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Symposium on international law

Features of international law: A critical account of the prototype theory of international law

Mario Krešić


Prototype theory of international law formulated by Miodrag A. Jovanović includes the following theses: (a) justice-delivery as a function of law; (b) institutionalization of adjudication as a fundamental feature of law; (c) coerciveness of law as guaranteeing enforcement; (d) outcasting as the predominant and sufficient means of enforcing international law. The paper analyses these elements, challenges theses (a), (c) and (d), and advances the thesis about (b) adjudication being not just a fundamental but also a necessary feature of law.

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1 Introduction

  • 1 Jovanović 2019.

1The paper aims to analyse the prototype theory of international law (PTIL) formulated by Miodrag A. Jovanović1 by focusing, at least initially, on three of its pillars: justice-aptness (section 2), institutionalization (section 3) and enforcement through guaranteeing (section 4 and 5). The fourth pillar on normativity and the methodological approach to international law (IL) will not be expounded on specifically although, where necessary, the PTIL methodology will be challenged indirectly for the purpose of elaborating the main ideas.

2 Justice

  • 2 Jovanović 2019: 62, 192.
  • 3 Jovanović 2019: 192.
  • 4 Green 2008: 1050.
  • 5 Jovanović 2019: 192.
  • 6 Green 2008: 1050.
  • 7 Jovanović 2019: 68.
  • 8 Jovanović 2019: 68.
  • 9 Jovanović 2019: 68.
  • 10 Ehrenberg 2016: 46.
  • 11 Green 2008: 1050.
  • 12 Ehrenberg 2016: 137; Burazin 2019: 2.
  • 13 Jovanović 2019: 64.
  • 14 Jovanović 2019: 69.
  • 15 Jovanović 2019: 191.

2According to Jovanović, the proper function of IL is to deliver justice. It is true that he also recognizes its other values - such as wealth maximization, certainty and peace - which law in its functioning “is supposed to deliver”.2 However, only the value of justice is considered to be “the key value” and, as such, as deserving a place in his definition of law as consisting of 'typical features'. That is, according to Jovanović, justice-aptness is one of law's typical features. Jovanović does not explicitly explain why exactly this, and only this, value deserves the status of conceptual importance. However, we can learn more about his account from his quotation of Leslie Green, who introduced the term 'justice-aptness' in legal theory. First, Jovanović notes that “[…] unlike with other, more particular values”,3 there is something specific about the value of justice. “[…I]t necessarily [emphasis added] makes sense to ask whether law is just and, where it is found deficient, to demand reform”.4 Second, “justice-aptness is pervasive”.5 It “applies as much to the substance of law as it does to its administration and procedure”.6 Third, the original thesis about justice-aptness is strengthened by the idea of there existing a necessary connection between law, functions and values. His account of law as being an artifact includes the idea of law necessarily having some functions.7 In this respect, Jovanović follows Ehrenberg's theory of law as an artifact. But unlike Ehrenberg, who “falls short of specifying what value is to be delivered [emphasis added] by the law's successful performance of coordination and dispute settlement”,8 Jovanović claims that “the key value law is supposed to bring about through regulating social relations is justice”.9 If we use the metaphor of hospital,10 as Jovanović suggests, we should come to the same conclusion as he did: in the same way that the proper function of hospital is healing, although sometimes it can fail in performing this function, the function of law, according to Jovanović, is delivery of justice. Therefore, the weak thesis that IL, like any other kind of law, is a “thing that is apt for inspection and appraisal in light of justice”11 is furthermore connected with the thesis that law as an artifact has a proper function12 and the thesis that this proper function is exactly justice-delivery.13 In this way the weak thesis becomes the strong one: evaluation of law in light of justice is not only a possible activity of those criticizing law from the outside, but also an internal request (inherent value) of IL directed at those performing law-creating and law-applying functions. In support of his claim about the proper function of law, Jovanović reminds us of the use of the term 'just law' in both our language and everyday practice14 and the text of the UN Charter prescribing justice as the goal to be achieved.15 There are several possibilities for challenging the strong justice-aptness thesis as described above.

  • 16 For peace-keeping as the proper function of law, see Himma 2018.
  • 17 For Kelsen's and Lauterpacht's views on the role of peace, see Krešić 2019.
  • 18 See Gowlland-Debbas 1990.

3(2.1) The first argument against the thesis is based on the problem of explaining what distinguishes the proper function of law from its other functions. It is not clear what makes justice-delivery special enough to be stipulated as a 'typical feature' in comparison with other functions of law, i.e., peace-keeping. The thesis about peace-keeping as a function of law can be found explicitly stated by some legal theorists16 or implicitly contained in the conception of some other theorists.17 The same path for justifying the value of justice as the key value can be taken with respect to the value of peace. It can also be perceived as something we use in our language when we speak about law and it is also mentioned in the UN Charter. It also makes sense to ask whether law provides peace and, if not, to demand reform. In the same vein, peace is also a pervasive goal. Absence of violence can be regarded both as the goal of law application and as being reflected in the substance of law. This claim obtains even when limited only to interstate violence, although international practice shows that intrastate violence could also emerge as a relevant fact for international legal reasoning.18 Finally, the same analogy with hospital can be used to claim that the function of law is peace-keeping.

  • 19 See Hart 1994: 193.

4(2.2) The second objection is that, even if justice-delivery were considered in the contemporary discourse of relevant subjects (i.e., lawyers or ordinary citizens) on IL as a function of IL (which is a questionable empirical thesis about folk discourse), the connection between law and justice remains contingent in the same way that legal discourse is contingent. Namely, it depends on the characteristics of humans as we know them today19 and, if they change, new conventions may appear with new expectations regarding IL. The change might be of the kind that justice, at least in terms of substantive criteria that emerged through the history of civilisation, is no longer considered as a function of IL. Past interstate relations show that the principle of might could prevail in the resolution of conflicts of interests. The reply could be that even then, some kind of substantive criteria would prevail, at least the one establishing the distinction between the superior and the inferior state (or race). If the term 'justice' were used in discourse on IL containing this criterion (which possibility Jovanović already dismissed in his previous writings; see below on moral relativism), the proper function of IL would still be more properly defined as hegemony-delivery and not as justice-delivery.

  • 20 Kelsen 1949: 14.
  • 21 Ross 2004: 284.
  • 22 Jovanović 2012: his notes 123 and 159; 52, 93.
  • 23 Kelsen 1971: 19.
  • 24 Ross 2004: 275.

5(2.3) The third objection refers to the content of the concept of justice. The thin version of formal justice requires only equality and impartiality in the sense that norms should be applied to all the cases they were brought to regulate.20 A similar version of justice as something that could be considered as constitutive of the concept of law can be found in Alf Ross' theory. The claim that “a decision is unjust means that it has not been made according to law and is either based on an error (unjust in the objective sense), or is due to a conscious deviation from the law (unjust in the subjective sense)”.21 On this ground it must be stressed that when talking about justice-aptness, Jovanović does not prefer any substantive criterion for norm appraisal. Nevertheless, his PTIL does not take an explicit stance on thicker formal justice. Jovanović refers to formal criteria of equality but also uses Aristotelian concepts of distributive and correctional justice which include formulas for making decisions on conflicted interests. These formulas can be qualified as guidelines for rational practical reasoning. More importantly, we know that in his previous writings, Jovanović rejected moral relativism.22 On the one hand, the thesis about law's aptness for appraisal in light of justice becomes, if based on rational formulas, vulnerable to the criticism of stipulating more than the concept of law requires. For instance, Kelsen argued that without a presupposed substantive element arising from society's positive morality, Aristotelian formulas are useless in practice and, consequently, applying Aristotelian formulas for the purpose of reaching justice will always end in justifying the existing social order.23 In the same vein, Ross observed that any attempt at providing the principle of justice with real content loses any illusion of evidence. On the other hand, the thin concept of formal justice remains void of meaning24 and thus the thesis about justice-aptness can simply be reduced to other features of law.

  • 25 Ross 2004: 275.
  • 26 See Hathaway & Shapiro 2017.
  • 27 Ross 2004: 285.
  • 28 Ross 2004: 285.

6(2.4) Finally, even if thin formal justice which is equated with legality represents a constitutive element of the concept of law, this concept does not have to be reflected in posited IL. This argument applies, moreover, to the thick concept of formal justice. According to Ross, the concept of justice defined as the correct application of law could have a role in positive law as an ideal for a good judge.25 However, from a historical perspective, attempting to establish institutional guarantees for the correct application of law is a rather new phenomenon in international relations, especially when taking into account the rather long period of interstate relations in which conquests were not outlawed and decisions of states to use force were more easily described as arbitrary acts of might than as legal decisions justified by legal reasons.26 And even if the ideal existed as a posited standard, it would still be difficult to delineate more precisely the term 'injustice'.27 This indeterminacy of “correct application of law” is due to the nature of interpretation. Such indeterminacy makes evaluation of law difficult in general, this being even more so in the case of IL due to IL's specific institutional deficits. Therefore, what justice-aptness could at best mean in the context of IL application is aptness of international adjudication, which is to be appraised by using the criterion of 'normal' or 'typical' application of law in the international community.28

3 Adjudication

  • 29 Jovanović 2019: 72.
  • 30 Jovanović 2019: 175.
  • 31 Jovanović 2019: 175.
  • 32 Jovanović 2019: 175.
  • 33 Jovanović 2019: 175.

7The PTIL accepts the thesis about adjudication as the most important typical feature of law. Jovanović talks about “conceptual primacy” of the law-applying institution over other institutions and about “institutionalization of judgement as a fundamental feature” of law.29 The crucial importance of adjudication, which distinguishes it from other features of law, becomes more obvious when the thesis about its institutional primacy is combined with the following two claims: a) all normative orders imply judgement; b) law “typically empowers an adjudicative body of some sort to make a 'judgement'”.30 Judgement refers to the possibility of judging, in the process of norm-application, “whether the undertaken behaviour is in accordance with the prescribed rule”.31 But then again Jovanović observes that IL has two non-typical features: a) states serve as “officials when it comes to the administration and enforcement of international law”; b) “the international legal order knows of no general system of compulsory jurisdiction”.32 He defines 'compulsory jurisdiction' as the situation in which norm-subjects “may be forcibly brought before court”.33 Several questions arise from this PTIL's account regarding the role of adjudication in law in general and in IL in particular.

  • 34 Kantorowicz 1958. See Krešić 2012, Krešić 2013b, Krešić 2014.
  • 35 See Kantorowicz 1958: 74.
  • 36 Lauterpacht 2000, Kelsen 2008.

8(3.1) Even if the PTIL fosters the view that adjudication is more essential than other typical features of law, there remains the heretic question of whether Jovanović would count a normative system as a legal order even if that system contained no norm of adjudication? Legal theorists have provided plenty of insights corroborating the claim that compulsory adjudication is a 'necessary' element of IL.34 For the purposes of this paper it suffices to mention the following argument: if there is no institutional possibility to make a final decision on what law is in cases regulated by law, it is hard to distinguish law from morality or conventions.35 One can question this claim on the nature of law in general by pointing to precisely the example of IL: law is what States agree on; the function of ascertaining what law is, is 'shared' among the subjects of the international community (law as a 'social construct'); and this function, although performed collectively, is nevertheless exercised, despite the lack of 'compulsory' jurisdiction. However, some theorists at least36 found that the omnis judex rule undermines the very legal nature of IL.

  • 37 Jovanović 2019: 65.
  • 38 Jovanović 2019: 73, 74.

9(3.2) When describing adjudication as a feature of law, it might be more useful to define this concept at a higher level of abstraction. This would be in line with Jovanović's aim not to research all legal systems through the lens of municipal law.37 For the abstract function of adjudication it is not important that it be implemented by courts. What is important is a characteristic of the function itself, namely that it includes delivery of a final decision. One of the consequences of this approach to adjudication is that (international) sports associations and religious orders can also be considered as legal orders provided they perform the function of adjudication as defined above. This might be in disagreement with Jovanović's view of what constitutes a legal order, which view can be identified when he refers to religious orders as normative systems which are not legal orders but instead are in competition with them.38 Contrary to this view, it might sometimes be the case that religious orders are indeed legal orders if, as mentioned above, they contain norms on adjudication.

  • 39 See Schachter 1962, Higgins 1970, Combacau 1974, Lauterpacht 1991, Schweigman 2001, Fassebender 200 (...)
  • 40 Krešić, 2013a: 125.
  • 41 In the sense of justiciability used by Kantorowicz 1958. In this sense, what is termed 'UN law' her (...)

10(3.3) If these two suggestions – compulsory adjudication as a necessary element of law and an abstract concept of adjudication – are accepted, then norms of international order can be said to be legal norms when (and only when) they can be adjudicated, e.g., by international courts, national courts or a WTO adjudicative body. Some authors consider that even the Security Council performs a quasi-adjudicative function.39 This brings us to the distinction between two main types of international norms – those adjudicated only by national courts and those adjudicated by (quasi) international adjudicative bodies or by international adjudicative bodies and national courts subordinated to international bodies.40 In the latter case, one can distinguish between different regimes exactly by virtue of the (quasi) adjudicative bodies responsible for their application. For example, UN law might be perceived as an IL regime consisting of rules regulating the threat or use of force justiciable before the Security Council,41 i.e., of norms fit to be applied by an (quasi) adjudicative body. Although this concept of IL would probably not be seen as something typical in the eyes of ordinary citizens when depicting the reality around themselves, it can be a useful categorization in specific cognitive exercises important for discovering how other relevant subjects understand IL.

4 Coerciveness

  • 42 Jovanović 2019: 185.

11Along the lines of the PTIL, a typical feature of law is coerciveness defined in a specific way. This is apparent from the very title of the chapter in which 'coerciveness' is put in brackets. According to the stipulated definition, this means that law is “institutionally guaranteed by some means of coercion”.42 In this definition we can recognize three elements and each of them requires further clarification: 1) institutionalization, 2) guaranteeing and 3) some means of coercion.

  • 43 Jovanović 2019: 71.
  • 44 Harré 1993: 52.
  • 45 Jovanović 2019: 74.

12(4.1) Although Jovanović does not specify what 'institutional' means in his understanding of coerciveness, in the previous discussion on the institutional nature of law43 he adopted the definition of institution advanced by social psychology. According to this definition, institution is an interlocking double-structure of persons-as-role-holders or office-bearers on the one hand, and social practices involving expressive and practical aims and outcomes, on the other.44 The practice to be institutionalized is social disapproval. However, there is disagreement over which particular form of disapproval - threat, physical force or social pressure - is the key practice for law.45 In order to clarify somewhat this sociological meaning of institutionalization of social disapproval, we will suppose that a social order regulated by law performs the function of ensuring norm-compliance through the reaction of disapproval to undesirable behaviour. We will name this function 'enforcement function' and distinguish between three meanings of its institutionalization.

13a) The sociological meaning refers to the existence of any agency or arrangement influencing law enforcement but does not question the type of reaction or distinguish between whether or not this influence is authorized by law as a legal consequence of non-compliance. For example, CNN might put such pressure on state officials so that the international community intervenes in a conflict and thus indirectly contribute to the enforcement of IL regarding war crimes.

14b) The institutional meaning refers to the existence of legal organs whose proper function is to react whenever law is not observed. They can be organized according to the following three models. In the first model, the function is centralized in the sense that it is assigned to only one or several organs specialized in enforcement. For example, in the modern state, the police are the centralized legal organ of enforcement for traffic misdemeanours. The second model completely decentralizes the function in the sense that it is performed exclusively by norm-subjects themselves and when they enforce law, they act as legal organs. Finally, in the mixed model, which combines the previous two models, centralized organs react in some cases immediately upon the appearance of non-compliance and in others only after norm-subjects themselves fail to enforce law.

  • 46 Himma 2016: 597.

15c) The normative meaning connects existing legal organs of enforcement with legal norms authorizing such organs to act in line with any of the aforementioned models. The institutional and normative approaches overlap and theorists sometimes mix them. However, one of the advantages of using the normative approach on its own is that it focuses our attention on the question of what norms legal systems need to include so that the enforcement function could be considered as institutionalized, as foreseen by one of the enforcement models. While the centralized model could be perceived as requiring norms on prisons,46 the decentralized or mixed model does not require such norms. However, for the latter two models to be applied is it enough to create only legal norms empowering norm-subjects to voluntarily negotiate on law enforcement or is it necessary to also have norms empowering the carrying out of coercive acts if negotiations fail? If norms of coercive enforcement are required, should they include a specific kind of coerciveness?

  • 47 According to which countermeasures can potentially be perceived as justifications or excuses. See P (...)

16In light of these questions, institutionalization of the enforcement function could be defined as normative creation of legal norms conferring on legal organs the power to coercively enforce law. Legal organs can be empowered to act coercively (i.e., employ force) immediately following the norm-subject's missed opportunity to act in conformity with the law or as a last-resort practice when all other non-coercive methods for fixing misbehaviour fail. If a subject does not have the normative power to act coercively, it is not a legal organ of enforcement. Furthermore, if we agree that legal organs of enforcement should be empowered to act coercively, there remains the question of whether institutionalization of enforcement requires legal norms regarding specific types of coerciveness. Under the proposition explained below that physical force (violence) is a necessary type of legal coerciveness, this question can be answered in the following way for the purpose of illustrating the element of institutionalization. This requires that norms have the following content: (i) the power of violent interference in all (or almost all) aspects of someone's interests; or (ii) the power of non-violent interference in important specific interests, which could be followed by power (i) in case of resistance to this non-violent interference. This is the idea behind Kelsen's definition of law as a coercive order in which interferences (i) and (ii) are called sanctions. Kelsen's theory might seem outdated since states often use countermeasures which cannot be followed by the use of force. However, it can also be perceived as a useful tool for making a sharp distinction between sanctions and other measures of states.47 In this sense, institutionalization of the enforcement function means institutionalization of sanctions. This Kelsenian approach cannot be recognized in the first element of the PTIL's definition of coerciveness due to the fact that it is insufficiently elaborated on.

  • 48 Jellinek 1911: 504.
  • 49 Jellinek 1911: 507.
  • 50 Jellinek 1911: 561.

17(4.2) The element of 'guaranteeing' is the central element of the PTIL's definition of coercion, taken from George Jellinek’s theory of law. According to Jellinek, one of the characteristics which, together with the other two, could be regarded as a distinguishing feature of legal rules when compared with moral, religious or customary rules is that the obligatory force of legal rules is guaranteed by an external power.48 However, the following explanation of guarantees makes their meaning fluid to such a degree that they can hardly be perceived as a distinguishing feature of law. Namely, Jellinek emphasizes that besides State force, there exist other social guarantees influencing enforcement of legal norms, such as customs, religious beliefs, etiquette, media and literature. On the one hand, Jellinek claims that 'legal constraints' cannot guarantee the law itself,49 while, on the other, he admits that forces outside the State (or rather extra-ordinem forces) are not sufficient in themselves to maintain the State order. What about guarantees of IL enforcement? As guarantees in the case of IL he mentions the following: 1) community of interests of states, 2) relative strength of states, 3) public opinion which manifests itself in the expressed opinions of statesmen, parliaments and the press.50 Where these guarantees cannot influence respect for norms regulating international matters, they remain in the political domain.

18It is obvious that Jelinek’s concept of guaranteeing can be easily connected with the meaning of institutional enforcement in the first mentioned sociological sense. This concept, which was adopted by the PTIL, redirects our attention away from researching the existence of legally authorized coercion of a specific type and directs our understanding of IL towards the assessment of social means influencing the attitudes of norm-subjects to norm compliance. However, from Jellinek’s account of guarantees it is clear that, when researching the means which can produce psychological attitudes toward norm compliance, a distinction can be made between legal and non-legal guarantees, whereby Jellinek at least recognized their interdependence in maintaining legal order. Furthermore, in his theory we can differentiate coercive guarantees aimed at explicit manifestations of coercion from non-coercive guarantees aimed at voluntary abidance. If these differences in the original theory were emphasised by the PTIL more clearly, the coercive element of law would appear as the primary element. For example, a person could guarantee some result by promising to behave in a certain way. The obligation to fulfil the promise could be replaced by another promise, that of compensating for the non-fulfilment of the first promise. The promiser could also provide security in the form of mortgage securing against his failure to fulfil the promise in question. All these kinds of guaranteeing could be important for enforcing law but, unless they are coercive guarantees, they remain in the realm of morality or convention.

  • 51 Schauer 2015: 165.
  • 52 Jovanović 2019: 185.

19(4.3) As is apparent from the analysis of the first two elements, the concept of “institutional guarantees” can be used to capture the non-coercive aspect of law although the result of this approach might be perceived by some relevant subjects (especially according to the ordinary citizen’s belief, i.e., in the folk opinion) as not a typical representation of law.51 What about the third element? Although prima facie the term 'some means of coercion' seems to bring the concept of coercion on stage, Jovanović is in fact downplaying its importance. What is the meaning of the third element? It can be found in the following sentences: “And indeed, legal norms might be backed up by all sorts of 'inconveniences' for norm violators – from subjecting them to acts of physical force to merely depriving them of some earlier acquired entitlements and benefits. What is far more important is that, regardless of the form, norm violators shall be exposed to some such 'inconveniences' against their will”.52

  • 53 Bobbio 1965: 322.
  • 54 Kelsen 1952: 7.

20Before focusing on the structure of the third element, two remarks will be made. First, to say that “legal norms might be backed up by […] inconveniences” is different from saying that “legal norms are about inconveniences” or about force.53 Second, as Kelsen noted, norms cannot be violated: they can be valid or invalid.54 Interests of norm-subjects can be violated. Regarding the structure of means of coercion, the following can be deduced from the PTIL's definition: a) they are 'inconveniences' inflicted against the will of the suffering subject; b) there are all sorts of such 'inconveniences' which can be equally employed for the purpose of enforcement with no discrimination being made among them.

21a) The term 'inconveniences' might be too broad a concept for understanding law and, unless specified precisely, is a rather ambiguous term. Someone might feel inconvenienced when laughed at by a group of people for something she said. It is hard to believe that this reaction could be institutionalized as law-enforcement means. Or to give a more relevant example: a state might close its embassy in another state due to a breach of a bilateral agreement. This could be an inconvenient situation for the latter state but should this be considered as a 'legal sanction' or rather as 'political pressure'? IL scholars differentiate between non-violent breaches of obligations which can nevertheless be considered as permitted if committed in accordance with set requirements (countermeasures) and unfriendly acts which do not constitute breaches of international obligations (retorsion). Nevertheless, the former can be categorized as acts defined by norms on justifications or excuses (as mentioned above) and the latter as acts permitted by norms on intercourse among the states. In any case, as acts not belonging to the category of legal sanction. A narrower and less ambiguous concept of enforcement means can be obtained in two steps.

  • 55 Kelsen 1952: 17-18, 22-24.

22First, it might be more useful for understanding law if the term 'inconvenience' were replaced by 'interference in interests'. In addition to what Kelsen said about this,55 the following remarks can be made. Interests can be specified as consisting of two types: (i) interests important for natural existence, e.g., life, body, food, autonomy, integrity, and (ii) normative positions, e.g., right-claim, right-freedom, right-power, immunity, property. The kind of interference can be relevant or irrelevant for law.

  • 56 Ross 2006: 76.

23Second, it would be useful to study the appearance of 'inconveniences', i.e., 'interferences in interests' from the normative framework aspect. Following Ross' classification of norms in IL,56 it could be said that legally pertinent interferences can be regulated by different kinds of norms, i.e., first-level, second-level and third-level norms. First-level norms prohibit, command or permit interferences in relations among norm-subjects. Second-level norms refer to conditions regarding norm-subjects' interferences which have to be fulfilled for third-level norms to be implemented. For example, excuses, justifications or fulfilment of contractual obligations (contracted as a substitute for other contractual obligations) by the party itself can be defined by second-level norms as reasons for the non-implementation of third level-norms. Third-level norms empower legal organs to forcibly interfere in the interests of subjects provided norm-subjects' interferences are not in obedience to first-level norms and all conditions defined by second-level norms are fulfilled. According to interference-regulating norms, we can distinguish between norm-subjects' interferences (first- and second-level) and legal organs' interferences (second- and third-level). From the external point of view, the latter do not require norm-subjects' consent, while the former may include consent. From the psychological point of view, individuals can in any case consciously change the “against the will” attitude.

  • 57 Guastini 2014: 119.

24b) The PTIL's conception of coercive means could be read as meaning all “sorts of inconveniences” are equal and thus a separately sufficient feature of coerciveness of law. At least this conception does not explicitly make any conceptual distinction between different types of inconveniences. However, this is incorrect if coerciveness is analysed from the efficiency of norms point of view. Namely, third-level norms can but need not be efficient. The yardstick can be taken from the conception of efficiency of norms of change which is conditioned by the following: (i) norms of change are at least sometimes implemented for the purpose of producing norms; (ii) subjects generally behave in accordance with norms produced by these organs.57 Similarly, it could be said that the conditions for third-level norms' efficiency are the following: (i) third-level norms are implemented at least sometimes by legal organs; (ii) norm-subjects generally take into account the possibility of such norms being implemented as reasons for their actions.

  • 58 Himma 2016: 604.

25This second condition requires specific content to be included in third-level norms: an interference of such intensity to be relevant for reasoning. Otherwise first-level norms would probably be perceived merely as recommendations. A similar point, when observing the problem from the outside, could be found in the thesis about ensuring effective methods of social control through authorizing mechanisms which by their very nature are violent.58 Third-level norms on the employment of physical force, i.e., violence (or of corresponding means with equal effect, which will be discussed below) are efficient in the sense of the second condition. There are certainly other types of forcible interference carried out by legal organs which do not include violence. However, for third-level norms on such interference to be efficient following the second requirement, two sub-conditions have to be fulfilled: (i) the non-violent interference must be of such quality as to be a reason for action; (ii) in the case of resistance to a non-violent interference, norms on violent interference could be employed. The interference – violent or non-violent connected with the violent - defined by third-level norms, which is a consequence of the norm-subject's interference not being in accordance with first-level norms, can be called sanction.

5 Outcasting

  • 59 Hathaway & Shapiro 2011: 271.

26The conception of outcasting advanced by Hathaway and Shapiro is incorporated in the PTIL. Jovanović starts by exposing the part of outcasting theory that compares two types of enforcement mechanisms which are perceived by some theorists as contained in the central case of law. The primary mechanism concerns the acts of the author of the wrongful act ('conduct rule violator'): the violator will be called upon to execute the ordered sanctioning measure by herself, e.g., to demolish an illegally built residential unit, to report for jail, to leave the country etc. The secondary mechanism will be put into effect only if the primary one fails. Thus the authorized enforcement agency will be employed to enforce a sanctioning measure, including force, if necessary.59 The enforcement model grounded on these two mechanisms is labelled by its authors as the 'Modern State Conception'. It corresponds to the sanction-oriented model of enforcement, as depicted in the previous section, in which the primary versus the secondary divide corresponds to the distinction between second-level and third-level norms. What the authors could have stressed more precisely, even if they do not accept force as the necessary content of third-level norms, is that interferences in interests through primary enforcement mechanisms are legal activities only if the normative order includes third-level norms.

  • 60 Hathaway & Shapiro 2017: 371-390.

27In contrast to this model, Hathaway and Shapiro proposed a new theoretical construction. Implementation of different models causes different types of IL to appear. In the Old-World Order, the typical enforcement mechanism was physical violence (a military response which at the same time could be considered by some states as an act of aggression), whereas in the New-World Order forbidding war, the typical enforcement model is supposed to be outcasting. The authors list the following instances of outcasting: countermeasures by states, economic sanctions, countermeasures taken by members of an international organization (e.g. the WTO) under the mechanism envisioned by the treaty constituting this organization, expulsion from an international organization, e.g., expulsion from the Council of Europe, to which we can add, by analogy to expulsion, prevention of access to the benefits of cooperation within an international organization, e.g., EU bodies conditioning EU membership.60

  • 61 Jovanović 2019: 76.

28The PTIL's fluid understanding of law's coerciveness is in line with the idea of outcasting as an enforcement technique opposed to physical coercion. Jovanović substitutes the place which physical force (violent interference) has in the sanction-oriented concept of law with '(coercive) guarantees in IL'. “Law is thus primarily an institutionally guaranteed order and only secondarily a normative order that relies on sheer physical force. Its (coercive) guaranteeing, as it will be shown, may take other forms as well”.61 The incorporation of the concept of outcasting as a form of “(coercive) guaranteeing” could give the PTIL some advantage over theories cultivating the idea of law as a coercive order. The said concept matches perhaps more closely the perception which some relevant subjects have of contemporary IL. Notwithstanding, there is an important disadvantage to this approach: the clear demarcation line between international legal sanctions and other forms of guaranteeing disappears. In order to make this line visible again, we will look into the roots of its dissolution, introduce analytical tools to highlight the line, implement them in IL analysis and, finally, propose some redefinitions which can incorporate the outcasting concept in the sanction-oriented approach.

29(5.1) The blurry view of the relationship between sanctions and other measures in the outcasting theory springs from: the invisible character of physical force and the flexible character of institutionalization.

30a) Although the PTIL has not explicitly ruled out physical force as a guaranteeing form in the PTIL, it has an unimportant role in explaining the typical features of IL, at least according to the text devoted to physical force in Chapter Five of Jovanović's book. Moreover, the original theory does not make a conceptual connection between physical force and outcasting measures. In the same vein, the PTIL's discourse on international guarantees leaves the impression that the outcasting model is not only the predominant but also the sufficient type of guaranteeing. The only relevant characteristic for categorizing a reaction as outcasting appears to be its 'institutionalized' nature.

  • 62 See insights into shaming in Hathaway & Shapiro 2011: 309.

31b) The concept of 'institutionalization' is originally understood in line with its sociological meaning.62 According to this meaning, outcasting can include, for instance, the following paradigmatic practices of convention: reaction of people waiting in queue to see the doctor to a person entering the surgery regardless of the queue; absence of ambassadors at Independence Day celebrations organized by the host state in reaction to human rights' violations; and not giving the green light to a candidate state's accession to the EU in reaction to deficiencies with respect to the rule of law in that state. If outcasting is recognized by the scholar as the predominant and possibly sufficient model of enforcing IL, then all reactions akin to these examples could be considered as legal reactions.

  • 63 See, e.g., Ruys 2017.

32(5.2) The conceptual analysis of outcasting in the light of legal sanctions terminology can shed more light on this concept. Furthermore, reformulating the concept by using this terminology can more easily provide international-law scholars trying to understand the issues relating to the New World Order by analysing sanctions63 with insights into these issues from the perspective of the outcasting theory. If legal sanctions are opted for as the starting point for researching IL, it seems better to observe the concept of outcasting from the angle of Kelsen's distinction between military and economic sanctions.

  • 64 Kelsen 2001: 104.

33“[i]f within a system of international security not only war but any use of armed force is prohibited in principle and exceptionally permitted only as a sanction, the two types of international sanctions must be designated as enforcement measures involving the use of armed forces and those not involving it, or as military and non-military sanctions, but not as war and reprisals. By non-military sanctions, economic, financial and diplomatic sanctions are usually meant. However, sometimes the term 'economic' sanctions covers all non-military sanctions and includes financial and diplomatic sanctions".64

34The likeness between concepts of economic sanction and outcasting can be found in their opposite nature to physical, i.e., military reaction. The difference between the two concepts is that, while economic sanctions are by (stipulated) definition legal sanctions, the original outcasting concept includes instances which are not. With this difference in mind, we can continue classifying the outcasting type of intervention in interests by using three levels of intervention and three filters for selecting interventions which are sanctions.

35The first level refers to measures under UN law by reason of which this law can be understood as becoming general IL itself or law encased in general IL. If the latter understanding is accepted, measures under general IL should be added. The second level consists of interferences under particular legal regimes (law of international organisations) and the third level encompasses measures by states.

36The first filter which can be used to draw a distinction between international legal sanctions and other reactions is specific assessment of institutionalization. Institutionalization of sanctions can be understood in Kelsen's terms (normative meaning) as requiring the existence of legal norms authorizing a particular organ and prescribing conditions for interference. These norms can reflect a centralized, decentralized or mixed design of enforcement. For instance, imagine a decision made by the EU to not give the green light to the accession of a candidate state to that organization as a reaction to a bilateral dispute between one member state and the said candidate state. If this decision cannot be grounded on the existence of third-level norms of EU law or IL on legal sanctions, it can be considered only as a political act pertaining to the framework of international relations. The second criterion for filtering interferences which are sanctions is their connection with physical force. If physical force is authorized by a legal norm as a consequence of a particular behaviour, it represents legal sanction in the narrow sense. In the broad sense, legal sanctions are those lower-intensity interferences for which a norm of the legal order permits the use of physical force as a last resort reaction. The third corrective filter regarding the quality of measures will be explained after the following analysis.

37(5.3) We will proceed with the analysis of contemporary IL sanctions by resorting to three levels and two filters for classifying and isolating legal interventions.

  • 65 Kelsen 1952: 58.

38a) From Kelsen's standpoint it can be said, with regard to legal coerciveness, that UN law controls the use of force in such a way that it legally permits the use of (physical) force as a sanction only in cases of use or threat of force. In the case of such an international delict (a 'wrongful act', as contemporary IL terms it, can, according to Kelsen, be considered as a delict only if a sanction is attached to it; Kelsen avoided describing delicts as “illegal” acts since they are not the negation of the law), the imposition of UN economic and military sanctions as a last resort is regulated by norms. The problem with this system, as Kelsen remarks, is that under UN law (potentially new general IL) many of the behaviours that could have been considered as delicts under previous general IL are no longer delicts.65 For instance, imagine two states passing legislation on the basis of their subjective views about the disputed maritime boundary, punishing fishermen from the other state who crossed the disputed boundary and closing embassies in the other state in reaction to undesirable behaviour by that other state. Since these acts do not constitute a threat to peace, third-level UN norms cannot be applied and thus these acts do not constitute delicts from the UN's point of view. A non-violent reaction of one state against another in respect of alleged breaches of IL is, as will be soon shown, neither a delict nor a sanction.

39b) Measures taken by international legal regimes can be seen as measures aimed at enforcing treaty rules which were accepted with the consent of the parties concerned. If one could talk of a 'sanction' in this case, it would be a 'sanction' for a delict defined by a particular legal regime itself and not a sanction from the point of view of UN law (or general IL). A further question is whether the measures taken by these regimes can be considered as sanctions at all. In municipal law, measures authorized by contractual norms against contractors can be interpreted as sanctions within that legal order (for delicts defined by a particular system of norms) under two conditions. (i) The first is that the norms of the municipal legal system in question authorize 'sanctioning' inside particular normative systems established by statutes or contracts. (ii) The second is that, in the case of resistance to reactions envisioned by the said normative system, physical force authorized by the municipal legal system in question can be implemented as a last resort. Having in mind these two conditions, many interferences in interests will not be considered as sanctions within municipal law. For instance, individuals subject to municipal law are free to both join and leave voluntarily associations and can furthermore be excluded from membership in them. Expulsion from a religious organisation is not perceived as a legal sanction if: (i) this kind of interference is not regulated by legal norms of the municipal law in question or (ii) physical force is not authorized by third-level municipal norms which are to be enforced in case an ex-member fails to respect a decision of the organisation and, e.g., continues to participate in religious ceremonies. On the other hand, if exclusion from a religious organization is regulated by municipal law and connected to norms regulating official use of physical force as a last resort, it could be defined as a sanction in the broad sense.

  • 66 Kelsen 2005: 320.
  • 67 Kelsen 1952: 25.
  • 68 Kelsen 1952: vii.
  • 69 Kelsen 1952: 58.
  • 70 Kelsen 1951: 58.
  • 71 Paddeu 2018: 225-284.

40c) Countermeasures by states are not sanctions. When referring to general IL, Kelsen considers war and reprisals as primary forms of sanction.66 Thus, reprisal is understood as an enforcement action which, if necessary, can be followed by the use of physical force.67 Since with the establishment of the UN, which according to Kelsen might become a new general IL,68 the use and threat of force has been banned, war and reprisals (with the possibility of using, where necessary, physical coercion) are no longer sanctions enforceable by states as organs of the international community.69 These types of sanction can only be enforced by the UN. This is not to say that states cannot use measures called 'reprisals' as reactions in their mutual relations. Kelsen himself accepts that a possible interpretation of Article 2(4) of the Charter, although “in contradiction to its wording” prohibiting any armed or non-armed force, permits states to have recourse in their relations to 'reprisals' provided the latter are not a threat to peace.70 However, even if the 'typical' interpretation of the UN Charter today permits these activities, this does not mean that they are concurrently recognized as sanctions. In addition to Kelsen's justification for denying these activities the character of sanction, this thesis can be connected with the view that 'reprisals' (countermeasures) can be regarded as justifications or excuses.71

41(5.4) The two-filters testing of whether an outcasting activity belongs to the concept of sanction can be mitigated by introducing a third filter which makes a slight correction to the definition of sanction in the narrow sense. The use of physical force is by definition a sanction in the narrow sense because it interferes existentially, as the last measure in the chain, in vital interests, i.e., life, physical integrity, liberty and property. However, besides physical violence, vital interests can be existentially affected also by some economic sanctions. Consider expulsion from an association. Previously we alleged that this activity is not a legal sanction if it is not linked to a sanction in the narrow sense. Nevertheless, exclusion of a member from a religious community in which private property is banned since birth could itself be a threat to the outcast's existence. The same kind of interpretation can be applied to membership of states in international organizations. Exclusion from sports organizations certainly does not jeopardize the existence of states but being cast out of the EU by either being excluded from the benefits of EU membership or having one's accession negotiations suspended could significantly affect the wealth of the ousted nation. If these effects can be regarded as analogous enough to those of practicing physical force, it might be useful, from the theoretical and possibly practical point of view, to categorize these reactions as sanctions in the narrow sense. And this could be a pragmatic move even where formulated legal norms do not explicitly recognize these reactions as legal sanctions.

42(a) A theoretically valuable consequence of this proposal can be discovered in the strengthening of the original concept of outcasting. If economic sanctions can greatly affect the existence of nations and in terms of their effects come close to military sanctions, such forms of outcasting may indeed replace war and reprisals of the Old-International Order. In that sense it is better to consider them as legal sanctions in the narrow sense. Consequently, the list of sanctions in the New-International Order would include: (i) UN physical and economic (outcasting) sanctions; (ii) economic (outcasting) sanctions of existentially important international regimes; and (iii) all other reactions which can be connected with (i) and (ii).

  • 72 See Dworkin 2011: 409, 2013: 12.

43(b) A practically useful consequence of this redefinition is its applicability to the de lege ferenda and possibly de lege lata appraisal of interferences by international organisations which are not explicitly institutionalized as legal sanctions or delicts but de facto perform the role of sanctions in the narrow sense. In this context it is legitimate to question, at least from the aspect of some doctrines on justice, the expulsion from or vetoing of accession to either national or international associations. If these acts become crucial for the existence of individuals or states, they could start to be considered as belonging to sanctions in the narrow sense. Then arise the questions of whether the de facto existence of such sanctions is legal and if the answer to this question is positive, whether the decision to impose such sanctions was made in compliance with law. For instance, it might happen that an act of an EU member state during EU accession negotiations represents an arbitrary decision to give the red light to a candidate country which has met all the 'legal' requirements for accession. Therefore, it is a legitimate claim on the institutions of the EU as a rule-of-law order to request the elimination of any possibility of arbitrary exercise of power. If this claim cannot be interpreted as a right 'enforceable on demand',72 it can at least be interpreted as a political right to the enactment of norms formulated in such a way as to avoid arbitrariness.

6 Conclusion

  • 73 Kelsen 1948, Kelsen 1949, Kelsen 1951, Kelsen 1952, Kelsen 2001, Kelsen 2005, Kelsen 2008.
  • 74 Hart 1994.
  • 75 Ross 1950, Ross 1966, Ross 2006.
  • 76 Dworkin 2011, Dworkin 2013.
  • 77 Bianchi 2017.

44The branch of legal theory having IL as the object of its inquiry is still taking shape. Although prominent contemporary legal philosophers like Hans Kelsen,73 Herbert Hart,74 Alf Ross75 and Ronald Dworkin76 have provided important insights into IL, it is still “undertheorized”.77 Hence, the PTIL is a valuable means of remedying this deficit. There is no doubt that Jovanović established a theoretical framework indispensable for considering IL problems within the domain of legal theory. The avenue he pursues is important especially for legal theorists of Southeast Europe where many of the examples substantiating the PTIL come from. At the same time, criticism of the theory's basic tenets can be expected for at least three reasons. The theory challenges the methodology of the prominent conceptual analysis of law, which in turn can respond by critically assessing the postulates of the outlined alternative methodology. Second, the theory has the ambition of propounding an umbrella framework for different approaches to law, which naturally creates tensions between some of its propositions. Finally, it represents an endeavour to reconstruct the basic concepts widely recognized in legal theory as elements of law in such a way as to cover the IL context, which enterprise raises the issues of stipulated features of law and of different theoretical lenses being used for observing the IL phenomenon. This paper is an attempt at opening a discussion centered on the third critical standpoint of the PTIL, all the while only implicitly indicating the directions which a possible debate about the first two might take. It challenges the idea of justice-delivery as a typical feature of law and reformulation of enforcement-delivery as fluid guaranteeing absorbing the concept of legal sanction. At the same time, the paper provokes consideration of the possibility that the PTIL thesis on the fundamental importance of adjudication be strengthened by adding to adjudication the characteristic of 'necessity'.

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1 Jovanović 2019.

2 Jovanović 2019: 62, 192.

3 Jovanović 2019: 192.

4 Green 2008: 1050.

5 Jovanović 2019: 192.

6 Green 2008: 1050.

7 Jovanović 2019: 68.

8 Jovanović 2019: 68.

9 Jovanović 2019: 68.

10 Ehrenberg 2016: 46.

11 Green 2008: 1050.

12 Ehrenberg 2016: 137; Burazin 2019: 2.

13 Jovanović 2019: 64.

14 Jovanović 2019: 69.

15 Jovanović 2019: 191.

16 For peace-keeping as the proper function of law, see Himma 2018.

17 For Kelsen's and Lauterpacht's views on the role of peace, see Krešić 2019.

18 See Gowlland-Debbas 1990.

19 See Hart 1994: 193.

20 Kelsen 1949: 14.

21 Ross 2004: 284.

22 Jovanović 2012: his notes 123 and 159; 52, 93.

23 Kelsen 1971: 19.

24 Ross 2004: 275.

25 Ross 2004: 275.

26 See Hathaway & Shapiro 2017.

27 Ross 2004: 285.

28 Ross 2004: 285.

29 Jovanović 2019: 72.

30 Jovanović 2019: 175.

31 Jovanović 2019: 175.

32 Jovanović 2019: 175.

33 Jovanović 2019: 175.

34 Kantorowicz 1958. See Krešić 2012, Krešić 2013b, Krešić 2014.

35 See Kantorowicz 1958: 74.

36 Lauterpacht 2000, Kelsen 2008.

37 Jovanović 2019: 65.

38 Jovanović 2019: 73, 74.

39 See Schachter 1962, Higgins 1970, Combacau 1974, Lauterpacht 1991, Schweigman 2001, Fassebender 2009.

40 Krešić, 2013a: 125.

41 In the sense of justiciability used by Kantorowicz 1958. In this sense, what is termed 'UN law' here does not have to be specified according to the formal sources of these norms.

42 Jovanović 2019: 185.

43 Jovanović 2019: 71.

44 Harré 1993: 52.

45 Jovanović 2019: 74.

46 Himma 2016: 597.

47 According to which countermeasures can potentially be perceived as justifications or excuses. See Paddeu 2018: 225-284.

48 Jellinek 1911: 504.

49 Jellinek 1911: 507.

50 Jellinek 1911: 561.

51 Schauer 2015: 165.

52 Jovanović 2019: 185.

53 Bobbio 1965: 322.

54 Kelsen 1952: 7.

55 Kelsen 1952: 17-18, 22-24.

56 Ross 2006: 76.

57 Guastini 2014: 119.

58 Himma 2016: 604.

59 Hathaway & Shapiro 2011: 271.

60 Hathaway & Shapiro 2017: 371-390.

61 Jovanović 2019: 76.

62 See insights into shaming in Hathaway & Shapiro 2011: 309.

63 See, e.g., Ruys 2017.

64 Kelsen 2001: 104.

65 Kelsen 1952: 58.

66 Kelsen 2005: 320.

67 Kelsen 1952: 25.

68 Kelsen 1952: vii.

69 Kelsen 1952: 58.

70 Kelsen 1951: 58.

71 Paddeu 2018: 225-284.

72 See Dworkin 2011: 409, 2013: 12.

73 Kelsen 1948, Kelsen 1949, Kelsen 1951, Kelsen 1952, Kelsen 2001, Kelsen 2005, Kelsen 2008.

74 Hart 1994.

75 Ross 1950, Ross 1966, Ross 2006.

76 Dworkin 2011, Dworkin 2013.

77 Bianchi 2017.

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Electronic reference

Mario Krešić, “Features of international law: A critical account of the prototype theory of international law”Revus [Online], 43 | 2021, Online since 31 March 2021, connection on 09 December 2021. URL:; DOI:

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About the author

Mario Krešić

Associate Professor at the Faculty of Law, University of Zagreb

Address: Pravni fakultet Sveučilišta u Zagrebu - Trg Republike Hrvatske 3 - 10000 Zagreb - Hrvatska


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