"Without a credible system of sanctions it is wrong to speak of "International Law". At most one can talk of ethical, diplomatic or political norms that influence, shape or constrain the conduct of states and of other international actors.

        The school of “positive law” regards law to be ‘created by the exercise of human discretion and enforced by human enforcers.’ An enforcement system that derives from positive law applies whatever legal results the lawmaking processes have deemed appropiate. In the opinion of Alfred Rubin this is not a system underpinned by justice but rather by authority. 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 a national legal system the creation and modification of law usually lies with an assembly (generally called 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 has become increasingly more 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.

         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 international law as not binding because of its lack of organised sanctions is tacitly to accept Austin’s theory of law and obligation. This theory derives obligation from the notion that to do otherwise would be met with punishment.  For Hart, however, this theory does injustice to all legal thought, not only that of international law. He argues that the concepts of obligation and duty are distorted. For Hart there exists an external predictive notion of obligation which indeed does prescribe punishment for failure to obey, but this must be distinguished from the ‘internal normative statement ‘I have an obligation to act thus’ which assesses a particular person’s situation from the point of view of rules accepted as guiding standards of behaviour.’  For Hart, this distinction is key, as it calls into question the necessity of limiting the normative idea of obligation to rules supported by organised sanctions. Thus he establishes the existence of alternative sources of obligation to obey law other than threatened sanctions.

        Again making a comparison between domestic law and international law, one can find another source for the belief that the lack of a sanction system leads to a weaker legal status. This relates to primary rules of obligation. A main example of such is the prohibition of the free use of violence in the national system and the corresponding endorsement of force as a means of sanctioning those who violate this prohibition. The necessity of primary rules in a domestic legal system derives from the need to protect those who have voluntarily submitted themselves to the law from those ‘too wicked, too stupid, or too weak to obey the law.’ It seems logical that this would also be needed by the international legal system. However, due to the characteristics of a society of individuals it is far more likely that a system of sanctions may successfully be implemented with relatively small risk and high expectation of success. The same cannot be said of the international arena. Although it may be desirable to implement a system of sanctions, the characteristics of the international order do not provide the same assurance of low risk and high efficacy if sanctions were to be used. Firstly, there is no guarantee that violence between states in the international order will remain soley between the aggressor and the victim, as would be the case with a murder in the domestic order, for example. Secondly, due to the inequality amongst states, there can be no assurance that those in favour of order will have the strength to defeat those professing aggression. ‘Hence, the organisation and use of sanctions may involve fearful risks and the threat of them add little to the natural deterrents.’ Furthermore, whilst there may be no doubt that without a national police force, burglaries and crimes of the like would take place regularly, the international arena have enjoyed long periods of relatively peaceful relations in between devastating wars. 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.’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. This provides a bridge to the argument many writers make when warning against the temptation to equate the enforcement capabilities of a law system with its authority and effectiveness. Akehurst, for example, does not deny that international law is clearly weaker than its municipal counterpart, but, he argues this is not sufficient grounds on which to question its legal status.

Thus far, the paper has touched on the theoretical debate as to whether sanctions are a necessary component for a system to be termed legal. For simplicity, it was assumed that international law does not have a credible system of sanctions. Yet, this is a claim that we must duly assess further. Both Oppenheim and Kelsen 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, for example.

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. Trade and diplomatic sanctions are slow to work. Moreover, their burden often falls most heavily on ordinary civilians rather than the violating government. 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.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 organizations have developed procedures that allow pressure to be brought against governments that do not comply with recognized 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.

        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.

        Thankfully, the most obvious sanction of force is becoming less and less legitimate in the international order, witness the current heated debate over the U.S. proposed military intervention in Iraq, 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.

        

        

        

If the paper is to reject the theory that international law’s legal status is in question due to its lack of a credible system of sanctions and it has not supposed to offer evidence that international law is in actual possession of said system, then it has left an obvious question begging. If it is not an effective system of sanctions that makes international law legally binding, what does?

One will recall that Austin preferred to call “international law” “international positive morality.” It therefore remains for the paper to 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. 

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. 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. As an 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 foreign offices, national and international courts and in judicial and arbitral 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.

The discussion of the role of morality in international politics builds a bridge to the thoughts of Rosalyn Higgins when attempting to define international law as a normative system rather than just rules.

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