Hans Kelsen and the Advancement of International Law 1 The Nature of International Law A Law in Its Own Right Already in his earliest writings Kelsen claimed that international law was law in its own right. What was original and paradoxical about this stance was that he viewed international law as law in the strict sense of the term for the very reasons that prompted many positive theorists to question the legal status of international law.5 It is well known that Kelsen defines a legal obligation by the sanction it entails. Law is therefore a `coercive legal order'. He further defines a sanction in a very narrow sense as the exercise or threat of physical coercion. In the nineteenth century Austin had also defined law as `a wish conceived by one and expressed or intimated to another with an evil to be inflicted and incurred in case the wish be disregarded'.6 Austin deduced that because international law had no sovereign capable of sanctioning the violation of its rules, it could not be true law but only `positive morality'.7 It is this conclusion that Kelsen forcefully dismisses, whether it be reached by strict positivists (like Austin) or by realists who hold that there can be no international law until such time as the power to coerce states is concentrated in the hands of a single authority (Raymond Aron).8 Against these arguments Kelsen asserts that law is defined by sanction, that sanction consists in physical coercion and that international law does indeed have this type of sanction available to it. This is probably Kelsen's most famous tenet, but also the one that has given rise to the most serious misunderstanding of his theory. B Reprisals and War: Sanctions of Decentralized International Law For Kelsen the sanctions available under international law are reprisals and war. `These sanctions like the sanctions of national law, consist in the forcible deprivation of life, liberty, and other goods, notably economic values. In a war human beings are killed, maimed, imprisoned and national or private property is destroyed; by way of reprisals national or private property is confiscated and other legal rights are infringed.'9 These are sanctions of a `primitive' i.e. `decentralized' legal order: a legal order in which the functions of the creation of law and administration of justice have not yet been concentrated in the hands of central organs. This means that law is both created and applied by the subjects of law themselves who resort to reprisals and war to exact their own justice. This conception of international law and sanctions came in for harsh criticism from almost all sides from the time it was first presented. I myself have been very critical of Kelsen's argument about sanctions in international law.10 Nevertheless, it now seems more worthwhile to concentrate on the rationale of the argument and the service it renders all those who want to `take international law seriously'. Commentators focus primarily on the gloomy view that Kelsen seems to take of primitive, i.e. decentralized or anarchical, international law. But it can be argued that it is precisely this same view that allows Kelsen to imagine relations between states as being subjected to law proper and above all to law amenable to progress. That there is no sovereign above the states to enforce sanctions on them does not in Kelsen's view preclude the conception of inter-state relations being governed by law since, and here lies the difference with Austin, law involves submission to rules and not to the person of the sovereign (non sub homine sed sub lege).11 This means that even a decentralized legal order can be conceived of as a true legal order. The difference between this sort of primitive order and an advanced order such as that of the state is one of degree and not of kind. While this reasoning may leave us sceptical at this point, it goes further. Kelsen argues that any use of force in the international community must be characterized either as a sanction or a delict, i.e. a violation of international law. It is important to understand the theoretical consequences of this conception. It leads, as Hedley Bull has shown, to ranking Kelsen's thinking in the `Grotian' tradition of international law, i.e. a tradition that asserts that international law is true law and that denies states the right to wage war indiscriminately.12 And this is the essential point that is often overlooked by critics of Kelsen's presentation of sanctions of international law: the assertion that those sanctions are reprisals and that war is made only as a lead-up to the assertion that international law in the twentieth century has emerged from the state of anarchy and no longer authorizes indiscriminate resort to such sanctions. C Centralization of International Law: Collective Security and Compulsory Jurisdiction At this juncture it is necessary to sketch out a side of Kelsen that is little known to legal scholars, that of political militant for democracy within states and for peace in the international community.13 It should be recalled in this respect that particularly in the 1930s and 1940s Kelsen actively supported the setting up of a collective security system in the international community. He wrote extensively on the issue.14 In his early works he takes a position `politically' for the bellum justum theory, which restricts the discretionary power of states to resort to war and only justifies this course of action when it is in response to an earlier breach of international law, and therefore a sanction. It is a political statement since Kelsen acknowledges that in the 1920s examination of positive law does not lead to the `scientific' conclusion that war can only be either a legal sanction or a violation of law. In his final works, however, he takes the view that this `political' position henceforth reflects positive law. Considering the effects in general international law of the Covenant of the League of Nations, the Briand-Kellog Pact and the United Nations Charter: `It is hardly possible to say any longer today that according to valid international law any state, unless it has obligated itself otherwise, may wage war against any other state for any reason without violating international law; it is hardly possible, in other words, to deny the general validity of the bellum justum principle.'15 Some observers criticize Kelsen's doctrine of bellum justum as `the product of wishful thinking'.16 It could be countered that it accurately anticipated the process of change in the international community during its darkest hours. The important point to emphasize in any case is that the conception of the inter-state order as a primitive legal order with war and reprisals as its sanctions exists for Kelsen alongside a dynamic conception of international law as evolving law, advancing law, and of a society that may have been completely anarchical in the past but is no longer. With regard to international law, therefore, Kelsen actually ascribes central importance to the institution of a compulsory jurisdiction responsible for settling disputes that threaten international peace. This is another little understood aspect of his theory, although it is set out in Kelsen's many works on the idea of `peace through law'. In the most important of these, published in 1944, he proposes a draft Pact to supersede the League of Nations, in which he devotes 33 articles to the future Court of Justice, as opposed to one article for the Council and one for the Plenary Assembly!17 There is no need to underscore the Utopian and unrealistic character of such a construction. However, it should be recalled that for Kelsen `[t]he foundation of all legal organisation as of any legal community is the judicial process'.18 In this he falls in with legal theorists who like Bobbio and (probably) Hart consider that the turning point in the transition from a simple (or primitive) form of law to a more complex form occurs with the centralization of the function of application of law in the courts.19 This led Kelsen to write in 1932 that it is `... much more important to get states to renounce deciding by themselves whether there has been a violation of law than to abolish the right to exact justice themselves'.20 This assertion was confirmed during the International Law Commission proceedings where, on the question of countermeasures without the use of armed force, the Special Rapporteur for the draft articles on the international responsibility of states, Professor G. Arangio-Ruiz was unable to obtain support for the point that the process of countermeasures as a response to an unlawful act should be strictly governed by resort to judicial proceedings.21 But whatever the still Utopian character of the introduction of a compulsory jurisdiction within the universal inter-state community, two remarks need to be made which confirm the idea that the introduction of such a jurisdiction is the turning point in the transition from a decentralized legal order to a more centralized, and therefore more effective, legal order. Furthermore, everyone is aware that the very special characteristics of the Community legal order are primarily the result of the role of the European Court of Justice. However, it has been convincingly argued that the setting up of the Court and the different procedures for bringing cases before it (especially that of Article 177 EC Treaty) presupposed a unified vision of the founder states of the Communities. In other words, it was not the setting up of the European Court of Justice that produced this remarkable legal order but the prior political will among the states that allowed this order to be constructed. This is hardly disputable. However, it will be observed that within the universal inter-state community phenomena occur which give rise to compulsory quasi-tribunals that completely transform the topography of international law. Such is the effect produced by the creation within the World Trade Organization of an effective mechanism for the settlement of disputes which, within the space of two years, has led to no fewer than 100 cases being brought before the Dispute Settlement Body. In striking contrast, the previous ineffective GATT procedure dealt with a mere 195 procedures in 46 years of existence.22 These points confirm that `the foundation of all legal organisations ... is the judicial process' and that international law is at one and the same time the law of a decentralized society and of a society in the process of centralization. 5 Bull, `Hans Kelsen and International Law', in R. Tur and W. Twining (eds.), Essays on Kelsen (1986) 321, at 323. 6 J. Austin, The Province of Jurisprudence Determined (1995), at 24. 7 Ibid, at 112. 8 R. Aron, Guerre et paix entre les nations (3ème éd., 1962), at 704-712. 9 Kelsen, `The Essence of International Law', in K. W. Deutsch and S. Hoffmann (eds.), The Relevance of International Law; Essays in Honor of Leo Gross (1968), at 87. 10 C. Leben, Les sanctions privatives de droits ou de qualité dans les organisations internationales spécialisées (1979), at 41-45. 11 H. Kelsen, Principles of International Law (1952) [hereinafter Principles], at 104. 12 Bull, supra note 4, at 329. 13 Carlos Miguel Herrera's valuable study of the `political' side of Kelsen is now available in French, Théorie juridique et politique chez Hans Kelsen (1997). It is regrettable though that the author does not address the question of international law in Kelsen's work. See also the special issue of the journal, 17 Cahiers de philosophie politique et juridique (1990): `La pensée politique de Kelsen'. On the pacifist presuppositions of Kelsen's theory of sovereignty see Herrera, at 115-118, and Carrino, `Le positivisme critique de Hans Kelsen : une fondation logico-formelle des normes', 20 Cahiers de philosophie politique et juridique (1991), at 77-78, 88. The pacifist and anti-imperialist creed is particularly obvious in his conclusion to the 1926 Hague Lectures `Les rapports de système entre le droit interne et le droit international public', 14 RdC (1926, IV) 231, at 320-331. 14 See Kelsen's 1940s writings, such as Peace through Law (1944) [hereinafter Peace through Law]; `The Strategy of Peace', American Journal of Sociology (1944) 381. 15 Kelsen, supra note 8, at 87. For a full discussion of the role of war in international law see Principles, at 25-44. See also the developments on the bellum justum theme by F. Rigaux in this issue, at ****. 16 Bull, supra note 4, at 329. 17 Peace through Law. For a study of this work see C. Tournaye, Kelsen et la sécurité collective (1995). 18 Peace through Law, at 73. See also the valuable paper by Pfersmann, `De la justice constitutionnelle à la justice internationale : Hans Kelsen et la seconde guerre mondiale', 16 Revue française de droit constitutionnel (1993) 760, at 776-779. 19 See Bobbio, `Kelsen et les sources du droit', 4 Revue internationale de philosophie (1981) 474, at 482: `...jurisdiction is not only a source of law ... it is the necessary condition for the existence of a legal order'. See also by the same author, this time on a study of Hart, `Nouvelles réflexions sur les normes primaires et secondaires', in C. Perelman (ed.), La règle de droit (1971) 104, at 121. It will be recalled that for commentators like H. Kantorowicz, the main characteristic of a rule of law is to be subject to justice, i.e. to the subject of a judgment by a third party, at least potentially. See The Definition of Law (1958), at 79. 20 Kelsen, `La technique du droit et l'organisation de la paix : la théorie du droit devant le problème du désarmement', Journal des Nations, 3 février 1932, at 61. 21 For an overview of the controversies raised by the reports of Prof. Arangio-Ruiz see the special issue of this journal, 5 EJIL (1994), at 20-119; Pellet, `Remarques sur une révolution inachevée. Le projet d'articles de la CDI sur la responsabilité des États', Annuaire français de droit international, (1996) 7, esp. at 18-32; Leben, `Contre-mesures', in Nouveau Répertoire Dalloz de droit international (forthcoming). 22 See Ruiz Fabri, `Le règlement des différends dans le cadre de l'organisation mondiale du commerce', 3 Journal du droit international (1997) 709. See also Focus (WTO), no. 21, August 1997, which announces that the 100th dispute was reported on 19 August 1997. All proceedings brought under Article XXIII of the GATT (1947) are listed in Guide to GATT Law and Practice (6th ed., 1994), at 719-734.
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