Can International Law Be Called True

Law International Law Essay

Despite the fact that international law is the predominant method for organising an increasingly globalised
and complex international community, it has not had an easy time facing sceptics who question its
credibility as a legal system which has difficulty in the enforcement of its rules.
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.
At the turn of the nineteenth century John Austin 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]
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.
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".

Conclusion.
I am more inclined to be on the side of the theorists who question international law as true law.
International law can only work if there are sanctions that can be enforced on the international stage. The
lack of an authoritative figure to police such sanctions leads me to conclude and in accordance with the
above arguments, that international law is indeed, not true law at all.

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