Here's a perspective that might challenge conventional thinking: international law is far from being weak or irrelevant. In today's interconnected world, it actually holds greater significance than ever before.
Recent Violations and the Perception Problem
This assertion might seem counterintuitive given recent global events. Legal experts point to multiple breaches, including former US President Trump's actions in Venezuela, involving the invasion and abduction of its President with plans for a trial in New York. Similarly, Trump's tariff policies likely violated international trade law, mirroring China's tariffs against Australia and other nations.
Russia's invasion of Ukraine is widely viewed as a violation of the United Nations Charter, which strictly prohibits the use of force except in specific circumstances like self-defence or actions endorsed by the UN Security Council—neither of which apply here. Additionally, Myanmar's violence against civilians and numerous atrocities in the Middle East represent clear breaches of international human rights law.
The apparent consequences for these violations have been minimal. Countries often turn a blind eye, arrest warrants from the International Criminal Court are ignored, and resolutions from bodies like the UN General Assembly frequently go unheeded. This leads many to question whether international law is anything but weak and ineffective.
The Fundamental Misunderstanding of International Law
This common view, however, is mistaken because it fundamentally misinterprets the nature and function of international law. The primary issue lies in comparing it to domestic legal systems, which creates a false equivalence.
Domestic laws operate vertically: a sovereign government creates and enforces laws upon its citizens. Break these laws, and you face penalties like imprisonment. International law, in contrast, functions horizontally. Sovereign states collaborate to establish laws that apply to themselves, determining how these laws are monitored and enforced, if at all.
These international laws primarily stem from treaties and customary international law—norms and established practices—but can also derive from soft law, such as resolutions by international organisations. The crucial distinction is that sovereign states voluntarily decide which laws govern them, unlike domestic systems where individuals cannot choose which tax or road laws apply.
Questioning the 'Weakness' Argument
This inherent structure makes it difficult to label international law as weak. What benchmark are we using? If the comparison is domestic law, the argument is flawed. If it's an unrealistic utopian ideal, it's fanciful. Historically, the world has improved, suggesting international law has had positive effects over time.
A more appropriate comparison is international cooperation itself. Sovereign states are not compelled to create laws that restrict their behaviour. The fact that they do so consistently is remarkable. Claims of ineffectiveness also don't align with evidence.
Evidence of International Law's Influence
Consider why the Bush administration sought a UN Security Council resolution for the 2003 Iraq invasion, or did the same for the 1991 Gulf War. Similarly, Australia only intervened in Timor-Leste after securing such a resolution. In these and many other cases, states—even superpowers—strive to justify their actions under international law, responding to diplomatic and moral pressure.
There are documented instances where states delayed or abandoned plans due to inability to gain international legal approval. Although measuring inaction is challenging, cabinet and national security documents likely contain examples of states refraining from actions prohibited by international law.
Even in contentious situations like Venezuela, the US Secretary of State argued that Maduro lacked legitimacy and thus didn't enjoy head-of-state immunity under international law. Whether one accepts this argument or not, it demonstrates that international law pressures administrations to provide justifications for their actions.
The Critical Distinction: Effectiveness vs. Perfection
This leads to a vital point: arguing that international law isn't as effective as desired is not equivalent to claiming it has no impact whatsoever. Moreover, while some advocate for stronger, more punitive international laws, would citizens support unelected international institutions making decisions on their country's behalf? Australians, Americans, and others might resist such overreach.
By abandoning comparisons to domestic law and utopian ideals, the value of international law becomes clearer. It facilitates cooperation, sets standards, and provides a framework for resolving disputes in an anarchic global system.
Conclusion: A Call for Realistic Appreciation
In an era marked by geopolitical tensions and complex challenges, international law is more essential than ever. Dismissing it undermines progress toward a more orderly world. Understanding its unique horizontal nature and realistic role in global affairs allows for a more nuanced appreciation of its contributions to stability and justice.
