The Dialogue:

The Israel Navy: “You are instructed to change your course. Any further attempts to sail towards Gaza endangers your safety and places you within an active war zone. If you continue your route and attempt to breach the naval blockade, we will stop your vessel and act to confiscate it through legal proceeding in court.”

Reply:

“Attention, Attention, Israel Offensive Forces

This is Tiago Avila from the Steering Committee of the Global Sumud Flotilla. We advise you that we are a humanitarian non-violent solidarity mission to break the illegal siege imposed by Israel 18 years ago against the Palestinian people in Gaza and to create a humanitarian corridor.

“We carry only food, aid, we carry water filters, we carry crutches, we carry a baby formula for the people that you’ve been starving to death. I repeat. You have been committing genocide for eight decades and ethnic cleansing against the Palestinian people and that is absolutely against international law.

“Once again, we are in international waters which is not your jurisdiction. We are heading to Palestinian territorial waters which is not your jurisdiction despite the fact that you think you can occupy that land but all of this is completely illegal. The highest judicial authority in the world, the International Court of Justice, in their provisional rulings on the case opened by South Africa against you for the crime of genocide clearly stated that you are prohibited to hinder any humanitarian mission to get to Gaza. Once again, in a planet of eight billion, people despise you starving children to death, bombing hospitals, schools and shelters. We are here with the conscience of the world moving peacefully in a non-violent humanitarian mission to take this aid. You are not allowed by international law to stop us. Therefore, we do not comply with your request because your request is still an attempt to perpetuate the genocide of the Palestinian people. We are here in solidarity with them so we do not comply with occupation with an apartheid system and with a racist and supremacy ideology called Zionism. Over.”

Reply:

The Israel Navy: “We repeat. This is the Israeli navy. You are approaching a blockade zone.”

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The authority and enforceability of international law have long been debated. John Austin, the leading legal positivist of the 19th century, argued that “international law is not law properly so called” (Austin, 1832/1995).

He grounded this on his command theory of law, which defined law as commands of a sovereign backed by sanctions. In Austin’s view, because international law lacks a global sovereign and centralised enforcement, it is no more than “positive morality”.

This brief write-up revisits Austin’s theory and considers its relevance in the context of the dialogue between the Israeli navy and the humanitarian flotilla heading toward Gaza.

Austin’s command theory identified three elements necessary for law, namely a sovereign issuing commands, habitual obedience by the governed, and sanctions for disobedience.

On this basis, Austin argued that international law does not qualify as true law because it lacks these essential features.

First, there is no single world government or sovereign authority over states, since each state is sovereign (Austin, 1832/1995).

Second, international law suffers from weak enforcement, as it does not possess uniform coercive sanctions comparable to those found in domestic criminal law; instead, it relies largely on reciprocity, reputational consequences, or political pressure to ensure compliance.

Finally, given that much of international law develops through customs, treaties, and international consensus rather than the commands of a sovereign, Austin dismissed it as “positive morality” rather than binding law.

Thus, Austin would argue that the flotilla’s invocation of international law against the Israeli blockade has no binding legal force but reflects moral and political claims.

The dialogue illustrates the contested status of international law. On the part of Israel’s position on power and sovereignty, they asserted its right to enforce a blockade, warning that any breach would lead to confiscation and legal proceedings. And, such position reflects a sovereign exercising power and issuing enforceable threats, an argument that is closer to Austin’s definition of law.

On the other side, the GSF asserted that the blockade is illegal under international law and cited the International Court of Justice’s provisional measures in the South Africa v. Israel case on genocide (ICJ, 2024).

They claimed to be protected by humanitarian law and the right to deliver aid. Yet, they had no coercive means to enforce this legal position, relying instead on moral authority and global opinion. This clash reflects Austin’s point: international law lacks centralised enforcement. The flotilla appeals to international law, but Israel, as a sovereign state with military power, disregards it.

While the Gaza case seems to validate Austin’s scepticisms, his view is overly narrow. International law does have enforcement mechanisms, albeit in a decentralised form.

Institutions such as the International Court of Justice (ICJ), the International Criminal Court (ICC), and the United Nations Security Council play crucial roles in adjudicating disputes and imposing sanctions when necessary.

The flotilla’s reference to the ICJ ruling illustrates how states and actors treat international judgments as authoritative and binding. Moreover, state practice itself reinforces the legality of international law, as states consistently invoke it to justify or challenge actions, demonstrated in the dialogue where both Israel and the flotilla relied on legal arguments to legitimise their respective positions.

The Dialogue also suggests that international law has legal force, not merely moral weight. Furthermore, the validity of law does not necessarily depend on the existence of a single sovereign authority. Since the inception of the United Nations, international law operates through a “horizontal” system of rules that states accept as binding, and compliance with treaties and customary norms remains generally high even without centralised sanctions. In addition, the evolving international order has reinforced the authority of international law, with modern developments such as human rights treaties, humanitarian law, and global tribunals institutionalising international norms far beyond the limited framework envisioned in Austin’s 19th-century context.

What is apparent is this: the Gaza blockade case highlights the dual nature of international law. On one hand, Austin’s critique is visible whereby Israel is seen as a sovereign state with military control, and can disregard international rulings without immediate coercive consequences. However, on the other, the flotilla’s reliance on international law shows its enduring significance as a normative framework shaping legitimacy, global opinion, and even potential long-term accountability for violations.

Thus, while international law lacks the coercive central authority Austin demanded, it nonetheless constrains and influences state behaviour in ways that resemble “law” in both form and function.

John Austin’s assertion that “international law is not law” reflected a rigid positivist view equating law with sovereign command. The Gaza blockade dialogue illustrates both the strengths and weaknesses of his claim. Israel’s ability to enforce its blockade despite international criticism reflects Austin’s scepticism about the enforceability of international law. Yet, the flotilla’s invocation of the ICJ and humanitarian law reinforces that states and actors treat international law as binding and authoritative.

Ultimately, international law is law, but of a distinctive kind i.e. without a centralised sovereign yet still capable of shaping conduct, legitimising claims, and holding violators accountable over time.

-- BERNAMA

Marja Azlima Omar is Senior Lecturer, International Relations Programme, at the Faculty of Social Sciences and Humanities, Universiti Malaysia Sabah.