Part I outlined how Austin and Hart, despite their differences, ultimately align on the view that international law derives its authority from acceptance and custom, rather than from any organized system of sanctions. While this account reflects the experiences of powerful states, it does not capture how these ideas operate in contexts marked by deep global inequality. Part II, by examining international law from the perspective of the Third World, challenges the positivist assumptions introduced earlier and highlights how ideas of consent, custom and enforcement operate very differently in contexts marked by structural inequality. It is from this standpoint that the limits of the positivist framework become most visible.
The Perspective of the Third World
A common person’s understanding of the international legal framework, its origins, its rules, and its operation is often shaped by first-world-centric narratives and documentation. This recalls Chinua Achebe’s immortal words, “until the lions have their historians, the history of the hunt will always glorify the hunter.” It is precisely this imbalance in perspective that this section seeks to address.
The aim here is to question a foundational assumption that runs through the work of almost all positivist thinkers on international law. From Austin to Hart, positivists have disagreed on what makes international law “law” or what gives it validity, yet they have consistently shared one belief: that unlike municipal legal systems, international law lacks a system of sanctions. While this view is not entirely inaccurate, it overlooks a crucial reality. The absence of sanctions, to the extent that it exists, is largely a privilege reserved for powerful states in the Global North and their allies. For much of the Global South, this assumption does not hold true.
Therefore, we will first examine the selective enforcement of international law and how coercive measures operate unevenly across the globe and then critique the positivist reliance on “acceptance” as the basis of legal obligation. It will explore how many of the rules of international law originate with little participation from the Global South and yet impose the greatest burdens on it. In this way, these supposedly consensual norms often function as commands directed at the Global South, with the Global North assuming the role of the sovereign.
Selective enforcement of International Law
Austin and Hart, despite their significant differences, both agreed that international law does not have a system of sanctions comparable to those in municipal legal systems. For Austin, this absence placed international law outside the ambit of “law” altogether, since states were not compelled to obey through the threat of punishment. Hart, on the other hand, argued that the presence of sanctions was not necessary for a legal system to exist. Yet, he too believed that this lack of institutional enforcement mechanisms meant that international law could not be considered a “system” in the same way as domestic law, but rather a “set of rules.”
However, to claim that international law operates without sanctions is to ignore a crucial reality. That argument might hold when the United States commits documented human rights violations, as it did in Iraq under the guise of maintaining world peace and waging a “war on terror.” Amnesty International reports, “‘US forces’ engagement in rampant violations, including indiscriminate attacks that killed and injured civilians, secret detention, secret detainee transfers, enforced disappearance, torture and other cruel, inhuman or degrading treatment. Former detainees have credibly alleged a litany of abuses in detention centres, including sleep deprivation, forced nudity, deprivation of adequate food and water, mock executions and threats of rape.”
These actions amount to crimes against humanity under Article 7, war crimes under Article 8 of the Rome Statute, and serious violations of international human rights and humanitarian law. Similar patterns can be seen in the U.S. invasion of Afghanistan and the relentless bombing campaigns across the Middle East, including NATO’s destruction of hospitals in Yemen, and the notorious bombing of the “Doctors Without Borders” trauma hospital in Kunduz. All of this was done in the pretext of “war on terror” or to ensure democracy in these nations. Scholars like B. S. Chimni have noted that this pattern reflects how international law often reshapes the very meaning of sovereignty and democracy to suit the interests of powerful states, while constraining the ability of Third World countries to pursue independent, self-reliant paths of development.
The same no-sanctions shield can be observed in the case of Israel, which has for decades carried out some of the most widely documented human rights violations in the modern era. From indiscriminate bombings and the destruction of civilian infrastructure to the systematic targeting of children, attacking humanitarian aid entering Gaza, and turning Gaza into what many call an “open-air prison,” these acts have persisted for generations with little meaningful actions against them under international law. Despite being long-standing and ongoing, such violations have had no serious impact on Israeli leadership or policy.
In sharp contrast, international law suddenly appears as a robust system of sanctions when it comes to the Global South. Of the 33 cases taken up by the International Criminal Court since its inception, 32 have involved African countries. Nations such as the Democratic Republic of Congo, Uganda, and Kenya have been subjected to prosecutions, while violations committed by NATO powers or Israel have not led to successful proceedings. This is not to argue that the ICC as an institution is inherently biased, as multiple factors, including the structural limitations of the Security Council, play a role in this pattern. Nevertheless, the trend underscores the broader point: the weight of enforcement falls overwhelmingly on weaker states. The same holds true for the sanction regimes of the Security Council, which have repeatedly targeted states such as Iran, Iraq, and North Korea, all of them outside the circle of powerful, first-world, capitalist states.
What emerges, then, is that international law is not characterized by a universal absence of sanctions. Rather, the absence of enforcement is a privilege largely reserved for the Global North, while the Global South continues to face robust and selective sanctioning mechanisms. The supposed “no-sanctions” model of international law, celebrated by positivist thinkers, therefore applies unevenly, exposing the deep asymmetries at the heart of the international legal order.
Customary International Law as a “command from the sovereign”
Hart believed that not every legal rule originates from a deliberate legislative act and that law formed through custom cannot be understood as the order of a sovereign. He further argued that international law largely consists of primary rules or customary practices, a feature that distinguishes it from municipal law. However, this practice of following “customary international law” (CIL) can often, in reality, resemble the imposition of a command by powerful states on others. In this sense, CIL itself becomes a manifestation of positivist law within the international legal order.
Before proceeding, it is important to clarify the way Austin’s framework is being used here. Austin believed that a sovereign must be a determinate individual or a determinate body of persons who is habitually obeyed and not subordinate to any other human superior (p.165-167). The diffuse but hegemonic power exercised by developed states does not perfectly fit this requirement of determinacy, and Austin himself would not have treated customary international law as “law properly so called” for this reason.
The argument made in this section therefore does not claim that CIL becomes positive law in Austin’s strict sense. Instead, it draws on his emphasis on habitual obedience, the link between command and duty, and the importance of sanctions as a way of describing how CIL often operates in practice for much of the Global South. Used in this analogical way, Austin’s vocabulary helps illustrate how norms that appear consensual can, in effect, function like commands issued by a hegemonic bloc.
Article 38(1)(b) of the Statute of the International Court of Justice recognizes custom as one of the primary sources of international law. Establishing a rule as CIL requires demonstrating both consistent state practice and opinio juris, that is, a belief that the practice is followed out of a sense of legal obligation.However, scholars have noted that this process is far from democratic. Patrick Kelly, in The Twilight of Customary International Law, argues that the creation of CIL is shaped by an uneven playing field where the “more important” participants dominate the process. Oscar Schachter similarly observes that, as a matter of historical fact, the vast body of customary international law has been shaped by a remarkably small group of states.
Ryngaert builds on this, noting that the International Court of Justice, in the North Sea Continental Shelf cases, appeared to accept that customary rules could emerge from the practice of only a few states, provided those states are particularly concerned with or directly affected by the rule in question. This means that norms which crystallise into customary law often do so through the practices of a coalition of powerful states, most commonly developed capitalist nations with shared interests. Even where the views of a larger number of states are taken into account, the hegemony of power, ideology, and influence ensures that the preferences of the Global North shape the contours of customary law.
The imbalance is reinforced by the sources relied upon to determine CIL. Courts and tribunals frequently consult the writings of publicists, particularly to understand how customary law is formed and evidenced. Yet the lack of extensive documentation and publication from the Global South means that Western scholars have long dominated this intellectual space, further entrenching their influence over the identification and articulation of customary norms.
As a result, practices and principles that originate in the developed capitalist world often become binding norms. It is because of this, that practices such as Fair and Equitable Treatment, which has emerged solely in the capitalist developed countries, have become CIL norms, when it has been criticized for creating a “chilling effect” that discourages states from enacting regulatory measures in the public interest. Similarly, the “unable or unwilling” test, largely promoted by Western powers, is gaining recognition as customary law despite its narrow origins. Even the “persistent objector” rule, endorsed as customary law by the International Court of Justice in the Asylum case, arose primarily from the practices of Western states.
What emerges is a pattern in which norms shaped by and for the Global North are elevated to the status of law, while states in the Global South are bound by them regardless of their participation in their creation. This process strips customary international law of the consensual character that positivists like Hart associated with it and turns it into something closer to what Austin described as a command. Here, the sovereign is not a single ruler but the collective power of developed states and their dominance over global institutions and intellectual discourse. The Global South, excluded from shaping these norms yet compelled to follow them, occupies the position of the “subject” in Austin’s schema. In this way, the very structure of customary international law, often celebrated as organic and consensual, ends up replicating the dynamics of command and obedience that positivists claimed had no place in the international legal order.
Conclusion
George Orwell once wrote that “who controls the past controls the future; who controls the present controls the past.” The story of international law reflects this truth in striking ways. It is a narrative that has long been written and shaped by those who hold power, allowing them not only to define its origin but also to chart its future.
International law, often described as a system built on mutual agreement and acceptance, reveals a deeper reality that echoes what Kwame Nkrumah called “neocolonialism.” Its jurisprudential foundations continue to reflect the dominance of knowledge and perspective shaped by the loudest part of the world, while the voices of the historically marginalized Global South remain muted. Instead of taking away from the intellectual contributions of jurists such as Austin and Hart, examining an alternate picture reveals that much of what the West treats as self-evident, when examined critically, reveals a very different reality.
What international law means for the West is not what it means for the South. The same legal order that appears consensual and non-coercive to powerful states often operates as a system of selective enforcement and imposed obligations for weaker ones. As TWAIL continues to grow and challenge existing narratives, it becomes essential that the perspective of the Global South is treated as central rather than peripheral to our understanding of international law. Only then can the field begin to reflect something closer to a genuine global consensus instead of the will of a few.
Kanha Pandey is a third-year law student at West Bengal National University of Juridical Sciences, Kolkata.
Picture Credit: Edited by JFIEL
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