Introduction

In 1884–85, the greatest colonial powers of the world sat together in Berlin to decide the fate of the  entire continent of Africa. This meeting, held at the height of the imperial scramble for African territories, left a deep and lasting imprint on the continent’s borders, political structures, and socioeconomic life. Yet the most striking fact of all is that not a single African was present in the room while the destiny of millions was being mapped out. Entire nations were drawn and divided in their absence, their futures negotiated over as if they were objects rather than people. Some might dismiss this as a relic of the past, a shameful episode that the modern international order has long since moved beyond. But has it truly?

Prominent scholar B.S. Chimni, in his “TWAIL Manifesto” has popularly espoused that, “the threat of recolonization has continued to haunt the Third World.” In this paper, I attempt to show how the logic of that colonial moment persists today, albeit in a more formalized and sophisticated form, by undertaking a positivist analysis of international law. Different positivists have offered different views on the nature and character of international law. John Austin famously denied its classification as “law” altogether, calling it law “improperly so called.” Later positivists did not necessarily reject international law as law, but their reasoning about its nature varied significantly. A significant section of thinkers founded the basis of international law in “voluntariness”. The Lotus Case gave judicial expression to this idea when the Permanent Court of International Justice held that, “[i]nternational law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.”

H. L. A. Hart, however, directly challenged Austin’s view, and sought to correct some of the logical flaws in the voluntarist theory. Yet, as this paper argues, even Hart’s characterization of international law, and his account of how it operates in practice, does not adequately consider a major part of the world’s experience: that of the Third World, or the Global South.

This paper critiques the dominant positivist understanding of international law through the lens of Third World Approaches to International Law [“TWAIL”] by revisiting the core premise of Austin’s claim that international law is not “law” because it does not originate from a sovereign command and lacks an enforcement mechanism. Although later positivists like Hart rejected Austin’s conclusion, they generally accepted this underlying premise. It, therefore, focuses primarily on the writings of Austin and Hart, whose contrasting positions allow for an examination of a wide range of positivist thought. The paper acknowledges that other significant positivist contributions are not examined in depth, which is a limitation of the study. However, this choice enables an analysis of key yet diverse theoretical positions and allows the argument to engage with broader positivist trends where relevant.

From Austin to voluntarism

For the positivists, every “legal fact” ultimately finds its basis in a “social fact.” What exactly constitutes this social fact, however, differs across thinkers. For Kelsen, it is the grundnorm, while for Hart it is the “rule of recognition.” This section traces how the understanding of international law evolved within the positivist tradition, from Austin’s early formulation to Hart’s later refinement.

For John Austin, one of the most prominent figures of the positivist school, law consists of rules, or “commands,” issued by a “sovereign”. These commands are backed by a threat of sanctions in case the command is not complied with. In his view, international law does not qualify as “law” because, first, it does not arise from the command of a sovereign, and second, it is enforceable only through moral sanctions. He therefore argued that what is referred to as international law would be more accurately described as “international morality.”

However, later positivists did not share Austin’s outright dismissal of an international legal framework. As per Robert Ago, the positivists’ vision for international law has generated “the myth of the will of state as the only origin of law.” Mehrdad Payandeh similarly notes that positivism, in its essence, is defined not only by its conception of sovereignty but also by its emphasis on consensus as the foundation of international law. Thinkers such as Vattel stressed the independence and voluntary consent of sovereign states, and Georg Jellinek famously argued that “the only possible path for a legal grounding of international law is… in the free will of states or nations.”

This voluntary understanding of international law marked a step beyond Austin’s conception but, in the author’s view, did not identify the most convincing reasons for rejecting his ideas. This school’s thinkers, who have been said to have laid the groundwork ‘for the era of uninhibited positivism’ failed to foresee a globalised world in which exclusion from international cooperation could prove far more punitive than any coercive sanction.

Hart

H. L. A. Hart’s conception of international law marked a clear departure from Austin’s command theory and the voluntarist accounts that followed it. Hart rejected the idea that law consists only of orders backed by threats. He argued instead that legal systems are composed of primary rules, which impose duties, and secondary rules, which enable the creation, modification, and interpretation of legal relations. Treating all legal rules as commands, he argued, distorts their nature and fails to explain key features of legal systems, such as how legislators can issue laws that bind themselves, or how customary law, which does not originate from a deliberate act of legislation, can exist at all. Hart criticised Austin’s understanding of legal obligation as merely the anticipation of punishment for disobedience. Equating obligation with the likelihood of a sanction, he argued, ignores the fact that legal rules not only predict sanctions but also justify them.

In his view, international law differs significantly from municipal law. It lacks a central legislature, courts with compulsory jurisdiction, and a centrally organised system of sanctions. Because of this, Hart described international law as resembling a “simple social structure” composed mainly of primary rules, with secondary rules either absent or only weakly developed. Even the enforcement powers of the United Nations Security Council under Chapter VII of the Charter, he argued, cannot establish a comprehensive sanctioning system due to the likelihood of paralysis caused by the veto.

For Hart, this absence of sanctions does not mean that international law is not law. The rules of international law, he argued, only need to be accepted as standards of conduct and supported by forms of social pressure to be regarded as binding legal rules. Since there is no secondary rule that stipulates criteria for the validity of such rules, their existence depends on whether they are accepted as rules or not. For him, “the rules of international law had only to be accepted as standards of conduct and supported with appropriate forms of social pressure in order to be regarded as obligatory, binding, legal rules.” Hart further noted that if international law were to evolve in a way that allowed multilateral treaties to bind states that were not parties to them, such a development would amount to a legislative enactment and bring international law closer in form to domestic legal systems.

Although Hart’s account is widely regarded as more persuasive and progressive than Austin’s, both converge on the view that international law lacks a system of sanctions and that its binding force ultimately derives from acceptance and customary practice. In this part, I examined positivism’s understanding of international law through the contrasting positions of these two jurists. Despite their disagreement on whether international law qualifies as “law,” their accounts nonetheless rest on the shared premise that obligation arises from acceptance rather than coercive enforcement.

As Part II will demonstrate, these assumptions fail to reflect how coercion and enforcement actually operate across much of the Global South, and how the conditions under which rules are deemed “accepted” are shaped by entrenched global inequalities.

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Kanha Pandey is a third-year law student at West Bengal National University of Juridical Sciences, Kolkata.

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Picture Credit: Edited by JFIEL