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‘Binding Force’ Revisited

Published online by Cambridge University Press:  21 May 2009

C.F. Amerasinghe
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Extract

What makes international law binding? This is a question that has often interested theorists and jurists. It has been regarded as identical with the question of what is the basis of obligation in international law. The meaning of the question being asked is sometimes not entirely clear. Being concerned with the binding force of international law may be easier to understand than speaking of the basis of obligation. It would be reasonable to assert that to talk of the binding force of law has a more accurate and specific connotation than referring only to the impact of obligations under the law. The meaning of the question being asked is sometimes not entirely clear. Being concerned with the binding force of international law may be easier to understand than speaking of the basis of obligation.1 It would be reasonable to assert that to talk of the binding force of law has a more accurate and specific connotation than referring only to the impact of obligations under the law. This is a minor point but is worth noting.

Type
Brief Report
Information
Netherlands International Law Review , Volume 44 , Issue 2 , August 1997 , pp. 224 - 232
Copyright
Copyright © T.M.C. Asser Press 1997

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Footnotes

*

Member, Institut de droit international; Visiting Senior Fellow, Trinity Hall, Cambridge; sometime Honorary Professor of Law, University of Colombo; Professor of Law, University of Ceylon, Colombo; Director, Secretariat and Executive Secretary, World Bank Tribunal.

References

1. The problem that arises is connected with the idea that law always creates obligations and nothing else. While rules of law may generally, by implication, be reduced to some kind of obligation resting on one or more of the subjects, they also provide for other incidents such as powers, freedoms or liberties, disabilities, immunities and the like. The question is more appropriately framed by asking not why law has the power to create obligations to be observed but why rules of law, whatever their effect, have binding force.

2. See, e.g., Rawls, J., A Theory of Justice (1992);Google Scholar Finnis, J.M., Natural Law and Natural Rights (1980).Google Scholar

3. See Brierly, J.L., The Basis of Obligation in International Law (1958) p. 1, at p. 3 et seq.Google Scholar

4. Ibid. p. 56 et seq.

5. Ibid. p. 36 et seq.

6. Ibid. p. 31 et seq.

7. Schachter, O., ‘Towards a Theory of International Obligation’, 8 VJIL (1968) p. 300, at p. 302 et seq.Google Scholar

8. Ibid. p. 311 et seq.

9. Ibid. p. 313 et seq.

10. See Brierly, , op. cit. n. 2, p. 66.Google Scholar

11. Ibid. p. 65.

12. Ibid. p. 60, referring to Krabbe's concern with the natural law.

13. See Henkin, L., How Nations Behave (1979).CrossRefGoogle Scholar

14. Among authors who do not pay attention to the question as such are Brownlie, I., Principles of Public International Law (1990);Google Scholar O'Connell, D.P., International Law (1970);Google Scholar Jennings, R.Y. and Watts, A.D., Oppenheim's International Law (1992);Google Scholar Shaw, M.N., International Law (1994);Google Scholar Halleck, H.W., International Law (1883);Google Scholar Wheaton, H., Elements of International Law (1866);Google Scholar Sibert, M., Traité de droit international public (1951);Google Scholar Scelle, G., Précis de droit des gens (1932);Google Scholar Guggenheim, P., Traité de droit international public (1953);Google Scholar Spiropoulos, J., Théorie genérate du droit international (1930);Google Scholar Sereni, A.P., Diritto intemazionale (1956–1965);Google Scholar Seidl-Hohenveldern, I., Völkerrecht (1994). Many authors discuss the legal nature of international law but do not distinguish it from the binding force of international law. The assumption presumably is that, if it is law, it is binding.Google Scholar

15. Some of these are listed in Schachter, , loc. cit. n. 7, at p. 301.Google Scholar

16. Corbett, P., ‘The Consent of States and the Sources of International Law’, 6 BYIL (1925) p. 20;Google Scholar Tunkin, G., ‘Coexistence and International Law’, 95 Hague Recueil (1958) p. 5, at p. 32 et seq.Google Scholar

17. Kelsen, H., Principles of International Law (1966) p. 564.Google Scholar

18. Wheaton, H., Elements of International Law (1896) p. 4 et seq., explaining the origin of international law as understood by Grotius and others.Google Scholar

19. Stone, J., ‘Problems Confronting Sociological Enquiries Concerning International Law’, 89 Hague Recueil (1956) p. 65.Google Scholar

20. de Visscher, C., Theory and Reality in Public International Law (1953) p. 133;Google Scholar Hoffman, S., ‘International Systems and International Law’, in Falk, R. and Mendlovitz, S., eds., 2 The Strategy of World Order (1966) p. 135, at p. 162.Google Scholar

21. Kaplan, M. and Katzenbach, N., The Political Foundations of International Law (1961) p. 56 et seq. and p. 341 et seq.Google Scholar

22. McDougal, M., Studies in World Public Order (1960) p. 306 et seq.Google Scholar

23. Schachter, , loc. cit. n. 7, at p. 306 et seq.Google Scholar

24. Scelle, G., Droit international public (1949) p. 13 et seq., discussing the basis of international law.Google Scholar

25. Jenks, C., The Common Law of Mankind (1955) chapter 1;Google Scholar Triepel, H., Droit international et droit interne (1899 in German, French translation) p. 78.Google Scholar

26. Brierly, J.L., The Outlook for International Law (1944) p. 4 et seq.Google Scholar

27. Krabbe, as discussed in Brierly, , op. cit. n. 2, p. 59 et seq.Google Scholar

28. Brierly, , op. cit. n. 2, p. 64 et seq.Google Scholar

29. Franck, T., The Power of Legitimacy Among Nations (1990) p. 18 et seq. in particular.Google Scholar

30. Austin, J., The Province of Jurisprudence Determined, Hart, H.L.A., ed. (1954) pp. 133, 193, discussing the nature of international law. Austin thought that international law lacked sanctions and, therefore, was not law properly so-called for the purpose of jurisprudence.Google Scholar

31. Hart, H.L.A., The Concept of Law (1994) p. 100 et seq.Google Scholar

32. Jellinek, G., 1 Das Recht des modernen Staates (1900) p. 121 et seq.Google Scholar

33. See Kant, I., Philosophy of Law (translation by Hastie, W., 1887) p. 34.Google Scholar

34. See Kant, I., Perpetual Peace and Other Essays (translation by Humphrey, T., 1983) at p. 756.Google Scholar See also Tesón, F., ‘The Kantian Theory of International Law’, 92 Col. LR (1992) p. 63, at p. 67.Google Scholar

35. Kant, I., Groundwork of the Metaphysics of Morals (translation by Paton, M.J., 1964) p. 71.Google Scholar

36. See Hart, , op. cit. n. 31, passim.Google Scholar

37. Hart, , op. cit. n. 31, p. 100 et seq.Google Scholar See also Postema, G.J., ‘Coordination and Convention at the Foundations of Law’, 11 J Legal Studies (1992) p. 165.CrossRefGoogle Scholar

38. Franck, , op. cit. n. 29.Google Scholar

39. Brierly, , op. cit. n. 2, p. 64 et seq.Google Scholar

40. The adoption of the 12-mile limit for the territorial sea, over the three-mile or other limit, even before the Law of the Sea Convention was adopted in 1982 and came into force, is an example of this phenomenon. It is also demonstrated by the jurisprudence of the Iran-US Claims Tribunal which has adopted a flexible standard of compensation for the expropriation of foreign property which may bedescribed as ‘appropriate compensation’ (see Amerasinghe, C.F., ‘Issues of Compensation for the Taking of Alien Property in the Light of Recent Cases and Practice’, 41 ICLQ (1992) p. 21, at p. 36 et seq.).CrossRefGoogle Scholar

41. Brierly, , op. cit. n. 2, p. 66.Google Scholar