INTRODUCTION
International law is the body of rules that governs the relationships between States. It deals with important issues like human rights, the use of force, and international trade. However, there has long been a debate about whether international law is actually law in the same way as domestic law, which is the law within a country. Domestic law has a parliament to make it, courts to interpret it, and a police force to enforce it. International law does not have these things in the same way. This has led some people to question its legal character. This essay will discuss this debate. It will look at the arguments for and against treating international law as ‘real’ law, using legal theories to help understand the question. It will consider the views of legal philosophers, the sources of international law, and the problems with enforcement. The essay will argue that while international law has clear weaknesses, it is still correct to call it law.
The Challenge to International Law
A key reason for doubting that international law is really law comes from the work of John Austin, a 19th-century legal positivist. For Austin, a law is a type of command. Specifically, it is a command from a sovereign to a subject, and it must be backed up by the threat of a sanction if it is not obeyed (Austin, 1995). If you apply this definition to international law, it runs into problems. In the international system, all States are considered sovereign, meaning they are equal and there is no authority above them. There is no global sovereign, like a world government, that can issue commands to all States. Furthermore, while there are some sanctions, there is no consistent and reliable system for punishing a State that breaks an international rule. For these reasons, Austin concluded that international law was not truly law, but rather a form of “positive morality,” which are rules of conduct that countries follow but which do not come from a sovereign (Austin, 1995). This view sees international law as more of a set of ethical guidelines than a binding legal system.
The Defence of International Law
However, many modern scholars believe Austin’s definition of law is too narrow and outdated. A more flexible approach was provided by H.L.A. Hart. Hart argued that law is not just about commands and sanctions. He saw law as a system of rules, made up of primary rules and secondary rules (Hart, 2012). Primary rules are the rules that tell people (or States) what they must and must not do, for example, the rule against using armed force. Secondary rules are rules about the primary rules; they are rules of recognition (how to identify a law), rules of change (how to create or amend a law), and rules of adjudication (how to settle disputes about the law). International law can be seen to have this structure. Article 38 of the Statute of the International Court of Justice lists the sources of international law, which include treaties and customary international law. This acts like a rule of recognition. The processes for making treaties act as rules of change. International courts and tribunals, such as the International Court of Justice, provide a system for adjudication. So, from Hart’s perspective, international law has the features of a proper legal system, even if it is a different kind of system to domestic law.
Enforcement and Conclusion
The biggest weakness of international law is often said to be enforcement. Unlike a domestic police force, institutions like the United Nations Security Council can be blocked by the veto of a permanent member, as seen in many international crises. However, it is not true to say there is no enforcement at all. Sanctions, diplomatic pressure and the use of international courts can all be used. More importantly, most States obey most international law most of the time. They do this not always because of the fear of punishment, but because it is in their long-term interest to have a stable and predictable international system. In conclusion, the question of whether international law is really law depends on what definition of law is used. If one uses Austin’s strict definition of a command from a sovereign, then international law fails the test. But this definition is widely seen as too simple. If one adopts a more modern view like Hart’s, which sees law as a system of rules, international law fits the description. It has recognised sources, creates binding obligations, and has institutions for resolving disputes. Its enforcement system is not as strong as in domestic law, but this weakness does not change its fundamental character as a legal system.
References
- Austin, J. (1995) The Province of Jurisprudence Determined. Cambridge University Press.
- Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
- Statute of the International Court of Justice (1945).
