Does international law matter? While diplomats, particularly from the United States, will often talk of a “rules-based” order, recent events are leading some to ask “where is ‘the rules-based order’ now?”
The U.S. has vetoed repeated United Nations Security Council resolutions calling for a cease-fire in Gaza. Even when it finally allowed one to pass by abstaining two weeks ago, the U.S. claimed the resolution was nonbinding. In any case, Israel flatly ignored it. The Security Council’s inability to pass an enforceable resolution in Gaza follows its continued inability to pass a cease-fire resolution for the war in Ukraine, this time due to Russian obstructionism.
The enforcement of international law appears just as toothless at the International Court of Justice and the International Criminal Court. The ICJ issued a ruling ordering Israel to address concerns over its conduct of the war in Gaza and may still issue a ruling against the legality of Israel’s occupation of the Palestinian Territories. For its part, the ICC issued an arrest warrant against Russian President Vladimir Putin for Russia’s policy of kidnapping Ukrainian children in its war against Ukraine. While the actions of the ICJ and ICC may suggest that states and their leaders will be held accountable for violations of international humanitarian law, they are unlikely to change their behavior, similar to the most recent U.N. Security Council resolution.
Even in the realm of international trade, the World Trade Organization’s dispute-settlement mechanisms appear to be on their last gasp due to state parties being unwilling to use the system or abide by any rulings it produces.
The late Israeli diplomat Abba Eban once pithily and cynically described international law as “the law which the wicked do not obey and the righteous do not enforce.” Is it now officially on its way to the scrap heap?
Such cynicism is understandable. But it is a mistake to look at all of these recent developments and conclude that the rules that underpin the rules-based order—namely the treaties and legal documents that are its hallmark—do not matter. Understanding why that is the case requires thinking more carefully about the purpose of international law.
Despite the pomp and circumstance surrounding treaty signings and the fixation on international court rulings, international treaties are not an end in and of themselves. Instead, the creation of international treaties and the rulings of international courts are just parts of a longer diplomatic process.
For instance, consider Prime Minister Benjamin Netanyahu’s decision to allow further humanitarian assistance to Gaza following his recent phone call with U.S. President Joe Biden. The readout of that conversation needs to be understood in the context of months of critical comments by Biden administration officials, culminating in the U.S. abstention at the Security Council. The cumulative effect of these actions helped to credibly reveal U.S. policy preferences and pointed to the U.S. willingness to further ramp up its diplomatic pressure.
When it comes to the diplomatic purpose of international law, one must always ask, “Who is the audience?” Most often, it isn’t the direct parties to the disputes, treaties and other bilateral agreements between states. It’s third parties.
To be clear, U.S. diplomacy didn’t end the killing in Gaza, and the Biden administration is still watching closely to see what actions Netanyahu takes to ensure more humanitarian aid is delivered. But the combined effect of all these efforts is to publicly signal that Israel needs to behave differently. And while many people criticized the callousness of former President Donald Trump’s comments to the effect that “Israel is absolutely losing the PR war,” there is something to his observation: A perception that a state is willing to flout international law is bad PR that can make it difficult to build support in the future.
Similarly, consider the recent dispute between Ecuador and Mexico, after Ecuadorian police raided the Mexican Embassy in Quito last week. Understandably upset over the raid, which violated the embassy’s inviolability under international law, Mexico cut diplomatic ties with Ecuador and will bring the issue before the ICJ. While that will not undo the damage done, it obviates the need for Mexico to show its seriousness through a mobilization of troops or even the imposition of sanctions.
As Charlie Carpenter wrote with regard to the laws of war, they can also serve an intermediary role in constraining behavior within opposing camps, by providing “language that empowers moderate conflict actors to restrain their own side.”
When it comes to the diplomatic purpose of international law, then, one must always ask, “Who is the audience?” Most often, it isn’t only or even primarily the direct parties to the disputes, treaties and other bilateral agreements between states. It’s third parties. Countries sign mutual defense pacts to signal their commitment to each other’s security, but also to deter other states. Countries sign bilateral investment treaties to encourage multinational corporations to expand economic activity in both countries. The U.S. abstention on the Security Council cease-fire resolution targeting Israel, with which it has strong relations, demonstrates that the U.S. would likely take stronger action against other states under similar circumstances.
International law, like any law, is not self-enforcing. It needs to be enforced by someone. Domestically, the state takes on that role, whether through police arrests or agency fines. Internationally, enforcement requires other members of the international community to take action that ensures a treaty’s terms are adhered to or a court’s rulings met. The secretary-general of an international organization can voice displeasure, and the chief justice of an international court can issue a decree, but someone must assume the task of enforcing the rules. In the international sphere, enforcement amounts to vigilante justice.
All of the above might still be disheartening, as it suggests that the famous formulation of the Melian Dialogue—“the strong do what they can and the weak suffer what they must”—still applies in world politics. But that doesn’t mean that international law doesn’t serve to moderate that behavior. One must always think of the counterfactual: What would the behavior be without the law? In most cases, the answer is, Probably worse. And the difference between them is why international law matters.
Paul Poast is an associate professor in the Department of Political Science at the University of Chicago and a nonresident fellow at the Chicago Council on Global Affairs.