Obligations and Sanctions

The question on whether international law is binding or not, expresses a doubt not about
the applicability but the legal status of international law. One reason for this is the absence of
the system of centrally organized sanctions in international law. To accept this as so is to concede
to the analysis that law is essentially a matter of orders backed by threats. Yet, as we have argued,
this distorts the role of legal thought and discourse. Hart has explained his departing from the
predictive analysis of the concept of law. Another form of argument is drawn from the argument
that in municipal law, primary rules prohibiting the use of violence and the rules providing for
the use of force as a sanction is tagged as necessary. Does the absence of this in international
law say anything? Hart says that the factual background of international law is so different from
that of municipal law. There is no necessity for sanctions nor a simple prospect of their efficacious
use. Aggression between states is public, there can be little certainty that it will remain a matter
between 2 parties. Because of the inequality of states, there is no assurance that the combined
strength of those of the side of international order is likely to preponderate over the powers
tempted to aggression. Despite this, there is a general pressure for conformity to the riles in
international law. Claims and admissions are based on them and their breach is held to justify
not only insistent demands for compensation, but reprisals and counter-measures. Hence, the
absence of a centrally organized sanctions does not mean that international law is not binding.

Obligation and the Sovereignty of States

One of the most persistent sources of perplexity about the obligatory character of international
law has been the difficulty in explaining the fact that a sovereign state may also be bound by, or
have an obligation under international law. Sovereignty when associated with the state, is
different compared to when it is associated to people. It refers to: first, a population with a
territory lives under an ordered government provided by a legal system with its legislature, courts,
primary rules; and second, the government enjoys a vaguely defined degree of independence.
Colonies, protectorates, suzerainties, trust territories, confederations present fascinating
problems of classifications which is expressed in legal forms, so that what is law in a dependent
unit will depend on another. Another form of limitation to the sovereignty is in the form of an
international authority affecting units which are alike independent of each other. There are
indeed many forms and degrees of dependence and independence. For if in fact we find that
there exists among states a given form of international authority, the sovereignty of states is to
that extend limited, and it has just that extent which the rules allow. Hence, we can know which
states are sovereign when we know what the rules are.

Voluntarist theories attempted to reconcile the sovereignty of states with the binding rules of
international law, which are 2 contradictory statements. This was done by treating all
international obligations as self-imposing. Hart disagrees with this by presenting 3 arguments.
First, it fails to explain how it is known that states can only be bound by self-imposed obligations.
Second, a treaty is a mere declaration of a state’s proposed future conduct, and failure to perform
the same is not considered a breach of any obligation. In order that words be treated as an
agreement or treaty, rules must already exist providing that a state is bound to do whatever it
undertakes by the right words to do. Third, Hart scrutinized the claim that all international
obligation rises form the consent of the party bound. Two exceptions to this doctrine were
explained. First, in a new state, it is bound by the general obligations of international law
including the rules giving the binding force to treaties. Second, in a state acquiring territory, if a
state acquires it, it becomes subject to all the rules of international law relating to the said
territory.

International Law and Morality

The insistence that the rules governing states are only moral rules is inspired by the old
dogmatism that any form of social structure that is not reducible to orders backed by threats can
only be a form of ‘morality’. Grouping them into one lump, Hart says that it is important to mark
out afresh the old distinctions which it has blurred. Unlike morality which concern the conscience,
what predominates in the arguments of states over matters of international law are references
to precedents, treaties and other juristic writings. Furthermore, international law is often morally
indifferent. A rule may exist because it is convenient and necessary to have a fixed rule but not
because of any moral importance.