The question of whether international law deserves the title ‘law’ is a matter that arises time and time again. Its impact is not confined to the academic realm. After all, were it truly “law improperly so called”, as John Austin claimed in 1832, who would feel bound by it? Within the legal sphere itself, the matter appears to be resolved and is rarely questioned. Simultaneously, those who advocate for international law are frequently confronted with attacks on the field, including repeated doubts as to its nature, purpose and reason for existence. This blog post argues that we are too quick in confusing geopolitical shifts – not seldomly accompanied by breaches of long-standing international norms – with a crisis of international law itself. We must stop using international law’s shortcomings as proof of its insufficiency and see that the international regime is no less legal in nature than it ever was. It remains in full force and is, most importantly, worth preserving.
International ‘Law’?
Some authoritative voices, like John Austin, Thomas Hobbes or H. L. A. Hart, analogized international law with domestic legal systems and found that because of the lack of authority capable of adjudicating or enforcing it, it is not ‘law’. While these authors’ claims date back to the 19th and 20th century, even nowadays the accusation that international law is unstable and possibly not even a proper ‘field of law’ in the strict sense is not entirely unfamiliar to those interested in the field. Of course, amid the steady stream of news about human and environmental harm, it is not illegitimate to challenge its effectiveness. However, international law operates on special conditions that render a comparison to domestic systems inappropriate. Its norms are not set by a single sovereign, and it is founded on the equal sovereignty of States and their consent. This is the very frame or basis of existence of international law – it is simply illogical to use it as an argument against its legal nature.
The international legal regime is formed by an incoherent cluster of rules and standards which nonetheless flow from legal sources and bind international legal persons. It also contains rules on interpretation and responsibility under frequent scrutiny by a sophisticated community of international lawyers. To dismiss these significant features as being outweighed by enforcement gaps is also to ignore a phenomenological reality: If rules and institutions enjoy a level of acceptance within communities, and if they lend weight to their adherence and their decisions, denying that regime its legal nature seems formalistic. This, naturally, does not predetermine its effectiveness nor resolve challenges. And challenges there are: the UN Security Council is deadlocked, the WTO’s Appellate Body is at a standstill, States are accused of not complying with ICJ rulings, the ICC is being sanctioned, the UN is facing a funding shortfall.
But a sole focus on deficits obfuscates the reality of our globalized world. These challenges, significant as they are, do not render the entire regime irrelevant. Many daily actions are based on the legal infrastructure of global capitalism – international postage delivery, trade in goods and services, or telecommunications. In fact, it is precisely the public fault-findings that convey the importance attached to international law. Would we solemnly condemn violations of norms no one truly believes in anymore? Would States justify their wrongs as acts of self-defense under Article 51 of the UN Charter, if they deemed their actions outside its parameters?
Rather, conflicts are still understood as necessitating legal responses within legal institutions. We should carefully discern whether actors infringe on certain norms or truly turn their backs on the entire system. Thus, the sociological and political significance given to international law still renders it law proper.
Apology or Utopia?
As with any complex matter, understanding international law requires ambiguity tolerance, at the heart of which lies the realization that it is indeterminate, as Martti Koskenniemi suggested. International law itself does not prescribe values or ascertain the outcome of its application. Consequently, though originally an instrument of Euro-American power, it has been repurposed as a tool of the international community. Contemporary issues are still best tackled on the international level. A few recent examples are States‘ response to women’s oppression under the Taliban, the ICC’s response to the war in Gaza, the ICJ’s Advisory Opinion on States‘ obligations in respect of climate change and the adoption of the BBNJ Agreement, as well as the promising developments on the forging of a crimes against humanity convention. International law is therefore both apology and utopia, just as it may be defiance, dystopia and empowerment. It catalyzes positive and negative change simultaneously, because it reflects the social and political state of the world, as the ICJ noted in 1949.
The core problem of international law, i.e. the lack of options when States refuse to adhere to it, is a causal result of the foundational principle of equal sovereignty. When commentators diagnose a crisis, their disappointment is therefore a logical result of its very structure and hardly proof of its ailment.
Crisis or Normality?
What is happening to international law is therefore perhaps more a matter of course. International law is – always has been – employed to legitimize gross human rights violations, as well as invoked to condemn such acts, while criticized for not preventing them. This appears to be the usual scheme of things, the “normally abnormal normality” of international law that Jean d’Aspremont describes. In that, it is self-confirming by creating crises for which it is the savior in the bind. It is moreover self-producing in constantly fueling demand for reform(ers). Insofar, international law follows the Hegelian dialectic. For instance, when atrocities are inflicted upon Palestinians (Thesis) and international law is publicly denounced for its inability to enforce human rights and humanitarian law (Antithesis), the recognition of a Palestinian State is an attempt at sublation (Synthesis). Similarly, amidst declining faith in international law, the 2026 Nobel Peace Prize was awarded to renowned international lawyer Navi Pillay – “one of the great defenders of international legal principles”.
Following this idea, what we call “crises” are in fact prerequisites of the regime’s ever-changing nature. Egregious events constitute its critical junctures: The World Wars led to the creation of contemporary international law, and it was since violated and refined because of and despite the conflicts in Rwanda, Yugoslavia, Cambodia, Sierra Leone, Sudan, 9/11, US invasions, the wars against Ukraine and in Gaza – to name some examples of widespread suffering. “Crisis”, then, is an inadequate description of international law’s state. The term is rather reduced to absurdity. If we want relevant actors to tackle existing issues, rather than being caught in the headlights, the crisis narrative appears rather unhelpful.
This optimistic interpretation of international law’s workways must not be mistaken for toxic positivity or cynicism. Thousands of lives lost in heinous conflicts are not just another opportunity for reinvention. Rather, it is about observing the regime abstractly, witnessing its cyclical progression, to avoid conjuring another crisis in a world ridden by it.
Conclusion
International law is imperfect and occasionally ineffective. Our world as we know it, however, already depends on and benefits from international law in many ways that are often taken for granted. The current state of geopolitics and human suffering in many regions is a reminder to preserve and improve the principles that we have and not only realize international law’s relevance after we let it fail. So long as the international community as such – save for certain powerful States – still agrees on the existence of international law, we must not deny it its ability to run its course in the abnormally normal state of things.
Zitiervorschlag: Schlesinger, Antonia, Rethinking the Crisis Narrative in International Law, JuWissBlog Nr. 91/2026 v. 05.11.2026, https://www.juwiss.de/91-2026/
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