe the existing convention or depart from i; nd this isa mater for each person to sete for himself. Bat {his shore way withthe question i surely too short, Its true that among the reasons which have led theorist hesitate over ‘theextenson ofthe word ‘lato international law, ato simple, snd indeed absurd view, of what juries the application ofthe ime word to many diferent things has played tome part. The ‘variety of types of principle which commonly guide the exten- sion of general clasifjing trms has too often been ignored in jurisprudence, Nonethelem, the sources of doubt about inter- rational law are deeper, and more iacersting than these mi tsken views about the ue of words, Moreover, the tvo alterna tives offered by this short way with the question (Shall we observe the existing convention oF shall we depart from i) fase not exhaustive; fr, odes them, here is the alternative of ‘aking explicit and examining the peinipls that have i fact ‘alded the exating wage. “The short way suggested would sndeed be appropriate if we were desing with a proper name. If someone were £0 atk “whether the pace called "London? i aly London, al we could 4b would be to remind him of the convention and leave him to ‘hide by i or choote another name to suit his ate It would be absurd, ia auch a eat, to ask on what prineple London was 50 talled and whether this principle wat acceprble. This would bbe absurd because, whereas the allotment of proper names rest cniy on an ad foe convention, the extension ofthe general terms ot any serous dicpline ts never without ts priniple oF atonale, though may not be obvious what that When 3s in the present cate the extension is queried by those wi 10 effect say, "We know that i i called lay, but ii really law?” ‘wsat is demandes™no doubt abscurey—is thatthe principle bbe made explicit and its credential inspected, We shail consider two prncipal sures of doubt concern the legal character of international law ad, with them, the eps Which theonsts have taten to mect thete doubss. Both formsofdoubtanse from an adverse compartion ofimternational law with municipal lav, seh i taken as the clear, standard cuample of what law i ‘The ist hast roots deep in the con- ‘ception of aw as fundamentally 2 matter of orders backed by N\ \ threats and contrasts the character of the rs of international Jaw with thote of municipal law. The second form of doubt spring om the obser bel tht states are fndamently incapable of being the subjects of legal obligation, and contrast ‘he character of the jet of international law with those of | ‘municipal lave ‘The doubis which we shall consider are often expremed in the opening chapters of books on intemations law in the form ‘tthe question Hw cam inteatonal law be binding? Yet tre ss something very confusing in this frvourte form of Gestion; and Beare we cam deal wih ft we mus fe a prior Ghestion to which the anywer is by no mean clear, Tht rior question 8: what i meant by saying of whole sytem of [Eve diac io binding”? The satemnent that a partetlar rule t's mater binding on a particular person is One friar to lawyer and tolerabiy clear im meaning. We may paraphrase Dy ie steruon thatthe rule in question ia valid rule, and tinder ithe penn sn quetion hat some obligation or ty FBsids thi, thee are some stations in wich more genera ‘Natementy of this form are made, We may be dubia in Certain circumstances whether one legal system or another Spplcs to a particular penon. Such doubt may arse in the ‘hace of awa or im public international Ine. We may ask, in the former eave, whether French or Engh Law is binding on 2 particular peton a sogarde a particular transaction, and in the Inter cate we may ask whether the inhabitant of for ample, enemyoceupied Belgium, were bound by what the {led goverment cated was Belgln law orby the ordinances Stine eccupying power ur in both these ete, the questions Ste questons of law which arse akin some system of law {euueipal or interationa) and are ete by ference to the ble or proncipis of tht system. They do not callin question te punted caarocter ef tre ss, at only tr ope or Spplcabty in given cireymstanees 10 pareular penne oF 2Risactons Plaity the queswon,sintemationa la binding?” Snd i congeners “How can interasoonal law be binding?” or ‘What males interatonal law binding? are quetions of a differentonder They express doubt not about the applicability,5 INTERNATIONAL LAW ‘vat about the general legal status of intemational laws this dost would be more candidly exprese in the form “Gah such rales as these be meaningfully and teufily sid ever fo give ze to obligations?” AS the dlcunions inthe bools show, one source of doubt on this point fk simply the absence fom the dystem of centrally organized sanctions, This i one point of ‘vers eomparson with municipal lw heres of which are taken to be unquesdonsby “binding” and to be paradigms of Irgal obligation Prom this stage the frthe argument s spe {for this reason the rules of ntemasonal law are not binding, {cs surely indefensole to take seriously thet clsifcaton st ts; for however ‘olerant th modes of common speech may be, this i too great a difeence tobe ovrioked. Al specusion About the ature of law begins fom the sasumpion that Cunence a least mates certain conduct obligatory. Tn considenng this argument we shall give tthe benefit of every doubs concerning the fat of the tematonal tem ‘Ve shall ake 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 con bs equated with the sanctions of musicpal lw Insite ofthe ‘Korean war and of whatever moral may be drswa fom the Suez incident, we shall suppose that, whenever thelr ue of iesportance, the lw enforcement provinons of the Charter are liely to be paralysed by the velo and must be aid 1 ext only on paper “To argue that international law not binding because of is Jack of organized sancdons is taily wo accept the ana Of hligauon contained in the theory that law i exentally a ‘matter of orders backed by threats This theory, as we have ‘een, identies‘havang an obligation” or ‘being bound with “Tel to suffer the sanction oF punishment treatened for dlnebedience’ Yet, a we have argued, thie identification die {ove the nal plod sl ege tought and acoso te ‘dea of obligadon and duty: Even in munidpal law woere there are fective organized sanctons, we aust disngsty forthe variety of rezone given in Chapter IT, the meaning of the external preditve statement ‘I (Jou) are likely 1 ser for disobedience’ Gom the itemal normative tatement *T (you) have an obligation to ac thus whch asta particular INTERNATIONAL LAW a ‘pron’ situation from the point of view of rules accepted at siding standards of behaviour. Its tre that not all rules give ‘se to obligations or duties; and itis also true thatthe ruler ‘which do ao generally cll for some sacice of private interert, and are generally supported by serious demands for conformity and inssteteniuesm of deviations, Yet once we ice ourselves ‘rom the predictive analysis and sts parent conception of law as exsentlly an order backed by threats there secs ho good reason for limiting the normative idea of obligation to ules supported by organized sanctions ‘Wert, however, consider anather form ofthe argument, more plausible because i 42 not commited to definition of obligation in tem of the likelihood of threatened sanctions, ‘The septic may point out that there are in a munieipal system, ss we have ourselves strewed, certs proviions which. are Justifably called necesary; among these are pena rules of ‘bligauon, prohibiting the ffee use of lence, and Pes peo- viding for theofficial use of force at a sanction for these and ‘ther rules. If such rules and organized sanctions supporting ‘them azein this sense necesiary for tmuniipal law, are they not equally so for international nw? That they are tay be male {Bined ynthoutinsstng that this fllows fom the very meanng of words lie “binding” or ‘obligation The answer to the argument in this form isto be found in those elementary truths about human beings and their environ ment which cnstitate the enduring pychologcal and physical Setung of municipal law. In societies of indviduals,approx- rately equal in physical stength and vulnerability, papsical Sanetons ae both necesrary and posible, They are required in order that those who would voluntarily submit to the to straints of law shall not be mere victims of malefactors who ‘would, inthe absence of such sanctions, reap the advantages of Fespect for law on the part of other, without Utctnseven. Anson ideas ving in close promi v elt other, opportunites for injuring others, by gue if n0t by open attack, are so great, and the chances of exape so considerable, that no mere nataral deterrents could in any but the simplest forms of socty be adequate to restrain those too Wicked, too stupid or woo weak w obey the law. Yet, Beaute of the same fact of approximate equality and the patent advantages ofsubmission to a system of restraints, no combination of male- factors i likely to exceed in strength those who would volun cirily co-operate in its maintenance. In these circumstances, which conrutute the background of municipal law, sanctions yhay succesfully be used against malefactors with relatively small risks, and the threat of them will add much to whstever natural deterrents there may be. But, just because the ample tuulsme which hold good for individuals do not hold good for eater, and the factual background to international Iaw is 50 ferent from that of municipal law, there ie nether 8 similar frcesity for sanctions (desrable though it may be that inter- hhational law should be supported by them) nor a similar prospect of their safe and efficacious we, This is 40 because aggression between states is very unlike that between individuals. The use of violence between states ‘must be public, and though thereis no international police force, there can be very little certanty that st will remain a matter between aggresior and vem. as a murder or theft, in the atence of a police force, might. To inate a war is, even for the strongest power, 10 risk much for an outcome” which 1s rately predictable with reazonable confidence. On the other hhand, because of the inequality of states, there can be no standing assurance that the combined strength of those on the Sle of international order 1s Ikely to preponderate over the ‘eowers tempted to aggression. Hence the organization and ute Of sanctions may involve fearfl risks and the threat of them ‘ac litle to the natural deterrents, Against this very diferent background of fact, international law has developed in a form different ffem that of municipal law. Ina population of = modem state, if there were no organized repression and Punishment of erime, violence and theft would be hourly Expected; but for states, long years of peace have intervened between disastrous wars. These years of peace are only ration= sly to be expected, given the rake and ctakee of war and the ‘mutual needs of sates; but they are worth regulating by rules differ from those of municipal law in (among other things) ‘ct providing for their enforcement by any central organ. Yet ‘what these rules require is thought and spoken of as obligatory; there is general pressure for conformity tothe rules; claims and ‘admisions are based on them and their breach is held INTERNATIONAL LAW a Justify not only insistent demands for compensation, but re- Drsals and countermeasures. When the rules are disregarded, {tis not on the footing that they are not binding; instead efforts are made to conceal the facts. It may ofcourse be said that such fules are eficacious only so far ax they concern istues over ‘which states are unwilling to fight. This may be so, and may reflect adversely onthe importance of the system and its value to humanity. Yet that even co much may be secured shows that no simple deduction can be made from the necessity of or- {ganized sanctions to municipal law, in sts secung of physieal find prychological facts, to the conclusion that without them ‘mtemational law, in its very different setting, imposes no obligations s not ‘binding’ and so not worth the title of ‘aw’. 9. OBLIGATION AND THE SOVEREIONTY OF STATES Great Britain, Belgium, Greece, Soviet Russia have rights and obligations under international! Inw and #0 are among ite, subject, They are random examples of tates which the layman, ‘would think of as independent and the lawyer would recognize 1 ‘sovereign’. One ofthe most perssent sources of perplexity ‘out the obligatory character of international law has been the dificult felt in accepting or explaining the fact that a sate ‘which is sovereign may also be ‘bound!’ by, or have an obliga- tion under, international law. This form of soepticism is in a renee, more extreme than the objection that international law {snot binding because it lacks sanctions. For whereas that would bemet ine day itematinal lw were enced by a sytem of sanction, the present objection is based on a radical inc Sstency, ald or flo exit inthe conception of a state which 1 at once sovereign and subject to lave. Examination of this objection involves a scrutiny of the notion of sovereignty, applied not to a legislature or to some Scher element oF pareon within a state, fit to A entn il Whence he wor sovereign’ appears in jusiradencs thre ts tendency to asfocirte with i tse idea ofa person above the Taw whose word is law for his inferiors or subjects. We have seen in the eatly chapters of thit book how bad a guide this seductive notion isto the structure of municipal legal system; but it hae been an even more potent source of confusion in the6 INTERNATIONAL LAW theory of international law. Its, of course, possible think of ‘state along such lines, as if it were a species of Superman— Being inherently lawless but the source of law for its subjects TFrom the sixteenth century onvrards, the symbolical identifica. tion of state and monarch (‘L'état est maf’) may have en couraged this idea which has been the dubious inspiration of touch political at well as legal theory. But itis important fr the \underetanding of international Inw to shake off these asocia- tions. The expression ‘a sate’ 4s not the name of some person cr thing inherently or by nature’ outside the law; ite 3 way cf referring to two facts: fist, that a population inhabiting & ‘emitory lives under that form of ordered government provided by a legal system wath its characterisuc structure of legislature, courts, and primary rules: and, secondly, thatthe government enjoys a vaguely defined degree of independence. "The word ‘state’ hat certaily ts own large area of vagueness beut what has been sad will fice to display ts central meaning, States such as Great Britain oF Brazil, the United States or Taly, again to take random example, possess a very large rieasure of independence from both legal and factual contro! by any authorities or persons outside their borders, and would rink as ‘sovereign states’ in international law. On the other hand, individual states which are members ofa federal union, stich as the United States, are subject in many different ways 1 the authority and control of the federal goverament and constitution. Yet the independence which even these federated states retain is large if we compare i with the position, say, of fan English county, of which the word ‘state! would not be wied at al. A county may have a local council discharging, for its area, some of the functions of a legislature, but its meagre powers are subordinate to those of Parliament and, except in Certain minor respects, the area of the county is subject tothe same laws and government as the ret of the country. Between these extremes there are many different types and degrees of dependence (and so of independence) between ‘ezrtorial unis which posess an ordered government. Colonie, rotectorates, suzerainties, trust terntories, confederation, ‘resent fascinating problems of clasification from this point of iow. In most cases the dependence of one unit on another is ‘expressed in legal forms, x0 that what is law in the teritory of INTERNATIONAL LAW aa the dependent uni wil atleast on certain ies imately ‘depend on law-making operations in the othe. in some cass, however, the legal system ofthe dependent terstory may not reflec its dependence. This may bes ether because itis merely formally independent and the testy 1 in fact governed, through puppet, fom outides or may be so because te dependent territory has areal autonomy Over 4 internal but nt its external afr and i dependence on ‘other country in external affairs dors nat ree expresion 5 part afte domestic law. Dependence of one ternoval unit fon another in these various waye 0%, however the only form In which ts independence may be limited. The lining factor ray be not the power or authority of another sich unt, but nimtematonal authority afecung units which are lle tee pendent ofeach other. Ta pombe to imagine many diferent forms of intematonal authonty and coreapondingly many eilferentlimxatons on the independence of sates. The poss bias inciud, among many other, 2 wold legatre on the rmodel ofthe Brush Parliament, posing legally ualiited powers to regulate the ternal and enteral af of ally a federal legaiature on the model of Congres, with legal com: ‘etence only over specified matters or on inited by guarantees {Srapenfe rights of the conseuent units; a regime in which the ‘nly form of legal contol cosa of rules generally accepted ‘applicable tall and nally a régime in which the only forma of obligation recognized is contractual or semposed, s0 that 4 Hates independence is legally limited only by it own act. ‘em salutary to consider this range of pombe becaute amerely to realize that there are masy posible forms and egrets of dependence and independence, u a sep towards niwering the claim that beatae mates are soverign they ‘cama’ be subject to or bound by international lwo‘ only bbe bound by tome specific form of international law. For the word ‘sovereign’ means here no more than ‘independent’ and, Te te Tater, s negative i frees soveraiga Sates one mal subject 10 certain fyper of contol, and it averigny is that area of conduct in which itis autonomous. Some moasare of autonomy is imported, as we have sen, by the very meaning ‘ofthe word state but the contenuon that his nas? be unlimited or ca only be limited by certain typesof obligations at bert thea8 INTERNATIONAL LAW aserton of a claim that states ought to be fice of all other Festrints, and at wort is an nressoned dogma. For if infact ‘ve find that there exists among sates a given form of iner= ational authonty, the sovereignty of stats i t0 that extent Timited, and it has just that exeat which the rules allow. ence we an oly ow which sates evry adie ‘he extont of thes sovereignty i, wien we know what the rles Ses jst a2 we can only Eno whether an Englihman or an ‘Ametican sree and the extent of his eedom when we Kaow ‘what English or American law i; The rules ofinteraatonal law 4re indeed vague and conflicting on many points, so that doabt bout the ares of independence left to rats if greater than ‘at concetning the ettent of citizens freedom under man Cipal law. Nonetheles, there eiicultis do not validate the prom argument which attempts to. deduce the general Character of international law from an. abyolute sovereignty, ‘which ir assumed, without reference to international law, 10 belong to states, Tes worth observing that an uncritical use of the idea of sovereignty har spread similar confusion in the theory both of ‘monica and Ttemnational law, and demands in both = flar corective. Under it influence, we are led to believe that there matin every municipal legal system be a sovereign legulator subject tno legal imitations; june aa we ae led to Gelieve that international law must be of a certain character Because states are sovereign and incapable of legal imitation Save by themselves, In both cases, belie in the necessary ex tence of the legally unlimated sovereign prejudges © quesuon srhich we can only antwer when we exannine the actual rule. ‘Fhe quesuon for muntipal lw ie what a the exent of the supreme legulauve autbonty recognized in ths nyt? For "iernational law ici: what ls he maximum area of autonomy which the rls allow to states? "Tho the simple enowrer to the present sbjetion i chat st saver the order in which questions mst be considered. There is no way of Inowing what sovereignty sates have tl we know what the forme of international law are and whether or mot hey dre mere empty forms, Much jurstc debate has been confed because this principle has becn agnored, and ies profitable to consider i ight those theories internationa aw which are known as ‘voluntaris” or theones of ‘auto-imitation’. ‘These attempted to reconcile the (absolute) sovereignty of states with ‘theexistence of binding rules of international law, by treating al international obligation as selPimpoced ike the obligation which ‘ries from a promise, Such theories are infact the counterpart {in international law of the socal contract theories of political Science. The latter sought to explain the facts that individvals, ‘naturally free and independent, were yet bound by municipal law, by treating the obligation fo obey the law as one arising fom a contract which those bound had made with each other, ‘and in some cates with their rulers, We shall not contider here the wellknown objections to ths theory when taken Literally, hor its value when taken merely as an illaminating analogy Tnstead we shall draw from its history a threefold argument ‘aguinst che voluntarietcheoris of international Lar. ‘iret, theve theories fail completely to explain how it is known that states ‘an’ only be bound by selimposed obligations, or why this view of theisovereignty should be accepted, in advance of any examination ofthe actual character of international law Te there anything more to supports besides the fact that it har ‘often been repeated? Secondly, there is something incoherent jn the argument designed to show that states, because of their sovereignty, can only be subject to or bound by rules which they have imposed upon themselves. In tome very extreme forms of “autorliitation” theory, a stat’s agreement oF treaty engage- iments are treated as mete declarations of its proposed fotere conduct, and failure to perform is not considered t be a breach ‘of any obligation. This, though very much at variance with the facts, hae at least the merit of consistency: tis the simple theory that’ the absolute sovereignty of states is inconsistent with obligation of any kind, s:that, like Parliament, a state cannot bind utself: The less extreme view that a sate may impose obligations on itself by promise, agreement, or treaty is ot, however content with the theory that stata are sect only to rules which they have thus smposed on themselves. For in lorder that words, spoken or written, should sa certain eircum- stances function 28 & promise, agreement, or teaty, and so give rise to obligations and confer nights which others may claim, rules mast already exist providing that a state is bound to do ‘whatever it undertakes by appropriate words to do, Such rues | | | | | |0 INTERNATIONAL LAW presupposed in the very notion of a selfimpoted obligation Sbviosiy cannot dense thar obligatory satus from a self Smaposed oblguion to abey them. Tis tue that every specif ation which a given state was bound to-do might in theory derive is obligatory character ffom a promise; sone the lest this could ony be the casei the rae that promises, cy erate obligation is applicable t the Sate independently of any promises Im any tue, whether composed ofnaividuas or statey what is necty and ule lent sn order at the words of promise, agree net, or realy Should give rset obligations that sels providing for tht slings ety te ely pens ould be generally, though they need not be urivewaly SShoviigeds Wher they are acknowledged he ned ar state who watngly ass these procedures ie bound thereby, Sihether he oe choces tobe bound or not. Hence oven th ‘host voluntary form of foil obligation involves tome rule Which are binding fadependenly of the choke ofthe party Bound by chem, and thy in the case of sates, incosient wth the suppoiion that their sovercgnty demand feecom Som all sch rales Thirdly there are the fats. We must distinguish the 4 pit slam jus encaed, that sas cer only be bound by se ‘pont obligations, rm the eas tat though they cold be Down! n oer ways under iferent stem in fact no other frm of bligauon for statca exit under the present ales ‘ternational law Ti of eours, posible thas he system might be one of ts whlly consensual orm, and both seers and repudiation of his view ofits character are to be found inthe Crating ofjunss inte opinions ofjudgen, even fiaternatonal vourts, and inthe declarations of sates. Only a depasionate rv ofthe seta pracee of states can show whethes this ‘iwi correct o ot Tare that modern iteration Ia Nery largely weaty law and cabornte steps hve ben ade {oshow that rules which appear to be banding on wate waout their por eaasent doin fet ret om consents though this may have been given only tacty or has tobe infered. Though not all are Beton, some atleast ofthese attempt to rele te the forms of tnteradonal obligation exci the same su icon ae the nouon ofa “ace command’ whith, at we have seen, was designed to perform similar, though more obviouly surlons, implication of municipal aw. A deed ertny ofthe csi that i ntemationa bliga- tion aries from the consent af the party bound, cannot oe undertaken her, but two clear and important ekg oo ths doctrine mut be noticed. he fin the tae chases eae Tehas never been doubied that wien now; independent sate merges into cxstence, asd rag in tgp and Tesla regi, 2's bound by the general obligations cf intematonal Soy including, among other, the rele that gve nding fre sce ae te auempe i et eae vate eae obligations ona ci” o inferred consent sea walytend, bare The second casei hat ofa state aequsing tatoo undergoing some other change, which brings iy te ae time, the incdence of ebigatons under rls which presouy Sela no cpportuniy ether to obuerve or beak, and te wed it had no oeeason to give or wth coment Ira race pe osly without acca to the sen, acquires martin terion, 33 lear that hss enough so make it abject lle Tule of international law relating tothe teviteral wuts nad the Sigh es, Besides the, there are more debatable cacy ly resung to deflect on now pares of general or mule treats but thee two important enceptars ee castsh wo Jey the suspicion that she general hens tat alas ened ‘blgtion is seltimposed hs been snopred by too mh a, Strat dogma ano ile espest or fe faa 4. INTERNATIONAL LAW AND MORALITY In Ghapter V we considered the simple form of sociat structure which consists of prmary rules of obligation slone, and we saw that, forall but the smallest mort uightly kat and ssolated soctenes, it suffered from grave defects, Such a régime ‘must be static ts rules altering only by the siow processes of ‘growth and decay; the identification of the rales must be ene certain: and the ascertainment of the fact of their violation in particular cates, and the application oftocial prestre to offen ers must be haphazard, tune-wasting, and week, We found 1 ‘Mluminating to conceive the secondary rules of recognition, change, and adjudication characteristic of municipal Iaw ay different though related remedies for these different defects{In form, international law resembles such a régime of pri nary rales, even though the content of ts often elaborate rales {re very unlike show of a primitive society, and many ofits concepts, methods, and techniques are the same as those of tnodern municipal la, Very often jarsts have thought that hese formal diferences between snrestonal and municipal lay can best be expresed by casting the former as“morality” ‘Yew scem clear that to marc the diferencia this way 3 to sovste confusion. Sometimes insistence that the rales governing the relations vecween stat af only moral rl, ape by the old Alogmatin, that any form of socal structure that not Te: {UEblc to orders bucked by threats can only be a form of “morality, Tein of course, posible to use the Word “morality” in this very comprehensive way; 30 used, i provides a concep- tual wastepaper basket into which will go the rules of games hts, eaquete, the fundamental provizont of constituonal Ii and international law, together with rules and principles “hich we ordinarily think of x moral ones, suchas the common Jrohibiuon of eructy, dihonesty, ot ing. The objection to {his procedare is that between what is tus cased together 28 morality there are such important differences of hoth form and soul function that no conceivable purpose, practical or theore~ “eal, could be served by 20 erade a clasfeation. Within the ntegory of morality thus arfilly widened, we should have fb yoarh out are the old dirinevong whieh blur. In te parucule cae ofinternationa law there area number of dierent ceasons for rexsting the classification oft rules as Sinorliy The fate that sates often reproach each other for Jinmoral conductor praise themssives or others for ving wp to the standard of international morality. No doubt ow of che ‘tues which rates may show or filo show is that of abiding Uy ternational law, but that does not mnn that that TA It morality. In fact the appraisal of states conduct in terms of Iorality ss recognizably diferent from the formulation of Caims, demands, and the acknowledgemens of ight and ‘obligations under the rues of intematonal law. 1a Chapter V Sve lined certain fetuzes which might be taken as defining ‘haractersuc of weal morality: among chem was the dstine= tve form of moral presure by which moral rules are primarily INTERNATIONAL LAW a sspported, This consists not of appeals t far or treas of Fetlaton or demands fr compensation, but of appeal {0 Conscience, made in the expectation that once the pron a. dened teminded ofthe merl principle at sake, he may be Jed by gut or shame to eapect and ae amen (i nr item a not coed mk {eras though of eure an icp iw they may borne ‘oth & mal appeal" What predomnats in he Spinone hte techneay, which sates dren to each ther cue apls ‘matters of interatonal lav, are references to prececens {teats and jure wings? often no meaton i made of moral Fight or wrong, good of bud Hence the claim tac the Peng Goverument has or has nt right onder mernaona owt expel the Navonlist fore rom Formoe very afferent Rom the question whether this is fas, jus, ora morally good or bad {hing to do, ands backed by characienstally deren tga ‘ments. No doubt in the relaons between tates thee are Bale ‘way houses between what i clealy law and what clan Ihorality, analogous wo the standards of poltenes and courtesy Fecopmed in private lie. Such vs the tphere af international ‘comity’ exemplified ii the privilege extended to diplomate voy of recving goed nvended for peronal we ese ty. "Atmore important ground of citncton w the flowing The es of international alike those of muna law, ar oes orally quite indiferent A'rule may exit Because it's come Yenient or necasay to have trae seer fed rule about oe Sunjects with which sti concerned, but not Because any ‘oral imporiace is attached tothe parca ale, rma well ‘be but one ofatarge numberof posible rules any oe of hich vwould have done equally wel” Hence legal ruley musical {nd international, commdaly contin sch pei deta a draw arbitrary disunetions, which would be unmtligile x elements in moral rules prneplon tb rw hate sport fot be dogmatic about the posible content of toca! morality: ts wesw in Chapter V the morality of socal group may eos: {ain much by way of junction which tay appear abeued of Supentiion when viewed in the light of node knowledge. So'w i poutbl, though diets 0 imagine tat men we general Dll very diferent from ours, might come to attach mmr importance to driving on the let astea ofthe right ofthe4 INTERNATIONAL LAW road oF could come to fel moral guilt f they broke a promise ‘vatnessed by two witnese, but no such guile it was witnesed ty one. Thoughsuehstrange morales ane posible s-yetremains ‘ue that « morality cannot (logically) contain rules which sce ‘generally held by those who subscribe to them to bein no way Fefrable to alternatves and of no anrinsie importance. Law, however, though i ao contains much that if of moral im: ortanee, can and does contain art such rules, and the abiteary ‘isunctions, formalities, and hight specie detail which would bbe most diet to understand as part of morality, are con- sequently natural and easly comprehensible features of lw Fer one of the typical functions of law, like morality, it 10 introduce jot these elements im order to maximize cttanty 4d predictability and to fclitae the proof or assets of Gum Regard for forms and. detail caried to exces, has txrned for law the reproaches of formalism’ and "legals yeti as important to remember that these vices are exaggerae tions of some of the law's disincuive qualities Tis for this reason that just as we expect @ municipal legal system, but not morality, to tll us how many witneses © validly executed will mare have, 20: we expect international Taw, But not morality, to tell vs fuch Wings a8 the number of days & belligerent vesel may stay for refuelling or repairs in a neutral pore the width of temtoral water; the methods {0 be used in their measurement. All thea things are necesary sd desirable provisions fr lege nds to make, But 0 long asthe Sense retained that such rales may equally well take any of Several forms, of are important only a2 one among many possible means to specie ends, they remain diinct fom rule Ywaich have the status in individual or social life eharecterste Of morality, OF course not all the rules of international law ace of this formal or arbitrary, of morally nevtral kind, The pornt ‘sony that legal rules an and moral rules comot be ofthis ind. ‘The diffeicave i character boeween sntermaional law and anything which we naturally think of morality has another se Thom eit ny regi og Certain practices might ultimately be to bring about changes in ‘the morality of' group the notion of lepelatare mating oF repealing moral rae as we saw in Chapter VII, an absurd ove, A legiatare cannot introduce a new rule and give i the INTERNATIONAL LAW ws satus of a moral rule by its ft just 283t cannot, by the same ‘Means, give a rule the status ofa tradition, though the reasons ‘Why this is so may not be the same in the two cases. Accordingly ‘morality does not merely lack or happen not to have a legula: ture; the very idea of change by human legislative fet 3s Fepugnant to the idea of morality. This isso because we con- ceive of morality as the ultimate standard by which human actions (legislative or ptherwise) are evaluated. The contrast ‘with international law is clear. Tere i nothing in the nature (or function of international iw which is amilary inconsistent ‘withthe idea that the rules aight be subject to legislative change: the lack of legislature is just a lack which many think of as 2 defect one day tobe repaired. Finally we must notice a parallel in the theory ofinternational law between the argument, cntcized in Chapter V, that even if parncular rules of municipal lew may confit with morality, none the less the system as a whole must rit on a. generally difused conviction that there is a moral obligation to obey its rules, though this may be oversidden in special exceptional cass, Ie has often been said inthe discussion ofthe oundations’ of intemational la, that in the lat resort, the rules of inter ‘national law mut ret on the conviction of sates that there i & moral obligation to obey them; yet, if this means more than that the obligations which they recognize are not enforceable by officially organized sanctuons, there seems no reason 0 acceptit. Of couse it is posible wo think of circumstances which would certainly jusfy our saying that a state considered some course of conduct zequired by international law morally obligatory, and acted for that reason. It might, for exemple, ‘continue fo perforin the abligauons of an onerous treaty because of the manifest harm to lumanity that would follow if con- fidence in treaties was severely shaken, or because of the tense ‘hat &¢ was only far to shoulder the irksome burdens ofa code ‘rom which it, in ts turn, had profited in the past when the Durden fll on others. Precisely whote motives, thoughts and feelings on such matter ofmoral conviction are to be attibuted 1 the state is a question which need not detain there But though there may be such a sense of moral obl stis dificult to see why or in what sense i mat exist a¢ a condi- ton of the existence of international law. Tis clear that in theona ean sci; it a formulated by eens Soran econ ra ey we a ene Operated m mantainng hc in re a the ie prea Eotomrmnt.taenscames See erne ees Elereraiaat aonrna sme ‘ie entence of law ether among inivieal or ats To the innocent eye, the formal structure of intemational Jew lacking a legislature, courts with compulsory jurediction ‘and officially organized sanctivun aypons very ciferent from, ‘that of municipal law, Tt resembles, as we have sad, in form ‘hough not at all in content, a simple régime of primary or customary law. Yet some theorist, in their anxiety t0 defend ‘gaint the sceptic the tite of international law to be called ‘tow, have succumbed to the temptauon to minimize these formal differences, and to exaggerate the analogies Which can be found in internasonl lato leptin o ther deze formal features af municipal lave Tits been ise at, ending witha testy wicieby the dekstel ae eet femiony, of asus obigatons, of accp tone Wei form of independence is exon leghtaaee sce et legion, wan pond legal change Few walt ns smprewel by ths analogy or tink that it bdpel che he international law had an eal tle with mutspa ny eee sale aw’ or on ofthe aint dlrencs eee Fl and ittatonal law tht ine tact well ae dnu the liter doe reogais the valida ted by violence, oe A Yay of other, more respectable analogies have been sect by those who conte we of tush dened em. The fact tht ta almost all cases the deere ge Internacional Gourt and is prodecon the Base ee of Intemational Josie, have been duly srccd erie ares, has often been eophasced tf dis each, {he fac than contra wath mui wuts ao oo Se ‘brought before tee international tinal taker ee Gonseat. Analogies have alt bees found Benes i eof fees egal regulated and ofl sdminoeh aaa ss miinepal law and “destained eancton Cee ‘stor fei ealeton by samte which tintin gh under international iw hate been lated by ames es ‘here i wong analogy plains butts agusbee as ae sstael in the ight of cquay pan fer ee whee tmorcpal court hs eompulary jadicen winger ks "gh aed wrongs of elf ep aio push cena {04% no international court hs andar jason Sine of tne dubiour analogs ay Be enced to have been mich strengthened by ake obligations which ne he Sul under the United Nations Care’ Bon ae Ne assesment ofthe srength worth lie igo ee {© Which the lw eafuresment provdors af Se Chere "ivtle on paper, have been prayed by the sega St $eologea dhinonsandalfanceofte gre powens Deo ssucnes mae thatthe lawns room ef cap might lobe para by a genta walle convincing fr nour comparson bevecs muni herd10 INTERNATIONAL LAW international law we are concemed with what exists in fact, tnd here the facts are undeniably different, "There is, however, one suggested formal analogy between international and municipal law which deserves some scrutiny here. Kelsen and many modern theorists insist that, like muni ‘ipal law, international law posesves and indeed must possess 2 "basic norm’, or what we have termed a rule of recognition, by reference to which the validity ofthe other rules of the system 3 asses, and in virtue of which the rules constitute a single ystem, ‘The opposed view is that this analogy of structure is alse: international Jaw simply consists of a. st of separate brimary rules of obligation which are nat united in this manner. Tes, in the usual terminology of international lawyers, a set of ‘customary rules of which the rule gwing binding force 10 ‘eates ie one. It s notorious that those who have embarked on she task have found very great difficulties in formulating the asic norm” of international la, Candidates for this postion imelude the principle paca sit ureanda. This has, however, been abandoned by mort theorists, since it seems income patible withthe fact that not all obligations under international Jaw are from ‘pact, however widely that term is construed. ‘So vt has been replaced by something less familiar: the so-called rule that ‘States hould behave as they customarily behave ‘We shall not discuss the mers of these and other rival for- rnulations of the basic norm of international law; instead we hall question the asumption that s¢ must contain such an Clement. Here the first and perhaps the last question to a is ‘hy should we make thie a rir: assumption (for thats what i 1) nd 30 prejudge the actual character of the rules of inter- rational law? For st is surely conceivable (and perhaps has ‘ften been the case) that a totiety may, live By rules impesing ‘cligations on its members as ‘binding’, even though they are regarded simply se a tet of separate ules, not unified by or Ceriving cher validity from any more base rule. Iti plain that ‘he mefe exitence of rales docs not anvolve the existence of tach a base rule. In most modern societies there are rules of cuiquette, and, though we do not think of them as imposing {bligations, we may well alk of ruch rules a8 existing: yet we ‘would not look for, nor could we find, abasic rule of etiquette fiom which the validity of the separate rules was derivable. INTERNATIONAL LAW 9 Such rules do not form a system but a mere set, and, ofcourse, the inconveniences of this form of tocal control, where matters ‘more important than those of etiquette are at'stakr, are cone Siderable, They have already been described in Chapter V. Yee if rules are in face accepted as standarde of conduct, and supported with appropriate farms of social prenure distinctive of obligatory rules, nothing more s required to show that they are binding rules, even though, in this simple form of social sxructure, we have not something which we do have in tauni- ‘pal law: namely a way of demonstrating the valicity of indi- vidual rules by reference to some ultimate rule of the system, "There are ofcourse a number of questions which we can stk about rules which constituve nota ajstem but a simple set. We ean, for example, ak questions about their historical origin, fF questions concerning the causal influences that have fostered the growth ofthe rules. We can also atk questions about the value ofthe rules to thove who lve by them, and whether they regard themselves as marally bound to obey them or obey from, some other motive. But we cannot as in the simpler eave one kind of question which we ean ask concerning the rues of a system enriched, ar municipal laws, bya basic norm or second- fay rule of recognition. In the simpler ease we eannot ak From ‘what ultimate: provision of the tystem do the separate rules Gerive their validity oF “binding force?” For there is no such pprowsion and need be none, Iti, therefore, a mistake to suppoee ‘hata basic rule or rue of recognition isa generally necessary condition of the existence of ruler of obligation or ‘binding? Flee. Thies not a necenity, but a luxury, found in advanced focial systems whose members not mereiy come to accept feparate rules piecemeal, but are committed tothe receptance fn advance of general classes of rule, masked out by general criteria of validity. Inthe simpler form of society we must wait fndsce whether arule gets accepted as aruleor not; in agyetem, ‘with = bane rule of recognition we can say befire a rule i ‘netully made, hati wil be valid (ft conforma to the require: iments of the rule of recognition. "The sume point may be presented ina different form. When such a rule of recognition is added to the simple st of separate rules, jtnotonly brings with tthe advantagesofsystemandeaseo identification, but t makes posible forthe frst time a new form0 INTERNATIONAL LAW ‘fstatement. These are internal statements about the validity of ‘the rules; for we can now ask in a new sense, “What provision ‘f the system makes this rule binding” or, in Keleen’slanguage, ‘What, within the system, is the reason of ite validity? The snnwers to these new questions ate provided by the basic rule ‘f recognition. But though, inthe simpler structure, the valiity & the rules cannot thus be demonstrated by reference to any rore baste rule, this dots not mean that there i some question bout the rules of their binding force or validity which i left unexplained. [tis not the ease that there is some mystery as to Why the rules in such a simple social structure ate binding, which a basic rule, if only we could find it, would revolve ‘The rules of the simple structure are, ike the basic rule ofthe sore advanced stems, binding i they are accepted and fanction as such. These simple truths about different forms of | social structure can, however, easly be obscured by the obeti- rate search forunity and system where these desirable elements are not in fact to be found. ‘There is indeed something comic in the efforts made to fashion a basic rule for the mest simple forms of social structure ‘which exist without one. It is as if we were to inset that a ‘raked savage must really be dresied in some invisible variety of raodemn dress Unfortunately, there is also here a. standing ‘Fosibilty of confusion. We may be persuaded to teat ara base Tale, something which ie an empty repetition ofthe mere fact ‘that the society concerned (whether of individuals or states) observes certain standards of conduct as obligatory rules. Thie os surely the status of the strange basic norm which hat been suggested for international law: ‘State should behave ae they hhave customarily behaved", For it says nothing more than that ‘those who accept certain rules must also observe a rule that the rales ought to be observed. This is a mere useless reduplication ofthe fact that a set of rules are accepted by states as binding les ‘Again once we emancipate ourselves from the assumption {at international law mus contain a asic rule, the question t0 be faced is one of fact. What is the actual character ofthe rules 1 they function in the relations between states? Different in- ‘wxpretations of the phenomena to be observed are of course posible; but it is submitted that thee sno basie rule providing ‘general criteria of validity for the rules of international las, and that the rules which are infact operative conttute not & system but a set of rules, among which are the rules providing for the binding force of weates. It is true that, on many ime portant matters, the relations between stats are regulated by ‘mulilateral treaties, and itis sometimes argued that these may bind stats chat are not parties. IF this were generally recog. nized, such treaties would infact be legislative enactments and international law would have distinct eritria of validity for is rules. A basic rale of recognition could then be formulated ‘which would represent an actual feature of the sytem and ‘would be more than an empty restatement of the fact that a set of rales are in fact observed by states. Perhaps international law is at present in a stage of transition towards acceptance ofthis and other forms which would bring it nearer in structure toa ‘municipal system. 1 and when, this transition is completed the formal analogies, which at present seem thin and even delsive, ‘would acquire substance, and the sceptic’s Ist doubts about the legal ‘quality’ of international law may then be lad 0 rest. ‘Till this stage i reached the analogies are surely those of func tion and content, not of form. Those of function emerge most clearly when we reflect on the ways in which ntemational law Aifers from morality, some of which we examined inthe last section. The analogies of content consist in the range of prine Ciples, concepts, and methods which are common to both ‘mumeipal and international law, and make the lawyer? tech nigue freely transferable from the one to the othe, Bentham, the inventor of the expression Snternations law’, defended i simply by saying that it was “suficiently analogots' to man cipal law. To this two comments are perhape worth adding. First thatthe analogy is one of content not of form: secondly that, in this analogy of content, no other socal rules aeso close to municipal law a thote of international law. taf Me nd |