The allegiance of governments in the Global North to international law (sometimes endorsed in reductionist form as “the rules-based international order”) is currently experiencing an abrupt collapse. Since 2022, the Global North has based its support for Ukraine largely on the fact that the Russian war of aggression blatantly violates international law. In contrast, some northern governments remain reluctant to criticize Israel’s massive violations of international law in the Gaza Strip. Germany, for one, continues to supply Israel with weapons; the Chancellor invited Netanyahu to Germany and questioned its obligations under the Rome Statute of the International Criminal Court. For the time being, the procedure to suspend the EU-Israel association agreement has not been launched because of German resistance. The “reason of state” doctrine prevails over international law.
The latest attacks by Israel and the USA on Iran are exacerbating the Global North’s strained relationship with international law: almost the entire international law community, in the south and in the north, has categorised the attacks in countless contributions as pre-emptive strikes that violate international law. Still, governments in the Global North remain unimpressed. The German government has avoided the question of whether the attacks violated international law, but praises Israel for this contribution to the security of the region, sometimes emphatically, like the Federal Chancellor, sometimes with discreet skepticism, like the Foreign Minister. It received support by a questionable opinion by the Research Service of the Bundestag that mixes up ius ad bellum and ius in bello criteria to argue that Israel is participating in an ongoing conflict – as if the end of an “armed attack” justifying self-defence would be equivalent to the end of an “international armed conflict”, a term governing the application of international humanitarian law. This position is widespread within the Global North – or what is left of it. The also emphasised Israel’s right to self-defence, but it remains unclear whether it considers Israel’s concrete attacks to be justified by self-defence or only refers to this right in abstract terms. The EU statement showed slightly more restraint by avoiding the legality issue while emphasizing concern about Israel’s security.
International law, it seems, is only relevant to its self-styled defenders in the Global North when it fits in with their agenda. But is that actually a problem? After all, there is no institutionalized police force to punish breaches of international law or double standards, and self-help does not work against powerful states. Doesn’t that speak in favour of using international law capriciously rather than treating it as a holy, but utterly hopeless, grail?
International lawyers should not rush to conclusions. Those of us in the Global North lamenting the alleged demise of international law may appear as spreading crocodile tears to other observers. Where was our outcry when actors in the Global South suffered from outright illegal interventions, or from exercises of illegitimate authority from the hands of institutions or companies controlled by actors in the north? Double standards and selective law enforcement are anything but new. Whether this is a problem or not depends on one’s basic approach to international relations. I restrict the following analysis to two familiar, opposing approaches.
According to the first approach, peace can only be achieved through international co-operation, above all through universal rules, institutions and procedures. This position can be justified both in principled ethical terms and in consequentialist terms: On the one hand, universal rules, institutions and procedures are necessary in order to implement the Kantian idea of cosmopolitan rights and to ensure the equal freedom of all people. Kant was therefore already striving for a worldwide confederation of states in order to guarantee “eternal peace”.
On the other hand, universal rules, institutions and procedures bring advantages even to powerful states. After all, they often shy away from direct confrontation with other powerful states. This is especially true today, when no state enjoys a global hegemonic position. While Russian imperialism may be primarily the problem of some European, Central Asian or African countries, even Donald Trump is likely to view a potential Chinese expansion in the Pacific region with skepticism. Global challenges prevent a simple division of the world into spheres of influence. Only universal rules, institutions and procedures promise a remedy here. But that means that everyone would have to abide by them.
The opposing approach sings the praises of state sovereignty. It can already be found in Thucydides. He vividly describes how the Athenians only gave the Melians the choice between submission and annihilation. According to the Athenians and like-minded spirits, peace on an international level is best organized on a decentralized basis by powerful states. They each control their respective spheres of influence and keep each other in check. International agreements chiefly come in the form of deals, rather than universal rules. Although this does not make international law superfluous, it does assign it a completely different role: it may fix situational compromises, yet always under the proviso that the vital interests of the states involved, their reason of state, must not be compromised. In the event of war, arguments based on international law can help to contain the conflict. In the UN Security Council, for example, the USA justified its strikes against Iran with the latter’s breach of the Non-Proliferation Treaty, thereby sending the signal that it does not seek regime change.
In consequentialist terms, the advantages of the sovereigntist view are obvious: as long as a world confederation remains unrealistic, there will be wars. Military power is crucial. Less powerful states ally themselves with powerful ones – or may succumb to them. However, the hard-nosed, matter-of-fact attitude of the sovereigntists (self-described “realists”) should not obscure their underlying ethics of principle: they consider (nation) states to be the preferred form of organisation for human society. The reasons for this are almost always related to the claimed social homogeneity of states. Whether one thinks of the latter in social constructivist or ethnonational terms, sovereigntists ultimately prefer “might makes right”, romanticized as the reason of state, to the equal freedom of world citizens.
The choice between these approaches, universalism and sovereignism, is not obvious. Historical experience is of little help. Sovereignism fuelled colonialism in the 19th century before it ended in the catastrophe of the two World Wars. Universalism may have inspired the United Nations Charter, but its provisions are deeply compromised by grand power politics and colonialism, while its effectiveness is debatable. Further-reaching ambitions to establish a world confederation are unrealistic at present.
In my view, the decisive argument in favour of universalism as a preferrable approach to international order, or at least as a preferable vision – Kant would say: a regulative idea – is a different one. It concerns the interplay between foreign policy and constitutional law. Postcolonial theories have long pointed out the consequences of colonialism for the colonizers, in particular the cultural anchoring of racism and violence. Aimé Césaire and Hannah Arendt – the latter by no means a postcolonial thinker – spoke of the “boomerang effect” of colonialism in this respect: it had instilled discriminatory and authoritarian practices that favoured the rise of authoritarianism and fascism in the 20th century. Along the same lines, Yeshayahu Leibovitz and Omer Bartov warned of the corrupting effect of the Israeli occupation as soon as it began. interpret the Netanyahu government’s attacks on the competences of the Israeli Supreme Court as a consequence of the occupation policy. While the Supreme Court has put only marginal constraints on the latter, it is unclear whether it would authorize territorial annexations.
Any democratic, rule of law-respecting state might feel the consequences of their disrespect for international law in their constitutional orders. Those who do not respect fundamental rights in a global context will also likely throw them overboard domestically, and vice versa. Is it a coincidence that the German and other Western government’s obliviousness to international law coincides with the flourishing of right-wing authoritarian forces? Whether one blames Israel’s violations of international law on Hamas or demands the domestic judiciary to ignore the human rights of migrants as established by the ECtHR: Each case dehumanizes and discriminates against the victims by holding the reason of state higher than fundamental human rights. The same applies to the threat to revoke the citizenship of naturalized citizens. LGBTIQ issues are left out in the cold under the pretext of state neutrality; the same state neutrality is invoked to restrict or defund scholarship and artistic expressions that critically scrutinize the reason of state. As these examples illustrate, attacks on international law and the rule of law use an identical set of arguments.
Respecting international law therefore also means protecting our constitution. If governments in the Global North selectively disrespect international law, they jeopardize the rule of law and democracy in their own countries – at the very point where they are most endangered by the threat of authoritarianism. The reason of state can be instrumentalized for one or the other purpose. Institutions and courts that oppose the reason of state are at risk of being delegitimized, because the reason of state claims priority over other concerns.
Sometimes, colleagues from abroad criticize debates in the Global North on the Middle East to primarily revolve around Global North issues, such as Germany’s fascist past. While one should criticize the priorities of the debate, the two issues are indeed connected. The “rules-based international order” suffers alongside our constitutions. We therefore need to respect international law for our own democracies’ sake.
This post is an expanded, English-language version of an op-ed published in German by Tageszeitung.
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