The Foundations of The Authority of International Law and The Problem of Enforcement
| Published date | 01 January 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00340.x |
| Date | 01 January 1956 |
THE
MODERN
LAW
REVIEW
~~
Volume
19
January
1956
No.
1
THE
FOUNDATIONS OF
THE
AUTHORITY
OF
INTERNATIONAL LAW AND
'I'HE
PROBLEM OF ENFORCEMENT'
THE
subject of this paper is generally regarded as one of the most
difficult in the whole field of international law and relations-a fact
of which the author is only too conscious. Even
if
space permitted
anything in the nature of a systematic exposition, an international
lawyer taken up largely with day-today affairs may justifiably
be thought to lack the necessary qualifications for such
a
task.
Nevertheless, things occur from time to time,
or
situations
develop, that make
it
desirable for the practising international
lawyer to devote some attention to the theory and fundamentals
of
his
system, and in particular to the question of its basic autho-
rity. Such a situation exists in the world today, for international
law is being subjected to great strains and stresses, and a number
of disruptive tendencies are at work, tending to impair its authority.
Now, to the practitioner, the question of the authority of
a
legal system, whether municipal
or
international, presents itself
largely as a question of enforcement.
A
rule
or
a system has
authority
if
it
is enforceable, and normally
will
be enforced. Other-
wise
it
has,
or
may have, comparatively little authority4r
if
it
nevertheless does have
it,
such authority must derive from other
sources. At this point
it
is necessary to draw attention to an
important distinction-one frequently overlooked
or
blurred-
between two concepts, namely, that
of
the
binding
character
of
a
rule
or
system of law, and that
of
its authority-a term here
used in the sense of prestige. To ask what
ib
is that makes a rule
binding,
or
from what its obligatory character arises, is not the
same thing as to ask what
it
is that gives the rule its authority,
though there is a connection that will be noticed later. The dis-
tinction is readily seen
in
regard to the question of enforcement
itself.
It
appears sometimes to be supposed that rules
of
law are
binding if, and because, they are enforceable. This view is clearly
1
This pnper
woe
originally delivered
a8
n
Public Lecture at Eing'e College,
1
Univereity
of
London
on
March
17,1965.
To continue reading
Request your trial