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Mumford, Nicole --- "Persuasion: Austin, Sanctions and the Legal Status of International Law" [2016] PerIntLawJl 3; (2016) 1 Perth International Law Journal 1


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PERSUASION: AUSTIN, SANCTIONS AND

THE LEGAL STATUS OF INTERNATIONAL L AW

NICOLE MUMFORD*

This paper examines the contemporary validity of John Austin’s theory that the law ‘properly so called’ necessarily requires a command backed by a sanction in the context of international law. This paper argues that Austin’s argument is largely incorrect in its application to the contemporary international system, based upon two limbs. Firstly, sanctions in various forms exist in enforcing public international law, including economic, financial, political and social enforcement mechanisms. Secondly, Austin’s theory overlooks the other means by which the international legal system compels obedience beyond the command and control theory of law.

I INTRODUCTION

John Austin’s legal positivistic view of international law as not ‘true law’ due to the absence of a sovereign command backed by coercive sanctions is no longer ultimately correct in the contemporary international legal system. Austin’s recognition of the anar- chical system lacking a central sovereign authority within which international law op- erates is essentially correct, however the rest of Austin’s argument has ceased to be val- id. First, the implied assumption that international and domestic legal systems should mirror each other in their operation is fundamentally flawed given that they differ in function, creation and substance. Secondly, sanctions clearly exist in enforcing interna- tional law through bodies such as the Security Council of the United Nations (Security Council) and other supranational bodies such as the International Court of Justice (ICJ) and the International Law Commission (ILC). Further, coercive force in the increas- ingly integrated and globalised contemporary system also takes the form of economic, financial, political and social sanctions, as well as traditional military force. Whilst some jurists argue that these sanctions are ineffective and may not apply to powerful coun- tries, weakness in enforcement sanctions is not fatal to the legitimacy of international law, it merely highlights an imperfect obligation with room for improvement. In addi- tion, the decentralised nature of coercive sanctions also allows for some enforcement mechanisms to apply in the absence of others, as is the case of the permanent members of the Security Council being subject to other forms of accountability.

This paper will also demonstrate that Austin’s command and control theory of law ne- glects to consider other means by which international law compels obedience. In the 200 years following Austin’s positivist articulations, the legal theory and the field of interna-

tional law has developed to recognise more appropriate models to explain compliance with international law. The role of coercive sanctions in legitimising international law is devalued in favour of theories recognising the non-hierarchical, decentralised, con- sent-based nature of the international system, such as that of transnational participation, the internalisation of international norms and actual recognition of the law as legiti- mate and binding. Further, some jurists go so far as to argue that the role of coercive enforcement is merely symbolic and does not constitute a critical factor in compelling obedience. It is therefore the case that in any event international law is ‘true law’ despite any perceived lack of coercive mechanisms.

II THE ANARCHICAL INTERNATIONAL LEGAL SYSTEM

Austin’s observation that states in the international system acknowledge no higher au- thority than themselves is correct to the extent that states exist largely in an anarchical international system. The international legal system, as it existed at Austin’s time of writing and as it exists today, lacks a central government and unified violence system with force shared by individual political units,1 and a well-organised juridical system.2 Given the diverse nature of nation-states and the pre-eminence of the notion of sover- eignty, it is logical that states are loath to relinquish military resources and personnel to the control of a universal legislative body, in addition to uncertainties surrounding accountability mechanisms for such a body.3 To the extent of this observation, Austin is correct in his analysis of the anarchical system in which the international legal system operates, with states acknowledging no higher authority than themselves, and powerful states being unable to be forced to comply with legal rules against their will by an over- arching authoritative government.

III EXISTENCE OF COERCIVE SANCTIONS IN INTERNATIONAL LAW

In the absence of this central, supranational authority commanding action backed by coercive sanctions in the international sphere, some jurists agree with Austin’s belief

* Nicole Mumford. Bachelor of Laws / Arts (Political Science and International Relations) Student (The University of Western Australia). Responsibility for the text lies with this author and all errors are hers alone. 1  Shigeyoshi Ozaki, ‘International law and coercion’ (1984) 27 Japanese Annual of International Law 12, 23. 2  Ibid 21.

3  Sandra Raponi, ‘Is coercion necessary for law? The role of coercion in international and domestic law’

(2015) 8(1) Washington University Jurisprudence Review 35, 36.

that international law is not true law. This argument is flawed on a number of grounds: first in its implied assumption that international law is only legitimate if it mirrors the operation of domestic law. International and domestic law are fundamentally different in their functional criteria, formation and content. For example, the operation of do- mestic law largely hinges upon the premise of hierarchy and its administration of rules and sanctions, whereas this element is effectively excluded in international law both in legislation and implementation.4 In addition, the establishment of domestic and interna- tional law differs due to the lack of a global legislative body and the development of law by custom, which in turn creates essential differences in legal content.5 It is therefore the case that domestic and international law are fundamentally different creatures, and therefore cannot have their functional effectiveness measured against the operation of the other. As a result, the existence of coercion in international law cannot be discounted due to the absence of a forcible hierarchical model of government.

This argument is also undermined by significant changes in the field of international law since Austin penned his argument, particularly in the creation of the United Nations and other international and regional bodies. Over the past 100 years, command that was once from an authoritative political superior may now be comparable to a variety of resolutions of the Security Council.6 International sanctions are largely centralised in the Security Council,7 which is endowed with authority to ‘take such action by sea, air or land forces as may be necessary to maintain or restore international peace and security’.8 One such example is the implementation of sanctions by the United Nations against Lib- ya and the government of Muammar el-Qadhafi. In condemning Qadhafi’s persecution of anti-government protestors, the United Nations General Assembly suspended Libya’s membership of the Human Rights Council,9 and United Nations’ sanctioned military forces were deployed to Libya which ultimately resulted in Qadhafi’s flee from Tripoli. Whilst the Libyan state has continued to be turbulent and the issue of governance is yet to be resolved, this example nonetheless illustrates that the Security Council can, and

4  Dr Laszlo Valki, ‘Does international law contain sanctions?’ (2015) 26(4) Annales Universitatis Scientiarum Budapestinensis de Rolando 255, 258.

5  Ibid 259, 261.

6  Prof Dr Sompong Sucharitkul, ‘International law as law’ (2010) 16 Annual Survey of International and Comparative Law 1, 2.

7  Milivoj Milovanovic, ‘Sanctions and international law’ (1981) 7 South African Yearbook of International Law 54, 60.

8Charter of the United Nations art 42.

9Suspension of the rights membership of the Libyan Arab Jamahiriya in the Human Rights Council, GA Res 265, UN GAOR, 65th sess, 76th mtg, UN doc GA/11047 (1 March 2011).

will, intervene to enforce sanctions against states to ensure compliance with their inter- national legal command.

In addition, recent years have seen the expansion and proliferation of many international and regional bodies with supranational power to enhance and strengthen the rules of international law. Examples of such bodies include the ICJ, the Permanent Court of Ar- bitration in Hague, the ILC, the International Criminal Court, the GATT and the World Trade Organisation.10 The multitude of these bodies with their individual roles, rules and enforcement mechanisms highlights the existence of a number of supranational bodies filling the anarchical vacuum within which international law operates. In turn, this negates the limb of Austin’s argument that no higher authority exists to enforce compliance with international law, with such authority existing albeit in a decentralised manner.

Individual states also evidence decentralised enforcement of international law through the application of sanctions to other recalcitrant states. In today’s contemporary inter- national legal system there is no one strict definition for what constitutes a sanction, and enforcement of international law can be applied by individual states, or groups of states collectively, to take common action to ensure international legal compliance.11 At his time of writing, Austin could not have foreseen the shrinking globalised and inter- connected international world in which we now live, and may not have appreciated the persuasiveness of alternative forms of sanction beyond the traditional means of physi- cal force. States may individually or collectively employ punitive economic measures, such as embargoes, boycotts and blockades,12 which are generally disruptive due to the increasingly integrated nature of the international community. Decentralised economic and financial sanctions have proven to be coercive, as evidenced by the success in com- pelling Iran to dismantle its nuclear program. Individual investor states, in their freez- ing of Iran in the global economy through embargoes and prohibited financial flows, ultimately incapacitated the Iranian economy which persuaded the state to abandon its nuclear program.13 This example highlights the existence and effectiveness of the decen- tralised application of enforcement mechanisms in non-traditional forms of sanctions.

10  Ibid 7.

11  Valki, above n 4, 255.

12  Milovanovic, above n 7, 62.

13Iran rejoins world economy with sanctions relief (17 January 2006) Aljazeera <http://www.aljazeera.com/ news/2016/01/iran-rejoins-world-economy-sanctions-lifted-160117132734049.html> .

Decentralised sanctions may also be of a political nature. Individual states’ political sanctions against rogue states may include verbal communications, diplomatic protest, termination of diplomatic relations and non-recognition of statehood.14 For example, South Africa was excluded from the international sporting community between 1960- 1972, including expulsion from the Olympics, football world cups, and international rugby and cricket competitions, emphasising its pariah status in diplomatic relations and international affairs.15 Further political pressure was exerted by the United States, following the enactment of the Comprehensive Anti-Apartheid Act 1986,16 with the ob- jective of implementing political and diplomatic measures to encourage the South Afri- can government to establish a nonracial democracy.17 These sanctions contributed to the pressure applied to the South African government to alleviate apartheid policies, which eventually culminated in the transition to democratic rule following Nelson Mandela’s election in 1994.18 This underscores the effectiveness of states enforcing adherence to international law in a decentralised manner through the implementation of political sanctions.

Finally, the influence of international public opinion and the desire to maintain a strong international reputation can also act as a coercive force. States are coerced into behaving in certain ways for fear that evidence of unreliability will damage current cooperative relationships and deter other states from entering into future agreements.19 As a whole, non-uniform means of coercion such as economic, financial, political and social sanc- tions have proven to be both persuasive and effective due to the integrated nature of the international political and legal system. This in turn highlights the existence and coer- cive application of sanctions in international law and undermines Austin’s hypothesis claiming otherwise.

14  Milovanovic, above n 7, 62.

15  Derek Charles Catsam, ‘The death of doubt – Sport, race, and nationalism in the new South Africa’ (2010) 11(2) Georgetown Journal of International Affairs 7, 8.

16Comprehensive Anti-Apartheid Act of 1986 (USA).

17  Susan J Shapiro, ‘Policy implementation and the Anti-Apartheid Act of 1986’ (1988) 2(2) Temple Interna- tional and Comparative Law Journal 259, 260.

18  Catsam, above n 14.

19  George W Downs & Michael A Jones, ‘Reputation, compliance, and international law’ (2002) 31 Journal of Legal Studies S95.

IV EFFECTIVENESS OF SANCTIONS UNDER INTERNATIONAL LAW

Despite the examples of sanctions as discussed above, some jurists argue that such co- ercive measures are ineffective in their application and inadequate to legitimise interna- tional law as ‘true law’. It is often argued that whilst the Security Council is empowered to assert its authority through positive determination of international legal violations and the implementation of sanctions, its capacity and willingness to act (and act efficiently) is to be doubted.20 This argument is supported by evidence of poor success rates for many sanctions, such as delayed or poorly implemented sanctions against Somalia and Rwanda in the early 1990s,21 and ineffectual efforts to halt the flow of arms into civil wars in Angola.22 These examples, however, only serve to illustrate the fact that interna- tional law is an imperfect obligation and evidences weaknesses, rather than proving fatal to international law’s legitimacy as a system.23 No legal system can claim to be perfect in its application of sanctions; breaches are committed against every legal system in both domestic and international law, invoking a variety of punitive mechanisms with differing results of success. The varied application of sanctions between systems does not necessarily render one void or illegitimate, but merely underscores weaknesses or areas requiring reform.

Some commentators also argue that the Security Council is limited in its ability to force powerful countries to comply with legal rules against their will. Despite having the the- oretical ability to enforce coercive sanctions against delinquent states, in practice, the Security Council is severely limited due to the veto power of its five permanent mem- bers.24 For example, the Security Council was ineffective in preventing the unendorsed United States led invasion and occupation in Iraq in 2003.25 In countering this argument, however, whilst this may apparently elevate some states above the coercion of the Se- curity Council it does not circumvent the previously discussed forms of sanction. The action taken in Iraq did not evade international public scrutiny, and was subject to the

20  Milovanovic, above n 7, 60.

21  Susan M Crawford, ‘U.N. Humanitarian Intervention in Somalia’ (1993) 3 Transnational Law & Con- temporary Problems 273, 277; David Scheffer, ‘Lessons from the Rwanda Genocide’ (2005) 5 Georgetown Journal of International Affairs 125, 131.

22  Todd Howland, ‘UN human rights field presence as proactive instrument of peace and social change: les- sons from Angola’ (2004) 26 Human Rights Quarterly 1, 3.

23  James B Scott, ‘The legal nature of international law’, (1905) 5 Columbia Law Review 124, 135.

24  Raponi, above n 3, 60.

25  David D Caron, ‘Does international law matter [comments]’ (2004) 98 American Society of International Law Proceedings 311, 313.

weight of public opinion both in international and domestic spheres. The United States government received devastating approval ratings following the invasion of Iraq and eventually led to voters electing a change of government to demonstrate their disapprov- al.26 This illustrates the fact that whilst powerful countries may not be held to account by some coercive mechanisms in the international system, they are still subject to enforce- ment of non-traditional sanctions such as that of the burden of negative public opinion.

V THE LEGAL NATURE OF INTERNATIONAL LAW

Whilst this paper argues that effective sanctions exist under international law, the ex- istence of commands backed by coercive sanctions in any case is not the linchpin of international legal legitimacy. John Austin belonged to the legal positivist school of thought, arguing that ‘law’ consists of rules enforced by a sovereign authority against political inferiors.27 After 200 years of empirical changes in world politics and theoreti- cal developments, a variety of legal theories now highlight a broad spectrum of essential characteristics of ‘true law’ beyond that of Austin’s ‘command theory’. One such theory emphasises the importance of norm internalisation in compelling obedience. Koh ar- ticulates that obedience derives from norm-internalisation, which in turn derives from process, and as a result, transnational legal process is the key to international legal com- pliance.28 In other words, rather than relying on coercive sanctions to compel obedience, the binding effect of law can be achieved through the mutual creation of international law, with adherence to internal criteria and congruence with prevailing social norms, practices and aspirations.29 This transnational theory of norm-internalisation devalues the significance of coercion in ensuring compliance to international law in favour of a more interactive consent-based approach.

Another theory of international law complementing the transnational process theory, and downplaying the role of coercion, is recognition theory. Recognition theory rejects the notion of coercion as an integral part of law, instead favouring the essence of law as members of a community recognising and accepting it as law or a body of binding

26  Stephanie Condon, 10 Years later: the Iraq war’s lasting impact on U.S. politics (19 March 2013) CBS News <http://www.cbsnews.com/news/10-years-later-the-iraq-wars-lasting-impact-on-us-politics/> .

27  Quincy Wright, ‘International law’ (1961) 10 Journal of Public Law 261, 262.

28  Harold Hongju Koh, ‘Why obey international law? Theories for managing conflicts with municipal law’ (2003) 97 American Society of International Law Proceedings 111, 112.

29  Jutta Brunnée and Stephen J Toope, ‘Persuasion and enforcement: explaining compliance with international law’ (2002) 13 Finnish Yearbook of International Law 273, 278-279.

rules.30 This theory is essentially supported by the establishment of the ICJ, and the fact that states submit themselves to its jurisdiction through the adjudication of international disputes. Akin to the internalisation of international norms, compliance with interna- tional law occurs without fear of sanction but instead empowers states to recognise the law as binding.

Other jurists emphasise the importance of participation and interaction in legitimising a legal system and ensuring compliance. Similar to the premises of norm internalisation and recognition, Pinto argues that encouraging states to interact with the development of international law by forcing an interpretation or enunciation of an applicable global norm facilitates compliance through individual state empowerment.31 This desire for participation and interaction through inclusion and empowerment is evidenced by the opening phrase of the United Nations Charter, ‘we the people of the United Nations’, making the document more real to the people themselves.32 It can therefore be seen that adherence to a legal system is not dependent upon command and control, but instead involves the empowerment of states through participation and inclusion in law making.

Further, some jurists assert that the role of enforcement in the international legal sys- tem is purely symbolic rather than an essential pre-condition for validity. Brunnée and Toope argue that enforcement is not central to compliance with international law, and in any case compliance is not the sole or best test of a law’s influence or legitimacy.33 Enforcement instead is symbolic as a reflection of the intention of international society to hold states to account for any breach of a norm, before any actual breach occurs, through some form of economic, social or military force.34 In effect, the very exis- tence of enforcement mechanisms is essentially a symbolic expression of the collective disapproval of the international society.35 This emphasises the non-essential nature of enforcement as a characteristic of a ‘true’ legal system.

30  Ozaki, above n 1, 17.

31  M.C.W Pinto, ‘Participation and Compliance in International Law’ (2004) 18 Ocean Yearbook 220, 221, 223.

32  Edward D Re, ‘International law and the United Nations’ (1946-1947) 21 St John’s Law Review 144, 145.

33  Brunnée & Toope, above n 28, 293.

34  Ibid.

35  Ibid.

VI CONCLUSION

The contemporary field of international law would be near unrecognisable to John Aus- tin, theorising in the early 19th century that ‘true law’ requires the command of a sov- ereign backed by coercive sanctions. Despite the empirical change seen over the 200 years since his writing, international law still exists in a largely anarchical vacuum in the absence of a central body of government and unified violence system. Beyond this, however, Austin’s view that international law is not ‘law properly so-called’ is no longer ultimately correct. It first rests upon the assumption that international and domestic law should be analogous in their operation, despite the difference in their function, creation and composition. Since Austin penned his argument the international legal system has witnessed the establishment of the Security Council and other supranational authori- tative bodies such as the ICJ and various international and regional criminal tribunals. Further, in our globalised and interconnected world, decentralised sanctions are increas- ingly effective in a variety of forms beyond traditional military force, such as economic, financial, political and social sanctions. Whilst some commentators emphasise certain weaknesses and ineffectiveness in the application of coercive sanctions, these flaws are not fatal to the law’s legitimacy, but instead merely highlight that international law is an imperfect obligation to be improved upon.

Further, and in any case, coercion is no longer a necessary component compelling com- pliance with international law. The development of non-coercive legal theories such as transnational process theory, recognition theory and participation theory highlight the significance of the consent-based nature of the international legal system and downplay the role of enforcement in legitimising the operation of law. Some jurists have devalued the role of coercive sanctions to such an extent that enforcement is regarded merely as a symbolic expression of the collective intention of international society to adhere to international law. It is therefore the case that Austin’s command and control theory that international law is not true law by virtue of the inability to enforce coercive sanctions, with such sanctions the fundamental characteristic of a functional legal system, is no longer ultimately correct.


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