Introduction

When the English philosopher John Austin delivered the six lectures he published as The Province of Jurisprudence Determined in 1832, he argued that there were laws properly so-called (commands that are ‘armed with sanctions, and impose duties, in the proper acceptation of the terms’ (Austin 1832 [1995], 119) and laws like international law that were laws improperly so-called, by virtue of an ‘analogical extension’ of terms such as ‘law’ and ‘rule’ (ibid., 123). Austin considered enforcement, or at least enforceability, an essential ingredient for the existence of law. Since international law presented no obvious or readily identifiable machineries for its enforcement, it had taken the name of ‘law’ in vain and it could hold no claim to this status. To similar effect, a popular Japanese song of the 1880s had it that ‘There is a Law of Nations, it is true,/but when the moment comes, remember,/the Strong Eat up the Weak’ (Sansom 1965, 407). International law had, however, historically considered the matter of its existence as separate from its enforcement: the former spoke to the validation and authority of this law as law; the latter to questions of its effectiveness. And this stands to reason: a law can only be enforced once we have been assured of its promulgation.