OPINION
October 30th 2023
I left my last letter with questions regarding international law and how it applies to the Middle Eastern situation.
The first tricky question is: Who makes international law?
The second one is: To whom does it apply?
If there is such a thing as international law, what penalties can be applied in breaches of international law?
I am not an expert in international law, nor even an educated amateur so if there are glaring deficiencies in my letter please don’t yell at me but feel free to correct my writing. I have picked up a lot of background understanding from attendance at a major International Peace and Conflict Resolution centre.
What happens if someone breaks the law? They can be arrested, stand trial, and pay a fine or go to prison if found guilty.
What happens if a country breaks a law? The reality there looks quite different. The world has no global police force or international prison. If a country doesn’t like a certain law, it can simply choose not to follow that law. That makes holding countries accountable for their actions quite difficult.
In the aftermath of World War II, countries sought to ensure the world would never again experience such horrific conflict. In 1945, that effort led to the creation of the United Nations, whose founding document—the UN Charter—laid out rules whereby countries agreed to uphold human rights, respect borders, and settle disputes through negotiation and arbitration rather than conflict. (Hmm, Dr LR).
The UN Charter is not the single rule book for international law. Since World War II, countries have signed numerous agreements on issues both mundane and profound, including nuclear proliferation, trade, fishing rights, climate change, outer space, the treatment of diplomats, and the rules of war. That body of rules and regulations is collectively known as international law.
The UN Charter is not the single rule book for international law. Since World War II, countries have signed numerous agreements on issues both mundane and profound, including nuclear proliferation, trade, fishing rights, climate change, outer space, the treatment of diplomats, and the rules of war. That body of rules and regulations is collectively known as international law.
Ordinary citizens can’t simply pick and choose the laws that apply to them. Imagine someone agreeing not to commit murder but saying laws about robbery don’t apply to them.
International law, on the other hand, is based on voluntary buy-in. That means countries do in fact get to choose the laws that apply to them. If a government refuses to follow the latest climate accord, there’s little anyone else can do to hold that government accountable. But sometimes, those laws can help mobilize domestic groups that work to hold their governments to account or encourage their governments to sign new agreements.
Countries do not follow certain international laws for several reasons. Sometimes governments believe that international laws clash with their national interests. For example, North Korea withdrew from a treaty prohibiting nuclear weapons in 2003 because it claimed that acquiring nuclear weapons was necessary for its defence. Few, if any, instances exist in which a country would sacrifice its national interest to abide by international laws.
In addition to the ICJ, ICC, and ECHR, dozens of courts and tribunals work to enforce international law. Some focus on particular regions, while others cover the entire globe; some tackle a wide range of issues, while others hear cases related to specific topics like trade, nuclear energy, or maritime disputes.
One commonality between those courts is the challenge of holding offenders accountable for their actions. Take the International Tribunal for the Law of the Sea. In 2016, the court ruled that China’s territorial claims to the highly contested South China Sea had no basis in international law. Despite that ruling, China has continued to militarize the region and has faced few, if any, consequences for its actions.
Although international law has facilitated negotiation and cooperation among countries on issues of global importance like trade and climate change, those agreements have their limitations. Most important, without a global enforcement mechanism, countries will never agree to sacrifice their national interests to comply with an international legal ruling.
Source. Council on Foreign Relations (CFR), What is International Law? 25th July 2023. Accessed via https://world101.cfr.org/understanding-international-system/global-governance/what-international-law.
The UK House of Commons produced an interesting (try comprehensive) briefing paper on International Law.
State Responsibility
Under the law of State Responsibility, the general rights and duties of states when it comes to breaches of international obligations have developed according to state practice. These rules are set out by the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, which were adopted by the UN General Assembly. Consequences for an internationally wrongful act (a breach of an international obligation) include:
• An obligation to cease the act;
• An obligation to offer guarantees of non-repetition, if appropriate;
• The following remedies, where appropriate in each situation:
- Restitution: to re-establish the situation that existed before the breach, so long as this is not impossible or disproportionate;
- Compensation: to pay compensation for financially assessable damage;
- Satisfaction: an acknowledgement of the breach, an apology, or another appropriate alternative to the satisfaction of the victim state or party.
• Countermeasures: a legal right of the victim state or party to take action that may normally be illegal in order to induce the wrongdoing state to adhere to its obligations. This usually includes the use of sanctions, but comes with a number of safeguards to prevent the abuse of this avenue, including:
- Countermeasures cannot breach important obligations, such as human rights or the prohibition of force;
- Their use must be proportionate;
- Procedural safeguards, such as notifying the target state, and giving an opportunity to make good on their breach; and
- Terminating countermeasures when the purpose is fulfilled.
All of these conditions require interpretation and each raises the question of who interprets them in any situation. It also requires an understanding of whether Hamas, Gaza and the West Bank are states.
Israeli settlements Israel’s continuing use of settlements in the Occupied Palestinian Territory, has repeatedly been condemned internationally as a violation of international law, including in an Advisory Opinion of the International Court of Justice declaring that the building of a dividing wall in occupied territory was a violation of international law. Several Resolutions of the United Nations Security Council also recognise the illegality of Israel’s activities in UN Security Council Resolutions 446 (1979), 452 (1979) and 465 (1980). Most resolutions addressing the situation have been blocked by the United States using its veto in the Council, but when the US has abstained, the Council has deemed the settlements as having “no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution. ”Despite this, the settlements continue to be built, with Israel arguing that they are legal under its national law.
Source. Principles of International Law, a brief Guide. Patrick Butchard.21st September 2020, House of Commons Library. Accessed via https://researchbriefings.files.parliament.uk/documents/CBP-9010/CBP-9010.pdf.
There is another unanswered question which merits a paper all of its own. What is the difference between Breaking International Law, Crimes against Humanity, and Genocide?
As an interesting footnote, I have seen it argued that, without a mechanism to ensure compliance with decisions or enforce punishment for transgressions, there is no such thing as international law. It has been argued that there are international guidelines and recommendations. So if after reading my piece anyone can define what international law is I would be grateful if you would let me know.