Γράφει ο Εμμανουήλ Παναούσης
Abstract
In this paper, we explore some of the foundational characteristics of modern International Law and its relation to International Affairs. We also conduct a broader ontological inquiry as to International Law’s normative implications, while estimating its impact in a world characterised by geopolitical tensions. Our research focuses on two dimensions. 1) Normative doctrinal legal scholarship and 2) Theory-informed conceptual analysis. The methods are qualitative, analytical, and interdisciplinary. After scrutinising both the changing and unchanging aspects of International Law, we conclude that the discipline is both evolving and safeguarding its unchanging foundations. We also remark on the correlation between the prevalent International Relations theories and International Law, observing that parts of it are immediately affected by theoretical assumptions.
Keywords: International Law, International Relations, Diplomacy, United Nations
Introduction
The current International Law landscape is witnessing a rupture, a partial alienation from the sovereign equality of its members in the exercise of International Affairs. Whether that strikes us as new ought to be examined in diplomatic, legal, and historical perspectives. International Law was forged in the anvil of a necessity for bilateral and multilateral action. It traces its origins to the Peace of Westphalia of 1648, which established the concept of sovereign states. However, for centuries, states have been wanting to regulate their affairs
through the conclusion of treaties. In the 20th Century, the United Nations have been the primary forum for the conduct of International negotiations.
International Law in Context
International law is a special type of legal framework of a debatable nature. Lacking a higher authority to enforce legality, it rests on the goodwill of the participants to uphold it. Certain aspects of it, however, are indisputable, such as the United Nations Security Council Resolutions. (UN Charter, Article 25) The council’s five permanent members (the UK, US, France, China, and Russia) are never too far from the scene and always hold a veto over a resolution. (UN Charter, Article 23§1 & 27§3) International Law is thus imposed when the major powers agree on how to manage a given menace to international peace and security. A veto in the Security Council can mean the prevalence of state interests over International Law.
International law, like diplomacy, constrains the unlimited exercise of the power of sovereign states. In that sense, International Law can resemble a constitution, with its detailed structure and content animating the spirit of international cooperation and legality. Nevertheless, enforcement of the law remains elusive, thereby setting it apart from constitutional law. (McShane, 2014)
Is International Law non-binding in its entirety?
Although most rules are not enforced by a higher authority, some clear exceptions define the International Community’s decency and tolerance in the face of despicable crimes. Those are peremptory norms, or rules ‘Jus Cogens’. Tolerating no deviation, Jus Cogens applies holistically and invalidates any rules opposing it. Included are the prohibition of genocide, torture, non-refoulement, wars of territorial aggrandisement, and slavery. (Bassiouni, 1996) The limits of what constitutes a Jus Cogens prohibition, for example, a Genocide, are nebulous. For example, several states accused Israel of Genocide against the Palestinians, and therefore of being liable under International Law. The recent Israeli attack in Gaza is a pending case before the International Court of Justice. (Ali, 2025) To trace liability, the ICJ will have to examine whether Israel “committed acts with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group”. (Rome Statute, 1998). Bringing a country to court is an excellent means of limiting wars of aggression, sparking a sense of International accountability.
Resisting aggression
Besides a Court order, there are several other measures of taming an aggressor. Legal acts of coercion in varying measures of international acceptance, such as reprisals, retorsion, or countermeasures, have been reinforcing international legality for quite a while. Although increasingly avoided, reprisals can be lawful if they present a proportional response and/or fulfil the condition of necessity, such as self-defence. (Hernandez, 2019)
Countermeasures have mostly replaced reprisals. Their object and limits are well defined. Certain obligations of states, such as abstention from the use of force or upholding of peremptory norms, remain unaffected and therefore valid despite the drafting or the application of countermeasures. (ARSIWA 2001)
International Law in the broader International Affairs discipline International Law remains relevant, but also in the shadows of International Affairs. Depending on our worldview of International Relations, the foundational assumptions about the power and applicability of International Law change. Traces of its might can be found in both Realism and Liberalism, the two main antagonists for primacy in international explanatory validity.
The assumptions of Realpolitik (realism) regarding International Law are simple: he who holds the power also holds the legal and moral high ground. Whether one employs legalism from a position of strength involves as much their strategic particularities as their sense of commitment to the legalistic approach and, thus, its benefits.
In an era of United States primacy, legalism has played a convenient role in the pacific settlement of disputes. Yet, many presidents have at times bypassed its dictates when pressured to act upon a self-righteous or an interest-driven sense of purpose. From Jimmy Carter’s termination of the Mutual Defence Treaty with Taiwan (AnCham, 2019) to George W. Bush’s ratification of the Stockholm Convention (Wiser, 2004) and the invasion of Iraq in breach of International Law, to Donald Trump’s withdrawal from the Paris Agreement, power considerations have often prevailed over lawfulness.
Liberal understanding of International Law veers away from power politics and into the construction of International Law “from the ground up”. It recognises a structure where societal interconnectedness and transnational customs shape legal frameworks. (Slaughter, 2000) Beyond the state, the institutionalisation of popular legitimacy can solidify and reinforce collective action. This dynamic is not an alienating factor even for the realist, although it pinpoints power in different underlying reasons. Transcending the state-centric narrative, liberal International Law finds purpose in regimes of common interests, from trade to human rights, stressing a sense of commitment to lawfulness. Those regimes can also ameliorate a state’s domestic functions. Indeed, one can argue that this is their main purpose. (Slaughter, 2000)
Beyond theories of International Relations
In examining international law, one ought not always abide by specific theories of International Relations. For example, one might interpret the reasons for signing an MOU (Memorandum of Understanding) through different theories, arriving at different conclusions about its utility. However, the fact that an MOU is generally not legally binding is beyond any theoretical perspective. Thus, International Law can stand on its own merits as an independent tool with a separate rationale.
International Law as a dynamic discipline
International Law has been witnessing an ever-increasing compartmentalisation of its sub-disciplines. The increase of the jurisdictional regimes can overwhelm analysis and confound specialisation with erosion of the field’s efficiency. Overly rapid changes in treaty regimes, such as Environmental agreements, can hinder the stability and obstruct the strategic planning of involved actors. (Lekkas, 2024). For this reason, several mechanisms for change that enable a seamless, socially considerate transition have been discussed. In that regard, (Raftopoulos, 2019) has incorporated a “Renegotiation phase of treaties” in his theory of International Treaty Negotiations, providing for a cyclical and continuous process of treaty negotiation that aids the building of consensus, and satisfies the need for dynamic engagement on the international level.
Supranationalism as a feature
The international community has given special consideration to Supranational Law, such as European Law. European Law is a special form of International Law that can apply to all EU member states and can be directly invoked by citizens in national courts. European Law ensures the enforcement of its product through various legislative acts, such as Directives or Regulations. The supranational nature of European Law is complemented by a smooth judicial review that closely resembles that of the judiciary within member states. Its strict prevalence over national law gives it a special status that, although still considered treaty-based, separates it from traditional International Law. Hence, it merits distinct analysis. We are therefore limiting ourselves to a mere reference to its existence. (Burley, 1992)
Who paves the way?
Even though there isn’t a clear champion of International Law, the United States has been a shrewd player of legality, arguably its main proponent, and oftentimes an advocate of a legalistic messianism. Believing itself endowed with the unique virtues of international policing, it was the first to dispose of traditional balance of power politics in favour of a universal set of values never before encountered in European history. (Kissinger, 1994) From Woodrow Wilson’s fourteen points to the charter of the United Nations, America has considered and, indeed, dared to act as a visionary, as a lighthouse of consensus-building.
However, America’s other side of the coin is its isolationism. Like Great Britain’s objection to the role of proactive balancer in the 19th century, it has at times been hard to convince the American public of the merits of foreign entanglements. America has thus settled for a withdrawal to its land, safe in the thought that it is surrounded by “fish and friends”. Hence, American society has been ambivalent, oscillating between a sense of commitment and a practical aloofness from European and Asian affairs.
Conclusion
In the timeless observation of Louis Henkin, “Most of International Law is followed by most states, most of the time”. With a few but staggering exceptions, the international arena is filled with committed state and non-state actors. International Law has both changing and unchanging characteristics, making it as dynamic as robust. The intertwining of law and international relations theories produces a comprehensive framework for analysis and action.
Although not always feasible or prudent, their combination can empower informed decision making and illuminate the dynamics of international politics. Through various instruments, legalism remains a powerful driving force of international cooperation, especially in cases of consensus. Despite geopolitical upheaval, International Law paves the way for a structured International Society, determined to grasp its vulnerabilities, heal its maladies, and settle its disputes through a conscious application of both registered and evolving rules, norms, and standards. International Law survives.
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