Is International Law Law? Unpacking the Great Debate
It’s a heated debate that strikes at the very core of what we understand the law to be, so let’s unpack this conundrum together.
Today, we’re diving into a question that has puzzled scholars and pundits for centuries: Is international law actually “law” in the true sense of the term? It’s a heated debate that strikes at the very core of what we understand law to be, so let’s unpack this conundrum together.
On one side of the argument, we have sceptics like Hobbes, Austin and Puffendorf — those who believe that international law lacks the essential characteristics of “real” law. Their reasoning goes something like this: law, by definition, requires a centralized authority or command of the sovereign with the power to enforce rules and impose sanctions by a superior political authority. International law, on the other hand, operates in a decentralized, anarchic system where there’s no overarching world government to police nations.
These critics argue that international law is more akin to a set of voluntary guidelines or “soft law” that carries moral weight but lacks the coercive force of true legal obligations. After all, they point out, countries can (and do) violate international norms with relative impunity, and there’s no supra-national police force to throw them in the slammer.
On the other hand, defenders of international law’s legitimacy argue that it meets all the criteria of a genuine legal system, albeit a unique one. They contend that international law is derived from the consent and practice of sovereign states, which constitute the primary “law-making” authorities in the international arena.
Moreover, proponents assert that international law does have enforcement mechanisms, even without a world government. These include reciprocal non-compliance (tit-for-tat retaliation), economic sanctions, and the ability to bring cases before international tribunals. While imperfect, these measures create a system of accountability and consequences for breaching international obligations.
Supporters also point to the well-established sources of international law, such as treaties, customary practices, and general principles recognized by civilized nations. These sources, they argue, lend international law the same legitimacy and binding force as domestic legal systems.
Oppenheim regards international law as law because of the following two reasons:
- In the first place, international law is constantly recognised as law in practice. The governments of different states feel that they are legally as well as morally bound to follow international law.
- Secondly while breaking international law states never deny legal existence on the contrary they recognise its existence and try to interpret international law as justifying their conduct.
I tend to lean towards the latter view — international law may be distinct, but it is still “law” in a meaningful sense. Sure, it operates differently from national legal systems, but that doesn’t negate its status as a legitimate body of rules governing state behaviour. Former Views may be valid in their respective thinker ages but for international law in the present day, it is not true.
In a paper entitled “Is there a True International Law” published in 1884 eminent jurist Lawrence aptly remarked, “Everything depends upon the definition of law which we choose to adopt, the controversy is a logomachy — a dispute about words, not things.” Thus, “The largest of jurisprudential controversy, namely, that as to a word ‘law’ is a verbal dispute and nothing else.”
At the end of the day, law is a social construct — a set of norms and principles that societies (or in this case, the community of nations) agree to abide by for the greater good. International law may be imperfect and lack a centralized enforcement mechanism, but it still serves a crucial function in regulating international relations and promoting global cooperation and stability.
Of course, this is a complex issue with valid arguments on both sides. But that’s what makes it so fascinating to debate and analyze! Whether you’re a diehard proponent of international law’s legal status or a staunch sceptic, one thing is clear: this is a discussion that will continue to captivate legal minds for years to come.
