# Whether International Law is a True Law Explain
## Introduction
The question of whether international law can be considered ‘true law’ is a long-standing debate within legal theory. On one hand, sceptics point to its structural differences from domestic legal systems, particularly its lack of a centralised legislature, executive, and judiciary with compulsory jurisdiction. On the other hand, proponents argue that it possesses the essential characteristics of a legal system and is recognised as binding by its subjects, the states. This essay will argue that while international law differs significantly from national law, it meets the functional criteria to be considered a true, albeit unique, form of law.
## The Argument Against International Law as ‘True Law’
The classical critique of international law’s legal character is rooted in the positivist theory of John Austin. In *The Province of Jurisprudence Determined*, Austin defined law as a species of command issued by a sovereign to a subject, which is backed by the threat of a sanction if the command is disobeyed (Austin, 1832). For Austin, a sovereign is a determinate person or body who receives habitual obedience from the bulk of society but who does not render such obedience to any other superior.
When this definition is applied to the international legal system, it appears to fail on several counts. Firstly, there is no single, identifiable global sovereign. The international system is characterised by the sovereign equality of states, meaning there is no authority legally above them. Law is made primarily through the consent of states, via treaties and the development of custom, rather than being handed down by a superior. Secondly, there is no systematic and consistent enforcement mechanism equivalent to a domestic police force or bailiff system. While the UN Security Council can authorise sanctions or the use of force, its actions are often subject to the political veto of its five permanent members, making enforcement selective and unreliable. Therefore, from an Austinian perspective, international law is not ‘law properly so called’ but rather a form of ‘positive morality’, consisting of rules of conduct that states feel are obligatory but which lack the essential components of a sovereign and sanctions (Dixon, 2013).
## The Argument For International Law being ‘True Law’
The Austinian viewpoint is widely considered to be an inadequate description of law, even within domestic systems. Many laws, such as those concerning contracts or wills, confer powers rather than issuing commands. A more sophisticated analysis was provided by H.L.A. Hart, who argued that law is a system of rules. Hart distinguished between primary rules of obligation (which prescribe or proscribe certain conduct) and secondary rules, which govern the creation, change, and adjudication of the primary rules (Hart, 2012).
International law clearly possesses primary rules, such as the prohibition on the use of force found in the UN Charter. The main challenge is whether it possesses the secondary rules Hart identified as a marker of a developed legal system. It can be argued that it does, albeit in a decentralised form. The ‘rule of recognition’, which provides criteria for identifying valid law, can be found in sources like Article 38(1) of the Statute of the International Court of Justice, which lists treaties, custom, and general principles of law as the sources of law the court should apply. Rules of change exist through mechanisms for treaty amendment and the evolution of customary international law. Finally, rules of adjudication are present through the existence of numerous international courts and tribunals, such as the International Court of Justice (ICJ) and the International Criminal Court. Although the jurisdiction of these bodies often depends on state consent, their existence provides a system for the authoritative settlement of disputes based on law (Shaw, 2017).
Furthermore, the most compelling evidence for the legal character of international law is the behaviour of states themselves. States invest heavily in their foreign office legal departments, make legal arguments before international bodies, and justify their actions with reference to international legal rules. As Louis Henkin famously observed, “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time” (Henkin, 1979, p. 47). This widespread compliance and the treatment of the rules as legally binding in state practice suggests that international law functions as law in the real world, regardless of whether it fits a particular theoretical model.
## Conclusion
In conclusion, the debate over whether international law is ‘true law’ depends heavily on the definition of ‘law’ one adopts. If one adheres to a rigid, Austinian model based on a sovereign command, international law falls short. However, this model is now seen as overly simplistic. A more modern, functional approach, such as that proposed by H.L.A. Hart, which focuses on a system of rules that are accepted as binding by the community, provides a much better framework. International law has identifiable sources, processes for change, and institutions for adjudication. Most importantly, it is treated as law by those to whom it is addressed. While it is a decentralised and politically-influenced system that differs from domestic law, it nonetheless possesses the core attributes and practical effect of a genuine legal order.
## References
- Austin, J. (1832) The Province of Jurisprudence Determined. London: John Murray.
- Dixon, M. (2013) Textbook on International Law. 7th edn. Oxford: Oxford University Press.
- Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford: Oxford University Press.
- Henkin, L. (1979) How Nations Behave: Law and Foreign Policy. 2nd edn. New York: Columbia University Press.
- Shaw, M.N. (2017) International Law. 8th edn. Cambridge: Cambridge University Press.
- Statute of the International Court of Justice (1945).
