Introduction
Public international law governs the relationships between states, international organisations, and, to some extent, individuals in the global arena. It encompasses treaties, customary practices, and general principles aimed at maintaining order and cooperation on an international scale. However, a persistent debate within legal scholarship questions whether public international law can be considered ‘true law’ due to its lack of centralised enforcement and reliance on state consent. This essay explores this contentious issue by examining the characteristics of law in a domestic context, contrasting these with the nature of public international law, and evaluating arguments for and against its legitimacy as a legal system. Ultimately, it argues that while public international law differs significantly from domestic legal systems, it retains essential elements that qualify it as a form of law, albeit with limitations.
Defining ‘True Law’: The Domestic Benchmark
To assess whether public international law is a ‘true law’, one must first consider the typical characteristics of law within a domestic context. Legal theorists such as Hart (1961) argue that a legal system is defined by a combination of primary rules (governing behaviour) and secondary rules (concerning the creation, alteration, and enforcement of those primary rules). Domestic law is typically backed by a centralised authority with coercive power, ensuring compliance through courts, police, and sanctions. This structure provides predictability and enforceability, key hallmarks of a legal system. For instance, in the UK, breaches of contract or criminal law are addressed through established judicial processes, underpinned by state power. Therefore, the benchmark for ‘true law’ often includes enforceability, institutional support, and obligatory compliance—criteria against which public international law is frequently measured.
Public International Law: A Different Legal Framework
Public international law, however, operates in a fundamentally different environment. It lacks a centralised authority or global government to enforce rules, relying instead on the consent of sovereign states through treaties and customary practices, as outlined in the Statute of the International Court of Justice (1945). For example, the United Nations Charter (1945) establishes principles of state sovereignty and non-intervention, yet compliance often depends on political will rather than legal obligation. Critics, such as Austin (1832), a prominent positivist, argue that without a sovereign to enforce rules, international law is merely a set of moral principles or ‘positive morality’ rather than law (Shaw, 2017). Indeed, when powerful states disregard international rulings—such as the United States’ non-compliance with certain International Court of Justice advisory opinions—enforcement appears illusory, highlighting a key limitation.
Counterarguments: The Legal Nature of International Law
Despite these challenges, many scholars assert that public international law possesses legal characteristics that qualify it as ‘true law’. Firstly, it exhibits a systematic structure through sources like treaties, customs, and judicial decisions, as codified in Article 38 of the Statute of the International Court of Justice (Shaw, 2017). Secondly, mechanisms such as the International Criminal Court and United Nations Security Council resolutions demonstrate attempts at enforcement, albeit imperfectly. Furthermore, states often comply with international law not out of coercion but due to mutual interest, reputational concerns, and the need for reciprocity (Koh, 1997). For instance, trade agreements under the World Trade Organization are widely adhered to because non-compliance risks economic consequences. Arguably, the effectiveness of international law should not be judged solely by domestic standards but by its ability to influence state behaviour within a decentralised system.
Conclusion
In conclusion, while public international law diverges from domestic law in terms of centralised enforcement and obligatory compliance, it retains core elements of a legal system through structured norms, institutional frameworks, and state adherence driven by self-interest and international pressure. Although critics highlight its limitations, particularly the absence of coercive power, the practical influence of international law on global relations cannot be dismissed. This suggests that public international law is indeed a form of law, though one adapted to the unique complexities of the international sphere. The implications of this debate extend to how we approach global governance, indicating a need for stronger mechanisms to enhance compliance without undermining state sovereignty. Ultimately, understanding international law as ‘true law’ requires a nuanced perspective that acknowledges both its strengths and inherent constraints.
References
- Hart, H.L.A. (1961) The Concept of Law. Oxford: Oxford University Press.
- Koh, H.H. (1997) Why Do Nations Obey International Law? Yale Law Journal, 106(8), pp. 2599-2659.
- Shaw, M.N. (2017) International Law. 8th ed. Cambridge: Cambridge University Press.
