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Hans Kelsen and the Advancement of International Law
Charles Leben1
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Abstract
Kelsen holds a unique place in the theory of international law as the only great legal theorist to have placed international law and its relations with domestic law at the centre of his considerations. Kelsen consistently defended the idea that international law was law in its own right. This he did in a paradoxical way, viewing war and reprisals as sanctions that gave international law a positive character. But that was just a first step in his argument. It led on to the prohibition of the use of armed force in international conflicts and the necessary creation of international justice to settle international disputes as the only means of taking international law out of a state of anarchy. But the particularly fascinating point of Kelsen's thinking is not only the cogency and rigour of his reasoning but also the fact that his work, which was reputed to be theoretical, even dogmatic, and remote from the concerns of the real world, provides us with the sharpest conceptual tools with which to think through the contemporary developments of international law. Two examples are given in this paper: i) the theory of centralization of legal orders, which provides some understanding of the advances made by the European Community and situates those advances in the general theory of international law; ii) Kelsen's analysis of the role of the individual in international law, which allows us to understand the innovations implied by the theory of state contracts.
For anyone wishing to go beyond an empirical approach to law, to examine its concepts in depth and to develop an overview which may provide a guide through the mass of facts, reading Kelsen will always prove a worthwhile occupation. This is so even for those who subscribe only in part or indeed not at all to his views. And what is true of his theory of law as a whole is possibly even more true of his theory of international law. This subject is genuinely central to Kelsen's theory of law, which sets him apart from other legal theorists who usually disregard international law or at best (as with Hart) accord it very limited treatment.2 Kelsen, however, devoted a great deal of space to reflections on international law and to ways of incorporating this specific topic into the general theory of law. Of the 387 titles listed by the Hans Kelsen Institute of Vienna, 106 deal with international law, ahead of legal theory (96 titles) and constitutional law (92 titles).3
The purpose of this paper is not to make a tally of everything international law owes to Kelsen's writings. I shall endeavour instead to show why Kelsen's tenets are valuable for viewing international law both as positive law and as evolving law. Kelsen's theoretical analyses allow us not only to consider international law as law proper but they also provide insight into how such law can evolve and be improved. I shall show in particular how these analyses account for certain recent legal developments which have created considerable surprise as they have not been consistent with the traditional conception of international law as law between states.4
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1 University of Paris 2 (Panthéon-Assas); Co-Director of the
Institut des Hautes Études Internationales, 12, Place du
Panthéon, 75231 Paris CEDEX, France. Translations of quoted texts are
those of the author.
2 Thus, see for example, R. Carré de Malberg, Contribution
à la théorie générale de l'État (1920,
reprint, 1962). This author, probably the leading French theorist of public
law, presents no development of international law, despite a passing mention in
discussion about sovereignty. See also H. L. A. Hart, The Concept of Law
(1961), at 208-231. In contrast Dworkin seems unaware of the existence of
international law, or at least has no interest in it. Similarly, J. Raz, The
Concept of a Legal System. An Introduction to the Theory of Legal System
(2nd ed., 1980) fails to develop the question. Other examples could be
cited.
3 See H. Kelsen, General Theory of Norms (transl. M. Hartney,
1991), at 440. These bibliographic indications are not given in the French
translation of the work: Théorie générale des
normes (transl. O. Beaud, 1996).
4 See also de Visscher, `Observations sur la contribution de Hans
Kelsen au droit international positif', 4 Revue internationale de
philosophie (1981) 530.
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