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Is International Law, Law?

Introduction

The question whether international law is recognized as a legitimate legal framework has

always been a subject of the on-going scholarly debate. International law is known to be the

framework that governs the relations between states and other international actors, thus in

validating the legality of international law, we must then examine its defining characteristics,

sources, and challenges. This paper will critically analyze the nature of international law, and

argue how it fulfills the essential criteria of law, despite its distinct features and enforcement

limitations.

International law refers to the set of legal rules and principles that govern the relationships

between states, international organizations, and other international actors in the international

system. This comprises a wide range of legal issues, including diplomatic relations, trade,

territorial conflicts, human rights, and the like. The origins of such law can be traced back to

the ancient civilizations. As a matter of fact, basic concepts of international law were already

present back then such as treaties, with the early example of it being the Mesilim Treaty, an

agreement between the rulers of the city-states of Lagash and Umma in Mesopotamia,

inscribed on a stone block, setting a prescribed boundary between their two states.1 Though,

its modern development only gained momentum during the late 19th and early 20th centuries.

From then on, international law has only continued to evolve and expand in response to

changing global circumstances. It has witnessed the establishment of specialized courts and

tribunals, such as the International Court of Justice (ICJ) and the International Criminal Court

1
Sand, P. (2018). Mesopotamia 2550 B.C.: The Earliest Boundary Water Treaty. Institute of
International Law, University of Munich, Germany.
(ICC), to resolve disputes and prosecute international crimes.2 Additionally, regional

organizations, such as the European Union (EU) and the African Union (AU), have

developed their own legal frameworks to govern regional integration and cooperation.

As we delve into the intricacies of the legal status of international law, it is important to know

the significant challenges that it faces, which include tensions between state sovereignty and

international obligations, as well as the diversity of legal systems of each states and their own

cultural perspectives3 – which are some of the main reasons why the question of international

law’s legal status is being questioned in the first place. By critically examining these

challenges, we can gain a deeper insight into the legal nature of international law and its role

in shaping international relations.

Defining Characteristics of Law

To evaluate international law as law, we must first assess its defining characteristics.

According to the most famous post-war critique of international law’s legal character H.L.A.

Hart, law is characterized by certain features such as consistency, predictability, obligation,

compliance, and enforcement mechanisms.4 According to the legal theorist, consistency and

predictability are some features that are essential elements of law – these features ensure that

legal principles are consistently applied over time and through different cases, which would

allow individuals as well as different entities to interpret a law and apply it to various

situations. In the context of international law, these features can be observed through

customary international law and the development of treaty-based norms.

2
Pitts, J. (2015). The Critical History of International Law. Political Theory, Political Theory, 43(4),
541–552.
3
Bedaso, A. (2020). Nature of International Law: Is International Law a Law?
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3588897
4
Lefkowitz, D. (2020). H.L.A Hart: Social Rules, Officials, and International Law. Chapter 3.
Cambridge University Press.
The next feature of law is obligation, while this seems tricky for international law, there is

still a way that the binding nature of legal rules is observed and it is through treaties and

agreements. States voluntarily enter into treaties and agreements, which create legal

obligations that they are expected to fulfill. These obligations reflect the consent of states to

be legally bound by the provisions of international law. Furthermore, the Vienna Convention

on the Law of Treaties introduced the principle of pacta sunt servanda, which reflects the

obligation to fulfill treaty commitments.5 Likewise, compliance can also be observed when

states voluntarily enter into treaties. Thus, the states’ compliance with these international

legal obligations showcases the legal nature of the said obligations and their acknowledgment

of international law as binding.

Another criticism often raised against international law is its lack of effective enforcement

mechanisms. Comparing this to domestic or local legal systems which feature centralized

authorities, international law relies on certain mechanisms including diplomatic pressure,

sanctions, and international tribunals.6 To cite an example of an international institution that

enforces criminal accountability is the creation of the International Criminal Court (ICC),

which is an intergovernmental organization that seeks to prosecute those guilty of some of the

world's worst crimes.

Legitimacy of International Law

Whether international law is legitimate or not stems from its recognition by the states. States’

practice of following international law and their acceptance of its principles indicate its legal

5
Lukashuk, l. (1989). The Principle Pacta Sunt Servanda and the Nature of Obligation Under
International Law. The American Journal of International Law. Vol. 83, No. 3 (Jul., 1989), pp. 513-518.
Cambridge University Press.
6
Guzman, A. (2002). A Compliance-Based Theory of International Law. Vol. 90, No. 6 (Dec., 2002),
pp. 1823-1887.
status.7 Thus, as states continue to recognize and participate in international treaties and

agreements, the more they are assuming legal obligations and responsibilities under

international law. This participation solidifies their commitment to the principles and rules

that were set by these international instruments, further underscoring the legal nature of

international law. Furthermore, when states engage in diplomatic discussions and

negotiations, this also shapes and develops the international legal norms which then becomes

a fundamental pillar for the legitimacy of international law.

However, due to the unique nature of the international system, these legal characteristics have

also been deemed as challenges that have led a lot of critics to question its status as true law.

One significant challenge is the clash between a state’s sovereignty, which posits that

sovereign states have supreme authority over their territory, and their international

obligations. On the other hand, international law seeks to regulate and limit this state

behavior as well as their absolute sovereignty in certain areas. This clash occasionally results

in states prioritizing their national interests, as they believe they should have supreme

authority to make and enforce laws within their territories, over their international legal

obligations which lead to selective compliance or no compliance at all when it comes to

international norms. Thus, most legal theorists believe that international law’s reliance on

states, as much as it is an essential element in establishing legal obligations, also undermines

its authority.8 One can then say that the effectiveness of international law is limited by its

reliance on states’ willingness to abide by its provisions. Though, this is being addressed

through the creation of international tribunals that aim to increase state accountability, which

in turn also strengthen enforcement mechanisms.

7
Franck, T. (1995). Fairness in International Law and Institutions. Cambridge University Press.
8
Guzman, A. (2002). A Compliance-Based Theory of International Law. Vol. 90, No. 6 (Dec., 2002),
pp. 1823-1887.
Another challenge that threatens the legitimacy of international law is the lack of universal

participation, as not all states are party to every international treaty or agreement. Some

reasons why states may choose not to participate in these said international treaties may come

in the form of having reservations about certain provisions, as most sovereign ststes would

prioritize their national interests before anything else, as stated in the previous part of this

paper. Though, despite the selective participation of states in international treaties, the

principle of customary international law helps in addressing this gap. Customary international

laws are the general practices that are acknowledged as “binding” by the international

community and are formed through consistent practices.9 Before World War II, before a state

can be bound to a norm, it must be through the form of a treaty or an agreement between two

or more states. However, through customary international law, a norm then applies to all

states, regardless of whether they participate in a specific treaty. One example of a customary

norm in international law is the prohibition against genocide, and although not all states

participated in the Genocide Convention in 1948, all states are still bound to this prohibition

under customary law.

Critics have also argued that international law tends to be based on and shaped by Western

values regarding its legal frameworks, which then overlooks the different legal systems of

non-Western societies.10 This then poses a challenge to the international law, as non-Western

states feel as though international law is imposing Western concepts that are not in

accordance with their cultural and traditional legal systems.

Some critics argue that international law’s imposition of a uniform set of standards do not

really address and represent the international society, and thus it must take into account the
9
Talmon, S. (2015). Determining Customary International Law. European Journal of International Law,
Volume 26, Issue 2, May 2015, Pages 417–443.
10
Levi, W. (1974). International Law in a Multicultural World. Oxford University Press.
specific cultural and traditional contexts of each states. Although, Hannum would argue that

universality, does not and should not be equated with uniformality in international law.11

According to him, there are efforts that were already made which incorporate diverse legal

systems and cultural perspectives into the framework of international law. For instance is the

development of regional human rights conventions such as the African Charter on Human

and Peoples’ Rights, which supplement the universal human rights framework. Such

conventions like this, according to Hannum, take into account regional contexts and the

cultural values and traditions of the respective states.

Universality in the interpretation of human rights principles allows for variations that enable

the preservation of core cultural values. This means that while there are universally

recognized human rights, their application and understanding can take into account the

specific cultural contexts of different societies. By recognizing the importance of cultural

diversity, international conventions like UNESCO seeks to protect the rights of various

cultures to protect and promote their unique cultural expressions. These conventions

acknowledge the significance of cultural diversity as a fundamental aspect of human rights

and emphasize the importance of respecting and preserving cultural identities and practices.

Human Rights Treaties and its Role on the Recognition of International Law’s Legal

Nature

Perhaps one of the most known treaties that bind the international society together is the

existence of the human rights treaties. These treaties play an important role in recognizing the

legal nature of international law, as it also serves as key instruments in protecting

fundamental rights and freedoms of individuals. To show commitment to uphold human

11
Hannum, H. (2019). Rescuing Human Rights A Radically Moderate Approach. Cambridge
University Press.
rights norms, states voluntarily participate to these treaties, and through the ratification of

said treaties, these states recognize the legal responsibilities that promote human rights

imposed on them.12

Furthermore, the interpretation and application of human rights norms in international courts

also help in solidifying the legitimacy of international law. These judicial bodies such as the

European Court of Human Rights play a vital role in resolving disputes, clarifying the scope

and content of human rights obligations, and holding states accountable for violations.

Through their jurisprudence, international courts establish precedents that shape the

interpretation and understanding of human rights standards, contributing to the development

and evolution of international human rights law. The existence of international enforcement

mechanisms, such as the state reporting mechanisms under human rights treaties, also ensures

compliance and accountability amongst states. These mechanisms allow individuals and

groups to bring forward complaints of human rights violations and seek redress, further

affirming the legal nature of human rights obligations.. The adherence to these treaties, the

establishment of international courts and tribunals to oversee their implementation, and the

existence of enforcement mechanisms all contribute to the recognition and enforcement of

human rights norms within the international legal framework. Through these mechanisms,

international law establishes legal obligations and mechanisms for redress, emphasizing the

legal nature and significance of human rights in the international arena.

12
Levi, W. (1974). International Law in a Multicultural World. Pages 430-442. Oxford University Press.
Conclusion

Although international law possesses unique characteristics and faces multiple conflicts as

posited by L.H.A. Hart, it still undoubtedly fulfills the essential criteria of law. The

consistency, predictability, obligation, compliance, and recognition of international law, along

with its sources and enforcement mechanisms, all in all proves its legal nature and validity.

The consistency and predictability of international law are evident in the establishment of

legal norms that govern state behavior and interactions. Despite the diversity of cultures,

legal systems, and political ideologies across the globe, international law provides a

framework that promotes a certain degree of universality and predictability. The existence of

international treaties, customary international law, and legal principles contributes to the

consistency of international legal norms. The obligations imposed by international law on

states and other international actors also prove its legal character. States voluntarily enter into

treaties and agreements, binding themselves to abide by the obligations and responsibilities

contained within them. The notion of legal obligation creates a sense of duty and expectation

that states will comply with international law in good faith. Recognition is another key factor

in affirming the legal status of international law. The participation of states in the creation,

interpretation, and implementation of international legal norms demonstrates their recognition

and acceptance of international law as a framework that can bind states together. The

establishment of international courts and tribunals, as well as the engagement of states in

dispute settlement mechanisms, further reinforce the recognition and enforcement of

international law.

All in all, the arguments posed in this paper serves proves that international law is indeed a

law. The characteristics of intenrational law that were discussed in this paper serves as a vital
framework for regulating state behavior, promoting peace and cooperation, and safeguarding

fundamental rights and values on the international stage.

BIBLIOGRAPHY

Sand, P. (2018). Mesopotamia 2550 B.C.: The Earliest Boundary Water Treaty. Institute of

International Law, University of Munich, Germany.

Pitts, J. (2015). The Critical History of International Law. Political Theory, Political Theory,

43(4), 541-552.

Bedaso, A. (2020). Nature of International Law: Is International Law a Law?

https://papers.ssrn.com/sol3/papers.cfm?abstract id=3588897

Lefkowitz, D. (2020). H.L.A Hart: Social Rules, Officials, and International Law. Chapter 3.

Cambridge University Press.

Lukashuk, I. (1989). The Principle Pacta Sunt Servanda and the Nature of Obligation Under

International Law. The American Journal of International Law. Vol. 83, No. 3 (Jul., 1989), pp.

513-518. Cambridge University Press.

Guzman, A. (2002). A Compliance-Based Theory of International Law. Vol. 90, No. 6 (Dec.,

2002), pp. 1823-1887.

Franck, T. (1995). Fairness in International Law and Institutions. Cambridge University Press

& Guzman, A. (2002). A Compliance-Based Theory of International Law. Vol. 90, No. 6

(Dec., 2002), pp. 1823-1887.

Talmon, S. (2015). Determining Customary International Law European Journal of

International Law, Volume 26, Issue 2, May 2015, Pages 417-443.

Levi, W. (1974). International Law in a Multicultural World. Oxford University Press.

Hannum, H. (2019). Rescuing Human Rights A Radically Moderate Approach. Cambridge

University Press.

Levi, W. (1974). International Law in a Multicultural World. Pages 430-442. Oxford

University Press.