Is International Law a Process or Can it be Regarded as ‘Rules’

In Problems and Process, Higgins tries to show that there is an unavoidable choice to be made between the perception of international law as a system of neutral rules, and international law as a system of decision-making directed towards the attainment of certain declared values.[1] She begins her article by stating her opinion that international law is not rules but a normative system.[2] In the first part of her arguments, she disagrees with the view that international law is a body of rules that failed to restrain states, and therefore not ‘real law’ at all.[3] She defines international law as “a continuing process of authoritative decisions”; “the entire decision-making process, and not just the reference to the trend of past decisions which are termed ‘rules’ in another article.”[4] She quotes Sir Hersch Lauterpacht that judge ‘makes choices’ especially in claims which have varying degrees of legal merits.[5] She identifies that some would argued international law as a set of rules because it will become confused with other phenomena such as power or social or humanitarian factors and it can avoid the manifestation of international legal arguments for political ends.[6] In discussing the first factor, Higgins argues that the authority which characterises law exists not in vacuum but exactly where it intersects with power.[7] For the second factor, she argues against the classic statement provided by Judge Fitzmaurice and Spender stated “other considerations such as social, humanitarian and other cannot be allowed to be considered in reaching a conclusion.”[8] She mentions that refusal to acknowledge political or social factors cannot keep law ‘neutral’ as even such refusal is not without political and social consequence.[9] She believes that policy factors are dealt with systematically and openly.[10] She cites the example of President Reagan engagements in military interventions designed to remove totalitarian rulers, where it is acted in the interests of international order and justice.[11] Those who supported this very much emphasised on the social purposes of international in deciding its lawfulness.[12] Accordingly, over and above the debate on whether international law is ‘rules’ or ‘process’, she associates rules with legal positivists. Austin explaining positivists as “Every positive law, is set by a sovereign individual or individuals, to a person or persons in a state of subjection to its authority.”[13][14] In pairing positivism to international law where command and sovereignty are notably lacking, Kelsen introduced the existence of groundnorm- the highest fundamental norm from which all others derived their binding force.[15][16] According to her, international law characterised as critical legal studies that is more common with policy science.[17] Critical-studies scholar will see law as contradictions or indeterminate at its core whereas policy scientists believe in law as competing norms where choices have to be made in particular circumstances.[18] The critical realist approach leads to conclusion that international law can only point out the problems but not assists in the achievement of goals. Higgins disagrees with the grounds put forward by Koskenniemi to preclude the possibility of making choices among contradictions.[19] The first ground is contextual justice requires venturing into politics, social and economic casuistry at which legal arguments must stop to remain legal.[20] Higgins argues that to remain legal is to ensure authorised person made the decision, based on past decisions and with available choices being made based on community interests and for the promotion of common values.[21] Koskenniemi argued in second reason that liberalism presuppose that some rights should prevail over others.[22] Higgins rebutted this by stating that choice making should be proposed as policy-science approach.[23] This predicate certain views or assumptions as to what is desirable should prevail over others.[24] In her analysis, positivism and rules lead to distinction between lex lata and lex ferenda – the law as it is and the law as it might be.[25] She rebuts the rule-based lawyer arguments that choice making should be classified as ‘law as it ought to be’ contrasting with ‘law as it is’, stating this distinction is a false dichotomy.[26] Where there are no specific rules of international law, rule-based lawyer views that international law has no say whereas those who view international as process, it can be solved through tools of authoritative decision-making.[27] In supporting her stand that international law is a process, she points out that both capitalist and socialist countries agreed that international law is a system even though there are different views in regarding to its nature.[28] In recent years, there is more emphasis on international law as the articulation of universal interest especially since the changes in political views of former Soviet Union.[29] She went further to discuss the implication of international law on third world and developing countries.[30] She observes that individual norms have been challenge as inequitable to these countries, and not all international law obligation incumbent upon the parent state are applicable on them.[31] This pointed out that while there are debates on the substance of international law, the universality has not been challenge.[32] Higgins goes further to discuss what is it that makes states regard international law as binding to be an effective law, not rules.[33] Both positivist and non-positivists want either an effective sanction or existence of sense of obligation that the norms are binding.[34] She quotes the recent writing of Koskenniemi that natural obligations of justice are essentially what is necessary for subsistence and self preservation.[35] She argues that both Western and Socialist scholar had agreed that the key to binding is state’s consent.[36] Koskennimi stated that states consent is merely an agreement by them that their behaviour will be regarded as normative, which is not a law.[37] Fitzmaurice opined that the basis of obligation must lay in something anterior to international law itself.[38] In her reply to these criticisms, she regards these as faulty perspective of law as international law is not the vindication of authority over power, instead law must be based on authority as well as power.[39] Higgins argues that the basis of obligation in international law has now moved from consent to consensus.[40] States now regard themselves bound by norms which they have not given their express consent because they perceive a reciprocal advantage in cautioning self-restrain.[41] In her opinion, the terming of this basis as apologist does not render the normative system of decision-making into something other than law.[42] Concerning the absence of effective sanction to predicate the existence of norms of international law, she points out that based on her findings of different views on basis of obligations, they all excluded imposed obligation by the enforcement of sanctions.[43] In conclusion, international law should be regarded as a normative system. Bibliography Books Higgins R, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) Koskenniemi M, From Apology to Utopia: The Structure of International Legal Argument (1st edn, CUP, 2006) Austin J, Lectures on Jurisprudence on the Philosophy of Positive Law (5th edn, 1954) Journal Articles G.G Fitzmaurice, 'The Foundations of the Authority of International Law and The Problem of Enforcement' [1956] MLR R Higgins, 'Integration of Authority and Control: Trends in the Literature of International Law and International Relations' [1976] N.S Kinsella, Book Review of Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), Reason Papers No. 20 [1995] R Higgins, 'Policy Considerations and the International Judicial Process' [1968] ICLQ H Lauterpacht, ‘The Development of International Law by the International Court’ [1958] Table of Cases South West Africa Cases (1966) ICJ 6  

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[1] N.S Kinsella, Book Review of Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), Reason Papers No. 20 [1995] 147, 148 [2] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 1 [3] ibit 2 [4] R Higgins, 'Policy Considerations and the International Judicial Process' [1968] ICLQ 58, 59 [5] H Lauterpacht, ‘The Development of International Law by the International Court’ [1958] 399 [6] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 3 [7] ibit 4 [8] South West Africa Cases (1966) ICJ 6 [9] R Higgins, 'Integration of Authority and Control: Trends in the Literature of International Law and International Relations' [1976] 85 [10] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 5 [11] ibit 6 [12] ibit [13] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 8 [14] J Austin, Lectures on Jurisprudence on the Philosophy of Positive Law (5th edn, 1954) 34 [15] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 8 [16] ibit [17] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 9 [18] ibit [19] ibit [20] ibit [21] ibit [22] ibit [23] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 10 [24] ibit [25] Ibit [26] ibit [27] ibit [28] ibit [29] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 11 [30] ibit 12 [31] ibit [32] ibit [33] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 13 [34] ibit [35] M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1st, CUP, 2006) 70 [36] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 15 [37] ibit [38] G.G Fitzmaurice, 'The Foundations of The Authority of International Law and The Problem of Enforcement' [1956] MLR, 19 [39] R Higgins, Problems and Process: International Law and How We Use It (1st edn, OUP, Oxford 1994) 15 [40] ibit 16 [41] ibit [42] ibit [43] ibit

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