Essay
Summative Essay
- Institution
- The University Of Liverpool (UoL)
This was the piece of work that I submitted as my summative for the LAW353 'Principles of International Law' module. I received a 78 grade for this piece of work.
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201252940As a decentralised system, lacking mechanisms for
effective enforcement, and reliant upon state
consent, international law is best characterised as
a form of politics as opposed to law.
Critically discuss this statement.
Table of Contents
INTRODUCTION............................................................................................................................................ 1
I. DECENTRALISATION................................................................................................................................... 2
II. INEFFECTIVE ENFORCEMENT..................................................................................................................... 4
III. STATE CONSENT....................................................................................................................................... 6
IV. POLITICS OR LAW?................................................................................................................................... 7
CONCLUSION................................................................................................................................................ 9
Introduction
For many, the law is simply an inevitable tool of society: theoretical discussion surrounding it
is fruitless, much less even considered. However for many, the legal system that springs to
mind is that of a domestic system. The nature of international law entails greater discussion.
The framework and operation of public international law differs considerably from what
many may recognise as a legal system. Even amongst legal professionals and academics, the
legitimacy of international law remains a hotly contested issue. Indeed, as the statement
above suggests, and as I will discuss, a strong argument can be made that international law
has more in common with politics than law.
Much of the discussion surrounding the status and legitimacy of international law is
theoretical, and consequently, subjective. There are various schools of thought which hold
conflicting views on international law: there is no single ‘right’ answer or theoretical
, 201252940
standpoint to side with, however, it is not incorrect to do so. However, the manipulation of
fact to substantiate these perspectives must be recognised, and the reader should not accept
these perspectives at face value.
With the aid of academic commentary, I will attempt to dismantle the points of view given in
the statement, assessing each point separately within the framework of the paper. Through
this discussion, I anticipate that this essay will convince the reader that international law is a
legitimate form of law, and not merely politics.
i. Decentralisation
The foundation of international law lies in the decentralised legal system. In domestic legal
systems, the law emanates from a centralised state: it is established and upheld by the
legislature, executive and judiciary. As Roger Fisher wrote in 1961: ‘Law is the command of
a sovereign backed by force.’1 The state possesses a monopoly on the legitimate use of force
against its citizens as a means of enforcing law.2
This system does not exist within the international law sphere. There is no single body from
which law or explicit authority stems; it is states themselves that make and enforce the law,
either individually or collectively. It might be argued that international institutions such as the
United Nations (UN) serve a similar function to a domestic government or law-making
administration; constitutional law professor Vicki Jackson suggests that the UN Charter is
‘constitution-like’ in that it holds ‘supremacy over other forms of international law’. 3 Indeed,
the suggestion that international law is undergoing ‘constitutionalism’ has been supported by
numerous writers, including Dinah Shelton in her article ‘Normative Hierarchy in
International Law’.4 Such a likening would refute the assumption that international law is
merely politics, as a constitution is unmistakeably characterised as a legal document on which
a society is founded.
1
Roger Fisher, ‘Bringing Law to Bear on Governments’ (1961) 74 HLR 1130.
2
Max Weber, Politics as a vocation (Fortress Press 1965).
3
Vicki C Jackson, ‘Paradigms of public law: transnational constitutional values and democratic challenges’
(2010) 8(3) Int J Constitutional Law 517.
4
Dinah Shelton, ‘Normative Hierarchy in International Law’ (2006) 100(2) AJIL 291.
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