The Troubling Decline of International Law 309

While it is true that rogue states – most notably the USA – have always posed a threat to the rule of international law, I see no serious room to dispute that the development of the corpus of international law, and of the institutions to implement it, was one of the great achievements of the twentieth century, and did a huge amount to reduce global conflict.

The International Court of Justice, the Law of the Sea Tribunal, the European Court of Justice, the World Trade Organisation, these are just some of the institutions which have played an extremely positive role, helping resolve hundreds of disputes during their existence and, still more importantly, helping establish rules that prevented thousands more disputes from arising. Regional Organisations, dozens of them including the EU, the African Union and the Shanghai Cooperation Organisation, have also flourished.

The judgement of the ICJ in the 160 cases it has heard has almost always been respected by the parties to the case. That has applied even when the dispute is radical, inflammatory and had already led to fighting and deaths, such as the settlement of the Nigeria/Cameroon border. The ICJ has been a massive success story.

The foundation of the International Criminal Court in 2002 was the high water mark in establishing the rule of law as the guiding principle of international affairs. As with all the major worldwide institutions of international law, the UK had played a leading role in the establishment of the ICC. I was in the FCO at the time, and I remember the quiet confidence that eventually the USA would join up, just as they had with the UN Convention on the Law of the Sea after decades of havering. In fact, the ICC has been a major disappointment, of which more later. I refer to 2002 as the high water mark for the rule of international law, because subsequently the tide has turned decisively against it.

When Blair and Bush invaded Iraq, not only without the sanction of the UN Security Council but in the certain knowledge the Security Council was against it, and in Blair’s case against the unanimous opinion of the FCO’s entire cadre of Legal Advisers who stated that the war was illegal, they not only precipitated a crisis that has resulted in millions of deaths, they dealt a killing blow to the entire fabric of international law.

The results are now becoming every day more visible. We have just survived for now, thanks to Iran’s remarkable sense and restraint, a dangerous crisis in the Middle East following the illegal assassination of General Soleimani, who was travelling on a diplomatic mission at the time. The use on a massive scale of execution by drone – including execution of UK and US nationals – by the British and American governments, often without the permission of the government in whose territory the execution takes place, is an appalling breach of international law for which there appears to be no effective remedy.

The FCO Legal Advisers refused to advise that the killing of Soleimani was legal in international law. However the UK government no longer cares if something is legal in international law or not. The government line was originally that there was an “arguable case” that the assassination was legal, then after objections from legal advisers the line changed to “it is not for the UK to determine whether the drone strike is legal”.

The United Kingdom used to be a pillar, arguably the most important pillar, of international law. Thanks to a series of neo-con politicians, including Blair, Straw, Cameron, May and Johnson, the UK scarcely makes a pretence any more abut giving a fig about international law. It simply ignores the instruction of the United Nations and the International Court of Justice to decolonise the Chagos Islands. It refuses to implement the binding international arbitration on debt owed to Iran. It mocks the UN Working Group on Arbitrary Detention. It refuses to allow the UN Special Rapporteur on Violence Against Women into asylum detention centres. I could go on. A direct consequence of this is sharply diminished UK influence in the world, and in particular for the first time in 71 years it does not have a seat on the International Court of Justice. As the UK has effectively spurned the authority of the ICJ, this is scarcely surprising.

It was the UK’s reputation as an upholder of international law that moderated outrage at the UN at the UK’s anachronistic permanent membership of the UN Security Council. That international respect no longer exists, and the British Government are deluded if they think that the UK’s privileged UN status will last forever, especially as it can no longer be represented as a proxy for EU foreign policy.

The UN itself is of course suffering a sustained threat to its authority. It is simply ignored on the dreadful Saudi led disaster in Yemen. By refusing the Iranian foreign minister a visa to attend a Security Council meeting on Soleimani, the USA struck at the very purpose of the UN. If the institution is to be held the hostage of its geographical host, what is its purpose? Ultimately, to regain relevance the UN would have both democratically to reform and to relocate, perhaps to South Africa. I do not see that happening in the near future.

As for the International Criminal Court, that has been a severe disappointment which in many ways symbolises the collapse of international law. Its failure to prosecute Bush and Blair for the war on Iraq set its direction from the beginning. Waging aggressive war is in itself a war crime and was indelibly established as such by the Nuremburg Tribunal. That it was not specifically mentioned in the Rome Statute was a flimsy pretext from judges not willing to take on power. The same judges have bottled out of investigation of US crimes in Afghanistan and appear to be in the same process over war crimes in Gaza, where astonishingly there has been no backing from states for the ICC against Netanyahu’s threat to institute sanctions against ICC staff if investigations continue. I used to defend the ICC robustly over accusations that it was simply a tool of neo-con policy. I now find it very hard to do so.

The UK is not the only country ignoring international law. Spain’s repudiation of the European Court of Justice decision that Junqueras must be released to take his seat in the European Parliament is a huge blow to the prestige and authority of that organisation. Spain’s vicious persecution of Catalonia is itself the most comprehensive challenge that “western values” have faced for decades in the European heartland, by a large measure worse than anything which Orban has done. Spain completely ignores its Council of Europe obligations.

The structure of international law is looking very shoogly indeed. It does matter, a very great deal. The world is becoming a significantly more dangerous place as a result.


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309 thoughts on “The Troubling Decline of International Law

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  • Andrew Nichols

    The ICC is where all the big usually white and english speaking war criminals send all the little, usually non white and non english speaking war criminals. It is the judicial arm of the neocolonialist travesty called R2P which shamefully explouted the outragd at the Rwandan genocide to set up a means for Washington and its pathetic vassal states with enthusiastic mddia coverage to take out designated western enemies with some “legal” cover. I NEVER saw it as anything else given its author Alexander Downer, the craven neoliberal Neocon Australian FM who like almost all Ozzie Ozzie Oi Oi types never saw a US war that he wouldnt beg to join.

    • lysias

      Could the prospect of this meeting have been the real reason Assange was moved out of solitary?

      • michael norton

        Good point.
        Also, they want Julian’s health to improve, as if he is very ill he could not be extradited, so readilly.

  • Anthony Wikrent

    Murray fails to mention two important factors. 1) GATT and the WTO actually facilitated lawlessness by allowing multinational corporations to engage in trans-border arbitrage of national laws and regulations intended to protect workers, consumers, and the environment; and by legitimizing the investor dispute settlement process which is a gross violation of the political sovereignty of the peoples of nations to protect themselves using the regulatory, police, and judicial institutions of their own nations. No small part of the populist rage decried by elites is a reaction against this facilitated lawlessness. 2) The current regime of international law has done seemingly nothing about the tens of trillions of dollars in hot money and tax evasion in offshore financial centers. Meanwhile, billionaires have used their billions to buy control of political systems in many countries. Scholars have concluded, for example, that USA has ceased functioning as a democratic republic and become an oligarchy. Former President Jimmy Carter concurs. What part of this hot and dirty money has gone to financing the conservative and libertarian movements? These movements have propagated the idea that governments are “in the way,” further weakening the ability of peoples of nations to use the regulatory, police, and judicial institutions of their own national governments.

  • D MacDonald

    And judgment is turned away backward and justice standeth afar off: for truth is fallen in the street and equity cannot enter. Yea truth faileth; and he that departeth from evil maketh himself a prey; and the Lord saw it, and it displeased him that there was no judgment.
    Isaiah 59:14,15

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