Part 1 (Sources of Doubt): Hart introduces the concept of International Lawas something that is although consistent with the usage of the expression of law, the absence of an international legislature, courts with compulsory jurisdiction, and centrally organized sanctions have inspired misgivings. It is arguable that due to the lack of these institutions, international law not only lacks secondary rules of change and adjudication, but also a unifying rule of recognition specifying sources of law and providing general criteria for the identification of its rules. These beg the question then whether international law is really law. In this chapter, Hart says that he will focus on the detailed characteristics of the doubt, and not on actually confirming whether it is indeed law or not.
Some theorists suggest simplifying the question as just mere interpretation of the word “law.” By looking at it this way, the question could be answered by either merely giving the word a new meaning to accommodate what international law is, or simply retaining our understanding of law and just say that international law is not law. Hart argues that this is not exhaustive and could be misleading to some, as using this short way is not appropriate. He says that this short way is appropriate if we’re dealing with a proper name, such as saying a place is Londonif it is “London.” When dealing with general terms, such as Law, we demand that the principle be made explicitly and its credentials inspected, and not merely declare it as such.
Hart says we shall consider two principal sources of doubt concerning the legal characteristic of international law, and to also consider the theories proposed by theorists to meet these doubts. The first of which is in the concept of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. The second focusing on the form of doubt that springs from the obscure belief that states are fundamentally incapable of being the subjects if legal obligation and contrasts the character of subjects of international law with those of municipal law.
Part 2 (Obligations and Sanctions): Doubts usually arise from the question “How can international law be binding?”Hart then throws the question of what is meant when a whole system of law is binding. When this is taken into account, it can be seen that we need to focus on their scope or applicability in given circumstances to particular persons or transactions. Thus, the prior question express a doubt not about its applicability, but about the general legal status of international law, leading to a clearer question whether international laws can create obligations. If they are not binding, then they cannot be some form of a law. All speculation about the nature of law begins from the assumption that its existence at least makes certain conduct obligatory.
Hart then says that the mere argument that international law is not binding due to its lack of organized sanctions is not acceptable since this would also mean to tacitly accept the analysis of obligation contained in the theory that law is essentially a matter of orders back by threats, which is not the case, as seen in previous chapters.
Another argument, which Hart actually considers more plausible, considers provisions in municipal laws which are necessarysuch as the prohibition for violence. If these are necessary in municipal laws, why is it not necessary for international law? The answer lies in the society that people are living in for municipal laws govern those who are relatively and approximately equal in strength in the society they are living in. This is not the case and the truth when we put different states together under one legal system. Different states come from different factual backgrounds which cannot be easily governed without grave repercussions such hostile aggressions against differing states. It may be said that such rules are efficacious only so far as they concern issues over which states are unwilling to fight. Even if this is the case, there is in no way that these rules are obligatory with these states.
Part 3 (Obligation and the Sovereignty of States): Hart starts this part/section by saying that one of the biggest perplexities of international law is the difficulty in accepting a sovereignstate is bound by or have an obligation under international law. The examination of this objection then involves a scrutiny of the notion of sovereignty, applied not to a legislature or to some other element or person withina state.
The word statehas its own large area of vagueness but what has been said will suffice to display its central meaning. There are many different types and degrees of dependence (and so of independence) between territorial units which possess an ordered government. There are some units, such as colonies, protectorates, trust territories, confederations, which requires dependence on its higher unit, usually the state. The limiting power of dependence may be not the power or authority of another such unit, but an international authority affecting units which are alike independent of each other. Hart proceeds in giving different kind of dependence (and independence), and says that we need to consider this range of possibilities because merely to realize that there are many possible forms and degrees of dependence is a step towards answering the claim that because states are sovereign, the cannotbe subject to or bound by international law or canonly be bound by certain specific form of international law. The fact that there are certain degrees of applicability gives the notion that international law may not be binding at all for some. The independence given to the states are far wider than what is given to people under municipal law.
Hart gives us a better understanding of the difference between municipal and international law through questions regarding the scope of both. He says that for municipal law, we ought to answer the question What is the extent of the supreme legislative authority recognized in this system?On the other hand, for international law, we are focused more on the autonomy or independence of states through the question What is the maximum area of autonomy which the rules allow to states? These questions show contrasts to one another, where one focuses on the authority of the supreme authority, while the latter focuses on the amount of independence of that which is to be governed.
Some international law can be considered as voluntarist, where the states surrender some of their autonomy to international law, such as when international law is legislated within their own state. On the other hand, there is the theory of auto-limitation, where it is considered that individuals naturallyfree and independent, were yet bound by municipal law, by treating the obligation to obey the law as one arising from a contract which those bound had made with each other, and in some cases with their rulers. Hart presents a three-fold argument against these voluntarist theories.
First, the theories fail to explain how it is known that states canonly be bound by self-imposed obligations, or why this view of their sovereignty should be accepted. Second,there is something incoherent in the argument designed to show that states can only be subject to or bound by rules which they have imposed upon themselves. Such rules presupposed in the very notion of a self-imposed obligation obviously cannot derive their obligatory status from a self-imposed obligation to obey them. Thirdly, Hart says that a distinction is needed between the a priori claim that states can only be bound by self-imposed obligations, from the claim that though they could be bound in other ways under a different system, in fact no other form of obligation for states exists under the present rules of international law.
Given these criticisms, Hart says that applicability of international law cannot be made binding merely because of consent, and that two clear and important exceptions to this doctrine must be given attention to. The first is the scenario where there is a new state, where the attempt to rest the new state’s international obligations on a tacit or inferredconsent seems wholly threadbare. The second case is that of a state acquiring territory or undergoing some other change, which brings with it the incidence of obligations under rules which previously it had no opportunity either to observe or break, and to which it had no occasion to give or withhold consent. Should a state who recently acquired maritime territory be subject to international laws relating to the high seas?
Part 4 (International Law and Morality): Hart likens the application of international law to that of law applied to primitive societies, where secondary rules do not exist. Very often, jurists have though that these formal differences between international and municipal law can best be expressed by classifying the former as morality, but this just makes things more confusing. Within the category of morality, we should have to mark out afresh the old distinctions which it blurs.
In the particular case if international law, there are a number of different reasons for resisting the classification of its rules as morality. First, there is no one notion of what may be moral in the international setting. Each state has their own moral standards that are being followed, and one cannot uphold this standard with the other whose standard is quite different. This is not the case, since what usually predominates when settling disputes in international law are precedents, treaties, and juristic writings, often no mention is made of moral right or wrong. A more important ground of distinction is that the rules of international law, like those of municipal law, are often morally quite indifferent, where rules exist for mere convenience without any moral implications or whatsoever. It remains true that morality then cannot logically contain rules which are generally upheld by those who subscribe to them to be in no way preferable to alternatives and of no intrinsic importance.
Another difference Hart points out is that there is nothing in the nature or function of international law which is similarly inconsistent with the idea that the rules might be subject to legislative change. The lack of a legislature is just a lack which many think of as a defect one day may be repaired. Lastly, it must be said that even if particular rules of municipal law conflict with morality, nonetheless the system as a whole must rest on a generally diffused conviction that there is a moral obligation to obey its rules. Unlike international law, the presence of such urge to oblige with it is lacking, as there seems to be no reason to accept it. Of course, there will still be a time where a state may offer to honor an international law or treaty due to its moral implications, but this is to be attributed to the state, and should not be a deterrence in our understanding in this chapter.
Hart ended this part of the chapter by saying that acceptance of international law is not much guided by morality. Adherence to law through calculations of long-term interest or by the wish to continue a tradition or by disinterested concern for other, there seems to be no good reason for identifying any of these as a necessary condition of the existence of law either among individuals or states.
Part 5 (Analogies of Form and Content): Hart says that there are some theorists that makes analogies of international law to municipal law to justify the former as to be a law. Analogies such as treaties being entered into after a war is said to resemble that of legislation. By the tone of Hart, he is not impressed with creating such analogies. Another analogy is when the parties of international arbitrations have implemented the judgments of said international courts. This gives a semblance of judicial form in the international level. Hart says that although it can be argued that these scenarios are indeed analogous, their significance must be assessed in the light of the fact that, whereas a municipal court has a compulsory jurisdiction to investigate the rights and wrongs of self-help, and to punish a wrongful resort to it, no international court has a similar jurisdiction.
Given all these, one criticism made by Kelsen is worth looking into. Kelsen and other modern theorists insist that, like municipal law, international law possesses and indeed must posses a basic norm, or what we have termed a rule of recognition. An example of which is the concept of pacta sunt servanda. This has, however, been abandoned by most theorists, since it seems incompatible with the fact that not all obligations under international law arise from pacta, however widely that term is construed. So it has been replaced by something less familiar, the so-called rule that States should behave as they customarily behave. Hart says that he’s not focused on the merits of the formulations of the basic norm. Rather, we shall question the assumption that it must contain such an element in the first place. The question to be asked, he says, is Why should we make this a priori assumption (for that is what it is) and so prejudge the actual character of the rules of international law?When such a rule of recognition is added to the simple set of separate rules, it not only brings with it the advantages of system and ease of identification, but it makes possible for the first time a new form of statement. These are internal statements about the validity of the rules, for we can now ask in a new sense, what provision of the system makes this rule binding? They are binding if they are accepted and functions as such!
Hart says that there is something comic for the search of the basic norm in international law since the simplest forms of social structure exists without one. Hart says that once we emancipate ourselves from the assumption that international law mustcontain a basic rule, the question to be faced is one of fact. With the mechanisms mentioned in the analogies in place, a basic rule of recognition could then be formulated which would represent an actual feature of the system would be more than an empty restatement of the fact that a set of rules are in fact observed by states. Perhaps international law is in a transition phase of acceptance? Until this stage is reached, mere analogies are surely only on function and content, not of form. Lastly, another comment is that in this analogy of content, no other social rules are so close to municipal law as those of international law.
Straight from the Hart 