Authored By: Sekoati David Tiiba
This article revisits the long-standing question: is international law really law? It discusses how jurists like John Austin, Pollock, Oppenheim, and Kelsen viewed the nature and validity of international law, especially in the absence of a world sovereign or strong sanctions. It shows that international law still functions through consent, cooperation, sanctions and moral pressure among states. The article argues that while enforcement remains somehow weak and often political, international law continues to shape global behaviour and uphold justice. It is law, not necessarily by force, but by shared recognition and legitimacy.
Keywords: international law, validity, enforcement, sovereignty, sanctions, legitimacy
Introduction
For centuries, scholars have wrestled with one question that refuses to fade: is international law really law? The question might seem purely theoretical but it becomes painfully relevant each time nations violate international rules with little or no consequences. When civilians and civilian objects are bombed, humanitarian aid blocked, or entire populations displaced, ordinary people begin to wonder whether international law has any real force, or whether it is merely a set of moral guidelines dressed in legal language.
This article revisits the debate about the validity and effectiveness of international law. It explores the classic theoretical arguments from jurists such as John Austin, Pollock, Oppenheim, and Kelsen and tests those ideas against the modern realities. By the end, it argues that international law is law, though one with some structural weaknesses, and that its authority depends less on coercive power and more on consent, cooperation, and the moral weight carried by its norms.
Understanding International Law: Definition and Nature
International law comprises of a body of rules and legal obligations which the international community, made up of states and international organizations, considers binding.1 These rules not only regulate relations of states inter se but also state relations with individuals and non state entities.2 Originally, international law concerned itself with states only. This is no longer the case. For example, the UN and its specialised agencies enjoy international legal personality. In Reparation for Injuries Suffered in the Service of the United Nations,3the United Nations had sued Israel for the death of a UN mediator assassinated while on duty in Palestine. The International Court of Justice (ICJ) held that as much as the UN is not a state, it is a subject of international law capable of possessing international rights and duties, it has capacity to maintain its rights by bringing international claims.
Article 38(1) of the Statute of the International Court of Justice provides a well-recognized and valued, although non-hierarchical and non-exhaustive, list of sources of international law. These sources are international conventions (treaties), international custom, general principles of law recognized by civilized states, and judicial adjudications and the teachings of the most highly qualified publicists from various nations.4 To this list may be added the decisions of organs of international institutions.5
The validity of these rules has, however, been the subject of heated, controversial and evolving questioning, and discussion. Doubt has been raised as to whether international law can be considered a valid legal system without a sovereign promulgator of laws, or clear and strong enforcement of its rules.6 This debate is almost as old as international law itself.
In essence, there is an underpinning understanding or postulation that international law must be comparatively identical in structure to the institutions forming the trias politica existing in municipal law and thus gain the validity recognized in municipal law. There is a somewhat common understanding amongst numerous jurists that one of the hallmarks of a binding legal system is its ability to make rules and compel compliance by issue of discouraging punishments to those who violate the rules.7
Theoretical Debate on Validity
The debate on whether international law qualifies as “real law” has long divided scholars. In negating the validity of the international law system, John Austin advances that it cannot be law because it is not a body of commands from a sovereign having monopoly on use of force to enforce international law.8 To this extent, international law is slightly divergent because a sovereign does not promulgate its rules but rather the bulk arises from the consent of states, either expressly in treaties or implicitly in custom.9 As opposed to a sovereign promulgator, treaty law largely relies on the pacta sunt servanda principle and custom develops from state practice10 that may eventually become binding upon all new and old states as jus cogens norms.11 This is out of step with the command theory understanding, argued to be the basis of municipal law by Austin and other positivists.
To the extent that Austin defines law as a command issued by a sovereign backed by the threat of punishment if the commands are broken,12 which essentially means that without a sovereign authority and enforceable sanctions there could be no true law, his view seems to be too narrow, for this definition excludes many recognised forms of law that operate effectively without direct sovereign authority or promulgator, for instance, customary law within domestic systems.
Oppenheim defines law as “a body of rules for human conduct within a community which, by common consent of this community shall be enforced by an external power.”13 Understood in this way, law can be taken to have a coercive element in it that distinguishes it from religious order or other moral orders. This says, through law, a specific order is imposed that can engineer desired social conduct. Such imposition is maintained through a threat of a measure of coercion.
However, Oppenheim himself continues and defines international law as a law for the intercourse of states with one another, and since there cannot be a sovereign authority above the several sovereign states, international law is a law between not above states.14 According to this postulation, the presence of a sovereign is not so envied since the states are themselves sovereign and international law is binding and administered amongst themselves, not above them, and as Oppenheim states, law can grow without being expressly being laid down and set by a law giving authority, and thus a law giving authority is not necessary.
On the other hand, Fredrick Pollock defines law as a body of rules binding on members of a community, not because they are commanded by a sovereign, but because they are recognised by that community as necessary for order and justice.15 Under this definition, international law easily fits within the meaning of law, that is, it is accepted by a community (states), created through agreement or practice, and recognised as binding.
Most importantly, Pollock states that law cannot be regarded as a will or command of the State, for this is a wrong conception.16 This is so, he continues, because certain causes have made it possible to regard law not only as being embodied in the commands of a political sovereign but as consisting of such commands, that is, the commands of a sovereign are not themselves law per se, but they are part of law and not vice versa. This is beneficial to international norms and rules for if law was defined as solely the commands of a political sovereign, international norms would not fall within the definition since there is no political sovereign at international level to give out the commands, hence international law is not based on the presence of a sovereign.
Kelsen took an even more refined view. In his Pure Theory of Law, he described law as a system of objectively valid norms whose legitimacy flows from a fundamental basic norm.17 For him, international law operates as a legal system that regulates the behaviour of states, founded on the presupposition that states ought to behave in certain ways. The absence of a central sovereign does not invalidate the system; rather, the validity of its norms arises from mutual acceptance and the logic of normative order itself.18 On his formulation, it can be seen that, in this regard, both national and international law are the same, since it is custom that led to their establishment, and by custom regard being had to experience. That is, it is by experience that men realized the need to bring themselves into a community, and set themselves rules and standards for which they would live by, and it is by the same experience arising from states’ previous dealings that they realized the need to create an international community for which international law now governs.
It can then be seen that Austin’s narrow sense of commands backed by force suggests that international is not “law”, but it is “law” in the broader, more realistic sense articulated by Oppenheim, Pollock and Kelsen. This calls for a little deeper analysis of the legal character of the international law for a better understanding.
The Legal Character of International Law
Apart from the notion that international norms lack characteristics of law, international norms have been criticized on the basis that they are not binding, and as such, they cannot be termed law since the very basis of law is to be obeyed and binding equally amongst all the members in a given community. This can be seen in Osaka Shosen v the Owners of the SS Prometheus19 where the owners argued that international law is not truly “law” because it lacked binding sanctions. The Court rejected this, holding that international law can exist and bind all nations through their mutual agreement, and that disobedience does not invalidate the law, but simply makes the violator a lawbreaker and leaves the law still intact. In other words, just because nations cannot be effectively forced to obey international law does not make international law less of a law than municipal law.
Therefore, international law can be accepted as existing, valid, and binding because generally states have accepted it as such.20 To this extent, cogent evidence has been advanced that everyday international relations are conducted by rules of international law and the majority of the rules are consistently obeyed by states as having legal force.21 Thus, the occasional, though noticeable, transgression of international law does not invalidate it, especially with supranational enforcement institutions in place.22 This is easy to understand when considering that law breaking in municipal systems does not invalidate them, no matter how high profile the law breaking becomes.23
State Sovereignty and Equality: A Challenge to Enforcement
Fundamentally, to understand the complexity attendant to enforcing respect for norms and obligations at international law, it is essential to understand its balance with the hallowed doctrines of state sovereignty and state equality. Article 2(1) of the United Nations Charter provides that the basis of the Organization is the sovereign equality of its members. Firstly, state territorial sovereignty entails that within defined territorial frontiers24 a state exercises jurisdiction to the exclusion of all other states,25 i.e. an independence to exercise functions of a state over a defined portion of the globe.26 It is not only an exclusive power but also an original power of statehood i.e. underived from a higher order and inherent in nature.27 Secondly, state equality entails an equal recognition of statehood.28 It entails a recognition of all states as equal members of the international community entitled to equal legal status and treatment irrespective of economic strength, political or military might, and differences in sizes of population or territory.29 Thus, all states are entitled to enjoy respect from others as sovereign and equal states.
Consequently, because of the above principles, the enforcement of international law has been a tight ropewalk where international justice must be served without encroaching on these fundamental30 and recognized state rights. The issue of sovereignty was somehow addressed by Judge Alvarez in the Corfu Channel Case31 where he stated that the notion of sovereignty of states has evolved and can no longer be regarded as an individual right of every state, in which states were bound only by rules which they had accepted, but owing to interdependence of states and predominance of general interests, states are bound by many rules which have not been ordered by their will. Therefore, as per this case, one can say that the concept of sovereignty is no longer an impediment on international law since international norms supersede this concept. A deeper understanding of this case, however, is that international law is binding to states regardless of the fact they are sovereigns themselves. Thus, the difficulty still arises because in a dispensation of sovereign equality, no state can sovereignly enforce international law against another state that acts in breach of such,32 hence there must be a supranational enforcement mechanism of the rules of international law.
Supranational Enforcement Mechanisms
In respect of a supranational enforcement mechanism of international law, international courts and tribunals including the International Court of Justice33 were established to deal with judicial enforcement. With regard to the ICJ, any award on a matter referred to the court is binding on the parties.34 The United Nations Security Council (UNSC) has powers relating to enforcement of awards handed down by the ICJ.35 In respect of a penal and beyond judicial enforcement mechanism of international law, the UNSC may, by resolution, take military action or issue sanctions (which may be economic,36 diplomatic, or political) exercising its powers under Article 39, Article 41, and Article 42 of the United Nations Charter.
A key example is the Lockerbie case.37 After the bombing of Pan Am Flight 103, Libya refused to extradite suspects, invoking its right under the Montreal Convention38 to prosecute domestically. The US and the UK referred the matter to the UNSC, which issued Resolutions 731 and 748 ordering Libya to surrender the suspects, and imposing sanctions. Libya challenged these measures before the ICJ. The ICJ upheld the binding nature of UNSC resolutions under Article 25 of the UN Charter, confirming that such decisions take precedence over conflicting treaty provisions. Thus, it can be seen that there are existing enforcement mechanisms of international law.
Validity and Effectiveness: A Continuing Challenge
The real issue, then, should not be whether international law is law, but whether it is effective. Validity concerns whether the rules exist as law, while effectiveness concerns whether rules are obeyed and enforced. Even when international law is violated, as in acts of aggression, war crimes such as genocide,39 or breaches of human rights,40 its validity remains intact. The failure lies in political will, not in legal theory. In recent conflicts, including the well-known Russian
Ukraine invasion and the Israel-Gaza crisis, the strengths and weakness of international law are both visible. On one hand, the rules are clear: civilians must be protected, starvation must never be used as a means of warfare, and aid must be allowed.41 On the one hand, enforcement remains harder. The ICJ and the ICC can issue decisions, but their implementation depends on states’ cooperation, especially when considering the countries involved.
Conclusion
International law, though structurally distinct from municipal law, possesses all essential features of a valid legal system; identifiable sources, recognised norms, and institutionalized enforcement. While its decentralised nature limits coercive power, its authority arises from the consent, practice, moral commitment of states. The absence of sovereign authority is not its defining feature; rather, it is the collective will to uphold peace and justice that gives international law its legitimacy. Thus, with this understanding, international law cannot be expected to mimic municipal law in order to gain recognition as valid legal system. Rather, it may be understood as a different system of law that needs to strengthen its legislative and enforcement mechanisms.42
Bibliography
Conventions
Charter of the United Nations, 1 UNTS XVI, 24 October 1945.
Convention for the Suppression of Unlawful Acts against Civil Aviation (the Montreal Convention) (974 U.N.T.S. 177 (1971)).
Convention on the Prevention and Punishment of the Crime of Genocide No. 1021 of 1948. Geneva Conventions of 12 August 1949.
International Covenant on Civil and Political Rights (ICCPR) General Assembly resolution 2200A (XXI) of 16 December 1966.
Montevideo Convention on the Rights and Duties of States (26 December 1933). Statute of the International Court of Justice 33 UNTS 993.
Cases
Corfu Channel Case [1949] ICJ 39.
Island of Palmas Case (Netherlands v USA) [1928] 2 Reports of International Arbitral Awards 829.
Lockerbie case (Libya v. United States) 1992 ICJ Rep.114.
Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Report 174.
Books
Dixon, M. Textbook on International Law (6th edn, Oxford University Press 2007). Jennings and Watts (eds) Oppenheim’s International Law (Vol 1, 9th edn, 1992). Kelsen, H. Pure Theory of Law (Lawbook Exchange 2005).
Oppenheim, L. and Roxburg, R. International Law: a treatise (3rd edn, Creative Media Partners, LLC, 2013)
Pollock, F. A First Book of Jurisprudence for Students of the Common Law (Macmillan and Co. 1896)
Starke, JG. Introduction to International Law (10th edn, Butterworths 1989). Strydom, H. et al International Law (Oxford University Press 2016).
Sanders. A.J.G.M. International Jurisprudence in African Context (Butterworths 1979).
Journal Articles
D’Amato, A, Is International Law Really ‘Law’? Northwestern University School of Law Scholarly Commons Faculty Working Papers (2010)
1 Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 4.
2J.G. Starke, Introduction to International Law (10th edn, Butterworths 1989) 3.
3[1949] ICJ Report 174, 179.
4 Statute of the International Court of Justice 33 UNTS 993, Article 38(1). See also Hennie Strydom et al International Law (Oxford University Press 2016) 94.
5J.G. Starke, Introduction to International Law (10th edn, Butterworths 1989) 32.
6 Starke, JG. Introduction to International Law (10th edn, Butterworths 1989) 18-21.
7 D’Amato, A, Is International Law Really ‘Law’? Northwestern University School of Law Scholarly Commons Faculty Working Papers (2010) p. 104.
8 Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 15. 9Ibid at 16.
10 Ibid.
11 Hennie Strydom et al, International Law (Oxford University Press 2016) 90.
12 A.J.G.M. Sanders, International Jurisprudence in African Context (Butterworths 1979) 8.
13 Jennings and Watts (eds) Oppenheim’s International Law (Vol 1, 9th edn, 1992) 9-13.
14 Lessa Oppenheim and Ronald Roxbugh, International Law: a treatise (3rd edn, Credtive Media Partners, LLC, 2013) 2.
15 Sir Frederick Pollock, A First Book of Jurisprudence for Students of the Common Law (Macmillian and Co. 1896) 7
16 Ibid, 26
17 Hans Kelsen, Pure Theory of Law (Lawbook Exchange 2005) 215
18 Ibid.
19 2 Hong Kong [1904] L.R 207
20 Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 4-5. 21 Ibid.
22 Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 13. 23 Ibid, 6.
24 Montevideo Convention on the Rights and Duties of States (26 December 1933), Article 1(b).
25 J.G. Starke, Introduction to International Law (10th edn, Butterworths 1989) 157.
26 Island of Palmas Case (Netherlands v USA) [1928] 2 Reports of International Arbitral Awards 829, 838.
27 Hennie Strydom et al, International Law (Oxford University Press 2016) 108.
28 Ibid,109
29 Ibid.
30 Hennie Strydom et al, International Law (Oxford University Press 2016) 108.
31 [1949] ICJ 39.
32 Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 13. See also Hennie Strydom et al, International Law (Oxford University Press 2016) 108, where it is acknowledged that state sovereignty entails state monopoly on the use of force.
33 Charter of the United Nations, 1 UNTS XVI, 24 October 1945, Article 92.
34 Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 9. 35 Charter of the United Nations, 1 UNTS XVI, 24 October 1945, Article 92. See also Martin Dixon, Textbook on International Law (6th edn, Oxford University Press 2007) 7.
36 Like S/RES/2375 (2017) Where the UNSC introduced a ban on the supply, sale and transfer of natural gas liquids to the Democratic People’s Republic of North Korea.
37 Lockerbie case (Libya v. United States) 1992 ICJ Rep.114.
38 Convention for the Suppression of Unlawful Acts against Civil Aviation (the Montreal Convention) (974 U.N.T.S. 177 (1971)).
39 Which prevented by the Convention on the Prevention and Punishment of the Crime of Genocide No. 1021 of 1948.
40 Which are protected amongst other under the International Covenant on Civil and Political Rights (ICCPR) General Assembly resolution 2200A (XXI) of 16 December 1966.
41 All which are regulated by the Geneva Conventions of 12 August 1949, together with Additional Protocols thereto.
42 J.G. Starke, Introduction to International Law (10th edn, Butterworths 1989) 21.
