Recurring breaches and non-enforcement of international law have persisted since the adoption of the UN Charter and the establishment of the post-World War II (WWII) legal order, which remains in place today. Scholars have repeatedly issued death certificates to Article 2.4 of the UN Charter and have raised fundamental questions about the weaknesses of this legal system and its institutions, even questioning whether international law can truly be considered law. Thus, given current global events, it is regrettable to say that little has changed regarding breaches and non-enforcement of international law.
What is new in international affairs and challenges the fabric of international law even more fundamentally is the current attitude of States toward international law. As Michael O’Flaherty, the Council of Europe Commissioner for Human Rights, has recently observed:
“In recent years, we have seen a pulling away from the standards, a willingness to say, ‘if I don’t like the standards, it doesn’t apply to me…. Your government might do bad stuff, but it would still make every effort to persuade you that it wasn’t doing the bad stuff. And today it’s as likely that they’ll say, ‘Yes, we’re doing the bad stuff. And that’s because that’s our choice. That’s what we need in this particular moment,’”
Attitude refers to a way of thinking or feeling about something, often reflected in behaviour. In national law, thoughts and feelings do not necessarily erode the authority of law and institutions. Certainly, new governments and legislatures translate ideas and sentiments into law, but they do so through established legal procedures. In this way, attitudes influence new laws, through which they may erode certain values and principles. However, the authority and legitimacy of national law are not necessarily undermined by shifting attitudes alone.
In international law, however, attitude plays a significantly different role in shaping norms, influencing the use of international institutions, and determining the authority of law. What States think is a crucial factor in the formation of customary international law. Opinio juris – the belief that a practice is legally required – is shaped by State attitudes and perceptions. Moreover, consent, the foundation of international legal obligations, can be expressed through various means, including tweets, public statements, and even phone calls. This makes language a critical element of international law. In fact, international law is fundamentally dependent on words and attitudes.
According to the International Court of Justice (ICJ), the attitude of States more than their actions determine the strength or weakness of the validity of legal norms. Addressing the issue of repeated violations of international law, the ICJ in the Nicaragua case stated that:
“If a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule”.
As Hart observed, a legal system can only exist if its secondary rules are “effectively accepted as common public standards of official behavior by its officials” (p 116). Thus, beyond the question of compliance, in order to understand the relevance of international law in international affairs, one must ask whether States are still willing to use the language of international law to define what is permissible in international politics.
The attitude of States towards international has not always been amicable. Jens David Ohlin, in his book Assault on International Law, shows concerted efforts made by State officials, legal advisers and academics to undermine international law and its compliance. However, these assaults – driven by self-interest – targeted specific norms and institutions. There is a fundamental difference between contesting specific rules of the game and refusing to play the game as a whole, and while the examples discussed by Ohlin seem to mostly illustrate the former attitude, recent developments seem to highlight a growing tendency towards disregarding the international legal system in its entirety. Looking at the current global affairs, the general attitude of certain powerful States towards international law has never been worse. According to the US President Trump, “[h]e who saves his Country does not violate any Law”. Reading this in the context of his recent statements and narrative one can easily conclude that Mr Trump is not referring to circumstances precluding wrongfulness under ARSIWA when he refers to actions that justify saving the country. Instead, it suggests that national interests, whatever they imply, may justify any kind of action in international affairs. On this ground, he has not excluded the possibility of the use of force to take over Greenland and has threatened other neighbouring countries.
Attitude is usually matched with behaviour, and it is this combination that may erode international legal order as a whole. Sanctions against the International Criminal Court (ICC) aim to paralyse an international organisation and send a clear message against international accountability. The recent approach of Mr Trump with regards to Russia-Ukraine peace talks further undermines not only the position of Ukraine, but of international law as a whole. By favouring a negotiation where everything is on the menu, we disregard the fact that acquisition of territory through aggression is prohibited under international law, the obligations to ensure reparations, and that there should be international criminal responsibility for international crimes. This attitude also suggests that amnesties for international crimes are open to negotiation, and power sharing arrangements incompatible with human rights could be accepted.
This new attitude of disregard for international law is matched with a new attitude of rubbish justifications for breaches of international law. In the wake of Russia’s aggression against Ukraine, Fuad Zarbiyev, argued that the most remarkable thing concerns Putin’s attitude towards international law. Zarbiyev distinguishes lies, used by other States in relation to other breaches of international law, and the bullshit argumentation in the case of Russia’s invasion of Ukraine:
“the allegations of the United States about the development of weapons of mass destruction in Iraq and the latter’s links with terrorist organizations were lies because even though they were factually inaccurate, they were made with an eye on the truth. In contrast, Russia’s allegations about the genocide in Ukraine are bullshit because they were made without the slightest attention to or concern with the truth. But more generally, I submit that all the justifications put forward by Russia in connection with the invasion of Ukraine are situated vis-à-vis international law exactly how bullshit is situated vis-à-vis the truth: they are not on either side of the game of international law”.
Zarbiyev reminds us that “there are justifications and justifications… [and] taking Putin as offering international legal justifications would be adding insult to injury.”
Attitudes and behaviours are contagious, and this is especially so when it concerns the actions of powerful States. According to philosopher René Girard, humans’ ability to copy each other was the characteristic that most differentiated us from other animals. In his view, imitation also explains our desires – they are copied from others, either consciously or unconsciously. Following on Girard’s work, Pieter Thiel claims that China and the United States are increasingly becoming ‘mimetic doubles’ of each other. As they compete more strenuously to be the world’s number one power, and mirror each other’s strengths in order to advance that goal, they will inevitably become more and more alike – and their mutual antipathy will grow.
The fact that the attitude of disregard for international law characterises the approach of global superpowers is particularly worrying. The capacity of international law to inform the behaviour of States is in fact largely dependent on the willingness of the most powerful States to observe and engage with international law. In The Concept of Law, Hart stressed that while “no individual is so much more powerful than others, that he is able, without cooperation, to dominate or subdue them for more than a short period’, in ‘international life’ there are ‘vast disparities in strength and vulnerability between the states” (p 195). Whereas the “approximate equality among individuals would [make] obvious the necessity for a system of mutual forbearance and compromise which is the base of both legal and moral obligation, the inequality between the units of international law is one of the things that has imparted to it a character so different from municipal law and limited the extent to which it is capable of operating as an organized coercive system” (ibid). Although the pessimistic stance of Hart towards international law is well-known, it is hard to deny that the disparities among States make it necessary to involve powerful States in international institutions, and in the game of international law more at large. To provide an illustration, the veto power of the five permanent members of the Security Council was the price that the international community was willing to pay in order to ensure the survival of the UN project despite macroscopic power disparity. Acting within the framework of international law is, we contend, in the best interest of every State, including the most powerful ones. However, given the de facto inequality among States, it is not impossible to imagine a world where regional powers play their own individual games, opting out from or simply ignoring universal legal rules and principles.
Since the end of WWII, our discipline was based in a belief that when a State feels compelled to justify its actions in terms of international law, it acknowledges rather than disregards its relevance. At times international law was used only as a performative act, but other times it has also encouraged behaviour of compliance, solidarity and cooperation. Most importantly, it has ensured that international law is intact, despite flaws, weakness and moments of desperation.
International lawyers have traditionally criticised the ‘hypocrisy’ of international actors which deliberately violated international norms while speaking the language of international law and human rights. However, it would be a mistake to believe that the disregarding attitude of some States towards international law is just a more direct way to conduct business as usual. Despite its undesirability, the hypocritical use of international law preserves the grammar, categories and criteria of international law for future use and signals that international law continues to be perceived as an authoritative discourse. By contrast, the alternative put forward by some actors seems to consist in a logic where everything that is physically possible is acceptable if it serves national interest.
The current attitude toward international law brings a new and unprecedented challenge to the world legal order. It undermines international law as a basis for resolution of disputes in international relations, and makes international institutions redundant in their task to ensure and monitor compliance. History of the 1930s and the end of the League of Nations teaches us that the end of such rules and institutions has a potential to produce horrors that we have witnessed twice in the past century. It is precisely because of the latter that all States must react against the bullisation of international law, and step in to protect international law and institutions. The response of 79 States in support of the ICC against the US sanctions, and the recent UN General Assembly resolution condemning Russia’s aggression against Ukraine, despite and especially considering the US, Russia and China’s objections, are a move in the right direction. European States have the power and platforms to do more in this regard, and the Global South can be a valuable partner in ensuring that the conversation on reform is distinct from one that undermines international law.
