Modern Challenges to
International Law
In recent times, the effectiveness and legitimacy of international law has been called into question. International armed conflicts in Ukraine and Gaza amplified criticisms of international law’s failures in ensuring global peace and security. Increasing tensions between East and West, and the Global North and South, undermine international cooperation, which is the bedrock of international law.
One must understand how these modern developments challenge international law’s effectiveness, and how the international rules-based order can overcome these challenges. For this, one must understand the root causes of the erosion of foundational principles of international law, failing international cooperation, multilateral gridlock, fragmentation and regionalism, and the increasing use of ‘lawfare’.
Erosion of Foundational Principles
At its very core, the UN was set up to maintain international peace and security, peacefully settle international disputes, and promote the respect for universal rights and self-determination of all nations.
However, in the past decade alone, the world has witnessed several international armed conflicts which the UN has been unable to stop. The most significant examples in the past few years are Russia’s invasion of Ukraine and Israel’s onslaught in Gaza – within the larger context of its prolonged military occupation of the Palestinian territories. Other examples of armed conflict include spillover conflicts between Israel and other States in the Middle East (including Lebanon, Syria, Iran, and Yemen), and the conflict in Sudan. It is estimated that since 2020 alone, more than 450,000 combatants have died in conflict.
Furthermore, the manipulation of the right to self-defence to allow for preventive self-defence’ raises questions about its acceptable limits. A handful of predominantly Western States deem it acceptable to conduct airstrikes in the territory of other States if they consider them ‘unable or unwilling’ to quash non-State actor groups perceived to pose a threat to international peace and security, without any recourse to diplomatic measures or collective security mechanisms prior thereto.
Major conflicts since the formation
of the United Nations in 1945
Undermining of International Cooperation
International cooperation appears to be dwindling in a time when it is needed more than ever. International institutions like the United Nations provide platforms to develop solutions for global problems. The development of treaties and institutions to govern the global commons, such as the oceans and the climate, showcase the benefits of international cooperation. Similarly, engaging in diplomacy to develop solutions to common problems between States solidifies global commitment to the peaceful resolution of disputes.
However, States are increasingly undercutting opportunities of international cooperation. In the last decade, there have been 30 treaty withdrawals, and 107 total treaty withdrawals since 1949. Examples of these include US President Donald Trump’s decision to withdraw from the Paris Agreement on climate, the US’ withdrawal from the Iran nuclear deal, and Russia’s suspension of its participation in the New START agreement. Quite recently, India’s decision to ‘hold in abeyance’ the Indus Waters Treaty, a water-sharing agreement with Pakistan, also indicates how such suspensions can be used as methods of lawfare.
Furthermore, the manipulation of the right to self-defence to allow for preventive self-defence’ raises questions about its acceptable limits. A handful of predominantly Western States deem it acceptable to conduct airstrikes in the territory of other States if they consider them ‘unable or unwilling’ to quash non-State actor groups perceived to pose a threat to international peace and security, without any recourse to diplomatic measures or collective security mechanisms prior thereto.
The Indus Waters Treaty is a legally binding international agreement, and both parties are obligated to uphold its provisions
World Bank on suspension of Indus Water Treaty
Multilateral Gridlock
As mentioned before, multilateral institutions provide a platform for international cooperation. However, increasingly these platforms are equally prone to deadlock due to structural problems.
The most evident example of this is the UN Security Council, where the Permanent Five members hold the power to single-handedly veto proposed resolutions. The veto power has been heavily criticised in the past three years in light of the Russia-Ukraine conflict and Israel’s war on Gaza. Russia has vetoed all resolutions pertaining to its aggression on Ukraine since its 2014 annexation of Crimea. Similarly, the USA, a close ally of Israel, has vetoed almost all tabled resolutions requiring Israel to cease all hostilities in the Palestinian territories. Many have criticised the use of these vetoes as harmful and counterproductive to the UN’s overarching mission of protecting international peace and security through collective measures, leading to the UNSC’s paralysis in critical junctures.
|
Member |
Vetoes |
|---|---|
 |
129 |
 |
89 |
 |
29 |
 |
19 |
 |
16 |
As mentioned before, multilateral institutions provide a platform for international cooperation. However, increasingly these platforms are equally prone to deadlock due to structural problems.
The most evident example of this is the UN Security Council, where the Permanent Five members hold the power to single-handedly veto proposed resolutions. The veto power has been heavily criticised in the past three years in light of the Russia-Ukraine conflict and Israel’s war on Gaza. Russia has vetoed all resolutions pertaining to its aggression on Ukraine since its 2014 annexation of Crimea. Similarly, the USA, a close ally of Israel, has vetoed almost all tabled resolutions requiring Israel to cease all hostilities in the Palestinian territories. Many have criticised the use of these vetoes as harmful and counterproductive to the UN’s overarching mission of protecting international peace and security through collective measures, leading to the UNSC’s paralysis in critical junctures.
Fragmentation and Increasing Regionalism
Multilateral gridlock is both a cause and an effect of increasing fragmentation in the international legal system. Where multilateral systems fail to deliver on their promises, they lose the confidence of their Member States. As a result, international law is becoming increasingly fragmented across two fronts: regions and issue-area.
Regional groupings are becoming increasingly institutionalised in the form of counter-mechanisms. Existing regional systems, such as the European Union, the African Union and ASEAN are becoming epicentres for developing consensus for norm creation – the EU Artificial Intelligence Act is a key example of how such platforms are more conducive to the creation of international law. New emerging regional and international organisations, such as the Shanghai Cooperation Organisation and BRICS, are further indication of the reduced trust in traditional systems, such as the UN.
Fragmentation also follows on from the increasing specialisation of international law. Areas such as the law of the sea, environmental law, and human rights have their own dedicated treaties, secretariats, adjudicative bodies, reporting procedures, and compliance mechanisms. While some argue that this was expected, given the proliferation of international law in both theory and practice, others argue that this should be addressed through a ‘constitutional’ approach with a greater degree of centralisation. However, where such control will be centralised, or how this will take place, remains unanswered.
Lawfare
The term ‘lawfare’ refers to “the strategic use of law with the purpose of delegitimizing, harming, or annihilating an enemy”. In international law, States are increasingly using lawfare in both lawmaking and its implementation to establish their legitimacy and often shape public opinion in the midst of ongoing global tensions or conflicts. Lawfare includes the strategic use of international courts and tribunals, with States aiming to gain legal advantages over opposing States.
Use of international courts and tribunals to gain legal advantages over opposing States
South Africa’s case against Israel under the Genocide Convention for its ongoing hostilities in the Gaza Strip, and the ICJ’s pronouncement of a ‘plausible’ genocide.
Israel continuously invokes principles of international humanitarian law to defend its actions in the Gaza Strip, framing its hostilities as ‘proportionate’ and ‘necessary’; however, the overwhelming majority of States and international institutions, including the UN General Assembly, have disagreed with these interpretations.
Lawfare functions as a form of rejection toward specific decisions
China did not accept the Permanent Court of Arbitration’s ruling that it had violated the Philippines’ rights in its exclusive economic zone (EEZ).
They claimed ‘historic rights’ over those waters, a legal concept that is not backed by modern international law. However, the PCA disregarded the historic rights argument on the basis of the UN Convention on the Law of the Sea awarding EEZs to all coastal States.
Lawfare employed through multilateral institutions to influence or constrain state behavior
The Financial Action Task Force (FATF)’s grey listing of Pakistan caused significant economic losses, with one study by Tabadlab estimating a loss of USD $38 billion.
Pakistan was required to improve its anti-money laundering and counter-terrorism financing frameworks to get off the grey list, which it successfully did by October 2022. The grey-listing process is criticised as being politicised and non-transparent, and acting as a form of coercive power that is not truly multilateral in nature.
Conclusion
These are a few of the main challenges that international law seems to be facing in modern times. The fracturing of the international legal order, paralysis of long-standing and celebrated institutions, and reduced cooperation challenge international law’s continued relevance.
However, in light of these challenges, one can argue that international law is becoming increasingly relevant and central in the global discourse. Moving forward, we must renew our commitment to strengthening multilateral institutions, promoting accountability and transparent decision-making processes, and preventing international law’s misuse in global power politics in an increasingly polarised world.