International Law as Normative Heritage: How Repeated Violations Erode its Authority

[Seyede Masoumeh Zolfaghary is a Ph.D. student in Public International Law at the Department of Public Law and International Law, SRB, Islamic Azad University (Tehran, Iran)]

If the erosion of international law continues, the tragedy of Minab may be repeated.

International law is frequently assessed through the binary framework of compliance versus violation. Although analytically useful, this perspective risks obscuring a deeper dimension: the character of international law as a shared normative heritage of the international community. Beyond functioning as a system of enforceable obligations, international law derives its authority from durable expectations of legality, legitimacy, and self-restraint that have developed and solidified over time. Its normative force is sustained not solely by formal consent or institutional enforcement mechanisms, but by the continuing recognition that its rules embody collectively generated standards of appropriate conduct.

From a positivist standpoint—particularly in its international legal articulation—the validity of international norms originates in the will of States. Yet if the modern State is understood as the political representative of a nation, a significant portion of international legal rules may be interpreted as the juridical crystallization of nations’ indirect will and, accordingly, as expressions of their accumulated normative inheritance. Treaties and customary international law are therefore not merely technical arrangements among governments; rather, they constitute the historical sedimentation of values, preferences, and practical experiences that States have articulated, refined, and institutionalized through formal legal processes.

The concept of “normative heritage” operates here as an analytical framework for elucidating the sociological and legitimacy-conferring foundations of international law. It does not displace the formal doctrine that States are the subjects responsible for the creation of legal obligations. Instead, it brings into focus the deeper processes through which legal norms emerge, stabilize, and acquire authority across generations. This heritage encompasses shared expectations, institutional practices, and interpretive traditions shaped through treaty codification, the consolidation of custom, the articulation of general principles, judicial interpretation, and sustained doctrinal engagement. International law, in this sense, is not a static compilation of legal instruments but an evolving body of accumulated normative commitments, interpretive judgments, and institutional memory.

Viewed from this perspective, international law possesses an inherently intergenerational character. It is both the product of prior normative labor and a framework intended to guide future conduct. Its authority extends beyond any single treaty, judgment, or diplomatic compromise because it rests upon a historically constructed structure of expectations that successive generations of States and institutions have reinforced and reproduced.

This framework also clarifies the broader significance of violations. When breaches are isolated and effectively addressed through institutional mechanisms, the overarching normative structure may remain intact. However, when violations become recurrent, publicly rationalized, and systematically left unremedied, they do more than contravene discrete legal rules. They corrode the underlying expectations of legality and self-restraint upon which the authority of the system depends. Repetition gives rise to a cumulative process of normative erosion, whereby the shared belief in the binding character and impartial applicability of the law gradually weakens. Under such conditions, international law risks forfeiting its status as a credible framework for governance and instead devolving into a selectively invoked instrument of power projection.

Conceiving international law simultaneously as a positivist system of State-generated obligations and as a collective normative heritage allows these dimensions to be reconciled rather than treated as mutually exclusive. Positivism elucidates the formal mechanism of validity through State consent; the concept of normative heritage illuminates the historical and sociological depth that endows such consent with enduring authority. The stability of international law ultimately depends not only on the creation and articulation of rules, but also on the preservation of the normative environment that sustains their legitimacy over time.

In sum, understanding international law as both a positivist system of state-generated obligations and as a repository of the international community’s normative heritage reveals the deeper stakes of maintaining its integrity. Violations do not merely challenge discrete legal commands; they threaten the historical and sociological foundations upon which the authority of international law itself rests.

Repeated Violations and the Erosion of Legitimacy and Obligatoriness

When international law is viewed as a normative heritage, repeated violations carry implications beyond discrete instances of non-compliance. These acts do not merely reflect the failure to fulfill legal obligations; rather, they incrementally erode the perceived legitimacy and binding nature of the legal system itself. As Thomas Franck noted, the motivating force behind compliance in international law is inherently tied to legitimacy, understood as the conviction that rules warrant obedience. The ongoing disregard by dominant states, the selective application of legal standards, and justificatory narratives that rationalize deviation collectively erode the shared belief that international law imposes genuine constraints on state behavior.

For example, the principle of the prohibition of the use of force and the restriction on preemptive attacks—both of which constitute among the most fundamental norms of international law—have, in the contemporary era, repeatedly been disregarded by states. Such conduct not only endangers the international order but also directly undermines the legitimacy and durability of this normative legacy. This is because rules that are the product of the collective and historical will of states lose their capacity for preservation and continuity in the absence of practical compliance by the principal actors.

The prohibition on the use of force, codified in Article 2(4) of the United Nations Charter, represents one of the most deeply entrenched norms of the contemporary international legal order. Its emergence reflects not a momentary political compromise, but the culmination of decades of catastrophic conflict, protracted diplomatic negotiation, and collective determination to establish legal constraints on interstate violence. The norm embodies a historical commitment to replacing unilateral military action with a rules-based system centered on collective security and institutional accountability.

Within this framework, discussions in the legal literature regarding military strikes against Iran have raised significant concerns about the robustness of the prohibition on the use of force. Where such operations appear to fall outside the narrow exceptions recognized under international law—namely, self-defence under Article 51 or authorization by the Security Council—they challenge not only the legality of the specific incident but also the stability of the Charter-based system governing the use of force. Each departure from the established framework risks signalling that compliance with foundational norms is contingent, negotiable, or politically expedient.

These concerns intensify in situations where reports suggest that attacks have affected civilians or civilian infrastructure, including medical facilities or research institutions. Under international humanitarian law, the principles of distinction and proportionality impose strict obligations on all parties to an armed conflict. The deliberate or indiscriminate targeting of civilians, hospitals, or other protected facilities constitutes a serious breach of the Geneva Conventions and may amount to a grave violation of humanitarian law. Such incidents, therefore, engage not only the jus ad bellum framework but also the core protective regime governing conduct during hostilities.

The ramifications of these violations extend far beyond the immediate consequences of a particular strike. Norms such as the prohibition on the use of force and the humanitarian protections afforded to civilians are the product of generations of legal development and diplomatic practice. When they are repeatedly disregarded, their intergenerational normative authority is placed at risk. Over time, such erosion threatens to weaken the structural integrity of the international legal order itself—an order that depends fundamentally on the perceived stability and universality of its foundational rules.

This form of erosion is especially consequential from the standpoint of international law, as it disrupts the intergenerational transmission of normative authority. Repeated violations communicate to future actors that legal commitments are conditional, discretionary, or politically malleable. Such signaling weakens the inherited authority of norms developed through sustained legal and diplomatic labor over decades. The resulting harm is not limited to those directly affected by specific breaches but extends to the structural integrity of the legal order itself.

Impact on Customary International Law and Opinio Juris

The relationship between repeated violations and customary international law is frequently misconstrued. While it is firmly established that repeated violations do not, in themselves, give rise to new customary norms, sustained non-compliance can nonetheless diminish the normative force of existing rules by eroding opinio juris (ICJ, Nicaragua v United States, 1986). The authority of customary international law rests not only on consistent state practice but also on a shared conviction that such practice is legally obligatory. When violations occur with increasing frequency, particularly when accompanied by justificatory silence, denial, or exceptionalist rationale, the psychological foundation sustaining the rule begins to deteriorate.

This dynamic does not imply a seamless shift from illegality to legality. Instead, repeated breaches produce a form of normative dilution: the rule remains formally intact, yet its ability to generate compliance, structure expectations, and anchor legal responsibility becomes progressively weakened. Viewed through the lens of normative heritage, this process constitutes a degradation of inherited legal authority, wherein long-established norms lose prescriptive clarity and force without being formally repealed.

Consequences for International Institutions and State Responsibility

The erosion of normative authority has direct consequences for international institutions responsible for interpreting, applying, and enforcing international law. Judicial bodies, such as the International Court of Justice, rely on the foundational premise that international law retains sufficient authority to justify adjudication and ensure compliance with its rulings (ICJ Statute, Arts. 36–38) when repeated violations normalize disregard for legal obligations, judicial decisions risk being perceived as advisory or politically contingent, thereby weakening their systemic role.

Political bodies such as the UN Security Council are similarly affected. Selective enforcement, inconsistent responses to breaches, and politicized accountability practices foster a perception that legal standards are applied unevenly, further diminishing the normative legitimacy of the international legal order (Koskenniemi 2011). In the context of state responsibility, the cumulative outcome is a weakened deterrent effect: when violations no longer predictably lead to legal consequences, the inherited expectation of accountability, central to the conception of international law as a normative heritage, is gradually undermined.

Taken together, these institutional repercussions reinforce the argument advanced in earlier sections: repeated violations do not merely infringe legal rules; they erode the normative infrastructure that enables international law to function as a shared, intergenerational legal framework.

Post-Classical Positivism 

One of the classical foundations of international legal theory is the positivist school, which locates the source of international legal rules in the will of states. According to this view, international law is not the product of morality, natural justice, or a supranational authority, but rather the outcome of the consent and agreement of sovereign and independent political units. In the thought of scholars such as Hans Kelsen, the validity of legal norms is analyzed within a hierarchical normative system ultimately grounded in the structural acceptance of states. Likewise, in the rule-based analysis of H. L. A. Hart, the identification of legal rules depends upon their social acceptance by the primary subjects of the legal system.

However, the “will” invoked by positivism need not be understood merely as the discrete and momentary will of individual states. Rather, it may be conceived as a collective and historically constituted will of the international community. The rules of international law—particularly in the realm of custom—emerge through the gradual accumulation of state practice and the formation of a belief in legal obligation (opinio juris). This process demonstrates that an international rule is the product of continuous interaction, implicit dialogue, and shared historical experience among states, rather than the result of a single, instantaneous act of agreement.

On this basis, international law may be regarded as a normative legacy formed over centuries within the context of humanity’s political, social, and economic transformations. This normative heritage reflects the fundamental requirements of global order and the preservation of peaceful coexistence among states. Even the emergence of concepts such as peremptory norms (jus cogens) and obligations erga omnes indicates that certain rules transcend the level of individual state consent and embody the collective will of the international community—a will which, by virtue of its foundational character, does not permit unilateral derogation.

In conclusion, while international law is indeed grounded in the will of states, that will possesses a collective, gradual, and historical character. Such an interpretation preserves the positivist framework while distancing it from strict voluntarism and reorienting it toward a community-centered and evolutionary understanding—one that conceives international law not as a transient set of contractual commitments, but as the shared normative capital of the international community.

Conclusion

Framing international law as a normative heritage clarifies that its authority rests not merely on formal validity but on enduring recognition and intergenerational continuity. Repeated violations, especially when accompanied by justificatory practices and inconsistent institutional responses, do not simply undermine individual obligations; they progressively erode the shared expectations and normative confidence that sustain international law as a coherent framework of authority. This erosion does not abolish legal rules or convert illegality into legality. Instead, it reveals a structural vulnerability in which formally binding norms remain intact while their ability to guide conduct, reinforce opinio juris, and support accountability is gradually diminished. The central challenge now confronting international law is not its survival, but the safeguarding of its normative authority: whether that authority can be preserved and credibly passed on to future generations.