Are international legal barriers sufficient?

Khoo Wu Shaun

We live in a time when international law has steadily become an accepted norm of global diplomacy. Today, unilateral invasions of other sovereign countries are decried as ‘violations of international law’; barely a century ago, the only sounds anyone heard were those of the victors announcing their success. We have come quite a long way since Bentham first coined this term in the 18th century.

Yet, international law has not shed its image of being toothless. We have seen countries act in defiance of international law, but leave happily unpunished for their transgressions. This article will examine what these international legal barriers are, and whether they are currently sufficient to deter countries from intruding on the sovereignty of other nation-states.

Questions of legality in an international context are far more complex than those in a local context. Within a country, sovereignty empowers the government to set and enforce laws on people within its jurisdiction. Globally, it is difficult to define any clear overriding principle or government which can fulfil those roles. Our closest option is the United Nations (UN), an inter-governmental organisation which serves to promote peace and cooperation between member states. The International Court of Justice (ICJ), founded in 1945, serves as the UN’s judicial branch. Its purpose is to settle legal disputes submitted to it by member states and provide advisory opinions on legal questions for the UN bodies. But, since there is no global legislation for international law, where do these legal barriers we apparently pay homage to come from?

In the landmark North Sea Continental Shelf case, the ICJ affirmed that there are two primary sources of international law: treaties, or customary international law (CIL). Treaties are more enforceable than custom, as the countries have explicitly consented to the provisions contained within the document. In contrast, CIL is derived from customary practices between states. 

Most are aware that UN Security Council (UNSC) resolutions are legally binding on all member states in the UN. In some sense, UNSC resolutions also serve as a form of international law, since it applies to all countries regardless of whether they agree with the content of the resolution. Since their legal authority flows from the UN Charter, UNSC resolutions fall under the first category of treaties and agreements. 

Thus, international jurisprudence clearly exists, although it is less obvious than national legislation. Another question arises here: since there is no global government, what kind of punishments can international law mete out, and are these effective?

Theoretically speaking, the ICJ enjoys unfettered discretion in handing down punishments to countries which have violated international law, since there is no “international legislation” which states the maximum or minimum punishment for a particular offence. Realistically, the ICJ has little room to mete out harsh punishments, as their credibility hinges on countries viewing the ICJ as a fair judicial body, and not an overly strict and punitive institution. Despite this, the ICJ has doled out quite a few punishments, from ordering a country to withdraw from an occupied territory to ordering reparations for damages. Crucially, ICJ judgements are influential in global discourse. In the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ ruling that Israel had violated international law served as a powerful riposte to Israel’s constant denial to the contrary.

Although the ICJ seems toothless, its judgements are actually supported by the UN Charter, which empowers the UNSC to impose punitive measures for non-compliance, such as political and economic sanctions. Interestingly, most countries voluntarily comply with the judgement even if it was not in their favour. Countries are aware that if they lose and refuse to follow ICJ judgements, they will become outcasts for refusing to comply with international law. It is telling that no country has ever blatantly refused to comply with ICJ judgements. 

Akin to how punishments deter people from harming other citizens, international law also serves to deter countries from harming the sovereignty of other nation-states. Examples of such actions include the use of force in disputed maritime areas or intentional neglect of transboundary crises. Is international law sufficiently robust as a deterrent to such actions? 

While treaties and agreements are legally binding, they also require all parties to unambiguously agree not to carry out certain actions.If, however, the country has a strong incentive to keep their options open, they would simply refuse to sign. For example, Israel and India are both powerful nuclear-armed states which have not signed the Nuclear Non-Proliferation Treaty due to regional security concerns. This hurts the treaty’s objective to prevent the spread of nuclear weapons and its associated technology.

Perhaps UNSC resolutions are a better option since the resolutions are binding on all countries, circumventing the problem of requiring consent. However, the UNSC is only empowered to use its power in cases of “the maintenance of international peace and security”— hardly applicable to most problems in the world. Furthermore, the UNSC itself comprises countries which can protect their interests against the weight of international law – Russia and its annexation of Crimea come to mind here – and may not work in intractable situations.

The last possibility is customary international law, which appears to be the weakest tool of all three legal instruments. Yet some fundamental international principles— the right of international passage, rules on the use of force, and the duty to cooperate in transboundary environmental harm— were first conceptualised and subsequently reinforced in ICJ cases. These landmark cases have reinforced widespread agreement on certain issues, and crystallised this consensus into official CIL, thereby ensuring its fair application to all countries involved. Moreover, as we’ve seen, the ICJ has the influence and backing to ensure that its judgements are respected by the countries involved in disputes.

One drawback is that the ICJ does not have legal jurisdiction unless both countries declare they recognise the authority of the court. Some countries who have yet to officially acknowledge the ICJ have still proceeded with cases in it, somewhat undermining its authority. Furthermore, the Permanent Court of Arbitration (PCA), another international judicial body, recently ruled that it had jurisdiction over the Philippines’ case on China’s maritime and military activities in the South China Sea, despite China’s opposition to the proceedings. This demonstrates the growing force of international law which is slowly increasing its ability to influence global discourse and pressure countries into accepting its jurisdiction. This strengthens international legal barriers against unilateral intrusions on the sovereignty of other nation-states.

The implications of this are obvious. National legislation protects citizens, especially vulnerable ones, from harm. Similarly, international law functions as a protective barrier which shields weaker countries from the coercive pressures of stronger countries. In Nicaragua v. United States of America, the court ruled that the U.S. had illegally trained and funded anti-government rebels to overthrow the incumbent anti-American government. This sent a powerful message to the global community that superpowers cannot do as they wish: they are equally held to task by international law. 

Furthermore, global peer pressure and a body willing to persecute countries for illegal actions acts as a deterrent. For example, the U.S.’s foreign surveillance programme, PRISM, was criticised by government officials and legal experts from all over the world, forcing President Barack Obama to strengthen restrictions on the National Security Agency (NSA). In the past, the U.S. would have simply turned a deaf ear.

Having a strong understanding of its foundations, powers, and limitations is crucial towards developing this fledgling institution into an influential force for good in the world. Supranational judicial institutions, such as the ICJ and the PCA, still struggle for influence in countries where the rule of law and human rights protections are not as well-respected. It remains an uphill battle for these international courts as they slowly overturn the old belief that countries may do what they please as long as it is within their borders, or if they are the victors.

More essentially, international law serves as a platform for countries to tussle with each other over serious, but not drastic or permanent, intrusions of national sovereignty. In the past, the only available responses were acquiescence or full-out war. Today, international judicial bodies enable these countries to settle their disputes in a fair and peaceful manner. That must surely be the most important contribution that international law can make to the global community.