The International Community's Adherence to International Law in the Perspective of Philosophy of Law

The International Community's Adherence to International Law in the

Perspective of Philosophy of Law

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Introduction

Unlike national legal systems that have formal institutions such as legislative bodies,

police, prosecutors, heads of government both at the central and regional levels

(executive) and courts that have compulsory jurisdiction over their citizens, international

legal systems do not have all of these. International law does not have a legislature that

makes the rule of law, it does not have police, prosecutors, heads of government as

executives and it does not even have courts that have compulsory jurisdiction over states

that violate international law. International law is sorely lacking in formal institutions,

according to Martin Dixon. It is therefore not surprising that many people doubt the

existence of international law. International law is said not to be real law. According to

John Austin as quoted by Scwarzenberger, international law only deserves to be

categorized as positive morality because it does not have a legislative body and its

sanctions cannot be enforced. Many parties agree with this opinion, especially since

reality shows that many violations of international law are committed, such as by the

United States, and Israel has never been sanctioned.

Is international law a real law? How this law works, why the international

community wants to obey it are very interesting questions to be researched and analyzed

in depth through the philosophy of law. By analyzing all of that from the perspective of

the philosophy of law, it is hoped that an understanding of the breadth as well as the

depth, as deep as the roots of international law will be obtained. Some of the benefits of

analyzing through legal philosophy include: 1. Can bring legal experts to look far into

the future. More aware of the jurists in their legal policy, they will always adjust the

policy to the actual social needs, and avoid as much as possible the worship of things

Bringing jurists from formal legal thinking to social reality. As an example, it can be

stated that in applying the law of treaties, legal experts also need other knowledge in the

fields of economics, criminalogy, crime, ties, sociology and so on. 3. It can unify or

suggest the use of the same basic concepts to underlie various social factors and pave the

way for solving various social problems using only one technique. Thus the complexity

of law can be better controlled and more rational, where theory can help in practice. 4.

Reasoning through legal concepts will sharpen the techniques of the jurists themselves.

Problem Formulation

Based on the explanation above, the problems that will be analyzed in this paper are

First, is international law a real law? Second, why does the international community want to

obey international law even though international law lacks formal institutions in charge of

enforcing the law?

Research Objectives

To understand and analyze the nature of international law and understand why the

international community is willing to obey international law even though international law

lacks formal institutions in charge of enforcing the law.

Research Methods

This research is a normative legal research, the type of data used is secondary data with

secondary legal materials in the form of research results, writings and opinions of

international law experts. Recognition, acceptance and practice of the international

community treats international law in the national legal system and in international relations.

Research Results and Discussion

The Nature of International Law

According to Austin international law is not a real law because to be said to be a

law according to Austin must fulfill two elements, namely that there is a legislative body

forming rules and that these rules can be enforced. Austin did not find these two elements

in international law so he concluded that international law cannot be said to be law, just

positive morality. Looking at Austin's opinion, it appears that Austin sees law from a very

narrow perspective. According to Austin, law is synonymous with legislation, orders

from the authorities (legislative body). In modern analysis, Austin's opinion is no longer

appropriate because it will eliminate the function of the court as one of the law-forming

bodies. In addition, Austin also ignores if in society there is a living law, whose existence

is not determined by the existence of an authorized body (legislative body) or ruler such

as customary law or customary law.

In contrast to Austin, Oppenheim, another legal expert, argues that international law

is really law. There are three conditions that must be met to be considered as law

according to Oppenheim. The three conditions in question are the existence of the rule of

law, the existence of society, and the guarantee of implementation from outside (external

power) of the rule. The first requirement can be easily found in the many rules of

international law in our daily lives, such as the 1982 UN Convention on the Law of the

Sea, the international treaty on the moon and other celestial bodies (Space Treaty 1967),

the Convention on diplomatic and consular relations, various international conventions

on human rights, on international trade, on the international environment, on war, and

others. It can be said that it is difficult to find aspects of life that have not been regulated

by international law.

The second condition for the existence of an international community is also

fulfilled according to Oppenheim. The international community are countries in bilateral,

trilateral, regional or universal scope. The third requirement is also fulfilled according to

Oppenheim. Implementation guarantees can be in the form of sanctions coming from

other countries, international organizations or international courts. These sanctions can

take the form of demands for apologies (satisfaction), compensation

(compensation/pecuniary), and restoration of the situation to its original condition

(repartition). In addition, there are also sanctions that take the form of violence such as

termination of diplomatic relations, embargoes, retaliation, and war.

Despite stating that international law is real law and not just moral, Oppenheim

recognizes that international law is weak law. International law is weak in terms of its

enforcement, not its validity. International law is sometimes very primitive and selective.

Laws and sanctions are only imposed on small states that have little or no power or

influence in the international community. When Iraq invaded Kuwait in 1990-1991

international law was very harsh on it. The international community stated that the action

was unlawful not immoral or unacceptable. Various sanctions were imposed on Iraq,

even the imposition of sanctions is precisely what violates international law because there

is no clarity as to how long the sanctions will last. Moreover, the sanctions interfered

with Iraq's internal affairs and deprived Iraq of its right to develop itself. This is the case

with Iran, although there is no evidence that Iran is developing weapons of mass

destruction and according to Iran, what it is doing is only for peaceful purposes and

scientific development, but various kinds of sanctions have been applied against Iran.

In line with Oppenheim, modern international law experts state that international law is

real law, not just morals. The majority of the international community recognizes the

existence of legal rules that bind them. When Iraq invaded Kuwait in 1990, the community

of International law states that such acts are unlawful rather than immoral or unacceptable.

How do we know that the international community accepts and recognizes HI as law? There

is some evidence that can be put forward according to Dixon: 1. HI is widely practiced or

applied by foreign officials, foreign offices, national courts, and international organizations;

2. States that violate international law in practice do not say that they are breaking the law

because HI is not binding on them. In practice these states always look for legal arguments

to justify what they are doing. For example when NATO bombarded Serbia, the justification

they used was that the action was justified by HI because it had a humanitarian purpose.

Another example is the United States justifying its aggression against Iraq in 2002 with the

term pre-emptive attack; 3. The majority of countries comply with international law. The

number of violations that occur is far less than the observance that occurs. The violations

that occur are never publicized, forming the opinion that international law exists only for

violations without legal sanctions. What is publicized by various mass media does not

represent the whole. International law is not just about America, Iraq, Israel, and Palestine

alone, where the US and Israel constantly violate international law without any sanction.

The existence of violations cannot be used to conclude that HI does not exist. Likewise, the

absence of sanctions to date for the US and Israel cannot be used as a reason to say that HI is

not law. In national law such as in the UK, only around 60% of criminal cases are dealt with

by the police and of that 60% not all are resolved properly. A lot of criminal cases are never

revealed who the perpetrators are and of course there are no sanctions for the perpetrators. In

United States, for example, how many cases of corruption or violence involving high-

ranking officials or important people in United States are not processed or even dismissed.

However, it is never said that there is no law in United States ;4. The existence of legal

settlement institutions such as arbitration and various international tribunals that always use

arguments In practice, HI can be accepted and adapted into the national laws of countries.9

There is not a single country in making its national law without looking at existing HI

principles. As an example, why does United States only set its territorial sea boundary at 12

nautical miles? Wouldn't it be more expansive if it were 200 or 500 miles? United States

cannot do so because existing international law stipulates that the width of the territorial sea

is only 12 miles. If United States makes more than that, it will not be recognized and will be

protested by the international community. Other examples include United States Human

Rights Court Law adopting the 1998 Rome Statute, United States EEZ Law implementing

the 1982 Convention on the Law of the Sea, International Treaties Law No. 24 of 2000

adopting the 1969 Vienna Convention on the Law of Treaties, and Law No. 39 of 1999

adopting the 1961 Vienna Convention on Diplomatic Relations.

From the above, there is no doubt that HI is real law. The international community

accepts HI as a law not just a moral principle. If HI were a mere moral code then there

would be no external power or coercive power from outside. In moral law (positive

morality) the coercive power comes from the consciousness of the legal subject itself

(internal power), namely its own conscience and self-awareness.10 The problem of weak

law enforcement must be separated from the problem of the existence of HI itself. The

existence of HI does not depend on the number of violations, the presence or absence of

certain institutions as well as the presence or absence of sanctions, but is more determined

by the attitude of law actors in the international community itself.

Basis of the Binding Force of International Law

As stated above in International Law there is no supranational body that has the

authority to make and impose an international rule, there is no law enforcement apparatus

authorized to take direct action against states that violate international law, and the

relationship is based on a coordinative relationship not sub-ordinate. However, it turns

out that in practice the international community wants to accept HI as real law not only as

positive morals. The nature of international law is as real law. The number of violations

that occur is much smaller than the existing observance. This of course raises the further

question of what makes the international community want to accept HI as law? Where

does HI derive its binding force from?

In terms of the philosophy of law, there are several theories or schools that have

emerged in several periods or stages, which try to answer the above questions as follows.

At the stage of12 ancient and primitive international law, namely the ancient Roman

century to the Middle Ages, for example, where the flow of natural law dominated the

thinking of scientific experts at that time, it was said that the international community

obeyed international law because international law was part of natural law. Natural law is

a semi-theological school of thought, always referring to a higher law that comes from

God.13 International law (jus gentium) is seen as part of natural law, coming from God

so it applies to all humans. International law is binding because it is part of natural law

applied to the community of nations. In other words, it can be said that states want to be

bound by HI because their relationships are governed by a higher law, namely natural

law. Natural law is law that comes from nature and is passed down to man through his

ratio or reason. Gaius, an expert in the ancient Roman era, referred to jus gentium as law

'common to all men'. Thus, international law is universal. The same thing is stated by

Sudjito that the basis of this law is nature. The essence of nature lies in reason. The

highest sense is in God, is eternal and universal. The international community's

obedience to natural law is as it should be because it comes from God. International

treaties are binding and must be obeyed, for example, because a promise means an oath

containing a sacrament, being the jurisdiction of the church.14 Law according to this

school is not created but found in nature. What is put forward by this school is not

considered satisfactory because it is very abstract and has not answered the core question

of why the international community wants to be bound by HI. Nevertheless, this school

contributes a lot to the development of IR, especially on the values of justice.

The next stage is often referred to as traditional international law. At this stage the

influence of the church and the school of natural law began to diminish and the school of

positive law emerged. This school divides the boundary between international and national

law, so dualism and monism emerged. International law is seen as an agreement between

many sovereigns or states. Law develops through the customary practices of states that give

birth to legal obligations called opinio jurissive necessitas. The state as the holder of

sovereignty is the main actor in international relations. The main principles that apply are

the principles of territoriality and state autonomy. This school states that the law contains 3

things, namely related to morals, God, and nature. The international community's adherence

to international law according to this school is due to an agreement. Thus, it is distinguished

between state practices that are born voluntarily and those that are born by agreement that

give birth to legal obligations to obey them. According to this school, law is not born or

found in nature but is made by humans (man-made law). John Austin, one of the famous

figures of the positive school, stated that international law is not real law. This is because

unlike domestic law, the implementation of international law cannot be enforced by

sovereign parties. International legal obligations only have morally binding force. The

factors that encourage the state to obey international law are various concerns that arise from

within the state itself such as concerns about being seen as a member of the community of

nations that are not good, concerns about being seen as a provocateur for the state cases of

international crimes as well as concerns about the rise of rioters and the threat of disruption

to world order.16 At the end of the positivist era Bentham proposed codifying the practice

of states in written form. At the end of the 19th century there were four main schools of

thought on this subject. First, the Austinian Positivistic Realistic group, which argues that

states never obey international law because international law is not really law. Second, the

Hobbessian Utilitarian, Rationalistic group recognizes that obedience will arise only when

the state has an interest (self interest) with the rules and their enforcement. Third, the

Kantian Liberal group, which argues that generally the state will obey HI because it is

guided by a sense of moral and ethical obligation derived from thoughts of natural law and

justice. The fourth group, whose main figure is Bentham, argues that the incentive for states

to obey as well as the encouragement of other states causes states to become obedient to HI.

international law.

As stated by the positive law school, the basis of the binding force of HI is the will

of the state. Although it is more concrete than what is stated by the natural law school,

what is stated by this school also has a weakness, namely that not all HI obtains binding

force because of the will of the state. Many HI rules have the status of customary

international law or general legal principles that existed before the birth of a state.

Without ever expressing its will to agree or disagree with the rule, the newborn state will

be bound by the international rule.

After the world war, the idea of adherence to HI grew. James Brierly, an

international law expert, stated that the reason why states obey HI is to maintain their

respective reputations at the international level and the growth of solidarity for the

creation of world order and peace.19 After the second world war, international

organizations grew like mushrooms in the rainy season. Their existence has more or less

affected the state's adherence to the Law of International Relations International. In

Brierly's view, obedience is due to the solidarity and legitimacy that comes from

international organizations.

Gerald Fitzmaurice, in his article "The Foundations of the Authority of International

Law and the Problem of Enforcement" concludes that state obedience to international law is

not due to the consent or personal will of each state that creates an obligation. The

fundamental reason for obedience is the authority of international law. Facts show that states

make the international community recognize the binding force of a rule of law,

automatically applicable to them, regardless of the will of each state.

Thus, Fitmaurize concludes from the opinions of previous legal experts, especially the

positivist school, that the binding of international law is due to the collective will of the state

that arises from a sense of togetherness or solidarity and is accommodated and legitimized

by international organizations.This opinion can be said to be the embryo of the theory of

managerial and fairness developed by Chayes and Thomas Franck and is considered a fairly

influential theory today.

Related to Chayes and Thoman Franck above, there are currently two interesting books

written by these two international law experts and are considered quite comprehensive in

discussing why the international community, especially states, want to obey international

law. The first book is entitled The New Sovereignty: Compliance with International

Regulatory Agreements, written by Abram Chayes & Antonia Handler Chayes, 1995. With

his theory of managerial process approach, Chayes argues that the international community

obeys international law not for fear of sanctions. It is driven by the dynamics created by the

international treaty regime in which they are involved. The main instrument for maintaining

compliance is through international treaties, namely the mechanisms created by the treaty

itself, the organization of the treaty and the wider public.

In an effort to study in depth the state's obedience to international law, especially

international treaties, Chayeses analyzed why states obey and vice versa why states do

not obey international treaties. Chayeses succeeded in concluding that disobedience is

due to the unclear provisions in the agreement that cause multiple interpretations

(ambiguity), uncertainty (indeterminacy), as well as various restrictions imposed by the

agreement that make it difficult for participating states to carry out their obligations. This

is in line with what Martin Dixon stated that disobedience that occurs in the practice of

international relations is more often due to vagueness in the source of international law

itself so as to cause multiple interpretations than the state's intention to violate

international law.

To foster state adherence to international law, Chayes cites two conflicting

alternative solutions. The first is through enforcement mechanisms that apply many

sanctions such as economic sanctions, membership sanctions to unilateral sanctions.

Against this first mechanism, Chayes managed to conclude that the application of this

mechanism is ineffective, requires high costs, can cause legitimacy problems and in fact,

it is not effective.

The second alternative offered by Chayes is the management model, where

obedience is not encouraged by various violence or sanctions but through a model of

cooperation in obedience, namely through the process of interaction in justification,

discourse and persuasion. Sovereignty can no longer be interpreted as free from

intervention external, but the freedom to conduct international relations as a member of

the international community or governmental autonomy. Thus the new sovereignty

consists not only of territorial control or governmental autonomy but also recognition of

status as a member of the community of nations. Adherence to international law is no

longer solely out of fear of sanctions but rather out of concern for diminished status

through loss of reputation as a good member of the community of nations.

Sovereignty can no longer be interpreted as the freedom to do whatever it wants

according to its own interests, but as a member of the community of nations. Today the only

way in which the majority of states can realize and express their sovereignty is through

participation in the various regimes that govern international order.27 No state can blindly,

completely ignore international law because there are too many foreign and domestic

parties, too many present and potential relationships, too many sets of other issues or

problems that cannot be ignored.

Chayes further argues that the ability of the state to continue to participate in the

international policy-making process as well as its status as a member of the international

system depends on several things that it shows such as the state's willingness to accept,

implement international law in a law-abiding regime.

In The New Sovereignty, Chayes argues that management processes to accelerate and

improve the compliance of states in an international agreement include transparency,

reporting and data collection, verification and monitoring, dispute resolution, capacity-

building, as well as strategic review and assessment. Non-governmental organizations

(NGOs) and intergovernmental organizations (G to G) can revitalize regulatory instruments

for international treaty compliance.

Chayes' managerial approach requires both a leadership (the manager) and a process

(the discourse). Managing the international treaty regime according to Chayes requires 7

stages, namely31 : 1) data development about the situation and the parties to a particular

international treaty; 2) identify habits of behavior that could potentially lead to problems of

disobedience; 3) diagnose the sources of causes of different behavior, outside the norm; 4)

test the ability of the party that does not comply with the treaty to fulfill its obligations; 5)

offer technical assistance to the party that is unable to carry out its obligations

(undercapacity); 6) threat or use of dispute resolution mechanisms; 7) if necessary, conclude

and suggest modifications to the treaty to accommodate the aspirations and interests of the

party that does not comply with the treaty.

In response to Chayes' writing, Harorld Hongju Koh argued that there are four

weaknesses of Chayes' managerial approach, which are as follows: 1) by emphasizing the

strength of the managerial approach and weakening the enforcement approach, it means

that Harorld puts the two in an alternative position, even though the two are

interdependent and complementary to each other; 2) Chayes suggests that ultimately

compliance is not due to fear of sanctions but rather fear of losing reputation in the eyes

of the international community. In reality, it is recognized that no reputation is lost when

states abide by the actual interpretation of treaties. Thus the main function of the

international treaty regime is to provide interpretations that are full of legal certainty; 3)

Chayes ignores the issue of the process of internalization of international treaties.

Adherence to an international treaty cannot be separated from two levels of relations,

namely relations between fellow treaty participants and inward relations, bargaining with

national law; 4) Chayes focuses too much on the process and forgets about the substance

of the treaty, which sometimes causes unequal problems between the parties to a

particular international treaty.To guarantee compliance, international treaties must be

non-discriminatory.

The second book is Fairness in International Law and Institutions, written by

Thomas Franck. With his fairness approach, Franck argues that the compliance of the

international community is not due to the threat of sanctions but rather to considerations

of legitimacy or due process and the distribution of justice.

Unlike Chayes who limits obedience to international treaty-based law, Franck sees it

as a whole, all international law, because according to Franck international law has

entered the post ontological age.33 Like rationalists Franck recognizes that states obey

international law when the benefits they gain outweigh the losses they have to bear if

they do not. However, while the rationalist always calculates the gains and losses

associated with adherence to a particular rule of law, Franck sees adherence more deeply

at its roots, namely solidarity, the "communitarian peer pressure" that each state feels as

a member of the community. Franck sees international law as more of a process, how

fairness is established through a process of discourse, reasoning and negotiation" rather

than seeing international law as a legal system. The most controversial aspect of Franck's

legitimacy analysis is that according to Franck, justice among the community of nations

is not the ultimate goal. It is legitimacy that is the ultimate goal of international law.

Legitimacy is about process, in which morality is involved. It is more important than the

moral rules manifested in justice. A right process that has legitimacy will have justice in

it. So the right process is more important than the final substance.

Despite using different methods, in the end Franck and Chayes have the same answer to

why states want to comply with international law. They conclude that voluntary compliance

is far better than law enforcement mechanisms that use force or coercion. If states internally

accept the rule of law as fair, they will automatically comply with it. If the state must always

justify what they have done, they will not be able to comply. If a state does something on the

basis of an international treaty to its partner state in the treaty, then it will automatically

voluntarily comply with the treaty. Thus, according to Harold, the key to obtaining better

obedience is the internalization of obedience or what Harold calls obedience.

With his theory of Transnational Legal Process, Harold suggests that a good way to

internalize compliance is to internalize new interpretations of international norms into the

internal legal system of the state concerned. The aim is to bind others to international law

through their internal values. In the end, it can be concluded that why states obey

international law is due to various factors that influence each other, namely moral

reasons, normative reasons, as well as legal reasons. The moral obligation of

transnational actors to comply with international legal norms becomes a domestic or

inter-national binding legal obligation when the norms have been interpreted and

internalized into the national legal system. Philosophers such as Chayes and Franck also

recognize that transnational actors will be more likely to comply with international law

when they accept the legitimacy of these rules through some internal process.

To complement what Chayese and Franck have proposed, it is necessary to

understand the influence of the third school, namely the sociological school, because in

fact the theories of Chayese and Franck cannot also be separated from the influence of

the sociological school.

According to the sociological school, the community of nations as social beings

always need interaction with one another to fulfill their needs. No matter how advanced a

country is, it cannot live alone. In this interaction, the international community needs the

rule of law to provide legal certainty in what they do. In the end, from these rules, the

international community will feel order, regularity, justice, and peace. Thus, according to

this school, the basis of the binding force of HI is the common interests and needs for

order and legal certainty in carrying out international relations. This need makes the

community The international community is willing to submit to and bind itself to HI. The

need factor is more important than the presence or absence of law enforcement officers,

formal institutions and sanctions. As an example, why is it that at an intersection where

there is no police presence, the majority of road users are willing to abide by the rules,

stopping when the light turns red? The answer is because they need the traffic rules for

their own safety.

Some other arguments put forward by the sociological school above include the

effectiveness of a rule of law. According to this school, to what extent the effectiveness

of a legal instrument, including international law, must first be known to what extent the

legal instrument is obeyed. There are 3 types of obedience according to H.C Kelman:1)

compliance obedience, namely if the subject of law obeys a rule, only because of fear of

sanctions. The weakness of this type of obedience is the need for strict and continuous

supervision; 2) Identification obedience, namely if the subject of law obeys a rule

because of concerns that his good relations with other parties will be damaged or

disrupted if he does not obey the rule; 3) Internalization obedience, namely if the subject

of law obeys a rule really because he feels that the rule is in accordance with the intrinsic

values he embraces. In practice, legal subjects obey the rules can only be for one reason

only, but it can happen that obedience includes the three types mentioned above. So the

subject of law obeys the rules not only fears sanctions but also fears that his good

relations with other parties will be disrupted as well as the realization that the subject of

law needs the rules and matches the intrinsic values he adheres to. Assessing the

obedience of legal subjects to a rule of law is certainly not enough to see only in terms of

the number of those who obey, but to further emphasize the quality of effectiveness, it is

necessary to see the reasons for this obedience. Obedience that is compliance in nature is

of lower quality than that which is identification in nature, especially when compared to

the quality of obedience with internalization.

Slightly different from what Kelman stated, according to Ahmad Ali, the most basic

thing that makes legal subjects obey or disobey the law according to Ahmad Ali is the

interest factor, the calculation of profit and loss. How much profit will be obtained in

case the subject of law obeys the law and vice versa. Which is the greater benefit that will

be obtained by obeying or disobeying. It greatly affects the obedience of legal subjects to

a rule of law.41 As for the 3 kinds of observance mentioned by Kelman, according to

Ahmad Ali, it is more appropriate to say that they are types of interests.

What motivates states to comply with international law is very interesting to study

according to Markus Burgstaller considering that in international relations there is no

central agent that has the authority to impose the law. The social control paradigm

according to Mark uses a reward and sanction system. Those who are pro-social get

awards and those who are anti-social get sanctions. Furthermore, Markus said that the

results of his research and analysis show that there are 3 reasons why countries or

subjects of international law want to obey international law, namely:43 a) fear of

sanctions; b) related to their own interests; c) awareness that the law is legitimate and

must be implemented. The first reason, namely sanctions, according to Markus is

synonymous with coercion. This refers to the existence of an asymmetrical relationship

between the subjects of law and this asymmetrical relationship to change the behavioral

attitudes of the weaker party.

With an anarchic nature according to Hobbes, society needs a strong ruler who can

overcome everything. Using violence to force people to obey is simple, but it is not efficient

in the eyes of the center of power. Violence, suppression and coercion tend to breed

resentment, anger and defiance. It is even feared that the use of force and coercion will

reduce the likelihood of obedience that is not motivated by fear of violence in the future. In

general, it can be said that the use of coercion and force will require high-cost supervision

mechanisms, which are not appropriate for regulating activities that require the creativity of

subordinates. Compared to national legal systems, international systems exhibit relatively

weaker coercion and force. It is not easy to change what is currently in place in the

international legal system. The first motivation will succeed only if there is a centralized

organizational structure and strong authority in international law.

The second motivation is the belief that obedience will benefit the subject's own

interests. This view is not unfamiliar in the social sciences. Self-interest calculations are the

foundation of most societies' actions. The rule of law obeyed by individuals is the result of a

calculation of the benefits of obedience versus disobedience. Despite believing that benefits

will accrue through institutional cooperation, self-interest still takes precedence. Game

theory is very suitable to be applied in the analysis of international relations because the lack

of high-authority institutions puts international relations actors into strategic interactions,

where the actions of other subjects are limited by each subject's own interests (self-interest).

In the end, game theory concludes that state compliance with international law occurs when

the benefits to be gained are greater than the costs to be borne.

As for the third motivation, obedience is based on belief, acceptance of the normative

legitimacy of a rule of international law.The state obeys the rules of international law not

because of fear of sanctions or profit and loss calculations. Obedience becomes habitual and

disobedience incurs its own costs (physical costs).Obedience on the basis of legitimacy is

proposed by Thomas Franck in his book The Fairness of International Law and Institution.

Franck argues that there are four factors that determine whether a state will obey

international law or not. The four factors are determinacy, symbolic validation, coherence

and adherence. Franck states that these 4 factors will pressure states to comply with

international law. However, Franck with his legitimacy theory was unable to provide a

satisfactory answer as to why states should care about legitimacy. For example, it is argued

that when states violate international law rules on the grounds that these rules lack

legitimacy, the question that can be asked is why should states respect rules that are said to

have legitimacy while ignoring others?

Ultimately, according to Mark, the three motivations can be complex. So the

question of why states obey international law can be based on each of the above

motivations or a mixture of one and the other.

Thus, from all the above explanations, it appears that what has been proposed by the

sociological school to date is felt to be relatively the most able to provide satisfactory

answers about the basis for the binding of international law as well as the factors that

cause the international community's adherence to the rules of international law. It must be

recognized that in addition to the need factor, there are also other factors such as concerns

about losing benefits or facilities from other countries as well as concerns about being

excluded from international relations that contribute to the international community's

adherence to international law. However, all of these factors outweigh the obedience due

to the common need for the rule of law which is expected to provide a sense of security,

order, justice, and legal certainty. It can be said that obedience to the international

community is more of an identification and internalization obedience than a compliance

obedience considering that the international legal system is very lacking in formal

institutions that can enforce the enactment of a rule law. This type of obedience is better

than complaince obedience because it grows from within the international community

itself. Where they realize the common need for the rule of law while obeying it for the

common good as well. If there is no rule of international law at all in international

relations, of course there will be chaos and anarchy everywhere.

In international law, according to Martin Dixon, what appears to be disobedience is

often not a deliberate act of disobedience but the result of unclear rules that lead to multiple

interpretations. The weaknesses of international law will be discussed further in the sub-

theme below.

Weaknesses of International Law

As described above HI is recognized by the international community as actual law and

is obeyed as a rule of law because of the following factors:47 a) the need and common

interest in ensuring legal certainty and order in conducting international relations;

b) the political and economic costs of violating HI, such as loss of foreign trust, elimination

of foreign aid and facilities, exclusion from international relations, revocation of

membership of an international organization; c) sanctions imposed by other countries,

international organizations and courts; d) the psychological factor of fear of being censured

or condemned by others (psychological force) if violating HI.

Although HI can work, there are several factors that make HI a weak law. Some of

these factors are48 : 1) the lack of formal law enforcement institutions: a. the absence of

police to monitor and prosecute HI violators; b. although there are prosecutors and judges in

international courts, they do not have the authority to directly compel violating states as is

generally the case in national courts; c. the absence of international courts with compulsory

jurisdiction. 2) Vagueness of existing HI rules (unclear) This favors various interpretations

in the field and results in a lack of legal certainty. Why many rules of international law are

unclear and multi-interpreted is because the rule of law is a compromise resulting from

political bargaining. The rule of law that seeks to embrace all the interests of its members

makes many articles unclear, floating, and multi-interpretation.

Conclusion

Based on the above study, it can be concluded, First, international law is the real

law, the law that lives and applies in the midst of the international community. Second,

the most important factor that gives rise to the international community's adherence to the

rules of international law is the existence of a common awareness and need for the rule of

law that can provide order, justice, and legal certainty as to what can be done and what

cannot be done in the practice of international relations. This internally arising obedience

will result in much better results than obedience triggered only by the fear of sanctions.

Thirdly, it is recognized and acknowledged that factors such as fear of sanctions,

psychological factors, as well as fear of losing various benefits in international relations,

a sense of solidarity and legitimacy are also quite influential on obedience.