- The Jurisprudence of Sanctions in International Law
With the arrival of the “post-post-Cold War” comes renewed assaults on international law, challenging classic restraints in the use of force and asking some old questions:
• Why should any state comply with a rule of international law if it is not rationally in the national interest of that state to do so?
• Do states and their officials (and individuals) really owe a binding obligation to comply with international law? Why?
• For international law to be valid, must available sanctions work to induce compliance?
These practical questions mirror a sentiment especially popular in the United States: international law does not count as law because it cannot be enforced. Many lawyers as well as the general public are skeptical about international law, and the media’s obsession with sanctions is ubiquitous. When North Korea fires rockets over Japan or Iran continues developing nuclear weapon capabilities, the first likely question is “What sanctions will be imposed?” [End Page 1086]
Mary Ellen O’Connell (Robert and Marion Short Professor of Law at Notre Dame Law School) takes up these questions in her impressive new book, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement.1 In reality, the availability and use of various sanctions is extensive in relations among states, playing a role in treaty regimes, bilateral agreements, and customary international law. In other words, it is normal state behavior to comply with international law in institutional practice and expect to be subject to some kind of sanctions if noncompliant. O’Connell examines enforcement in history, theory, and practice, advancing a normative theory of international law for controlling the use of major and minor coercion for the common good of humankind. That is no small achievement!
O’Connell brings excellent scholarly background and experience to her work. She is among the best scholars of international law, having lived, studied, and taught in the United States, the United Kingdom, and Germany. She has authored numerous books and articles for a wide variety of domestic and international academic journals. Notably, she has written extensively on the use of force in international law.
When the Human Rights Quarterly invited me to review this book, we agreed to an extended article where I might explore some jurisprudential issues more deeply than a normal book review would allow. This review article will look first at the importance of sanctions then seek to understand the author’s narrative as a whole before offering personal jurisprudential reflections.
A. As Key to Jurisprudence
John Austin, the famous legal positivist of the nineteenth century, wrote that the idea of command with sanctions “is the key to the sciences of jurisprudence and morals.”2 For Austin, legal rules are commands of a political superior to a political inferior backed by threat of coercive sanctions. Legal obligations are only predictions that the threatened sanctions will be carried out, a gauge of political effectiveness without regard to morality, justice, or social convention.3 By this analytic definition, international law is mere [End Page 1087] “positive morality” or commands posited by those without political superiority over other sovereign powers (the analogy in domestic law would be opinion—norms of conduct proposed by an academic, social, or religious group). In addition, without effective control and authorization of sanctions, customary rules and agreements among sovereign states are imperfect law—those commands posited by agreement among those with political authority but without effective sanctions. In Austin’s tradition, international rules of conduct become genuine legal rules only when incorporated in the municipal law of an independent state with the coercive power to enforce them effectively.
Austin’s idea of the role of coercive sanctions clearly separates positive law from moral obligation. It distinguishes threats of earthly sanctions for violating secular law posited by human beings from threats of spiritual sanctions for violating moral or religious law. Later, in the early twentieth century, legal positivist Hans Kelsen, Austrian legal scholar from...