NICOLAS, Krizia Camille P.

Chapter 10 Summary

International law lacks in “international legislature, courts with

compulsory jurisdiction, and centrally organized sanctions” which has caused
misgivings on whether it can be considered as law. This is because the absence of
these means that rules for states consist only of primary rules of obligation.
Moreover, it lacks a unifying rule of recognition, and a general criteria for the
identification of its rules.

However, instead of dismissing doubts or confirming them, Hart instead

decides to inquire into the character of the doubts in the legal character of
international law and the steps taken by legal theorists to meet these doubts. We
can contrast the character of the rules, or of the subjects of law, between
international law and municipal law. “The first has its roots deep in the
conception of law as fundamentally a matter of orders backed by threats”. The
second springs from “the obscure belief that states are fundamentally incapable
of being the subjects of legal obligation”.

II

The doubts expressed about International Law can be summarized in the

question: ‘How can international law be binding?’, but there is something
confusing in this form of question. As such, we must first ask: ‘What is meant by
saying that a whole system of law is binding?’ When we ask this, we mean to as
if the rules can be said to give rise to obligations. Hart then discusses when
situations arise wherein one is doubtful as to which legal system is to be applied.
He says that in these cases, we “do not call in question the character of the rules,
but only their scope or applicability in given circumstances”.

As such, the question ‘How can international law be binding’ is different

from questioning its applicability because it also puts in doubt as to whether
international law can be said to “meaningfully and truthfully give rise to
obligations”. “One source of doubt is the absence from the system of centrally
organized sanctions”.

However, to argue that international law is not binding because of its lack
of organized sanction is to accept the analysis that law is a matter of orders
backed by threats. Another more plausible argument would be that, as in
municipal legal systems, there are certain provisions, which are necessary, such
as those prohibiting the free use of violence. If such rules and organized
sanctions are necessary for municipal law, are they not equally so for
international law? “They are maintained without insisting that this follows from
the very words like ‘binding’ or ‘obligation’. The answer to this argument can be
found when one looks at the difference between states and human beings. States
are different enough that the natural characteristics which make some rules, with
corresponding sanctions, minimally necessary in a society, unnecessary in the
case of states. Because of this, international law as such may not require any
sanctions. “When the rules are disregarded, it is not on the footing that they are
not binding; instead efforts are made to conceal the facts”.

III

There is skepticism that sovereigns could be bound by international law.

In order to better understand where this criticism is coming from, it is important
to understand and scrutinize the notion of sovereignty. In jurisprudence, there is
a tendency to associate ‘sovereign’ with the idea of a person whose word is law
for his subjects. But, the expression ‘a state’ “is not the name of some person or
thing inherently or ‘by nature’ outside the law; it is a way of referring to two
facts” (1) a population inhabiting a territory lives under that form of ordered
government provided by a legal system, which includes a legislature, courts, and
primary rules, and (2) that the government enjoys a vaguely defined degree of
independence”.

As such, one can see that there are various degrees of dependence or
independence. When one accepts this notion, one can answer the claim that
because states are sovereign, they cannot be subject to international law. For the
word ‘sovereign’ is negative; it is the absence of certain types of control. The
autonomy of a state is not unlimited and neither can it be only limited by certain
obligations because it would be an assertion of a claim that states should be “free
of all other restraints”. Among states, there exists a given form of international
authority, therefore, the sovereignty of states is limited to that extent.” The rules
of international law are indeed vague and conflicting on many points, so that
doubt about the area of independence left to states is far greater than that
concerning the extent of a citizen’s freedom from municipal law”.

‘Voluntarist’ or theories of ‘auto-limitation’ attempt to reconcile the

absolute sovereignty of states with the existence of binding rules of international
law, by treating all international obligations as self-imposed.

Hart has three main arguments against this theory: (1) they fail to
completely explain why states can only be bound by self-imposed obligations; (2)
there is something incoherent in the argument that states can only be bound by
rules which they have imposed upon themselves. “For, in order that words
function as an agreement, and so give rise to obligations and confer rights, rules
must already exist providing that a state is bound to do whatever it undertakes”.
(3) There are facts. One must “distinguish between claims that states can only be
bound by self-imposed obligations, from the claim that they could be bound in
other ways under a different system, in fact no other form of obligation for states
exist under the present rule of international law”.

And although Hart does not subscribe to this theory, there are two factual
exceptions: (1) new states are bound by general obligations they weren’t
signatories to, and (2) states are bound by rules they previously never agreed to
when new situations arise, like gaining access to sea.

IV

International law resembles a system consisting only of primary rules.

There are also theories that claim international law is a form of morality.
However, Hart rejects this theory. He states that international law claims are
formulated much differently from international moral criticism. Second,
International law rules are often morally indifferent, and exist for reasons like
convenience, like driving right rather than left in municipal law.

Hart believes that it is not necessary for states to believe international law
is moral to conform to it. “Any form of legal order is at its healthiest when there
is a generally diffused sense that it is morally obligatory to conform to it”.

Many modern theorists, like Kelsen, insist that international law has a
‘basic norm’, or Rule of Recognition, to which the validity of rules constitute a
single system. The opposed view, however, claims that this is false; that
international law simply consists of a set of separate primary rules of obligation,
which are not united in this manner.

Hart does not discuss the merits of these, instead questions the
assumption that it must contain such element. He asks: ‘why should we make
this a priori assumption and so prejudge the actual character of the rules of
international law?’ Surely, it is “conceivable that a society may live by rules
imposing obligations on its members as ‘binding’ that may not be unified in any
way, or does not derive their validity from any more basic rule”. The existence of
rules does not involved the existence of such a basic rule.

However, when a Rule of Recognition is added to an already existing set

of rules, it brings the advantages of the system and makes it possible to for a new
statement: ‘What provision of the system makes this rule binding?’ However, the
Rule of Recognition that ‘States should behave as they customarily behave’ is
problematically circular. It simply says that those accepting certain rules must
accept the rule that they ought to obey accepted rules.

It is only when we emancipate ourselves from this assumption are we

then faced with a question that is one of fact. “What is the actual character of the
rules as they function in the relations between states?” Hart submits that there is
“no basic rule providing general criteria of validity for the rules of international
law, and that the rules constitute not a system but a set of rules”. He then
discusses how arguments that treaties can come to bind parties would give rise
to a Rule of Recognition. Hart responds by saying that:

“Perhaps international law is at present in a stage of transition towards

acceptance of this and other forms which would bring it nearer in
structure to a municipal system. If and when, this transition is completed,
the formal analogies… would acquire substance, and the sceptic’s last
doubts may then be laid to rest. Till this stage is reached, the analogies are
surely those of function and content, not of form… In this analogy of
content, no other social rules are so close to municipal law as those of
international law”.