Is International Law “Real Law”? Examining the Debate

Introduction: The Legitimacy of International Law

International law plays a vital role in shaping global relations, maintaining peace, and resolving disputes between states. But an age-old question persists: Is international law truly “law” in the real sense, or merely a set of moral guidelines? Jurists and scholars remain divided on this issue.

Some argue it lacks the enforcement mechanisms and sovereign authority seen in municipal law, while others assert its legitimacy based on treaties, customs, and judicial practice. In this article, we explore both sides of the debate, examining key arguments, legal definitions, and the evolving role of international law in the 21st century.

The Core Controversy: Is International Law Truly Law or Mere Morality?

Some writers, especially those of the Austinian school, insist that what is called international law is not at all, but a branch of international morality. Others declare that the matter is one of definition, while still others staunchly defend the validity of the term. Actually, the controversy over whether international law is a law or not revolves around the divergent definitions of the word “Law” given by the jurists. As pertinently remarked by Collins, “Whether or not one wishes to attribute a legal character to the norms of international law depends largely upon the definition of law, he chooses to accept.” Thus, jurists are divided into two groups in regard to the legal character of the norms of international law; one accepts its legality, and the second denies it. 

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Defining International Law: Perspectives from Leading Jurists 

Before going into the discussion of whether international law is a true law or not, it is necessary to understand some of its definitions put forward by some pre-eminent jurists: 

(1) Oppenheim 

International law is the body of customary and conventional rules, which are considered binding on civilized states in their relations intercourse with each other.

(2) Schwarzenberger 

“International law is the body of legal rules which apply between sovereign states and such entities which have been granted international legal personality.”

(3) Brierly 

“Body of rules and principles of action which are binding upon the civilized States in their relations with one another.” 

(4) Starke 

“It is the body of customary and conventional rules which are considered binding on Civilized states in their relationships with each other and includes also functioning of international institutions and their relations with each other and states and also individuals in relation with states and international institutions.” 

What is International Law? Key Features:

International law is a complex and evolving field, but at its core, it is a set of rules and principles that govern the interactions between countries and other actors in the international system.

Some of the key features of international law include:

While these are some of the key features of international law, it is important to note that there is no clear consensus on exactly what constitutes international law. Some argue that it is primarily based on treaty agreements, while others argue that it also includes custom and general principles of law. Additionally, there is ongoing debate over whether certain types of non-state actors, such as international organizations and individuals, are also subject to international law.

Is International Law Truly Law or Just a Set of Norms? The Great Juristic Divide

The jurists are divided into two groups in regard to the legal character of the norms of international law: " 

The Critics’ View (Group A): Why It’s Not ‘Real’ Law

Despite its apparent importance, there is much debate over whether international law is truly a "law" in the traditional sense of the word. Scholars from Group A argue that international law is not truly a law because it lacks the key characteristics that define a legal system. For example, some argue that international law is not truly a law because:

No Central Authority or Sovereign:

Austin, Hobbes, Pufendorf subscribe to the view that:

Law is the general command of the political sovereign to the members of a political community, who are bound to obey because of the physical force of such sovereign.

Weak Legislative and Judicial Structures 

Since, according to their view, the law is the command of a determinate superior, no law can exist where there is no supreme law-giver and no coercive enforcement agency, According to Thomes Hobbes, man is by nature nasty, brutish and violent, and fear of sanction, which is inherent in law, is necessary to maintain order. Thus, we see that those jurists who deny the legal character of international law regard law as the command of the sovereign and having a coercive enforcement agency. In view of these writers, the rules commonly called international law are, in fact, the rules of positive morality. 

Holland, Jeremy Bantham, Fethro Brown, etc., are other prominent jurists who deny the legal character of international law.

Those who argue that international law is not a true law point to the fact that there is no central enforcement mechanism, such as a world government, to ensure compliance with international legal norms. Additionally, the fact that states are considered sovereign entities under international law means that they are not bound by the same obligations and constraints as individuals and organizations within a national legal system.

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Group A: Arguments Against the Legal Validity of International Law

These jurists put forward the following arguments:

(a) Absence of a Supreme Authority in International Law 

In domestic (municipal) legal systems, a sovereign authority exists to enforce laws upon individuals or institutions. According to thinkers like John Austin, law is a command backed by sanctions, issued by a determinate political superior. International law, however, operates in an anarchical global order where no central authority stands above states. This absence, critics argue, disqualifies it from being real law and instead classifies it as a moral or diplomatic code.

(b) No Effective International Legislature 

Municipal law is created through well-defined legislative bodies. In contrast, international law relies heavily on treaties and customary practices formed by mutual consent among sovereign states. There is no overarching legislative organ that can enact binding rules for all nations. Group A scholars argue that this consensual and voluntary nature of law-making reduces international law to a system of negotiated commitments rather than compulsory rules. 

(c) Lack of Sanctions to Enforce Rules 

Another critical feature of a legal system is the presence of enforceable sanctions. In international law, however, enforcement mechanisms are weak or absent. While mechanisms like diplomatic pressure or economic sanctions exist, they are inconsistent and often politically motivated. Without a guaranteed and uniform method of enforcing rules, skeptics question the legal force behind international norms. 

(d) No Centralized Executive Power 

Even where rules and judgments exist, such as through the International Court of Justice, there is no executive body with the power to implement or enforce them. Compliance with decisions often depends on the voluntary cooperation of states. The lack of a global enforcement mechanism, in the view of Group A jurists, undermines international law’s authority and operational reliability.

(e) Weak and Limited Judicial Authority

Although institutions like the ICJ and ICC exist, their jurisdiction is limited and conditional. States must consent to be bound by their decisions, and even then, rulings apply only to the specific parties involved. Critics argue that a judiciary without compulsory jurisdiction and universally accepted authority falls short of the standards expected of a true legal system.

The Defenders’ View (Group B): Why It Is Law

On the other hand,Scholars from Group B argue that international law is a true law because it is binding, based on consent and it encompasses the same principles of legal systems such as rule of law, protection of human rights and even has dispute resolution mechanisms.

Moral Obligations and Habitual Compliance

Oppenheim, Hall, and Lawrance are advocates of this group.

According to these Jurists, laws are not obeyed only because of fear of punishment. They are often obeyed because one feels a moral duty to obey certain laws.

As argued by Lawrance:

Habitual obedience is secured for international law through by moral more than material force.

According to Starke:

“Modern Authorial Jurisprudence has disproved that force is a sanction behind the law. It is proven beyond doubt that there are many communities that have a system of law without formal authority and are equally obeyed. it was by formal authority.

Group B: Arguments Supporting the Legal Validity of International Law

Jurists in this group assert that international law meets the essential requirements of a legal system, albeit within a different structural framework than municipal law. They emphasize its moral, customary, and institutional legitimacy, arguing that the absence of centralized enforcement does not negate its legal character.

The arguments of the jurists who regard international law as real law may be summed up as follows:

(a) Law Exists Without a Sovereign: The Historical Argument

The notion that law must originate from a sovereign authority is challenged by historical jurisprudence. Sir Henry Maine demonstrated that early legal systems operated without centralized political power, yet they maintained rules recognized as law. This undermines Austin’s rigid definition and opens space for accepting international law as legitimate despite lacking a global sovereign.

(b) Customary International Law Defies the Austinian Model

Customary rules of international law develop from consistent state practices accepted as legally binding. These norms do not stem from sovereign command, yet they are universally recognized. Rejecting them would mean undermining common law traditions, which is clearly an untenable position.

(c) Binding Nature of Law-Making Treaties and Conventions

Modern international law is heavily based on treaties, such as the Geneva and Hague Conventions. These instruments are negotiated by states and create legally binding obligations, even without a legislator above them. Their widespread acceptance and compliance illustrate the legal force of international agreements.

(d) Legal, Not Moral, Arguments Prevail in International Practice

When international disputes arise, states appeal to precedents, treaties, and legal doctrines—not vague moral reasoning. This practical reliance on legal sources over ethical persuasion supports the view that international law functions as a true legal system.

(e) Domestic Integration of International Law: State Practice

In some states (e.g., the U.S.A. and the U.K.), international law is treated as a part of their own law. A leading case on the point is the Paquete Habana Case (1900). In this case, Justice Gray observed,

“International law is a part of our law, and must be ascertained and administered by courts of justice of appropriate jurisdiction as often as a question of right depending upon it are duly presented for their determination.

(f) International Dispute Resolution Through Courts

The International Court of Justice (ICJ) settles disputes between states based on established legal principles. The existence of a functioning international judiciary, even with limited jurisdiction, reflects a legal system—albeit different from municipal models.

(g) United Nations as a Legal Framework

Another dimension that some authors and scholars point out is that International Law is a political rather than a legal construct, due to the fact that International Law is not created by an independent entity like the legislative body, but by a group of nation-states that have agreed to certain regulations and norms to govern their relations. The United Nations is based on the true legality of International Law. 

(h) Treaty Law as a Source of Enforceable Obligations

As far as a sanction is concerned, international law does not completely lack it. An important principle of international law is the idea of "treaty law," which refers to the legal obligations and rights that states have as a result of agreements and treaties that they have entered into with other states. These treaties are binding under international law and can be enforced through the use of sanctions and other measures by the international community. 

(i) Law Can Be Violated Yet Still Be Law 

Frequent violations of international law do not negate its status as law. Municipal laws are also routinely broken. The issue lies in the enforcement mechanism, not in the legality of the norms themselves. As legal scholar Oppenheim noted, "Violation of law proves not its nonexistence, but its recognition."

(j) International Courts with Defined Jurisdiction

International law is a true system of law as it is based on clear rules and principles, and there are mechanisms in place for enforcing these rules, such as the ICJ and ICC.

The important aspect of international law is the concept of "jurisdiction." In national legal systems, jurisdiction refers to the authority of a court or other legal body to hear and decide a case. In the context of international law, jurisdiction refers to the authority of a state or international organization to make and enforce legal rules. For example, the International Court of Justice (ICJ) has jurisdiction over disputes between states, and the International Criminal Court (ICC) has jurisdiction over certain international crimes such as genocide and war crimes.

The decisions of the International Court of Justice are binding upon the parties to a dispute and only in respect of that dispute. The powers and jurisdiction of the International Court of Justice are not equivalent to those of a municipal court, but under certain conditions, its decisions can be enforced. Article 94 of the UN Charter provides that each member of the UN undertakes to comply with the decision of the International Court of Justice. It further provides that if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

(k) Customary International Law: A Living Legal Tradition

There are several key elements of international law that suggest that it is, in fact, a form of law. One of the key principles of international law is the idea of "customary international law," which is based on the idea that certain legal principles and norms have become binding on states through the consistent practice of states and the recognition of such practice by other states. This principle is similar to the concept of common law in national legal systems, which is based on the principle that legal principles and norms become binding on individuals and organizations through repeated usage and recognition by the courts.

(l) Recognition by States and Global Legal Culture

One of the key arguments that international law is a true law is the fact that it has been recognized as such by states and other actors in the international system. For example, states have established international courts and tribunals to hear disputes and enforce international law. Many countries have included international law as a separate subject in their legal education system. Additionally, many argue that the fact that countries willingly submit to the jurisdiction of international courts and tribunals, and comply with their decisions, is evidence that they recognize the binding nature of international law.

Many international legal scholars have also defended the existence of international law as true law. For example,

international legal scholar Hersch Lauterpacht argued that international law is a true law because it is based on the same principles as domestic law, such as the rule of law and the protection of individual rights. Lauterpacht argued that while international law may not have the same enforcement mechanisms as domestic law, it is still a legal system in its own right, with its own unique principles and procedures.

Another notable international legal scholar, Martti Koskenniemi, has also argued in favor of the existence of international law as a true law. Koskenniemi argues that international law has its own set of legal norms, principles and institutions and these are not dependent on the domestic legal systems. Thus, he believes that states are legally bound by international law, and it is not just a mere political agreement or custom.

The Role of International Law in Practice

International law plays a crucial role in regulating the behavior of states and other actors in the international system. Here are a few examples of how international law operates in practice:

The United Nations Charter:

One of the most important examples of international law is the United Nations Charter, which was adopted in 1945 and establishes the framework for the UN system. The Charter lays out the basic principles of international law, including the prohibition on the use of force and the promotion of international cooperation.

International human rights treaties:

International law also plays an important role in protecting human rights. There are a wide range of international human rights treaties, such as the International Covenant on Civil and Political Rights, which are binding on states that have ratified them. These treaties set out the rights that states must respect and protect, such as freedom of expression, the right to fair trial, and the prohibition of torture.

International Criminal Court:

The International Criminal Court is a permanent international tribunal that has been established to hold individuals accountable for war crimes, genocide, and crimes against humanity. This court operates under the framework of international law, which enables it to prosecute individuals for committing these serious crimes even if the country where the crime took place is unable or unwilling to do so.

Trade agreements:

International law also plays a key role in regulating economic interactions between countries. For example, the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) sets out the minimum standards for the protection of intellectual property that countries must adhere to.

Climate Change agreement:

The Paris Agreement under the United Nations Framework Convention on Climate Change is a legally binding treaty that sets out a framework for reducing global greenhouse gas emissions. The agreement is an example of how international law can be used to address global problems that affect the entire world.

These examples demonstrate how international law operates in practice, and how it plays a crucial role in regulating the behavior of states and other actors in the international system.

Can Individuals Be Tried for Violating International Law?

Yes, individuals can be held accountable for violations of international law. This relatively recent but critical development in the legal landscape offers a powerful tool for deterring future atrocities and promoting global justice.

Historical Context:

Prior to the 20th century, international law primarily held states accountable, with individuals often escaping responsibility for their actions. However, the horrific events of World War II forced a paradigm shift. The Nuremberg and Tokyo Tribunals established the principle of individual criminal responsibility for war crimes and crimes against humanity, marking a turning point in legal history.

Evolution of Individual Responsibility:

The Nuremberg and Tokyo Tribunals paved the way for several international criminal tribunals, including:

1. The International Criminal Tribunal for the former Yugoslavia (ICTY): Established to address war crimes and crimes against humanity during the Yugoslav Wars.
2. The International Criminal Tribunal for Rwanda (ICTR): Focused on prosecuting crimes committed during the Rwandan genocide.
3. The Special Court for Sierra Leone (SCSL): Held individuals accountable for war crimes and crimes against humanity during the Sierra Leone Civil War.
4. The Extraordinary Chambers in the Courts of Cambodia (ECCC): Prosecuted crimes committed under the Khmer Rouge regime in Cambodia.
5. The International Criminal Court (ICC): The first permanent international criminal court, established to prosecute individuals for genocide, crimes against humanity, war crimes, and crimes of aggression.

Additional Mechanisms for Accountability:

Beyond international criminal tribunals, other mechanisms contribute to holding individuals accountable:

Domestic courts: National legal systems incorporating relevant international law can prosecute individuals for violations.

Universal jurisdiction: Certain countries assert universal jurisdiction over specific crimes, allowing them to prosecute individuals regardless of nationality or location.

Targeted sanctions: The United Nations Security Council can impose targeted sanctions on individuals involved in serious violations of international law.

Challenges and Limitations:

Despite significant progress, challenges remain:

Limited jurisdiction: International tribunals have limited jurisdiction over crimes and individuals.

Political considerations: Political factors can influence the ability of tribunals to prosecute individuals.

Lack of cooperation: States are not always willing to cooperate with international tribunals, hindering investigations and prosecutions.

The Future of Individual Responsibility:

The development of individual criminal responsibility represents a major advancement in international law. It serves as a powerful deterrent against future violations and offers a path towards achieving global justice. By strengthening existing mechanisms and addressing current limitations, the international community can continue to build a robust framework for holding individuals accountable for their actions on the world stage.

Conclusion: Law, Power, and the Global Legal Order 

As international law has its origin in the reason and consent of a nation and has grown from customs, treaties, etc., there exist certain weak angles in it. Some writers insist that what is called international law is not law at all but a branch of international morality. Others declare that the matter is one of definition. The average man would probably assume that where there is violence and obvious injustice, there is no law. Indeed, this conflict is rooted in the understanding of “Law.” One who understands the law in the light of Austin’s definition would surely deny the legal character of international law. But according to the modern conception of law, international law exists and works not perfectly or always but enough and often enough to make a considerable difference in the conduct of international affairs.

There are many opinions among scholars and legal practitioners about the nature of international law, whether it is a true law or not. But it is undeniable that International law plays a crucial role in regulating the behavior of countries and other actors in the international system, as seen in many examples such as the United Nations Charter, International human rights treaties, the International Criminal Court, Trade agreements, and the Climate Change agreement.

 It is widely accepted that international law plays an important role in shaping the relations between states and in promoting peace, security, and cooperation among nations. International law provides a framework for addressing a wide range of issues, such as human rights, the environment, and trade, and it plays an important role in resolving disputes and maintaining stability in the international system.