Public International Law/Nature and Purpose of International Law/Enforcement





Author: Daniel R. Quiroga-Villamarín "Required knowledge: International Law and Violence" Learning objectives:

-       To evaluate the reasons why certain legal scholars have considered international law to be "incomplete" or “primitive”—especially in relation to its enforcement mechanisms.

-       Examine the ways different schools of international legal thought have approached and problematised this "incompleteness" critique and reframed the problem of compliance —or lack thereof— of international law.

-       To understand the divergence in North Atlantic international legal thought between and European concern for “system” and an Unitedstatesean focus on “process” —without losing sight of what is left outside of this dichotomic framing.

A. Introduction: Facing the Austinian Challenge
Since 1832, the field of international law has been haunted by the shadow of the English legal theorist Austin. In his initially somewhat ignored but then highly influential collection of lectures The Providence of Jurisprudence Determined, Austin famously claimed that “international law” was but a contradiction in terms. As committed positivist theorist who wished to distinguish between “laws strictly so called” and questions of “morality” (as only the former fell within the purview of “the science of jurisprudence”), Austin saw international law as an imprecise misnomer. Perhaps once could talk of a science of “positive international morality” —but was there things as international “positive laws”? Given that Austin understood a law to be general command delivered by a sovereign authority, he was sceptical that there could really be “law” in the non-hierarchical structure of inter-polity relations. As there was no supreme global sovereign nor authority that could command inferiors to comply with international law, for Austin this so-called “law” offered little more than a system of organised moral cues that independent states could freely decide to abide with —or discard when needed. Without enforcement, in his view, there can be no international law “strictly so called.”

Ever since, international lawyers have strived to face this “Austinian challenge” —in both theory and practice. Considering that Austin himself experienced “nervous illness, depression, and self-distrust” throughout his intellectual career, it is perhaps ironic that his writings ultimately transferred some of these feelings to the international legal profession. As we will see in the next section, some scholars (haunted by international law’s “enforcement Achilles heel” ) have embraced its alleged “incompleteness” —often by defending the international legal order as a “primitive,” but functional system. Others have resisted the use of this “domestic analogy,” arguing that there are other reasons and mechanisms that account for the ways in which international legal norms are enforced both in the domestic and international spheres.

In fact, in 1995, the Unitedstatesean legal scholar Franck went as far as to claim that international law had finally entered its “post-ontological era” —a time when “[i]ts lawyers need no longer defend [its] very existence.” However, as he was quick to concede, perhaps this early optimism —so typical of the post-Cold War North Atlantic faith in liberal legalism — could do with some Austinian scepticism, as questions of non-compliance and enforcement still haunt the field. For better or worse, as a discipline we have been unable to fully exorcise Austin’s spectre. In what follows, I review how different schools of international legal thought have attempted, even if unsuccessfully, to do so by making claims related to the mechanisms for international law’s enforcement —or lack thereof.

B. "Different Ways of Thinking" about Compliance
How are we to make sense of the fact that, despite Austin’s critical remark about the lack of an international sovereign or binding enforcement mechanisms, it seems that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” —as the Unitedstatesean legal scholar Henkin once put it? Since Austin’s time, there has been an increasingly tendency for the answers to this question to diverge between the Continental European and the Unitedstatesean traditions. For that reason, in this section, I will first briefly review 20th century approaches to the question of enforcement in Continental European thought, to later turn to their Unitedstatesean alternatives. In doing so, I do not wish to convey that these rather parochial traditions were the most sophisticated intellectually or analytically precise options on the table. Rather, I focus on them because —for better or worse— these were the traditions that through force or persuasion became hegemonic in “almost all” countries throughout the 20th century. In other words, in a global textbook that aspires to reach a global audience I chose to focus on these traditions not in spite but because of their imperial significance.

I. International Law as a System: European Approaches
To face the Austinian challenge, European traditions of international legal thought embraced the defence of the systematicity of international law. In their view, despite important internal divergences, Austin’s command theory did not adequately grasp that legal norms law did not operate on the basis of single regulations but were often linked in a dense arrangement “within a hierarchy, composing together a coherent logical order.” Building on this “Germanic” or Continental European focus on systematicity, they mounted a defence of international law and its mechanisms of enforcement —even if they remained somewhat melancholic about the deficiencies of this international system compared to the “mature” domestic liberal state. “Like a Phoenix,” different iterations of this argument have surfaced in 20th century mainstream international legal thinking. Moreover, one can find mutations of this approach in contemporary debates regarding interaction or fragmentation, or in schools of thought not covered in this volume, like Global Constitutionalism.

A good example of this can be found in the so-called “Grotian tradition” of 20th century international legal thought. While Neff has read the 19th century as a one marked by the rise of “positive” law, natural law commitments remained strong in many corners of the international legal profession well into the 21st century. In his 1946 article defending —and perhaps “inventing” this tradition — Lauterpacht argues that a “Grotian” approach to compliance was once that placed “the value of human will as an agency shaping the destiny of [sic] men” at the forefront of the goals of international law and subjected “the totality of international relations to the rule of law.” In this sense, a “Grotian” rejoinder to Austin would argue that one cannot understand the ways in which international law gets enforced without paying attention to these higher values, for it is them what explains why “members of good societies agree to live in peace and expect mutual benefits” from mutual cooperation. Recognising that law and morality are two separate spheres of knowledge, the Grotian tradition would argue that one cannot fully expunge the “human sense of justice” from the (international) legal system. This does not entail that one should expect that the international legal order will be upheld in every occasion. Just like the domestic rule of law, it can find itself questioned and challenged, but however long the arc of the moral universe might be, it ultimately bends towards justice. Gaps in enforcement were but a mere signal of international law’s (temporal or spatial) incompleteness.

Instead of drawing from notions of natural law or justice, other European perspectives responded to Austin from within legal positivism itself. Given that perhaps the two most famous authors associated with this intellectual movement, Kelsen and Hart, are further discussed in this volume, in this chapter I will only highlight how claims of “primitiveness” played a crucial role in their approaches to enforcement. Hart, himself a student of Austin, noted in chapter 10 of his monograph The Concept of Law that international law was marked by its “absence of an international legislature, courts with compulsory jurisdiction, and centrally organi[s]ed sanctions” —earning him “few friends” in our discipline. In particular, Hart considered that international law’s lack of what we called “secondary rules” (meta-norms that govern the making or breaking of primary obligations, including those that create consequences for non-compliance or breach), undermined claims international law’s claims of systematicity. Moreover, Hart also noted that “[o]ne of the most persistent sources of perplexity about the obligatory character of international has been the difficulty felt in accepting or explaining the fact that a state which is sovereign may also be bound by […] international law.” Due to limitations of space, I cannot properly review the debates regarding the limits of Hart’s insights on this, but for the purposes of this chapter I note that European legal thought took Hart’s seemingly unsolvable perplexity to “square the circle” of compliance. In fact, in its famous S.S. Wimbledon case of 1923, the Permanent Court of International Justice concluded that the “the right of entering into international engagements is an attribute of state sovereignty” —even if such agreement entails “an abandonment” of sovereignty.

Kelsen, from a different perspective, also lamented the “primitiveness” of the international order. In his 1953 Hague Academy lectures, he concluded that “primitive juridical communities” are those in which powers of sanctioning and force are yet to be centralized in a proper state  —a condition, alas, also holds true for the “international community.” This didn’t necessarily undermine international law’s claim to be a system, but it entailed that it was one with “decentralized” enforcement mechanisms, in which often each party would have to seek justice through unilateral coercive measures of their own. Like his contemporaries in the Grotian camp, Kelsen and his followers defended international law’s incompleteness and eagerly looked forward to the day in which it finally “matured” through the creation of permanent, supranational, and centralized institutions —courts and tribunals, chief among them. In sum, for both positivist and natural-law-inflected traditions of legal thought in Europe, the Austinian challenge was but an incentive to continue working towards the “completion” of the international legal system —in particular through the making of “modern” enforcement mechanisms. In their view, international law —however “primitive”— was never only “a random collection” of norms but perhaps a (flawed, but improvable) system in its own terms.

II. International Law as a Process: Unitedstatesean Perspectives
In the wake of the “legal realist” revolution of the early 20th century, Unitedstatesean legal thought took another path —which was also explored, to a degree, in Scandinavia and certain corners of the world. Instead of focusing on international law’s systematicity, this tradition foregrounded the processes of international law-making, enforcement, and non-compliance. Inspired by legal realist thought (which I cannot properly review for lack of space ), they downplayed the importance of legal concepts and coherence, to instead invest their energies in the study of the ways actors used international legal remedies to create rights and obligations. The best example of this movement can be found in two leading student casebooks, both published in 1968: International Legal Process by Chayes, Ehrilch, & Lowenfeld ;  and Transnational Legal Problems, by Vagts & Steiner. Despite their substantive differences, these two books bear witness to the decisive influence of a realist concern for procedure over substance that would be characteristic of US-influenced approached across the board. To be sure, in certain circles, this procedural turn would still place certain “human values” or "legitimacy" at the forefront of the analysis: this is especially true for the so-called “New Haven” school and perhaps for some figures of the later “Manhattan” school of international human rights law. In any case, the Unitedstatesean engagement with the empirical methods of the social sciences —especially when it came to measuring compliance— did mark an important difference with their European peers.

This concern for process has been enormously influential —especially when it comes to issues of enforcement. In the two last decade or so, the literature has seen a remarkable surge of interventions that call for its renewal: from “New International Legal Process” to a “New New Haven School” or a “New Realist Approach.” The best example of surge of interest in “Transnational Law” —a term first coined by the US legal realist Jessup in 1956 to theorize the interstices of public/private and domestic/international that has since taken “many lives.” This focus on “problems & process” —to paraphrase the title of Higgins’ famous monograph from 1994 which builds on her Hague Academy lectures of 1991 — has now been widely accepted as a different way to think about law’s alleged incompleteness than the concern for systematicity. In contemporary legal thought, the imprint of this Unitedstatesean foregrounding of “process” shines brightly in three approaches not covered in this volume: Global Administrative Law;  inquiries into “informal” law-making; and International Law and Economics.

C. Concluding Remarks: Beyond "System" or "Procedure"?
For better or worse, international legal thought is also haunted by dichotomies. Most legal theories ground their approach in an intrinsic difference between categories like public/private; normativity/morality; domestic/international; law-making/law-breaking —with often terrible consequences, as feminist legal critique has convincingly argued. Sadly, this chapter is also organised around a series of binaries: Unitedstatesean/European; System/Process. I do not offer them as fixed categories but rather as tentative guideposts that might orientate a newcomer or a student as a map of contours of the vast literature on enforcement in international law. At the same time, we cannot lose sight of the different ways of seeing international law that might be excluded from this framing —and that will be fleshed out with more care later in this volume, such as feminist & queer, postcolonial & decolonial, and Marxist voices. Perhaps the real challenge ahead for the 21st century international legal thought is to finally exorcize the ghosts of ages past —including, no doubt, the Austinian challenge’s discoloured wraith.

Further Readings

 * Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford University Press 2016).
 * Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford University Press 2001).
 * Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights through International Law (Oxford University Press 2013).
 * Dinah Shelton, Remedies in International Human Rights Law (2nd edn, Oxford University Press 2006).
 * Alexander Thompson, ‘Coercive Enforcement of International Law’ in Jeffrey L Dunoff and Mark A Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations. 502-523.