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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
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.[25]
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.
-------------------------------------------------------------------[1] Anthony C. Arend and Robert J. Beck, International Law and the Use of
Force, (Routledge: London & New York, 1993) p. 4