Hans Kelsen and the Advancement of International Law

Abstract

Kelsen holds a unique place in the theory of international law as the only great legal theorist to have placed international law and its relations with domestic law at the centre of his considerations. Kelsen consistently defended the idea that international law was law in its own right This he did in a paradoxical way, viewing war and reprisals as sanctions that gave international law a positive character. But that was fust a first step in his argument It led on to the prohibition of the use of armed force in international conflicts and the necessary creation of international justice to settle international disputes as the only means of taking International law out of a state of anarchy. But the particularly fascinating point ofKelsen's thinking Is not only the cogency and rigour of his reasoning but also the fact that his work, which was reputed to be theoretical, even dogmatic and remote from the concerns of the real world, provides us with the sharpest conceptual tools with which to think through the contemporary developments of international law. Two examples are given in this paper, t) the theory of centralization of legal orders, which provides some understanding of the advances made by the European Community and situates those advances in the general theory of international law; ii) Kelsen's analysis of the role of the individual in International law, which allows us to understand the Innovations implied by the theory of state contracts. For anyone wishing to go beyond an empirical approach to law, to examine its concepts In depth and to develop an overview which may provide a guide through the mass of facts, reading Kelsen will always prove a worthwhile occupation. This is so even for those who subscribe only in part or indeed not at all to his views. And what is true of his theory of law as a whole Is possibly even more true of his theory of international law. This subject is genuinely central to Kelsen's theory of law, which sets him apart from other legal theorists who usually disregard international law or at