ACKNOWLEDGEMENT

I would like to sincerely express my gratitude to my

professor Dr. Mohit Kr. Gupta for his suggestions and
cooperation to complete my assignment. It has taken so
much effort and time to complete the assigned work.
Without his support the assignment wouldn’t have been
completed.

I would also like to thank my classmates and especially Mr.

Cap Sai Srinivas for providing valuable information and
sharing his experience to accomplish the assignment.

Last but not least without the support of my family

members and friends I wouldn’t have completed this
assignment in the given time.

Sonu Kumar
BBALLB, L2003
International Law (LAW 207)
1 Page
 TABLE OF CONTENTS
1) Introduction_____ 3

 Is international law really “law”?

2) Views of philosophers on international law _____ 3-5

 Austin, Oppenheim and Shaw’s view on international law

3) Clinical approach on legality of international

law_____ 5

4) Biggest debate: Enforcement and Enforceability_5-8

Domestic enforcement
Bilateral and multilateral enforcement
Institutional, supranational enforcement
Unilateral enforcement
Conclusion on enforcement and enforceability of international
law
5) Kelsen’s view and why is it obsolete? _____9

6) the final Conclusion_____10-11

ABSTRACT AND KEYWORDS
This Assignment argues about perspective of theories of international law, what
matters is “International law is really law”? and also what makes law ‘international’.
It first recalls the structural reasons inherent to international law that explain the
specificity and the crucial character of the issue of international law—Clinical
approach—Enforceability, ways of Enforceability. The Assignment then contextualizes
Conclusion on my point of view on Enforcement and Enforceability of International
law and then discusses about determining and delimiting international legality. Finally,
the assignment questions whether and to what extent a theory of international law as
“law” really achieves its objective of determining what unequivocally counts as
2

international law. The assignment thus gives final conclusion on legality of

Page

international law and brings to light the awkward facts that international law’s legality
is not necessarily normatively exclusive.
 THE ‘LEGALITY’ OF INTERNATIONAL LAW
Introduction
IS INTERNATIONAL LAW REALLY “LAW”?
There has been an ongoing and probably a never-ending debate on whether international
law is really law. From my perspective the most evident reasons are Austinian Sovereign,
and one of the biggest limitations of international law: its enforceability in international
legal relations.

One view considers International law not a true law, rather, a code of rule of conduct
backed by morality. On the other hand, International law is considered to be a true
law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the
citizens.

What do we mean when we inquire whether International Law is law? Over the centuries
the term "law" has been used to identify some quite different concepts. The Old
Testament tells us that "law" is "the will of God" -- as in the Ten Commandments.

AUSTIN’S THEORY AND WHAT OTHERS SAID ABOUT INTERNATIONAL LAW

AS LAW
Beginning about three centuries ago, writers like Thomas Hobbes argued that "law" was
but a command of a sovereign enforced by a sanction. In this tradition, more than a
century ago John Austin wrote in The Province of Jurisprudence Determined that:

"[T]he law obtaining between nations is not positive law: for every positive law is set by
a given sovereign to a person or persons in a state of subjection to its author."

By this definition, of course, "international law" is admittedly not "law." Indeed, such a
narrow definition would exclude much of what we Americans regard as "law" in the late
20th Century. It would certainly exclude, for example, the U.S. Constitution and our Bill
of Rights -- which are designed in no small part to constrain government power rather
than to issue commands to individual subjects or citizens.
3
Page
To Austin law was necessarily command of a sovereign. One may say that even Austin
recognised International law when he said that command of sovereign could be direct or
circuitous, for international law could, in a way, be construed as the circuitous command
of the community of sovereigns (i.e. the international community of nations), but this
argument may not hold steady with most people. Austin did clarify that “… society
formed by the intercourse of independent political societies, is the province of
international law, or the law obtaining between nations… [It] regards the conduct of
sovereigns considered as related to one another. And hence it inevitably follows, that the
law obtaining between nations is not positive law: for every positive law is set by a given
sovereign to a person or persons in a state of subjection to its author… the law obtaining
between nations is law (improperly so called) set by general opinion. The duties which it
imposes are enforced by moral sanctions.”

For Oppenheim, “law is a body of rules for human conduct within a community which
by common consent of this community shall be enforced by an external power”. For
Williams, Austin has dogmatized the proper meaning of the word law. He considers it to
be more of a verbal dispute, where the word law, according to him, is a symbol or an
idea, the meaning of which may differ based on the person using the word. On the face
of it, although international law may not seem to fulfill the Austinian definition, it does
come closer to Oppenheim’s definition of law. Weber seemed to think on lines similar
to those matching Austin’s thought. To him, submission of those who were ruled to the
‘authority’ was essential. It seems to me that proponents of international law as law are
all on similar lines at least in saying that while Austinian law (positive law, i.e. municipal
law) may be a kind of law, it cannot be the definition of, and the embodiment of, law
itself. However, it is Austin’s work that becomes the reference point for every
discussion that tries to bring a particular area, including international law, within the
ambit of law. And while Austin categorically says international law was improperly
called law, Shaw opines otherwise, going on to say that Austin’s focus on the idea of
coerciveness seems to be widely overstated. For Austin, moral sanctions did not quite
make the cut, but for Shaw, the fear of hostility from other nations coupled with the
element of mutuality and reciprocity – that every action may have a reactionary
backlash – makes international law a force to reckon with. Shaw also tries to look at the
question somewhat differently; rather than focus on the law-ness of international law,
he tries to steer the discussion towards whether or not states obey international law.
4
Page

He says, “Contrary to popular belief, states do observe international law, and violations
are comparatively rare...just as incidents of murder, robbery and rape do occur within
national legal orders without destroying the system as such, so analogously assaults
upon international legal rules point up the weaknesses of the system without
denigrating their legality or their necessity”. It is interesting that he points this out –
accepting this realistic weakness in enforcement in international law – while at the
same time defending it to the extent that a weakness does not automatically amount to
nullification of its character as law itself.

GOING TO THE CLINICAL APPROACH:

Thomas Franck, who has been a leading supporter of international law and its legal
nature, wrote a book in 1995 where he clearly mentioned that international law had
already entered into a post-ontological era, that it had gone beyond the point where its
existence as law could be questioned. In 2009 at an international conference, he tried to
make a clinical analysis of this question, seemingly bemused by its resurgence time and
again. In trying to understand why the matter keeps coming up, he realized that the only
two subsets of persons asking this question were

(1.) the exceptionalists, who consider international law an encumbrance in the path of
those that are powerful due to the horizontal nature of negotiating international law, and
(2.) those who do not wish to comply with international law.

Therefore, for him this is just a cynical question, the purpose of which is to discredit
international law and those who are happy to comply with it. Of course, for him, the two
subsets also overlap, tending to refer to ‘the sole super power’ that continues to ask this
question in order to ‘avoid being shackled’ by horizontally negotiated international legal
norms, in order to retain its superiority.

BIGGEST DEBATE: ENFORCEMENT AND ENFORCEABILITY

Anthony D’Amato looks at the question of enforcement and enforceability more closely.
In context with enforcement of law, even at the domestic level, he says, “rules are obeyed
not out of fear of the state's power, but because the rules by and large are perceived to be
right, just, or appropriate. No state could possibly compel people to obey all these rules at
gunpoint; there would not be enough soldiers and policemen to hold the guns, they would
have to sleep sooner or later, and then anarchy might break out.” He further goes on to
explore a situation where coercion may be a necessary part of law enforcement at the
international level, which brings him to his ‘reciprocal entitlements argument’.
According to D’Amato works well in a system where there doesn't exist a formal
5

legislature, executive and judiciary. It basically means that international law is not
Page
enforced in the conventional domestic law sense; it has a different enforcement
mechanism.
I am in agreeing with D’Amato to the extent that although enforcement and law are
intrinsically linked, there cannot be an automatic deduction that non-observance and/or
the misuse of legal obligations and provisions, or the flouting of enforcement
mechanisms, nullifies the existence of the international legal system itself.
Henkin, in this regard, makes some extremely pertinent points that help us understand the
character of international law from the perspective of international lawyers. He says that
undeniable as the limitations of international law are, they do not preclude international
lawyers from retaining their optimism. While rejecting Austinian definitions of law as
inclusive of the basic features like command of a sovereign, enforceable and enforced as
such, international lawyers look at how international law is made, developed and
continues to grow in spite of all odds. He says, “… what matters is whether international
law is reflected in the policies of nations and in relations between nations … [that] there
is law that responds and corresponds to the changing needs of a changing society …
disputes are solved in an orderly fashion in accordance with international law.” The
question, he says, of utmost significance, “is not whether law is enforceable or even
effectively enforced; rather whether law is observed, whether it governs or
influences behaviour, whether international behaviour reflects stability and order.”
But most interestingly he says, “International law is an assumption, a foundation, a
framework of all relations between nations”. Now let’s look the ways of enforcement of
International laws:

DOMESTIC ENFORCEMENT
Because nation-states are sovereign and cannot be coerced in the same manner as natural
persons, the primary way in which international law is enforced is when states simply
enforce it internally. Most obviously, this occurs when treaties are enforced by domestic
courts. Most nations have some doctrine that treaties are either self-enforcing as part of
domestic law upon ratification or are enacted into statute by the legislature alongside the
ratification. As a result, they are enforced by domestic courts as other domestic laws
would be. More commonly yet subtly, this occurs when nations simply choose not to act
because they fear the consequences of violating international law. As nations who do not
live up to their obligations will become less credible and therefore less able to effectively
engage with the international community and pursue their interests. While this form of
enforcement is nearly invisible, it is widely accepted as the most important factor in
6

enforcing international law.

Page
BILATERAL AND MULTILATERAL ENFORCEMENT
All nations must interact with other states in some way. As a result, other nations can
influence their actions by applying pressure, in the form of trade sanctions, travel
restrictions, breaking diplomatic relations, or refusing to honor their own treaty
obligations. Often, for particularly egregious violations, a state will also organize a bloc
of aligned states to implement the punitive measures collectively and diminish any
opportunity cost to the punishing states. In some instances, these punitive measures may
even be automatic and included in the initial agreement, such as the Iran nuclear deal,
which included automatic punishments for breach of the agreement by Iran and release
from the agreement for breach of the agreement by the other nations. However, at other
times, it may be less specific and result from violations of implicit norms.

INSTITUTIONAL, SUPRANATIONAL ENFORCEMENT

Ultimately, the Security Council of the United Nations is empowered to broadly enforce
international law. They can do this through sanctions, peace-keeping operations, or
formal censures. While censures have no direct, negative impact, they serve as a symbol
of the potential reputational harm that comes with violating international law. However,
when the Security Council imposes sanctions or organizes peace-keeping operations, it
can have significant impacts given that all of the permanent members of the Security
Council will generally engage supportively and all member-states will have to at least
appear to abide by them.

The permanent members of the Security Council often stand in the way of action being
taken against them or their close allies, so alternative mechanisms exist for resolving
disputes. Under General Assembly Resolution 377, the General Assembly can act when
the Security Council has failed to although these actions will be non-binding. Generally,
this has been used to circumvent opposition from veto powers, such as its uses to initiate
the United Nations intervention in the Korean War and to address Israel’s actions in the
disputed territories it controls.
The International Court of Justice also decides disputes between individual nations;
however, it has limited scope and does not have any direct power to enforce its decisions.
Both the Security Council and I.C.J. determine for themselves what sources of
international law apply in individual cases. Finally, the International Criminal Court
enforces certain aspects of international law, primarily human rights law, customarily and
as established by the U.N. in treaties, and issues referred directly to it by the Security
Council, against private individuals where national courts fail to act. While it can’t
effectively require participation without the cooperation from nations, it does directly
7
Page
punish the individuals appearing before it with imprisonment and requirements to pay
reparations.

UNILATERAL ENFORCEMENT
Less commonly, nations will use their national court systems to enforce international
legal obligations against private citizens of other nations under the doctrine of universal
jurisdiction. This originally arose from laws regarding piracy and has been extended to
include crimes against humanity and, in some cases, terrorism. However, this usage is
heavily disputed and inconsistent because the individuals accused often hold government
positions, which may be protected from prosecution or extradition.

CONCLUSION ON ENFORCEMENT AND ENFORCEABILITY OF

INTERNATIONAL LAW
While most resolutions don’t directly address the enforcement of international law, all
resolutions strive to be effective. Including enforcement mechanisms or referring matters
arising under a resolution to a pre-existing enforcement option can strengthen a
resolution and improve its credibility. Even in a non-binding resolution, the inclusion of
proposed enforcement mechanisms deters breach because it demonstrates a general
commitment to those mechanisms in the event of a violation. Being aware of the lack of
realistic enforcement options can also be a way to make compromises. If a country has
serious questions about a resolution but is generally supportive of it, they may be willing
to vote in favour of it because they know that it will not be enforced against them.
Fundamentally, it is important to remember that most international law is upheld simply
because no one wants to risk breaking it and that many violations go unpunished. While
this can have unfortunate consequences, we cannot change this in Model UN. It is found
that international law is enforceable and that there are two ways that international law
can be enforced, i.e. enforcement by “authorities” formed by treaty regimes, and by non-
authorities (including enforcement individual states and by the international community).

Compliance and its relation to legality is one of the central points in the discussions
related to the international law. H Kelsen stated that ‘the efficacy of law constitutes
a condition of the validity of law’, where efficacy refers to ‘whether law is actually
observed’ and ‘legality whether law must be observed’.

Although the fact that some states comply with international laws and regulations,
whereas others are in compliance with international law in selected instances only
undermines the foundation of international law, it does not, however, make it lose
8

its legality.
Page
KELSEN’S VIEW ON LEGALITY OF INTERNATIONAL LAW AND WHY IS IT
OBSOLETE?
As the world is becoming more interconnected and technologically advanced, nations
cannot regulate interactivity through ‘universal morality’, specific moral and ethical
rules, religious norms, they rather resort to the need for ‘common language’ and
‘common ground’ to regulate their relations, and this is international law. ‘As the
interdependence of between nations increases, the significance of treaties to support and
facilitate this interdependence increases. Without treaties that bind nations, no
international trade, finance,
transportation and information activities are possible today’. Therefore, the nations have
reached a particular consensus on the international law arena and have complied entirely
or partially. Therefore, the statement of Hans Kelsen, ‘If international law were not
observed by states at all, the very legality of international law would be lost’ is
hypothetical and hardly applicable on the ground. As a hypothetical statement, it stands
true, however, practically – partial compliance or efficacy does not invalidate
international law per se.

As long as the concept is accepted and recognized by the nations, the legality of
international law holds, however, the matter of compliance relates to the executive arm-
the international organizations and bodies monitoring and achieving compliance through
‘coercive mechanisms such as sanctions’ for example, or reputational risks. As long as
nations utilize the tools provided by international law, it stands valid; the fact that some
states use and abuse treaties for a reason of abusing other nations, or do not comply to
international law in ‘critical areas (high politics) such as use of force’, or some
underdeveloped states do not have the capability but do not lack the desire to observe
international law , does not provide the basis to conclude that efficacy is directly related
to the legality of law.

THE FINAL CONCLUSION

While the above assessment of international law is admittedly bleak, all is not lost.
International law is indeed aspirational, but it is these aspirations that represent the best
of humanity. These conventions and treaties may be violated or ignored, but they
represent an earnest human desire for a better world. While these desires are not enough
for these principles to be considered “law,” they are a starting point. As globalization
continues to link us and political, cultural, and economic ties come to line up in the
international system, our world will get significantly smaller. With looming resource
scarcity, a booming population, unprecedented communication and information sharing
tools via the Internet, and an upswing in grassroots political movements, we stand on the
event horizon of great change across the world.

To face these changes, whatever they may be, it is imperative for people and states to
9

admit that the current system of international law is not “law” so that we can try to do
Page
better. States already recognize that they can ignore their obligations whenever it suits
them and this system will certainly fall apart when air pollution becomes a greater
concern, precious resources are found in the global commons, etc. Without stronger
enforcement mechanisms and a way to create obligations that truly supersede state
sovereignty, the international system as we know it will crack under the new stressors.
The first step to avoiding this crash is to admit that the system we currently have is not
enough.

The admission that international law is not “law” will certainly send shockwaves through
the system, but most arrangements will remain at or near their status quo because many
of these systems provide states with benefits they cannot get elsewhere. Helping
international law become “law” is a worthy, if not necessary endeavour over the next
decades to help states coordinate to face the impending challenges that will flare up
across the world. As economies grow more intertwined, one country’s problem soon
becomes everyone’s problem. As such, the processes of globalization are already starting
to affect international law in ways that will bring it much closer to the status of “law.”
Individuals are being recognized as subjects of international law; international law is
beginning to deal with more global issues such as the economy, the environment, and
humanitarian concerns without the consent of states; and international law is exploring
new frontiers such as the cyber domain and how technology will impact the international
system in the near future.

In the end, while shocking, the admission that international law is not “law” will allow us
to determine why some aspects have failed, which sources and mechanisms should be
replaced, and provide the spark for a global movement to build a new, stronger
international legal system. The enemy of international law is state sovereignty, and while
this cannot be undone any time soon, international law can be stronger than it is today,
and should be revamped while we have this unprecedented opportunity.

Compliance isn’t the only defining factor and not the only ‘condition of the legality of
law’; legality and compliance must be put into a broad perspective, with context to be
factored into analysis. The fact that some states do not comply with the international law
does not necessarily mean that its legality is flown. Compliance depends on many factors
including capability of the state, politics, state’s goals and objectives, and, thus, a linear
relationship between two variables cannot be drawn. ‘Some obligations are more binding
than others, and states choose the level of commitment against this background fact’.
Therefore, as Andrew Guzman notes, ‘we must consider international obligations in a
more contextual fashion in order to evaluate their impact…International law can be used
to strengthen national commitments, but its value depends on the context. Scholars must
focus not only on the legality of state actions; they must study the way in which
international law can be structured to improve compliance’.
10
Page