Stephan, Paul B. --- "International Law as a Source of Law" [2011] ELECD 1072; in Parisi, Francesco (ed), "Production of Legal Rules" (Edward Elgar Publishing, 2011)

Book Title: Production of Legal Rules

Editor(s): Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440326

Section: Chapter 14

Section Title: International Law as a Source of Law

Author(s): Stephan, Paul B.

Number of pages: 17

Extract:

14 International law as a source of law
Paul B. Stephan



1. Introduction
The nature of international law as a legal system, and thus as a source of
law, is controversial. At the conceptual level, the objection to characterizing
international law as law is that it lacks a rule of recognition, i.e. there exists
no agreement about the mechanism for determining which propositions of
international law have the character of a legally binding obligation (Hart 1994:
213­37). At the practical level, the objection is the absence of a centralized
enforcement authority (Scott and Stephan 2006: 5). Advocates of international
law respond that substantial social conventions have emerged that constitute
a rule of recognition, even if disagreement survives around the edges of
the concept. They further assert that international law employs a range of
enforcement mechanisms of varying degrees of centralization, including
reputational effects, retaliation, and reciprocal rewards as well as some direct
enforcement (Dunoff and Trachtman 1999; Guzman 2008; Scott and Stephan
2006; Sykes 2007; Trachtman 2008).
A functional approach to the problem of recognizing international law as a
source of law can clarify both the analytic and evidential issues. Focusing on
the characteristics and competence of the particular institution that might apply
international law enables the identification of instances where international
law operates as a significant constraint on state actors, although within limited
domains. This approach requires distinguishing among several institutional
settings. Treaty-based international institutions, whether an organ of the United
Nations, the Dispute Settlement Body ...