See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/351107678

NATURE OF INTERNATIONAL LAW: IS INTERNATIONAL LAW REALLY "A

LAW"?

Article · April 2021

CITATIONS READS

0 459

1 author:

Kevin Syahru Azham

Universitas Muhammadiyah Yogyakarta
6 PUBLICATIONS   0 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

THE EXISTENCE OF VETO POWER IN THE UNITED NATIONS SECURITY COUNCIL ON THE ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS ADVANTAGES AND
DISADVANTAGES View project

All content following this page was uploaded by Kevin Syahru Azham on 08 November 2021.

The user has requested enhancement of the downloaded file.

 NATURE OF INTERNATIONAL LAW:
IS INTERNATIONAL LAW REALLY “A LAW”?

Kevin Syahru A’zham

Faculty of Law Universitas Muhammadiyah Yogyakarta
Jln. Ring Road Selatan, Tamantirto, Bantul, Yogyakarta 55183, Indonesia
Tel./Fax: +6282284216607 E-mail: Kevinsyahru69@gmail.com

Abstract: The goal of the research is to analyze whether international law can be
called real law or not. The interpretation is often influenced by the school of
thinking and principles followed. “international law consists of laws and
guidelines in general interpretation concerned with the actions of states and
international bodies, as well as some of their associations with natural and legal
persons. As a result, all concepts of international law accept it as a body of legal
rules regulating relations between sovereign states and other bodies (which may
include international organizations or individuals). it can be called law depending
on the above concepts and the function it plays. Political preferences, economic
strength, ideological outlook, geographical scale, demographic size and
composition, religious and social structure are all factors to consider. This
diversity will have an effect on the application and interpretation and the practice
of international law.

Keywords: Application, International Law, System

INTRODUCTION
Nowadays, the advancement of law is expanding in accordance with the
advancement of the century, and human efforts involved in the field of law
continue to pursue legal studies on a variety of topics. The International Law
system is one feature that continues to evolve in legal studies and is widely
studied, and it is important to try to understand certain legal conceptions and their
evolution by exploring the system.

1
 International law (public) applies to all laws and principles of law that
regulate non-civil entities or problems that cross national boundaries
1
(international relations). International law, public international law, universal
law, global law and law of nations or interstate law, these names have no
fundamental distinctions and can be used interchangeably. The universally
recognized principles of law among civilized nations it may also be conceived of
as a series of principles that autonomous sovereign states inevitably adopt and
extend to their reciprocal relationships2.
Whether international law can be called real law or not has become a point of
contention among international legal theorists and jurists. some regard it as a valid
statute, although others question its legality. International law is a law to them,
and they do not need to assimilate or fully associate it with state law. Others
disagree with this viewpoint. What are the key points of contention? is this due to
a lack of compliance, a legal flaw, a lack of a justice structure, a lack of a supreme
legislative authority, a federal jurisdiction restriction, or anything else entirely?
the controversy includes both theoretical and practical viewpoints. international
law, for example, regulates international traffic aviation and high-seas transport,
while local law regulates topics such as ethnicity and traffic violations. regarding
the legitimacy of the statute, there are two schools of opinion. The positivist
philosophy and the universal law theory. These hypotheses attempt to lay out the
ethical conditions that must be taken into account. Several scholars that consider
the middle ground are also a minority.
The interpretation is often influenced by the school of thinking and principles
followed. “international law consists of laws and guidelines in general
interpretation concerned with the actions of states and international bodies, as well
as some of their associations with natural and legal persons. 3 As a result, all
concepts of international law accept it as a body of legal rules regulating relations
between sovereign states and other bodies (which may include international

1
Mochtar Kusumaatmadja. (1982). Pengantar Hukum Internasional. Buku I Bagian Umum, Jakarta: Bina
Cipta, p. 1.
2
Articles 1 and Article 38 (1) of United Nations Charter, 1945
3
American Law Institute, restatement of the Law, Third, The Foreign Relations Law of the United States
(1988) Pp. 102, 222.

2
 organizations or individuals). it can be called law depending on the above
concepts and the function it plays.
A. Problem formulation
Based on the background entitled Nature of International Law: Nature of
International Law: Is International Law Really “a Law” above, the formulation of
the problem that the author wants to put forward is as follows: Whether
International Law is a Law?

B. Discussion
Is there such a thing as international law? This is one of the most classic
theoretical debates in the field of law in general, and international law in
particular. The enforceability of international law is one of the issues at the center
of this discussion. In this case, one might ask, "Is the presence of compliance
essential as a condition of a law? Austin, composing in the nineteenth century,
argues that enforcement is important4, while Hart, a little more than a century
later, argues otherwise.5 This article, however, will not enter into the controversy
about whether international law is law or whether a law needs a compliance
mechanism to be considered a law.
International law as a law is a topic that is always a question between experts
and observers of international law in the world, especially regarding whether
international law is really a law. The answer depends on several things that are
taken into consideration by legal experts who provide the definition and
understanding of international law itself. Although this question has been
discussed since the development of international law, until now, it continues to
happen. Legal experts who question international law prioritize arguments related
to the theory of power, namely the insufficient sovereignty of political power over
a State by international law, and the insufficient complementary tools for effective

4
John Austin. 1832. The Province of Jurisprudence Determined (found at
http://www.koeblergerhard.de/Fontes/ AustinJohnTheprovinceofjurisprudencedetermined1832.pdf ,
accessed 3 March 2014, 9.24 pm) Brian H. Bix. Legal Positivism. In Martin P. Golding and William A.
Edmundson (eds). 2005. The Blackwell Guide to the Philosophy of Law and Legal Theory. Oxford:
Blackwell Publishing, p. 39
5
H. L. A. Hart, 1994 The Concept of Law (Second Edition), Oxford University Press, New York, pp. 217-
220

3
 international law enforcement. They see these factors as weaknesses in
international law.6
Austin argued that a law would necessitate: enforcement in the form of
penalties for acts of disobedience, and that such sanctions would be levied by the
sovereign or officials. The truth remains that there is no such thing as a global
government of sovereign authority. Numerous issues have arisen and continue to
arise in international affairs, raising the question of whether international law can
be enforced.
The second point of view promotes the notion that international law is viewed
fairly in local law. They believe that the lack of an international legislator, justice
structure, order rule, and obedience position does not affect international law's
status as law. There is hope that international law will develop into a "perfect rule
of law" and that critical global challenges will be resolved. This argument's
supporters claim that the world's cultures are international organisations are
working to improve participation in civil, political, and economic affairs.
Coordination of funding and civil rights. There is a chance that the state will be
able to establish a strong legal framework based on international law. The
international law system is made the state's foreign populations are open.7
As a result, states will create international laws and exert control over their
global engagement activities. It may, for example, maintain law and order, prevent
the use of force, defend human rights, foster good relations, ensure unity, and
resolve conflict. Ties between states, raising the states' collective spirit, and
attempting to construct a global legal order. In today's world, a number of
situations contribute to the value of international law outside of states' sovereign
authority. International law establishes rights and commitments in all areas of
international law, including international bodies, and is used on a regular basis in
national and international law.
International judiciary, diplomatic departments, and other state government
organs. The state claims that international law should include a check and balance

6
Yordan Gunawan.2021. Hukum Internasional: Sebuah Pendekatan Modern. Yogyakarta, LP3M UMY,
12, p.5
7
Muhammadin, Fajri M. 2014. "Can International Law Be Enforced Towards Its Subjects Within the
International Legal Order?" Jurnal Hukum Ius Quia Iustum, vol. 21, no. 2. pp. 175-202

4
 mechanism, a strong international judiciary system, and well-developed
legislative and regulatory procedures. After that, International law's basic roles
would be encouraged and fulfilled. The below are the headings: The potentials of
international law are discussed in the following chapters. These functions of the
legal potential of international law is shown by international law. There are the
nations that are communal. Interest, current state legal procedure, psychological
Rubicon of governments, existing international bodies as objects of international
law, and the compulsory enforcement of some of the rules of international law.
Principles of international law and the establishment of human rights provide
individuals to get an automatic role in the international law system. 8
A rule of International law is regarded as non-self-executing in the Indonesian
legal system. It means the International legal norm does not have legal binding
force in the domestic courts of Indonesia without an implementing legislation. The
concept of "use of force" in international law has always been concerned with
intrastate affairs, not just domestic use of force by government officials against
their citizens.9 Indonesia is a dualist country vis-à-vis the relation of International
law and national law. In regard with the implementation of rules of International
law into the Indonesian courts, Indonesia follows the transformation theory where
the rules of International law must be transposed into national laws to have them
enforced. Therefore, it is the supremacy of national law over International law
before the domestic courts.

International law is not a prefect system

International law has been assumed to be the flawed law by those who oppose
it. It cannot be treated as a legal statute. Among the 'other' factors cited by
opponents are a lack of governmental authority, law enforcement capacity, and a

8
Katjong, Kadir. 2017. "International and National Laws Relations: Interrelated and Interacting Law
Source." Papua Law Journal, vol. 1, no. 2, May. pp. 187-202.
9
Yordan Gunawan, Naufal Bagus Pratama, 2020. Responsibility of State Towards the Issues of Cyber
Warfare under International Law: With Special Reference to the Case of Project Lakhta. PalArch's
Journal of Archaeology of Egypt/Egyptology. Vol 17. No. 6 p.1920

5
 single judicial structure.10 the law enforcement capacity of the security council
itself is very limited politically and legally.11
For many causes, it is not a statute in the strictest way. Due to the lack of
unilateral actions by states and non-interference in the internal relations of other
states, they regard international law as moral laws with no binding force. As well
12
as the lack of a justice system. Those who accept international law as a law
consider the state practice, international customary law, general principles,
international legal practitioners, international judicial tribunals, and international
convention agreements serve as role models. Oppenheim for example.13 jeremy
bentham, political philosopher of england was the first person who introduced and
used the term ‘international law’ in 1789.14 he regarded international law as a legal
system. The nature of international law must be studied separately in the context
of the international community, rather than being assimilated with domestic law
of states.
It is primarily in charge of regulating the international relations between
states, international organizations, and individual’s capability. According to them,
international law serves a variety of purposes, including protecting vulnerable
groups, establishing procedures for bringing wrongdoers to justice, alleviating
harm, and facilitating socioeconomic development. And the relationship between
international communities on a political level. International law subjects are
obliged to follow it both legally and morally. It can be simple to write down
different codes of international law, but it would be difficult to apply them
successfully in the face of global challenges. As needed, culture heterogeneous
systems make up the planet order. 15

10
International law is considered to be Imperfect law due to sovereignty issue, complexity
(heterogeneity) of legal system, ideological differences, unbalanced world power, diversity of socio-
economic and political attitudes and difficulty in law enforcement capacity.
11
Malanczuk, Peter, and Michael B, 1997. Akehurst. Akehurst's Modern Introduction to International
Law. London: Routledge. P. 58 - 60, 254 - 72
12
Dewanto, Wisnu A, 2009 "Status Hukum Internasional dalam Sistem Hukum di Indonesia." Jurnal
Mimbar Hukum, vol. 21, no. 2, pp. 325-340
13
P.B. Rathod, 2008. International Law: Theory and Practice. Commonwealth Publishers, New Delhi.
P. 15
14
Hall, The Law of Nations, 6th Ed., P. 1
15
Tenripadang, Andi, 2016 "Hubungan Hukum Internasional Dengan Hukum Nasional." Diktum, vol.
14, no. 1, Page 109

6
 In practice, the status of treatment of international law varies from one
country to the next. As a basic provision of how international law is enforced
before their national tribunal, the majority of countries have a written constitution
or text. It was specified that in practice, many countries adhere to two (two)
doctrines:
1. The first doctrine is the doctrine of incorporation, which states that
international law would be automatically recognized as part of national
law without the need for prior adoption. Adoption is only needed when
there are no other decisive policies.
2. The second doctrine is the transition doctrine, which states that
international law does not become national law unless and unless it is
first applied in national law.
Political preferences, economic strength, ideological outlook, geographical
scale, demographic size and composition, religious and social structure are all
factors to consider. This diversity will have an effect on the application and
interpretation and the practice of international law16. Traditionally, or according
to positivist philosophy of the 19th and early 20th centuries, states were thought
to be the sole subject of international law, and states were the only sovereign
body, but today, other entities, persons, and international bodies are also
considered sovereign entities can be governed by international law and have
international rights and obligations. For example, belligerents, terrorists, and the
holy see may all be recognized as international law subjects. There were three
hypotheses formed to clarify the perspective of whether international law is a
law or not. Natural law theory, positivist law theory, and eclectic law theory are
the three.17

C. Conlusion
International law (public) applies to all laws and principles of law that regulate
non-civil ties or problems that cross national boundaries (international relations).

16
0 E. McWhinney, 1986 United Nations Law Making: Cultural and Ideological Relativism and
International Law Making for an Era of Transition; A. Cassese, International Law in a Divided World.
17
Lutfi, Khoirur R, 2014 "Teori Hukum Alam Dan Kepatuhan Negara Terhadap Hukum
Internasional." Jurnal Yuridis, vol. 1, no. 1, , pp. 90-106

7
 International law, public international law, universal law, global law and law of
nations or interstate law, these names have no fundamental distinctions and can
be used interchangeably. There is hope that international law will develop into a
"perfect rule of law" and that critical global challenges will be resolved. This
argument's supporters claim that the world's cultures are international
organisations are working to improve participation in civil, political, and
economic affairs. Coordination of funding and civil rights. There is a chance that
the state will be able to establish a strong legal framework based on international
law. The international law system is made the state's foreign populations are open.

D. Recommendation
In the coming years, international law will exercise greater authority and, no
doubt, the scope of international law will be expanded to include non-state entities
such as persons, organizations, and businesses in greater detail. It is nothing new,
but maybe the rate of growth will invigorate. All of this would have an effect on
a legal framework that was initially developed as a collection of rules to control
sovereign states in their foreign relations. Of course, the majority of concrete
principles of international law are still established by states for states, and notions
of "sovereignty" and "independence" are profoundly embedded in the structure of
international culture.
Much can be determined by how international law addresses the challenge of
successful enforcement. A set of rules that encourages cooperation between states
without overly recommending a specific course of action will survive in the
absence of or with limited compliance mechanisms. A collection of rules that aims
to regulate the actions of states requires a stronger compliance mechanism if it is
to achieve its objectives.
Political preferences, economic strength, ideological outlook, geographical
scale, demographic size and composition, religious and social structure are all
factors to consider. This diversity will have an effect on the application and
interpretation and the practice of international law

8
E. Bibliography

Books:
Gunawan, Y. (2021). Hukum Internasional: Sebuah Pendekatan Modern.
Yogyakarta, LP3M UMY.
Hart, H. L. A, 1994, “The Concept of Law” (Second Edition), New York, Oxford
University Press
Whinney, 1986, United Nations Law Making: Cultural and Ideological
Relativism and International Law Making for an Era of Transition, 1984, A.
Cassese, International Law in a Divided World,
Malanczuk, 1997 , Peter, and Michael B. Akehurst. Akehurst's Modern
Introduction to International Law. London: Routledge,
Kusumaatmadja. Mochtar, 1982, Pengantar Hukum Internasional, Buku I Bagian
Umum, Jakarta: Bina Cipta
P.B. Rathod, 2008, International Law: Theory and Practice, New Delhi,
Commonwealth Publishers.

Journals:
Dewanto, Wisnu A, 2009 "Status Hukum Internasional dalam Sistem Hukum di
Indonesia." Jurnal Mimbar Hukum, vol. 21, no. 2.
Gunawan, Yordan. Bagus Pratama, Naufal. 2020. Responsibility of State
Towards the Issues of Cyber Warfare under International Law: With Special
Reference to the Case of Project Lakhta. PalArch's Journal of Archaeology
of Egypt/Egyptology. Vol 17. No. 6 p.1920
Katjong, Kadir, May. 2017 "International and National Laws Relations:
Interrelated and Interacting Law Source." Papua Law Journal, vol. 1, no. 2,
pp. 187-202.

9
 Lutfi, Khoirur R, 2014 "Teori Hukum Alam Dan Kepatuhan Negara Terhadap
Hukum Internasional." Jurnal Yuridis, vol. 1, no. 1.
Fajri, Muhammad, Apr. 2014 "Can International Law Be Enforced Towards Its
Subjects Within the International Legal Order?" Jurnal Hukum Ius Quia
Iustum, vol. 21, no. 2.
Tenripadang, Andi, 2016 "Hubungan Hukum Internasional Dengan Hukum
Nasional." Diktum, vol. 14, no. 1.

Other sources:
Articles 1 and Article 38 (1) of United Nations Charter, 1945
John Austin. 1832. The Province of Jurisprudence Determined (found at
http://www.koeblergerhard.de/Fontes/
AustinJohnTheprovinceofjurisprudencedetermined1832.pdf , accessed 3
March 2014, 9.24 pm) Brian H. Bix. Legal Positivism. In Martin P. Golding
and William A. Edmundson (eds). 2005. The Blackwell Guide to the
Philosophy of Law and Legal Theory. Oxford: Blackwell Publishing, p. 39

10

View publication stats