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    7 views14 pages

    FITZMAURICE - The Foundations of The Authority of Internatio

    Uploaded by

    Fernando Amorim

    Copyright:

    © All Rights Reserved
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    ‘The Foundations of the Authority of International Law and the Problem of Enforcement, G.G. Fitzmaurice The Modern Law Review, Vol. 19, No. 1 (Jan., 1956), 1-13. Stable URL: bhtp:finks,jstor-org/sici?sici~0026-796 1%28195001%2919%3A L%IC1%IATFOTAO%3E2.0.CO%3B2-W ‘The Modern Law Review is currently published by Blackwell Publishing, ‘Your use of the ISTOR archive indicates your acceptance of ISTOR’s Terms and Conditions of Use, available at htp:sseww jstor org/aboutiterms.html. ISTOR’s Terms and Conditions of Use provides, in part, that unless you hhave obtained prior permission, you may aot download an entie issue of a journal or multiple copies of articles, and ‘you may use content in the ISTOR archive only for your personal, non-commercial use Please contact the publisher eegarding aay futher use ofthis work. Publisher contact information ray he abained at tpi jstororpoumnal blac. Each copy of any part ofa JSTOR transenission must contain the same copyright tice that appears on the screen or printed page of such transtnission, ISTOR isan independent not-for-profit organization dedicated to creating and preserving a digital archive ot scholarly journals. For more information regarding ISTOR, please contact suppom@jstor org. up:thrww stor orgy ‘Mon Feb 707-31:19 2005 THE MODERN LAW REVIEW Volume 19 January 1956 No.1 THE FOUNDATIONS OF THE AUTHORITY OF INTERNATIONAL LAW AND THE PROBLEM OF ENFORCEMENT* ‘Tue subject of thie paper is generally regarded as one of the most dificult in the whole field of international law and reletions—a fact of which the author is only too conscious. Even if space permitted anything in the nature of « systematic exposition, an international lawyer taken up largely with day-today affairs may justifiably bbe thought to lack the necessary qualifications tor such task. Nevertheless, things occur from time to time, of situation develop, thst make it desirable for the practising international lawyer to devote some attention to the theory and fundamentals of his system, and in particular to the question of ite basic autho- rity, Such « situation exists in the world today, for international law is being subjected to grest strains and stresses, and 8 number of disruptive tendencies are at work, tending to impair its authority. ‘Now, to the practitioner, the question of the authority of legal system, whether municipal ot international, presents itself Inrgely ax a’ question of enforcement. A rule or a system has authority if it is enforceable, and normally will be enforced. Other- ‘wise it has, or may have, comparetively little authority—or if it nevertheless does have it, such authority must derive from other sources. At this point it is necessary to draw attention to an important distinetion—one frequently overlooked or blurred— between two concepts, namely, that of the binding character of rule or aystem of lave, and that of its authority—a term here ‘used in the tense of prestige. To ask what it is that makes a rule hrinding, or from what its obligatory character arises, is not the same thing as to ask what it is that gives the rule its authority, though there is a connection that will be noticed Inter. ‘The dis- tinction is readily seen in rogard to the question of enforcement iteell. It appears sometimes to be supposed that roles of law are binding if, and because, they are enforceable, This view is clearly {hin paper ae ctiginally delivered a9 a Public Lectore at Ring's College, Unive of London March 1, 1965 1 2 ‘THE MODERN LAW REVIEW Var. 19 invrrot: inden is the rwreze of caret. The te is not binding because it is enforced: it is enforced because it is al binding. Enforcement presupposes the existence of legal oblige. tion imeumbent on those concemed. The prospect of enforcement is in fact little more than a fector or motive inclining people to obey rules that they are in any ease under an obligation to obey: bat it is not iteelf the souree of the obligation. On the other hand, it is easy to see that the authority of a rule or system (using that term as denoting the sum of the factors that confer an adequate prestige on a rule or system of Iam) is ‘very closely connected with the question of enforcement. From ‘the practical point of view, almost as much importance attaches to the authority of a rale or system of law as to its binding character. Te might be said that it is ite binding character that creates for these concemed the obligation to obey the law, but that it is its authority that causes them to obey it in fact. Enroncramisry ao fereaxarroxal Law With regard to the actual position concerning the enforceability of the interaational legal system, there has always been a respect- ‘able body of international lawyers that has both considered entorce- ability to be a necessary characteristic of any system of law, properly so called, and has also believed that international law Possessed this characteristic, even if only in a rough and rudi- mentary form. Oppenheim, for instance, whose treatise may be cited because it constitutes so very much the practitioner's Bible, 0 to speak, begins by stating (8th ed., p. 8, § 8) that “a character- istic of rales of law is that they shall, if necessary, be enforced by external power.” He then (ibid., p. 10, § 5) defines law as “<4 body of rules for human conduct within « community ‘which, by common consent of this community, shall be enforced. by external power.” In support of this dictum, Oppenheim cites Westlake and Travers ‘Twiss. He then goes on to express the view that international law is @ system that is both intended by States to be enforceable, fand is actually enforceable, if necessary by a process of self-help ‘on the part of States. Finally (ibid., p. 14, § 9), he says that, subject to the provisions of such instruments as the Charter of the United Nations and the so-called Kellogg Pact of 1926, “war is the ultimate instrument for defending violated legal rights.” ‘Nor are the writers of Oppenheim’s generation alone in putting forward such a view. For instance, so great « modernist as Kelsen seems, in one of his latest works, Principles of International Law, published in 1959, to incline towards a similar view. He says, 8 of this work, that law is a coercive order. It provides for socially or; nd Chae com be ceri datingulshel om asSigione Jax, 1956 THE AUTHORITY OF INTERNATIONAL LAW 3 ‘order on the one hand and a ‘moral order on the other hand. As a cocreive order, the law ia that specific social ‘technique which consists in the attempt to bring about the desired social conduct of men through the threat of & measure ‘of coercion which is to be taken iu cere of . . . legally wrong Later, on p. 14 of the seme work, Kelsen points out that in decentralised societies (and the international society is such a society), enforcement of the law is accomplished through the sppli- cation of the principle of sell-help. The legal order leaves the enforcement function to the individuals injured by delict or illegality. He then says: “

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