In recent years, criticism of international law – more precisely, of the law regulating the use of military force – has intensified in parts of the media and political circles. The context of this criticism has varied considerably. During the Ukraine war, the lack of enforcement of international law was lamented; during the Gaza war, the focus on international law was criticized as misplaced – the protection of Israel was the predominant value to many, especially in Germany, more so that adherence to international humanitarian law; and with regard to Iran, international law was accused of being in the way of policies to punish the regime’s crimes against its own population and to prevent its development of nuclear weapons. International law – as critics complain – ignores “Realpolitik,” thereby revealing its ineffectiveness to mitigate global crises.
This criticism manifests itself in five narratives that repeatedly surface in one form or another and tend to dominate some important public debates:
International law
- is merely a facade for power politics
- is worthless because it is constantly being violated
- protects perpetrators instead of victims
- is too dogmatic
- primarily represents Western values
We will analyse these five narratives in turn, showing that they are sometimes partially, sometimes fundamentally flawed. These narratives are neither mutually exclusive nor do they represent the entire spectrum of criticism directed at international law regulating the use of force. At their core, they all concern the relationship between interests and universal norms, or—more fundamentally—the relationship between power and law. They originate from different schools of thought and can therefore be partly contradictory (e.g., the claim that international law is powerless versus the claim it undercuts beneficial policies). The reason for our selection is empirical: many politicians and journalists consciously or unconsciously are influenced by these narratives in their assessment of international law in global conflicts.
Narrative 1: International law is merely a facade of power politics.
In a nutshell, this narrative suggests that international legal institutions merely reflect power relations; they generally lack their own power base and therefore enforcement capacity, rendering the law largely ineffective.
In its clearest form, this narrative is espoused by proponents of offensive realism in political science. This theory of international relations posits that, due to the anarchic nature of the international system and out of fear of other States, major powers inevitably strive for maximum material resources and regional hegemony. Tactical agreements can take the form of international treaties. However, these would be respected only as long as they serve the political interests of the parties involved. International law thus appears as a kind of superstructural phenomenon of material political structures. A change in the underlying basis, i.e., the balance of power, renders international agreements obsolete. This position, albeit in a weaker form, is also advocated, for example, by Herfried Münkler. While he does not axiomatically assume a hegemonic drive among States, he points out that international law is ineffective without a power base. Don’t these authors have a point when they refer to the impotence of international law?
First of all, it must be acknowledged that there is, indeed, no authority that can boast a monopoly of the legitimate use of force at the international level. There is no world police that apprehends criminals on behalf of a world government. While international courts do exist, in particular the International Court of Justice (ICJ) and the International Criminal Court (ICC), their judgments and decisions must ultimately be enforced by States, either through collective bodies (the UN Security Council, the ICC Assembly of States Parties) or through decentralized form by individual or ad hoc groups of States. Furthermore, the jurisdiction of these and other international courts is limited. States must, in principle, submit voluntarily to the ICJ (or recognize a treaty that establishes its jurisdiction, e.g., the Genocide Convention), and the ICC can, in essence, only act on crimes committed within the territory of its member States. For the latter that also means that nationals of major powers such as the United States, China, and Russia, but also those of India, Pakistan, and Israel, for example, are generally beyond its jurisdiction, and when they come within the jurisdiction, it is hard if not impossible to imagine the ICC actually exercising custody over them. It must also be acknowledged that the Security Council in its current form is dysfunctional because key decisions are repeatedly blocked by the veto power, especially of the P3 (China, Russia, United States) and its composition is no longer representative of today’s world.
At the same time, however, this line of criticism primarily concerns the law on the use of force, especially the fundamental prohibition on the use of force enshrined in the UN Charter, and applies only to a limited extent, or not at all, to the many other areas of international law. It is important to understand the enormous scope of international law: all regulations that are not purely national, but rather transnational in some way, fall under international law, such as a bilateral treaty between two States to settle border disputes. One does not need to be a systems theorist to understand that rules reduce complexity, create reliability, and thereby promote the smooth functioning of political and economic processes. This happens daily – in the most quotidian of ways – and is in the interest of most, if not all, States involved.
Even with regard to the law on the use of force, a recent study shows that the respective prohibition has consistently served as a guideline for State action between 1945 and 2020. Despite disputes over interpretation and application, the law has remained the central normative framework, both for the States concerned and for international responses. What’s more, compliance studies show that a large proportion of the ICJ judgments are implemented, even though implementation cannot be enforced. The same is true for regional human rights courts, especially the European Court of Human Rights in Strasbourg. When it comes to trade, maritime law, or border regulations—to name just a few areas—international legal rules are fundamental to cooperation between States, including at the regional and bilateral level.
There is currently much discussion of the Thucydides Trap, that is the supposedly inevitable conflict between a rising superpower (China) and one in relative decline (the United States) (for a recent contextualization see here). Some observers interpret this as leading to a trend toward “decoupling,” i.e. the dismantling of international economic and financial interdependence between the two sides. Such efforts do indeed exist—not only since President Donald Trump, but also under his predecessors. It remains to be seen how realistic such neo-mercantilist plans are, given a world that has become significantly more economically and financially interconnected over the past 50 years. Mutual dependencies have deepened dramatically — both in terms of resource needs and the shared climate, for which decoupling is not an option. In the context of the Prisoner’s Dilemma—which uses game theory to illustrate the challenges of cooperation and self-interest in strategic situations—the most powerful States can either continue trying to maximize their own advantage at the expense of others, or they can choose to realize the long-term advantages of a cooperative world. For the latter strategy, decentralized international law would still be an option, one that could also be in the well-understood self-interest of the major powers.
One might object that international law is not necessarily required for a cooperative approach. The major powers could—similar to 19th-century colonialism—divide the world into spheres of influence and then, unhindered by universal rules, act as they please within their respective spheres of influence. This is roughly how Carl Schmitt envisioned world order in his anti-universalist and hierarchical concept of large or regional spaces (Großräume), “with a prohibition of intervention for powers outside the respective sphere” (“Interventionsverbot für raumfremde Mächte,” published in 1939). This vision also seems to be shared by Trump, Vladimir Putin, and—possibly—Xi Jinping. However, such cooperation would only partially realize the advantages of global economic integration, would likely not reduce the risk of armed resource conflicts, and would, at best, reduce the majority of the States to junior partners and, at worst, to vassals. In contrast, an order that guarantees State sovereignty would likely appear advantageous to many of the States involved, leading them to form alliances and thus support international law in an institutionally adapted form—because international law requires a base in power politics. That is the part of the narrative that holds true.
Narrative 2: International law is worthless because it is constantly being violated.
It is undeniable that international law is repeatedly violated without these violations being punished – especially when major powers are involved. However, to conclude that international law is completely irrelevant is throwing the baby out with the bathwater. The same applies to the narrative that international law is “a tyranny’s useful idiot,” As already mentioned, contrary to this claim, the law has instead served as a normative framework for evaluating State conduct (see again here). Massive violations of international law, such as those currently occurring in Ukraine, Gaza, Iran, Lebanon and Sudan, have occurred repeatedly since the founding of the United Nations, but they still represent the exception. For it is in the interest of the vast majority of States – especially small and medium-sized powers – that their sovereignty be guaranteed.
The global public’s reaction to violations of international law in recent years has shown that international law profoundly shapes our expectations. If we considered it normal for States to attack one another, the public in Europe and beyond would not be so outraged and would not support the costly aid provided to Ukraine. It is worthwhile to recall the first vote of the U.N. General Assembly after the full-scale Russian invasion of Ukraine (Resolution ES-11/1 “Aggression against Ukraine” of March 2, 2022). At that time, Russian aggression was condemned by an overwhelming majority of the U.N. member States (141 votes in favor, 5 against, and 35 abstentions) and the immediate withdrawal of Russian forces was demanded. While it is true that subsequent votes were less clear-cut this was partly a consequence of the Gaza war and the long period of Western silence on the matter.
At the same time, it is a fact that international law, on its own, is often unable to prevent violations of its norms in practice, nor can it restrain the perpetrator States and their human actors. For this, the support of the international community is needed. International law is a cooperative system, it depends on States’ engagement and compliance. It is also true that, despite the normative claim of equality among States, it makes a significant difference whether the violating State is strong or weak in regional and global terms.
Against this background, it must be emphasized that the effectiveness of international law can unfold only when its violation is acknowledged – regardless of potential consequences for the law-affirming and law-abiding State. In other words, the validity of a violated international legal norm—like that of any norm—depends, especially in a system with an enforcement deficit, on the confirmation of the underlying norm through communication. Remaining silent about violations of international law leads, in the medium to long term, to the gradual erosion and ultimately the invalidation of the violated norm and potentially broader aspects of the legal system itself. For example, failing to call out violations of the prohibition of the use of force leads to the erosion of the prohibition and, in the worst case—in the event of repeated, unchallenged violations —to a potential renaissance of the sovereign right to war (liberum ius ad bellum), as was prevalent in the period following Westphalia. In the 19th century, alternative views emerged in the legal community disputing the idea that war is a legitimate political instrument per se (see here). This ultimately led to our modern understanding that war needs to be legally justified.
In view of this legal evolution, it is counterproductive for allies, as recently done by the German Federal Government with regard to the United States’ use of force in Venezuela and Iran, to refrain from a legal assessment or, even worse, to make such an assessment dependent on the identity of the violating State. If one then laments the ineffectiveness of international law or the United Nations, one may in reality be incriminating oneself, because one may be partly responsible for this ineffectiveness. In a well-informed world, any relativization of international law with regard to one’s friends or allies gives rise to fair-minded accusations of double standards – undermining not just one’s own position but international law in general.
Narrative 3: International Law Protects Perpetrators Instead of Victims
In a nutshell, this narrative suggests that the principle of sovereignty in international law de facto protects States that violate human rights as reflected, for example, in the fact that humanitarian intervention requires authorization by the Security Council which regularly fails given the veto power of the P5.
It cannot be denied that international law may protect States that commit human rights violations, because the respective State’s sovereignty cannot simply be overridden such as by a decision of the Security Council authorizing a humanitarian intervention. This observation requires some differentiation and clarification however. Firstly, the U.N. Charter protects not only State sovereignty but also human rights, and this protection of human rights has been institutionalized by a number of subsequent instruments – from the Universal Declaration of Human Rights of 1948 to numerous human rights treaties with universal and regional application and their respective monitoring bodies. The conflict between sovereignty and the human rights protection is by no means always and without exception resolved in favor of the former; rather, with the inflection point of the UN World Summit 2005’s adoption of the Responsibility to Protect doctrine, it has been recognized that sovereignty must yield to the protection of human rights under many circumstances. On this basis, the wrong of serious human rights violations under international law gives individual States or groups of States – outside the Security Council – the right to impose severe economic, criminal, and other sanctions on the violating State and its officials. The EU – itself an institution founded on international law – did so against Russia after the invasion of Ukraine, explicitly invoking international law. It also did so against Iran, but could have implemented tougher measures more quickly and consistently. Indeed, States possess an extensive toolbox of sanctions and other measures which they are entitled to use against States violating international law. However, the effectiveness of the sanctions regime depends on their consistent and comprehensive enforcement. This was already true during the time of the League of Nations at the beginning of the 20th century. Enforcement of sanctions was easier back then because it depended only on the few major powers at the time. While modern international law permits sanctions and other enforcement measures against law breakers, the use of military force is reserved for the U.N. Security Council due to the multilateral system enshrined in the Charter. It is for this reason that the Security Council must authorize a so-called humanitarian intervention of a military nature. It’s a bargain struck in part to reduce the ability of States to engage in unilateral military predation under the pretext of humanitarian action. While such military action has still occurred under the Charter, we believe the situation would be far worse without the Charter rules in place.
Narrative 4: International Law Is too dogmatic grouned in an “ethics of conviction
According to this narrative international law insists on compliance even in situations where pragmatic action is required. Recent examples are the following:
The defense of Israel, and consequently the destruction of Hamas, is more important than criticism of potential war crimes committed by the Israeli army. Regarding the Iran war, one should not anger the U.S. president with “legalistic” criticism, because otherwise the United States might completely withdraw its support for Ukraine, which would result in more damage for Ukraine and its European allies.
On a meta level this criticism is levelled at the supposed ethics of conviction—or deontological fundamentalism—of proponents of international law which fail to give due respect to national interests (based on Staatsräson or security objectives). If the institutions of international law—and here especially the functioning of the Security Council—are insufficient to protect one’s own population, for example, from severe human rights violations or nuclear weapons in the hands of immoral dictators, then, from an ethics of responsibility—or from a consequentialist or utilitarian perspective—it is even necessary to disregard international legal norms, for example, the principle of sovereignty and the prohibition of the use of force.
This argument carries considerable weight—if it holds true empirically, which one may justifiably doubt in the case of the Iran war: The Iranian regime has not only survived the attack, it is now a greater threat to the international community than before the war (see here). It controls the Strait of Hormuz and has gained absolute power within Iran, shattering the hopes of the Iranian opposition for democratic reforms. Furthermore, it is not at all clear whether the regime will really abandon its nuclear program. Given the erratic decision-making and negotiation style of the U.S. administration it is not even certain what a peace treaty would be worth.
Two lessons can be learned from the past few months: Discrediting the rules-based order can easily lead to ramifications that hurt all parties involved. In contrast, compliance with the international rulebook might not lead to immediate solutions, but can still be preferable to military adventures in a world that has become so intertwined that the unintended consequences of interventions are difficult to foresee and even more difficult to contain.
Against this backdrop, a central question is whether the interest for which international law is violated is truly so significant that the deliberate violation of the law, along with its associated systemic consequences, is worthwhile. At any rate, one must be aware that a conscious and continuous disregard for the international legal order entails a considerable weakening, perhaps even leading to the collapse of this order.
Those who draw a contrast between international law and realpolitik, that is, between honorable but ineffective idealism and the “dirty work” that needs to be done (as the German Chancellor Friedrich Merz put it), should differentiate more precisely and with greater nuance between short-term and long-term interests. Is it truly in the long-term interest of the norm-breaking State and its supporters to distance themselves from principles of international law, only to potentially become victims of an aggression and legal violation themselves? Or should these principles not constitute the programmatic core of an alliance system in which the small and medium-sized powers of the North and South unite to form a counterweight to the aforementioned great power politics of the Carl Schmittian variety, where the law of the strongest prevails in spheres dominated by the great powers, where even medium-sized powers like Germany may ultimately be crushed?
The self-proclaimed realists must also ask themselves what is actually realistic, in the positive sense of bringing about better conditions, about a pre-modern gunboat diplomacy à la Trump and Putin, in light of the humanitarian and economic devastation wrought by their wars. This realization seems to have finally taken hold within the German government as the Iran war has dragged on. However, its somewhat unprincipled stance gives cause for doubt: What if regime change had actually occurred, and Trump’s gunboat diplomacy had “succeeded”? Would Merz have continued to justify the attack then? It is time for the German government to fundamentally address the question of whether prioritizing international legal principles is not, in both the medium and long term, in Germany’s very best interest – especially with regard to the law of international peacekeeping. What can other States learn from the German attempt to navigate these waters?
Even if the pursuit of national interests and international law are not generally antagonistic, there are, of course, areas where this opposition exists. Consider, for example, the human rights violations committed in China. Should China be sanctioned for the crimes against the Uyghurs? Or should it be publicly condemned – as former German Foreign Minister Annalena Baerbock did? It would certainly be wrong to deny, for the sake of political expediency, that the Chinese government is committing large-scale human rights violations. However, more far-reaching measures should primarily be undertaken within the framework of international institutions. There, this issue, which is uncomfortable for China because it damages its reputation and international standing, could be brought to the greater attention of the world (e.g., in the UN General Assembly) without individual States having to unduly expose themselves. This is a further argument for not undermining international institutions, but rather for actively supporting them and implementing the necessary reforms, in the ideal reorganizing the composition of the Security Council and weakening the current veto principle.
Narrative 5: International legal norms are not universally valid
The accusation expressed in this narrative, that the Global North is exporting its norms to the Global South through human rights and thus that any claim to universal validity is rooted in colonial thinking, is accurate insofar as especially features of international human rights do indeed have origins in the European Enlightenment. The concept of human dignity, in particular, is—despite its pre-Enlightenment roots—a product of this development (see here). However, origin is not synonymous with validity.
In the 20th century, human rights norms were disseminated to large parts of the world through global negotiation, anti-colonial appropriation, and codification in international law. Even the UN Charter, today recognized by practically all States, contains an admittedly very general reference to human rights. The aforementioned Universal Declaration of Human Rights was adopted by the U.N. General Assembly with zero votes against and eight abstentions, and substantial contributions from non-European States. It is now widely recognized as customary international law (see here).
One might object that some non-European countries only agreed to these norms out of opportunism, while remaining sceptical or even opposed to them for cultural reasons. This may be the case in individual instances, for example, when it comes to non-discrimination. Cultures with a caste system, for example, are thus in conflict with human rights. Generally, however, it is more often repressive regimes that consider human rights problematic because these rights expose their violations against their own citizens.
Furthermore, the cultural relativist objection overlooks the fact that human rights do not necessarily require cultural uniformity. Cultural values are not synonymous with norms. Human rights merely represent minimum conditions that can be found in an elementary form in non-Western societies and are globally applicable.
Conclusion
Almost all narratives about international law discussed in this essay address real weaknesses of the law governing the use of force. What makes them questionable are the exaggerated expectations and false assumptions that are implicitly or explicitly embedded in these critiques. For example, the fact that international law cannot, on its own, establish peace, prevent crimes, and punish perpetrators is cited as evidence of its weakness, if not irrelevance. However, it has always been clear that international law depends on the political will and cooperation of States in order to be effective. International law is a cooperative agreement that naturally loses relevance to the extent that its signatories turn away from it. States make and break international law. This insight is trivial. To conclude from this that international law no longer plays a political role and can therefore be ignored is by no means compelling and, in any case — especially from the perspective of a middle power like Germany — shortsighted and counterproductive.
On the contrary, under these circumstances it is imperative that as many U.N. members as possible commit themselves to international law – not just in Sunday speeches, but when it matters, especially when friendly States violate it. This has little to do with impractical adherence to principles. It is, in fact, essential from a realpolitik perspective for all those States whose power is limited. International law, as the German President Frank-Walter Steinmeier recently put it succinctly, “is not like an old glove that we should remove when others do so. On the contrary, it is vital for all those who cannot count themselves among the great powers.“ In a world increasingly characterized by the law of the jungle, it is therefore about building countervailing power through alliances of States that make central principles of international law part of their very DNA – not out of idealism, but because it is in the long-term political interest of these small and medium-sized powers. These entities should be able to enter into different alliances and, if necessary, switch between them as expedient – but on the basis of a common set of rules.
Concrete first steps toward reform within the UN framework could include a more active role for the General Assembly vis-à-vis the Security Council (see recently here). No matter how one approaches this complex task and to what extent it can be accomplished, the result will be preferable to a relapse into a neo-imperialist order where all players will most likely lose in the long term – the mighty as well as the less mighty. The globalized, non-linear interdependencies between states lead to a de facto veto position of medium powers as the Iran example currently shows with regard to the Strait of Hormuz. Thus, international law is not lacking “Realpolitik”, quite the opposite, it is indispensable for regulating conflicts and maintaining economic cooperation in an increasingly complex multipolar world.
