von SUHANA ROY
Recent escalation in the Middle East, involving military strikes by the United States and Israel against Iran and retaliatory attacks across the region, has revived a persistent jurisprudential question: can international law meaningfully restrain great powers? These events reveal a troubling pattern in which the prohibition on the use of force appears increasingly fragile. International institutions respond with condemnation and diplomatic procedure, yet decisive enforcement remains absent. This situation echoes the scepticism of John Austin, who argued that International Law is a law “improperly so called”.
Austin’s Enduring Shadow
Austin’s command theory defined law as the expression of a Sovereign’s will backed by sanctions. In the absence of a determinate global sovereign, international norms, he argued, could only amount to “positive morality,” binding in conscience or prudence but not in law. The current geopolitical events appear to fit this diagnosis too perfectly. The recent attacks involving the United States, Israel, and Iran illustrate this dilemma vividly. Despite the ban on the use of force, which is generally considered the key to the post-1945 order, has been broken several times with minimal material impact on the violators. When powerful states act despite legal constraints and institutional responses remain largely declaratory, the limits of a legal order without a central enforcing authority become starkly visible.
However, the account offered by John Austin is only partial. By treating law as dependent solely on coercive authority, his theory overlooks how legal norms continue to operate through justification and interpretation. Even when states violate international rules, they rarely reject them outright. Instead, they invoke doctrines such as self-defence, humanitarian necessity, or treaty interpretation. This continued reliance on legal argument suggests that international law retains a legitimizing force even without strong enforcement.
Collective Security and Structural Paralysis
The United Nations has a post-war dream to substitute the unilateral use of force with a collective one. But the veto system of the Security Council produces an institutional contradiction, the very people who can most effectively destabilize the system are actually the ones who have the ability to prevent enforcement. A clear example is the war in Ukraine following the invasion by Russia in 2022. Because Russia is a permanent member of the Security Council, it can veto resolutions that would authorize enforcement measures against itself. Similarly, repeated resolutions concerning the conflict in Gaza have been blocked due to vetoes by powerful members such as the United States. These examples illustrate how the system often operates less to enforce uniform legal responsibility and more to preserve the political consent of major powers.
Any attempt to invoke collective enforcement under the United Nations Security Council is immediately entangled in the political alignments of the permanent members. States closely allied with one of the actors involved possess the institutional capacity to block meaningful action, demonstrating how geopolitical interests frequently override legal consistency.
Hart and the Internal Point of View
Twentieth-century legal philosophy significantly complicated Austin’s scepticism. H. L. A. Hart reinvented the concept of law as a system of accepted rules in an internal perspective of both officials and participants. He has also taken cognizance of the fact that the international law does not have complete secondary rules, especially the compulsory adjudication and centralized enforcement, but he still considered it as a real legal order. Diplomatic protests, countermeasures, treaty compliance mechanisms as well as adjudicative processes are all based on some common agreement that legal norms count.
Even recent violations tend to reinforce this internal point of view. Aggressor states rarely deny that legal prohibitions exist; instead, they reinterpret them to justify their conduct. Legal argument thus becomes a site of contestation rather than abandonment. The persistence of such justification indicates that international law continues to shape expectations and discourse, even when it does not decisively control state behavior.
Normative Validity Without Effectiveness
Another defence arises out of the pure theory of law by Hans Kelsen which separates empirical effectiveness and legal validity. In the case of Kelsen, a legal order is present when the norms in a hierarchical system are accepted as binding, even if they are violated at times. Just as the existence of crime does not make domestic law cease to be law, violations by states do not invalidate international law. The current crisis is thus a demonstration of the difficulties of enforcement as opposed to the lack of law.
However, the vulnerability of decentralized orders is also visible due to the formalism used by Kelsen. In the absence of institutional mechanisms that help to transform validity to compliance, norms will be aspirational. When these are considered as being meted out mainly through voluntary compliance and reputational costs then the line between law and morality becomes thinner.
From Legalization to Strategic Defiance
The key difference between the present and the past days of global conflict lies in the fact that there is less and less desire to put controversial activities in definable legal frameworks. Recent statements surrounding the U.S.–Israel–Iran confrontation demonstrate this shift. Rather than grounding military action primarily in formulating detailed legal justifications, although disputed, as part of interventions. In the present day, the official rhetoric makes more and more appeals to the needs of security, historical resentment, or geopolitical necessity with a relatively lower reference to detailed legal arguments. This change implies that there is a change in interpretive engagement to strategic defiance.
Legal norms draw strength not only from coercion but also from the expectation that power must justify itself through law. When states stop seeking legal justification, the normative structure weakens. The real threat to international law is therefore not just violation, but growing indifference to it. This is visible when powerful states openly threaten actions such as recent remarks by US about taking control of Greenland which challenge basic principles of sovereignty and territorial integrity.
Enforcement Deficits and Power Asymmetries
The growth of international courts and tribunals reflects an effort to create stronger systems of accountability in global governance. The International Criminal Court was established with the aim of holding even powerful political leaders legally responsible for serious international crimes. Similarly, regional human rights courts show how international disputes are increasingly being resolved through legal institutions. However, these courts still depend on states to enforce their decisions. Arrests, sanctions, and other measures require political cooperation, which may not always be forthcoming. As a result, a paradox emerges: international law is most judicialized in areas such as human rights and international criminal law, yet compliance in these fields often remains uncertain. Courts may declare conduct unlawful, but they cannot compel compliance. Their authority therefore rests largely on legitimacy rather than coercive power. Because the international system operates through reciprocity and voluntary cooperation, its effectiveness is shaped by inequalities of power.
Conclusion: Crisis of Legitimacy Rather Than Extinction
The recent confrontation involving the United States, Israel, and Iran highlights a deeper structural tension within the international legal order. The present geopolitical landscape does not demonstrate the death of international law but exposes its vulnerability in a decentralized system that lacks a monopoly on force. The scepticism of John Austin captures the difficulty of enforcing norms against powerful actors, yet it fails to explain the continued presence of legal argument, institutional responses, and normative expectations within global politics. As modern jurisprudence suggests, law can persist even without centralized sovereignty, sustained instead by legitimacy, reciprocity, and shared understandings among states.
The deeper crisis lies in the weakening expectation that power must justify itself through law. International law has long compelled states to defend their actions in legal terms. If that expectation fades, the system risks sliding toward the kind of “positive morality” described by Austin. The key question, therefore, is whether international law can still induce this need for justification; if not, its capacity to restrain power may erode further.
Zitiervorschlag: von Roy, Suhana, International Law at the Edge: Revisiting Austin in an Era of Strategic Defiance, JuWissBlog Nr. 24/2026 v. 10.03.2026, https://www.juwiss.de/24-2026/.
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