Can we rely on international law during global conflicts?

UN Secretary General Antonio Guterres recently said a partial annexation of the West Bank by Israel 'would constitute a most serious violation of international law'. AFP

The recent devastation in Gaza, the turmoil in southern Lebanon, and the shifting dynamics in Syria after over a decade of civil war highlight a troubling trend in global geopolitics, where the spectre of conflict looms large against the backdrop of the ongoing war in Eastern Europe between Russia and Ukraine. These events evoke memories of the Iraq invasion and the war on terrorism in Afghanistan that followed the 9/11 attacks, alongside a persistent pattern of territorial ambition and the reconfiguration of state boundaries.

This raises a critical question about the nature and efficacy of international law: does it truly exist, and if so, is it respected as law?

To understand this, we must explore the historical evolution of international law, considering its foundations in religious and cultural contexts, and assess whether it serves as a genuine framework for justice or merely as a tool wielded by powerful nations to legitimise their actions.

In recent decades, international law has faced criticism for its ability to address challenges and maintain the monumental threshold of international order. In this article, we will explore the role of international law, examining whether it reflects the common interests and values of the international community equally.

The first person to name international law was the British philosopher Jeremy Bentham in 1780. International law consists of a group of rules, including consensus-based collective patterns of behaviour, consent by reciprocity, democratic dialogue and self-limitation. Voluntary self-restriction and the symmetrical operation of international law allow states to exercise maximum possible autonomy in creativity and legal rules, providing flexibility and pragmatism in the international legal framework.

International law exists through a complex web of diplomatic, political, economic, social and cultural standards. It regulates the use of force, trade, commerce, finance, the seas, space, threats, international relations and human rights. The main aim of international law is to achieve the good and welfare of the international community by fostering co-operation and peaceful co-existence. It seeks to prevent brutal force from becoming the regulator of world affairs, ensuring a certain degree of order and stability in international relations.

During the 15th century, European conquerors used international legal concepts to justify their colonialism. They shaped international law in their favour, considering European civilisation, religion, race, and ethnicity as superior to those of non-Europeans. The justification used was that they were to play a guardian role in civilisation, tasked with converting "primitive" peoples to Christianity.

The Treaty of Westphalia in 1648 established a new framework for a European state-centric order, which marked a shift in the intellectual basis of international law away from natural law. It introduced principles of absolute sovereignty, consent, and recognition, while often explicitly using racial and cultural criteria to determine statehood. This idea was further advanced by the Dutch humanist and lawyer Hugo Grotius in the 17th century. Notably, Turkey became the first non-Christian state to be recognised in 1856, breaking the prevailing norms of the time.

The Eurocentric dimension in international law received a significant boost from the Congress of Vienna (1814-1815), where Eurocentric ideals, morals and standards permeated every aspect of the normative character of international law. Another development occurred during the era of the League of Nations and the trusteeship system of the UN. The mandate system was created to govern the territories of defeated nations, classifying these territories as "backward" and assigning the "advanced" powers the responsibility to promote their self-governance. This system reflected and reinforced the Eurocentric perspective by assuming that western powers were best suited to guide these territories towards self-rule.

Colonialism was often justified through the establishment of a trust system, particularly in the context of supervising the power dynamics of the defeated Axis powers from 1940 to 1950. This institution of colonialism received further support under a new political guise in the UN, through its primary sources of international law. This included treaties, customary state practice, and general principles of international law recognised by "civilised" nations, as embodied in Article 38(1) of the Statute of the International Court of Justice. Superpowers often maximised their self-interests in international treaties, exploiting the lack of adequate legal knowledge among weaker states regarding their rights and duties.

Powerful states manipulated negotiations through trade-offs and arm-twisting, using promises of foreign investment, special trade terms, increased market access, and aid as incentives, while threatening to withdraw aid to coerce compliance with their interests. Customary international law provided a subtle legal framework that facilitated colonial and imperial aspirations, establishing unequal and subservient relationships between hegemonic powers and newly independent states.

This body of law in essence recognised European claims of civilisation and the mission to "civilise" non-Europeans, whose values and traditions were often denied, suppressed, and portrayed as primitive, thereby paving the way for the institution of colonialism. The general principles of law recognised by "civilised" nations served as sources of international law, often discriminating against the national laws of non-European states by excluding colonial peoples and tribal civilisations as subjects of international law.

The formal sources of international law, both prior to and after the Second World War, remained largely Eurocentric, reflecting European interests despite the substantial increase in non-European states. The General Assembly, represented by high state authorities, serves as a platform for all states to exchange views and adopt decisions through a democratic process, playing a general role in the progressive development of international law. However, Article 13 of the UN Charter states that its resolutions are largely recommendations and lack binding legal effect, falling short of becoming authoritative evidence of international law. In contrast, resolutions from the UN Security Council are binding, yet the council is composed of only 15 members.

The general aim of international law is to promote the common good and welfare of the international community by fostering co-operation and peaceful co-existence among nations. However, international law often faces criticism for being perceived as weak, with the adage "law without a sword is mere words", highlighting its limitations. Additionally, international law suffers from certain practical constraints, such as the veto power held by the permanent members of the UN Security Council, the lack of compulsory jurisdiction of the International Court of Justice, and the principle of domestic jurisdiction, which can hinder its effectiveness.

Despite these challenges, the pursuit of a just and co-operative international order remains a fundamental goal of international law. States may decide to forfeit legal considerations in favour of self-interest to achieve short-term political, economic or strategic goals. Powerful states are more likely to disregard international law when it doesn’t suit them, as they can often withstand external pressure or use non-compliance as a means to shape international law to their advantage.

International law arises from the tension between national individualism and global collectivism, as well as the balance between justice and order. The international community cannot be substantive in the absence of justice. State power is no longer sufficient to address complex challenges such as pandemics, terrorism, drug trafficking, money laundering, financial crises, disarmament, refugees, human rights, environmental issues, trade, economic relations and poverty.

Despite these continuing challenges, states regularly act in their self-interest, often publicly stating one position while covertly pursuing another. In the 21st century, states are not as sovereign as they once were. International law has shifted from a state-centric to a people-centric system; however, states will continue to function as the primary subjects of international relations.