If international law suddenly did not exist, what difference would it make?
The conduct of Russia and of Israel, among many other countries, currently seems uninhibited by legal norms in general and individual sanctions in particular. The United States has just heavily bombed another sovereign state in an attack that had no visible support in international law. It would seem to be a situation of anything goes in world affairs, where might is right.
The answer, however, to the introductory question is that it would still make quite a difference. Mass killings and genocides around the globe do not undermine the existence of and need for an international order, any more than spree killings, the turn towards stochastic violence and organised terrorism by themselves mean there should not be any criminal laws.
International law—or what lawyers call “public international law”—will continue to exist despite the current extreme violence: countries will still make agreements with other countries, and there will still be international organisations. There will even be rules and standards that may be seen to apply regardless of the consent of the country.
Here a distinction can perhaps be made between the recognition of law and its enforcement. In the everyday lives of individuals and in the everyday conduct of nation states, behaviour is usually not regulated by the serving of a court order or by imposing a punishment, but on an understating that certain rules exist and that they should be complied by.
Russia, Israel and the United States, and most other countries, still enter into international agreements and still are members of certain international organisations. Certain countries may disregard international law in respect of certain things, but they also want to rely on international law when it suits them. This is, of course, hypocritical and outrageous, but it also means that international law is not absolutely absent even from aggressors and invaders.
International law continues to be recognised by the vast majority of countries. Even the United Kingdom, which has made a loud point of departing the rules of the European Union, complies with its international obligations. The transfer of sovereignty of Diego Garcia, for example, shows the quiet push of international legality despite the noisy complaints of those opposed to such decolonisation.
And so international law is, and will continue to be, generally recognised. Nation states will continue to comply with obligations freely entered into by treaty or other agreements. International organisations and legal instruments will continue to exist despite the horrific violence in many places. Countries will continue to recognise international law, when it suits them.
But recognition is not the same as enforcement, and enforcement of a law—or sanction for its breach—against an unwilling individual or entity is perhaps the ultimate test of any legal order.
Some legal commentators would insist that unless a law or sanction is capable of ready enforcement then there is not a meaningful legal order. In the words of the famous American jurist Oliver Wendell Holmes, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
Following this dictum of Holmes, if one prophesises that various international courts and tribunals will not ultimately do anything to adjudicate and punish any crimes of Russia or Israel or any other country committing atrocities, then one can say that international law—at least in in those respects—does not exist. International law may well otherwise exist, but it is making no difference.
But whether or not an act of aggression or mass killing is legal is often not the most important question for the perpetuator. There is the question of its practical purpose. There may also be a question of its moral justification. If an act achieves (or is believed to achieve) a certain aim or accords with some perceived ethical imperative, those responsible for lethal and destructive acts can shrug at the prospect of a finding of unlawfulness.
And therein is the essential problem about the enforcement, if not the recognition, of international law. It can be selective, if not one-sided: a high-sounding exercise in what is essentially victor’s justice. Not all war crimes are committed by those who end up losing the conflict. There is also the issue of standing: it is hard for powerful (or once powerful) states to convincingly insist on legal fairness in dealings with states and peoples that were until recently systemically and cynically exploited.
As Mahatma Gandhi said when asked what he thought about western civilisation, the consistent enforcement of international law on aggressive and abusive countries would be a “good idea”. And such enforcement is now not happening, at least in respect of certain well-resourced aggressors. But that should not mean that all international law is discredited: most of it mundanely plods on without much notice.
For international law to prevail over reluctant and faithless national actors may never happen. It may require international legal instruments to be amended. It will require the political leaders of countries to accept things they do not want to accept. It will also require political and judicial prudence and self-restraint. So it remains possible, even if it is unlikely.
We are at a low point in the story of the postwar international order, even if most countries continue to recognise international law and comply with it. Major countries picking and choosing which rules to follow and which ones to break is a striking feature of our age. This disregard is stark and brazen. And it was telling that in its bombing of Iran the United States did not even attempt to justify the attack in terms of international law. For President Trump, international vice does not need to offer any tribute to international virtue.
The author, a law and policy commentator, also writes the Empty City Substack.
