Definition and Concepts of International Law

Nature of International Law

One of the major topics of debate in international law is whether it should be considered true
"law." For over 200 years, the rules that govern how countries interact have been called
"International Law," but some legal experts question whether it truly fits the definition of law.
Some believe international law is not real law but merely a set of moral guidelines, while others
argue that it is law, similar to the laws within individual countries. The answer depends largely
on how we define the term "law."

Austin's View

Philosophers like Hobbes, Bentham, and Pufendorf, as well as 19th-century legal experts, shared
the view that international law is not truly law. British legal scholar Austin was a leading figure
in this debate. According to Austin, law is a command from a sovereign authority, backed by
sanctions if disobeyed. In his view, real law must be created and enforced by a central authority,
and there must be consequences for breaking the law.

Austin argued that international law does not meet these criteria because there is no global
sovereign authority to create or enforce these laws, nor are there penalties for breaking them. He
referred to international law as "positive international morality," comparing it to the rules of a
club, which members follow voluntarily but are not enforced by any central power.

Austin distinguished between "proper" law, which is enforced by a sovereign power, and
"improper" law, which includes things like fashion or the laws of games. Since international law
lacks the backing of a sovereign authority and sanctions, Austin believed it should not be
considered true law but rather a set of moral guidelines.

Criticism of Austin's View

Many legal scholars disagree with Austin’s definition of law. Sociologists, realists, and
historians have criticized him for only focusing on laws created by a legislative authority and
ignoring customary or unwritten laws. Legal scholars like Savigny and Maine pointed out that
before written laws existed, societies were governed by customs and traditions that were treated
as laws. They also argued that people follow laws not just out of fear of punishment but because
of societal habits and norms.

Legal systems don’t rely on force alone; they survive because most people obey the laws
voluntarily. Other critics, like Pollock and Bryce, have said that Austin’s definition doesn’t align
with history, and his claim that international law is not true law is not accurate.

Oppenheim's View

Other legal scholars have defined law more broadly than Austin. Oppenheim, for example,
defines law as a set of rules that govern behavior within a community and are enforced by
external powers. For law to exist, according to him, there must be a community, a set of rules to
govern behavior, and common consent to enforce those rules.

Oppenheim argued that international law meets these conditions to some extent. While there is
no global government, there is an international community of states that generally follow certain
rules. Oppenheim believed that if we accept a broader definition of law, international law can be
seen as valid.

International Law as True Law

Today, most scholars and legal institutions view International Law as true law. Although
breaches of International Law do occur, such as when states violate treaties or diplomatic rules,
these violations are the exception rather than the rule. Many countries incorporate International
Law into their own legal systems, and international treaties are generally respected. For example,
the U.S. Constitution recognizes treaties as the supreme law of the land. The United Nations
(UN) and the International Court of Justice (ICJ) also recognize International Law as legally
binding.

Even by Austin’s definition, International Law has evolved significantly since his time. Today,
international treaties, courts like the ICJ, and enforcement mechanisms have been established,
making it harder to dismiss International Law as mere morality.

International Law is a Weak Law:

Though international law is genuine law, it is weaker compared to national (municipal) laws.
This is due to several reasons:

1. Rules in Treaties and Customs: International laws come from treaties and customs,
which are not as strong as national legislative laws. These rules often provide countries
with many options and flexibility.
2. No Central Court: Unlike national legal systems, there is no central international court
that can resolve disputes for all countries. The International Court of Justice (ICJ) only
works when countries agree to participate.
3. Weak Enforcement: The ICJ has no real power to enforce its rulings. Enforcement is
left to the U.N. Security Council, which is influenced by political factors and sometimes
doesn’t act effectively.
4. Frequent Violations: Countries often violate international laws, and when they do, the
affected party may take matters into its own hands. Although the U.N. has tried to limit
self-help measures, international law remains less effective.
5. Power Imbalance: In a national system, the government is stronger than individual
citizens, making enforcement of laws easier. In the international community, some
countries are very powerful, which makes it hard to force them to follow the rules. As
long as this imbalance exists, international law will only be followed when convenient.
These reasons highlight that international law is institutionally weak because it lacks a central
legislature and enforcement power. However, saying it doesn’t exist is an oversimplification.
Despite its weaknesses, international law still plays an important role and will continue to do so
as long as the world is made up of separate nations. Over the last 50 years, progress has been
made to strengthen it, but much work remains. In the future, if its weaknesses are addressed,
international law may become as strong as national law.

To strengthen the rule of law in international relations, the U.N. declared the period 1990-1999
as the "United Nations Decade of International Law." The goal was to promote respect for
international law, encourage peaceful dispute resolution, and support the development and study
of international law. These efforts may help address the weaknesses of international law, and a
desire for a stronger global legal system could make international law more effective.

International Law is the Vanishing Point of Jurisprudence:

The view that international law is the "vanishing point of jurisprudence," as stated by jurist
Holland, is no longer valid. Holland argued that international law isn't true law because it lacks a
sovereign authority and sanctions for violations. He compared international law to parallel lines
that seem to meet at a distance, implying that international law and jurisprudence are separate
fields that only seem connected at a distance. He believed that international law relied on public
opinion and, as countries formed larger societies, international law would become part of public
law under a federal government.

While Holland's view may have been correct in his time, it is no longer applicable today. With
the development of international courts, sanctions, and enforcement mechanisms, international
law has evolved into a true legal system, making Holland’s argument outdated.

Basis of International Law:

Jurists have different opinions about the foundation of International Law. This debate has led to
the emergence of three main theories:

1. Naturalist Theory: Jurists in the 16th and 17th centuries believed that International Law
is based on natural law, which comes from God, reason, or morality. They argued that
International Law follows the principles of divine law. Writers like Grotius, Pufendorf,
and Vattel supported this view, influenced by religious scholars like St. Augustine and
Suarez. According to them, natural law contains fundamental and unchangeable rules that
apply to all, beyond the authority of rulers. While this theory has been criticized for being
vague, it influenced the early development of International Law, which was believed to
be based on natural law.
2. Positivist Theory: Positivists rejected the naturalist view and argued that International
Law is based on the consent of states. They believed that laws are only binding if states
agree to them, either through treaties or customs. Bynkershoek was a major proponent of
this theory, emphasizing that consent, whether explicit or implied, is the foundation of
International Law. However, this theory has faced criticism. For example, not all rules
come from treaties or customs, and states can be bound by certain rules even without
 their consent, as seen in Article 36 of the Vienna Convention on the Law of Treaties.
Critics argue that the consent theory is not entirely accurate.
3. Eclectic Theory: This theory combines aspects of both the naturalist and positivist
views. Jurists from this school, like Vattel, believed that International Law comes from
both natural law and the voluntary agreements of states. This balanced approach seems
more reasonable, as International Law is based on both natural law and state consent.

Functions of International Law:

Unlike domestic legal systems, there is no central authority in international law. States
themselves create and enforce International Law, which depends on their consent. Some
important functions of International Law include:

 Maintaining international peace and security.

 Promoting friendly relations between nations.
 Encouraging cooperation to solve global problems (economic, social, cultural,
humanitarian).
 Settling disputes peacefully.
 Preventing the use of force by states.
 Supporting the right to self-determination and human rights.

Despite its weaknesses, International Law has achieved successes, such as the decolonization of
many states, promoting human rights, and arms control efforts. However, conflicts between
powerful countries and the delay in creating a fairer global economic system show that
International Law is still limited in its effectiveness.

Sanctions of International Law:

International Law, like any legal system, imposes penalties (sanctions) on those who violate its
rules. These sanctions can be applied either by individual states or collectively by international
organizations.

1. Sanctions by States: States can enforce International Law through "self-help," meaning
they take action to defend themselves when wronged. Historically, states could take
almost any action in self-help, but today the United Nations Charter restricts this. States
must follow certain limits, and the use of armed forces in response to non-military
violations is prohibited.
2. Collective Sanctions: International organizations, particularly the United Nations, can
impose collective sanctions on states that break the rules. These sanctions include:
o Economic and Financial Sanctions: These are aimed at hurting a state's
economy by cutting off trade or financial relationships. Examples include
sanctions against South Rhodesia, South Africa, Iraq, and others.
o Military Sanctions: The UN can authorize the use of force to maintain or restore
peace. This has been done in crises like Korea (1950), the Gulf (1990-91), and
Rwanda (1994).
 o Political Sanctions: These are not explicitly mentioned in the UN Charter but
involve actions like suspending a state's UN membership or expelling it. Political
sanctions can damage a state’s reputation, as seen when public pressure forced the
UK and France to withdraw from the Suez Canal in 1956.

In addition, specialized UN agencies like the International Labour Organization (ILO) can take
action against states that fail to meet their obligations.

While sanctions exist in International Law, they are less effective than those in domestic law.
This is mainly because there is no global political authority to enforce them. The rivalry between
powerful states, especially during the Cold War, often paralyzed the sanctioning ability of the
Security Council. However, with the end of the Cold War, the UN’s ability to impose sanctions
has improved.