Is International Law True Law?

Picture a village with no police station and no court for fifty kilometres. Disputes are still settled and people keep their word, because a man who breaks it will find no one to trade with or lend to him. Occasionally a powerful family ignores the rules and gets away with it. Is there law here? An Austinian says no: no sovereign, no organised punishment. An anthropologist says yes: this is how law looked in every early society. The community of States resembles that village.

1. The Question and Why It Matters

International law (Bentham coined the term in 1789) governs relations between States and, increasingly, international organisations and individuals. Unlike municipal law it has no world legislature, no court of compulsory jurisdiction (the ICJ hears a case only with the consent of the States involved) and no world police. Hence the classic question.

It matters as a test of legal theory (every definition of law must place international law inside or outside it), as a practical matter (if it is mere morality, States may treat it as optional), and for the Indian constitutional position on treaties and custom. Glanville Williams argued that the controversy is largely verbal, a dispute about the word 'law'; but it still illuminates what we mean by law.

2. The Negative View: International Law Is Not True Law

Hobbes

Thomas Hobbes (Leviathan, 1651) held that without a common power there is no law. Sovereign States stand to one another in a state of nature, each judge in its own cause; the law of nations is the law of nature applied to sovereigns, binding conscience but lacking a sword. Covenants without the sword, he said, are but words.

Austin

John Austin (The Province of Jurisprudence Determined, 1832) applied the command theory strictly. Among States there is no determinate sovereign habitually obeyed, so the rules between nations are not commands. He classed them as positive international morality, laws set by general opinion and so improperly so called, like the laws of honour and fashion (Note 11). Their only sanction is the displeasure of other nations, a moral sanction.

Holland

T.E. Holland (Elements of Jurisprudence, 1880) defined a law as a general rule of external human action enforced by a sovereign political authority. International law lacks an arbiter above the parties able to enforce judgments, so it is 'the vanishing point of jurisprudence'. The phrase is Holland's, not Austin's (Note 8).

3. The Positive View: International Law Is True Law

Oppenheim and Starke

Lassa Oppenheim (International Law: A Treatise, 1905 to 1906) answered Austin with a different definition of law: rules for conduct within a community which, by common consent of that community, shall be enforced by external power. All three elements, a community, a body of rules and common consent to external enforcement, exist among States, so international law is law, though weaker than municipal law. J.G. Starke stressed that its rules are both felt to be binding and commonly observed, and now reach international institutions and individuals.

Kelsen: primitive but true law

Hans Kelsen (General Theory of Law and State, 1945; Principles of International Law, 1952) held that international law is a coercive order whose sanctions are reprisals and war, legitimate only as reactions to a wrong. It lacks centralisation: the injured State itself decides whether a wrong occurred and applies the sanction, just as in primitive law the clan of the injured person exacted vengeance. It is thus primitive but true law. Kelsen was a monist, though he held that legal science cannot decide which order has primacy (Note 12).

Pollock and the analogy of customary law

Sir Frederick Pollock argued that law requires only a political community and the recognition by its members of settled rules binding on them; sovereign enforcement is a feature of developed municipal law, not of law as such. Law existed in early societies long before legislatures (Maine, Note 13), and customary law binds because it is accepted. International law, still resting largely on custom (Art. 38(1), ICJ Statute), is law in the same sense.

Hart: a set, not a system, but still law

H.L.A. Hart (The Concept of Law, 1961, ch. X) noted that international law lacks a legislature, courts with compulsory jurisdiction and organised sanctions, and resembles a regime of primary rules without secondary rules (Note 91). With no unifying rule of recognition, its rules form a 'set', not a system; pacta sunt servanda cannot be its basic norm, since customary obligations bind States that never agreed. Yet it is law: States treat its rules as obligatory and argue about them in legal terms, and law is not reducible to orders backed by threats. Hart thought it might be in transition toward a system.

Lauterpacht

Sir Hersch Lauterpacht (The Function of Law in the International Community, 1933) argued that the international legal order is complete: a tribunal may never refuse to decide for lack of law (no non liquet), and every dispute is in principle justiciable. The obstacle is the reluctance of States to submit, not the nature of the rules.

4. Arguments For and Against at a Glance

5. The Evidence of Practice

State practice supplies strong evidence. The UN Charter (1945) is a treaty binding on all member States.

International law is obeyed in thousands of routine matters daily: diplomatic immunity, the law of the sea, air navigation, extradition, trade treaties. Louis Henkin (How Nations Behave, 1968) observed that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time. States that break it rarely deny the law; they deny the breach or plead an exception, exactly as lawbreakers do at home. Tribunals such as the ICJ, ITLOS, the WTO dispute system and the International Criminal Court (Rome Statute, 1998) decide real disputes. India won the Jadhav case (India v Pakistan, ICJ 2019), where Pakistan was held to have breached the Vienna Convention on Consular Relations and was required to provide effective review and reconsideration.

6. The Real Weaknesses

Admitting that it is law does not make it as effective as municipal law.

None of these weaknesses is unique. Municipal law is also broken by the powerful, and constitutional law often lacks a sanction against the highest organs. Austin had to call constitutional law positive morality, which no Indian lawyer accepts after Kesavananda Bharati (1973). A theory that denies international law the name of law must deny it to much else; that is a reason to reject the theory, not the law (Note 37).

7. Monism and Dualism

Monism (Kelsen) treats international and national law as one legal order, so international law applies directly and usually prevails. Dualism (Triepel, 1899; Anzilotti) treats them as separate systems, so international law operates domestically only when adopted. The common law incorporates customary international law automatically (Blackstone; Trendtex Trading Corporation v Central Bank of Nigeria, English Court of Appeal, 1977) but requires treaties to be transformed by legislation.

8. The Indian Position

Art. 51(c), a Directive Principle, requires the State to endeavour to foster respect for international law and treaty obligations. Art. 253 empowers Parliament to make any law for the whole or any part of India for implementing any treaty, agreement or convention or any decision of an international conference or body, even on a State List subject. Art. 73 extends the Union's executive power to rights and jurisdiction exercisable under any treaty; treaty-making is executive, but implementation affecting rights needs legislation.

Vellore Citizens' Welfare Forum (1996) treated the precautionary and polluter pays principles of customary international law as part of domestic law. India is thus dualist for treaties but incorporationist for custom, with a strong rule of harmonious interpretation (Note 8).

9. Evaluation

The answer depends on the definition of law. On Austin's it is not law, but that definition also fails customary, constitutional and federal law and has been largely abandoned. On the definitions of Oppenheim, Pollock and Hart it plainly is law, and Kelsen reaches the same result by showing its decentralised sanctions. The answer examiners expect: international law is true law, but a weaker, less developed kind, a primitive or horizontal order made and enforced largely by its own subjects, resting on consent, reciprocity and growing institutions. Holland's 'vanishing point' is better seen as a point of growth; Kant's Perpetual Peace (1795) already imagined a federation of free States under law (Note 117).

10. Frequently Asked Questions

Q. Why did Austin deny that international law is law?
A. Because law properly so called is the command of a determinate sovereign backed by a sanction, and there is no sovereign above States. The rules between nations are enforced only by general opinion, so Austin classed them as positive international morality, law improperly so called.

Q. What does Hart mean by calling international law a set and not a system?
A. International law has no rule of recognition identifying all its rules by common criteria, so its rules are binding individually, because accepted, rather than because they belong to a unified system. Hart still treated them as law, since States regard them as obligatory.

Q. Does a treaty ratified by India automatically become part of Indian law?
A. No. Treaty-making is an executive act, and a treaty that affects private rights or conflicts with a statute needs legislation under Art. 253 (Jolly George Varghese, 1980). Courts will, however, read domestic law in harmony with treaty obligations and use conventions to fill gaps in fundamental rights (Vishaka, 1997).

Q. Is the UN Charter enforceable?
A. Partly. Art. 25 makes Security Council decisions binding and Chapter VII allows sanctions and authorised force, and Art. 94 provides a route to enforce ICJ judgments. But the veto of the permanent members (Art. 27(3)) means enforcement depends on great power agreement.

See also: Note 8 (classification of law, municipal and international), Note 11 (analytical school), Note 12 (Kelsen), Note 25 (custom), Note 37 (legal sanctions), Note 38 (sovereignty), Note 39 (State and law), Note 91 (primary versus secondary rules), Note 117 (philosophical school).