What it is not, international law, and why the system was built to fail

In the imagination of many people, the phrase international law evokes something that, all too often, does not correspond to the actual reality. The functioning of law within a state – especially a democratic state – is determined by a clear and solid structure: independent judiciary, monopoly of force (police, prisons), effective enforceability of legislation.

Among states, the same rules obviously do not apply. International law is not above states, there is no superior legislator and there is no way of enforcing it compulsorily. An anarchic system in the technical sense of the term: there is no sovereign authority above states.

Its limit is its very beginning: international law depends on the political will of the actors involved. In particular, the principle of sovereignty is key. In the modern international system, sovereignty means that each state is the supreme authority over its territory and population: no external power can legitimately impose obligations on it without its consent. International law stems from this same principle: it is sovereign states that negotiate treaties, ratify them, and create the institutions that are supposed to enforce them. And it is precisely here that the fundamental contradiction arises. A legal system that depends on the consent of the subjects it is supposed to bind cannot, by definition, impose itself against their will.

This is not an accidental defect. The system was intentionally constructed in this way, by the states themselves after the Second World War. No state agreed to create an authority that could legitimately force it to anything: each wanted to preserve its sovereignty as a non-negotiable condition. The result is an international legal order that functions as long as all participants voluntarily decide to abide by it – and which empties out the moment a sufficiently powerful state decides not to do so.

Not to mention dynamics that are also common to customary law, such as conceptualisation and instrumentalisation: Article 51 of the UN Charter, on the principle of self-defence, can be interpreted very broadly.

All this leads to one obvious consequence: the instrumentalisation of international law and international norms, and their transformation into rhetorical and political weapons.

Spain and South Africa were chosen as case studies because they illustrate two focal points of international law. Spain illuminates the knot of recognition and self-determination, principles that become flexible when they affect national interests. South Africa, on the other hand, illuminates the node of international criminal enforcement: the rules on the most serious crimes are invoked forcefully when they affect a political adversary, but weaken when they impose diplomatic costs on one’s allies or geopolitical area.

Case study: Spain

Self-determination in variable geometries

Pedro Sánchez’s Spain has set itself up as a bulwark of the defence of peace and respect for international law in the public debate about the latest conflicts that have shaken the globe: Ukraine, Gaza, Iran. A position that has earned it many sympathies from all corners of the globe, including Iran’s Islamic Revolutionary Guards.

However, Spain’s position, as far as international law is concerned, is rather ambiguous.

In 2008, Kosovo declared its independence from Serbia, in the name of the right of self-determination of peoples and claiming a functioning state apparatus according to the criteria of the Montevideo Convention. In 2010, the International Court of Justice ruled that Kosovo’s declaration of independence did not violate international law. According to the highest body of international justice, therefore, Kosovo’s independence could not be considered contrary to international law.

Spain is one of the five EU members that does not recognise Kosovo, along with Romania, Slovakia, Greece and Cyprus. The Spanish motivation has always been extremely pragmatic: recognising the legitimacy, independence and secession of Kosovo would be an explosive precedent, given the historic independence movements within Spain, namely Catalonia and the Basque Country. Two movements that have long fought for their self-determination and independence from the Madrid authorities, in the case of the Basque Country even through terrorism (ETA). Over the decades, the Spanish authorities have always opposed any secessionist perspective, insisting that any form of Catalan or Basque self-determination would always remain entirely within the constitutional framework of the Kingdom of Spain.

On 28 May 2024, Spain formally recognised the State of Palestine together with Ireland and Norway, while confirming that its position on Kosovo remains unchanged. Madrid’s official justification was that the recognition of Palestine does not violate Israel’s territorial integrity, because that territory was never legally part of the State of Israel. Madrid distinguishes between self-determination from foreign occupation (Palestine) and unilateral secession from a sovereign state (Kosovo). A real distinction, in international law – but applied surgically selectively by Spain.

Selective not only the gesture, but also the timing. The Spanish recognition came just over seven months after the 7 October 2023 massacre carried out by Hamas. Exponents of the terrorist group, such as Ghazi Hamad, claimed the recognition by Western states as the fruits of 7 October. It is not necessary to think that Madrid intended to reward Hamas: it is sufficient to note that Hamas exponents were able to present that recognition as a political result of the attack. In international politics, this too is the production of legitimacy.

Recognitions of the State of Palestine began in 1988, when Jordan renounced its sovereignty over the West Bank. Over 80 of the current 156 recognitions came in 1988. Spain, like other Western countries, had had the option of recognising the State of Palestine for over 35 years. The fact that it did so just seven months after the Hamas attack leaves open a question about the political significance of the timing: principle, opportunity or both?

However,Spain, which invokes UN resolutions, international law and the International Court of Justice as the basis of its posture on Palestine, refuses to be guided in the same way by the Court’s opinion on Kosovo when that principle touches a sensitive line of its own territorial integrity.

Spain does not defend self-determination as a universal principle; it only defends it within a well-defined perimeter of political expediency. It only applies the principle where the political cost is low.

Case study: South Africa

Genocide at alternating convenience

In December 2023, just over two months after the 7 October attack, South Africa filed a complaint with the International Court of Justice against Israel, accusing it of violating the Convention on the Prevention and Punishment of the Crime of Genocide. This move was greeted with enthusiasm by much of global public opinion, which saw the South African gesture as a bold vindication of international law – the defeated apartheid country standing up for universal human rights. South Africa, after all, has built part of its post-apartheid identity on precisely this narrative: the nation that has experienced systemic oppression and that, because of this, feels morally invested with the responsibility to denounce it wherever it recognises it.

But even in this case, a deeper analysis reveals contradictions that are difficult to ignore.

Omar al-Bashir was President of Sudan from 1989 to 2019. In March 2009, he became the first incumbent head of state in history to be indicted by the International Criminal Court, with an arrest warrant for war crimes and crimes against humanity in Darfur. A second warrant, issued in July 2010, added three counts of genocide – specifically the extermination, by killing, violence and deliberate imposition of destructive living conditions, of the Fur, Masalit and Zaghawa ethnic groups. The campaign in Darfur, waged by the Sudanese army and Janjaweed militias, claimed between 200,000 and 400,000 lives and displaced over 2.5 million people.

In June 2015, al-Bashir attended an African Union summit in Johannesburg. South Africa, as a state party to the Rome Statute, was legally obliged to arrest him. The ICC explicitly reminded the South African authorities of this. A South African national court issued an order blocking al-Bashir’s departure pending a final decision. The South African authorities ignored both the ICC and their own courts, and allowed al-Bashir to leave the country undisturbed.

In July 2017, the Preliminary Chamber II of the ICC unanimously ruled that South Africa had violated its obligations under the Rome Statute by preventing the Court from exercising its functions against a genocide defendant. But the Chamber decided not to refer the matter to either the Assembly of States Parties or the UN Security Council.

The motivation? Six previous referrals to the Security Council for failure to arrest al-Bashir by other states had failed to produce any action. The Court was effectively admitting the futility and ineffectiveness of its own sanctioning instruments. An international judicial body acknowledging its own impotence and refusing to act for this very reason: it is difficult to find a sharper representation of the short-circuit in international law.

The most recent chapter adds a further layer of contradiction. On 4 January 2024 – six days after the filing of the ICJ complaint against Israel, and a week before the oral hearings in The Hague – South African President Ramaphosa received with diplomatic honours in Pretoria Sudanese General Mohamed Hamdan Dagalo, known as Hemedti, leader of the Sudanese Rapid Support Forces (RSF). The RSF are the direct institutional heir of the Janjaweed, the militias that led the genocide in Darfur under al-Bashir. Dagalo himself was implicated in the massacres of thousands of ethnic Masalit civilians in West Darfur during 2023, as part of the civil war that broke out in Sudan in April of that year. South Africa, therefore, while preparing its own legal arguments on genocide in Gaza, welcomed to its capital a warlord implicated in the same Darfur for which al-Bashir was indicted for genocide.

South Africa invokes international law and genocide conventions when the target is politically expedient, and ignores them – or worse, actively obstructs them – when the application of international law conflicts with its own interests and African regional solidarity.

Law as law or as a weapon?

International law carries with it a congenital flaw. It is not only states that want to use it in bad faith or for convenience – it is the system itself, which encourages this behaviour. Because there is no impartial enforcement, in contexts of maximum conflict international law tends to be reduced to a rhetorical and political tool: a language of legitimising one’s own positions and delegitimising those of its adversaries.

Not so much a law as a grammar of power.

Beware of drawing extreme and hasty conclusions, however. Is international law therefore totally useless, waste paper? It would be a fallacious exaggeration to regard it as waste paper as much as to imagine it as a superior, impartial and unbreakable order. International law has produced concrete, tangible and positive results in areas such as the law of the sea, international trade and global technical standards. States comply with many rules because it suits them to do so, not because someone forces them to.

The fundamental problem, therefore, returns: international law only works when it coincides with the interests of states. When interests diverge, law, norms, wars, genocides and tribunals easily become rhetorical tools. The reality becomes sadly ironic: international law is invoked precisely in the contexts where it is least able to impose anything.

A system that was built to limit the power of states, but depends entirely on the will of states to function.

A legal snake biting its own tail.