Andreas Hadjigeorgiou ‘The Concept of International Law Revisited’

ANDREAS HADJIGEORGIOU
Universiteit van Antwerpen
One of the signifying features of the 21st century is the growth of international law and its importance; yet jurisprudentially its foundations and nature are poorly understood. International law does not exhibit many of the characteristics which we grew accustomed in using when identifying law (and legal obligations) within domestic legal systems. These include the lack of an international government/legislator/sovereign, the lack of final compulsory jurisdiction, and the lack of centrally organized enforcement mechanisms/sanctions. As such, although we might need to understand international law in a different way we understand law in domestic legal systems, its existence as an empirical fact can hardly be disputed.
The greatest analysis of (customary) international law and its nature, which can account for this difference I believe we find, surprisingly, in the work of H.L.A Hart. Despite the ‘elementary’ manner in which Hart dealt with international law; there seem to be hidden insights which largely went unnoticed. His two identifying marks of customary international law (conduct coupled with a distinctive attitude towards that conduct as a legal standard) do still correspond to the two traditional elements of customary international law (state practice and opinio juris).
Yet the rejection of his international theory must come from the popular interpretation which has Hart claiming that international law is not really law. Yet denying international law the status of law, on Hartian grounds, is to miss the ‘whole point’ of Hart’s theory. This corresponds to a failure to understand the valid distinction between the Concept of Law and the Concept of Legal System. With this distinction Hart managed to show how sovereignty cannot be the source of all legal rules/norms/obligations; since (certain) rules not only pertain or affect sovereignty, but actually constitute it. Some of those constitutive rules must be of international nature.
As such, Hart’s Concept of Law contains two stories, each corresponding to a different mode/passage or nuance of this practice we call law. As Stavropoulos shows, the introduction of the rule of recognition does not establish the legal practice, it alters/transforms it; enables it to function differently. Hart’s story, in reality, contains two distinct modes of grounding legal obligations, in two different passages of this legal practice. Understanding the distinction between the two concepts of Hart’s story becomes of great importance to understanding international law. In light of a better understanding of this distinction, the Concept of International Law ought to be revisited/reconstructed.