On Binding Force Of International Law

Whether international law has binding force and where does the binding force comes from? This basic theory of traditional international law has plagued many scholars of international law. At the initial stage of international law, domestic and international law scholars got controversial ideas about this issue, thus formed negativism and legalism of the international law; there are some disagreements among international law scholars, and generates a natural law school and positive law school. Because of the conservativeness of the negativism, it eventually replaced by the legal theory; the natural law school gradually gives way to practical law school after fulfilling its groundbreaking mission. However, in the process of establishment, development and decline of each school, self-help, sanctions, justice, and other factors take turns on stage, and continuously give variable meanings to binding force of international law.At the perspective of international law, the issues of binding force are more swing between "ought to be" and "is to be". In theory, the deeper on their way natural law school and practical law school go, the more they can not stand the criticism from the other end, and they will inevitably attributed to the subjectivism and formalism. In the later half of the twentieth century, issues of international law binding force began to enter the vision of the international relations scholars. Scholars of international law take a more intuitive way to observe " how should the state act," "Why do countries comply with international law" and other issues, the rise of behavior theory in sociology, politics and international relations and other fields and the application of game theory, management theory and other research methods make binding force of international law enter a new period. Under the influence of the new ideas, there emerged a "cross research on international relations and international law " about the binding force of international law, as the emergence of legitimacy theory, management school and transnational legal process theory, problems of the binding force of international law got out of the need to defend the very existence of international law opened a new "post-ontological" era. At the same time, the theoretical development of international law are getting increasingly mature, the bit-order theory, the relative normative theory, critical theory of international law continues to question the certainty and legitimacy of traditional international law, and makes active efforts to build a new system of international law.Binding force of international law is neither just a judgment concerns "with or without", nor a recognition of the "source ". Since the latter half of the twentieth century, under the influence of the above theory, studies on binding force of international law have been extensively involved in the source, requirements, extent and ways of improvement of binding force of international law and other new topics. These topics designed to answer the following theoretical and practical issues:(1) Whether international law is effective or not? How to reflect its role in the international community? (2)Where does the effectiveness of international law come from? The justice hidden behind the law or will embodied in the provisions, or the nature inherent in things? (3) How to ensure that international law can reflect international justice and fairness in the international community where the sovereign will is above all other things? Is the legislation of international community scientific or not? (4) Is there any existence of norms of international law similar to the rank system of domestic law to ensure coordination between the different laws? (5) If the binding force of international law can be improved, what are the possible ways, can these methods be applied to all areas of international law?Through the introduction of different theories about binding force of international law and the investigation of international law and international relations theory about international law binding, formal requirements and substantial requirements of international law binding, the degree of international law binding, the perfect approaches of international law binding and so on, this paper will reveal the development and features of international law binding in different periods, summarize the implementations of international law binding in special areas and put forward the proposals for our country in international treaty legislation.This article is composed of six chapters. Chapter I is an overview of related basic terms and research scope. Conception of the binding force of international law which involves both static standard attributes and dynamic-state operation is emphasized, including binding force, legal validity, legality, effectiveness, implementation, applying and application. The binding force of international law is involved with standardized issue such as its legality and effectiveness, while it also has a close connection with the state behavior, that is implementation、applying and application. In the field of the limitation of research scope, the system of the binding force of international law is large indeed, including convention and custom, unilateral approach, bilateral treaty and multilateral treaty, enforcement machinery as well as judicial system. The major study of this article is about treaty, in light of domestic system of legal effect, focus on the origin of validity、the level of effectiveness and the validity element.Chapter II deliberates the origin of the validity of international law. t introduces theories on the binding force of international law in the field of international law and international relations. In the field of international law there are not only the theory of basic rights, the theory of social solidarity, the theory of international society must, which belongs to natural law, but also are the theory of common agreement, the theory of abiding by through agreement, which belongs to pragmatic law theory. In the field of international relations, the writer will highlight the theory of power politics, the interests theory, the theory of reputation, the theory of identification, policy-oriented school and so on. The writer indicates that in the issue of the binding force of international law, the two schools take different perspective. The international law scholars adopt the static, external and objective perspective, while the international relations scholars take the dynamic、internal and subjective behavioral perspective, they can learn from each other in mutual emulation.Chapter III probes into the material requirement and formality of the binding force of international law, It points out that the material requirement lies in the legal nature and legitimacy of international law while the formality rest with the democracy and scientific of international law. The legal nature and legitimacy of the norm of international law is the intrinsic factor of its binding force. The legal nature means rights and obligations that can only be created by international law, no other international specification can achieve this effect. Legitimacy is the ultimate goal of international law in overcoming its shortcomings of fossilized form and deficiency in equality and justice. The democracy and scientific of the norm of international law is the extrinsic feature of its binding force. The democracy of international law is confronted with several negative factor, just like the situation faced by national democratic legislation. Thus suitably identifying every form of international democracy, enhancing strong points and avoiding weaknesses is crucial. Different from the internal scientific legislation, the scientific legislation of international law is fall on deaf ears, except for research on legislation approach by means of economic theory, whose research is basically blank.Chapter IV is the demonstration about the boundaries and extent of international law’s binding force. At the level of issues on international law binding, international law scholars put forward successive rank theory and relative standardized theory. These two theories are trying to answer the binding degree of different international law norms. Rank theory takes compulsory law as the core and constructs a rating system of international law. The emergency of compulsory law has played an important role in limiting state sovereignty supreme and then strengthening general international law binding. However, for the difficulties in compulsory law, identifying the content and scope of all the obligations, rank theory is hard to be widely accepted by scholars of international law. Relative standardized theory of international law widely investigates treaties、custom、jus cogens、resolutions of international organizations、soft law norms and so on, then analyzes binding issues of different international norms.Chapter V is the compliance and enforcement mechanism of binding force of international law. By the analysis of the institutional theory and compliance theory rising in eighties and nineties of the 20th century, it points out that international relations scholars and international law scholars has realized the cross of disciplinary studies on the binding. International law adopts "norm perspective" for studying the binding. It pays attention to recognize international law binding from the distinction among standard content, creating way and other social norms. The scholars of international relations have taken "tool perspective" and treat international law as the tool for countries to achieve a variety of interests. These two perspectives have their own advantages and disadvantages in the issue that why countries follow international law. In the 1980s and 1990s, international relations and international law study realized cross in the field of international law compliance. International law scholars draw lessons from international relations mechanism theory and choose rationally theory to recognize norms’production, function and influence; While international relations scholars tend to value the shape of international law norms for international relations. Two schools of scholars learn from each other and each perfect the point of view of international law binding. Based on theoretical analysis, it focuses on information collection, reporting mechanism, technical assistance mechanism and private execution mechanism’s promoting function for international law compliance’s transparence, internalization and democratization.Chapter VI is the conclusion. It summarizes the source, elements, degree and mechanism development of international law binding and put forward the proposals in international legislation and international litigation.