Failings of the International Legal System to Enforce Global Norms

Present-day concerns about international security are running high, not only in the Intelligence Community, but across society at large. Between the outbreaks of increased violence across the Middle East due to the Israel-Hamas war, as well as U.S. worries about growing great-power competition with both Russia and China, a common reaction is to rely on international systems designed to protect people. However, it seems that some of these international systems are unable to provide protection. While international law is effective at creating global norms, the enforcement of these norms can be difficult to apply with consistency. A prominent recent example is the International Criminal Court (“ICC”) arrest warrant for Vladmir Putin issued last March. This warrant focuses on Putin’s war crime of violently moving children from Ukraine to Russia with the intent of indoctrination [1]. Despite this move from the international community to hold Putin accountable, it has been fruitless thus far, as evidenced by Putin’s decision simply not to travel to the August 2023 BRICS summit to avoid arrest [2]. Putin’s lack of accountability is not the only example in which the international legal system falls short. The inability to hold President Bashar al-Assad accountable for the use of chemical weapons against civilians in Syria [3], and the lack of answerability when North Korea and Iran make agreements for nuclear concessions that are later walked back are just a few examples [4]. On a broader scale, the international legal system needs great reform in terms of its enforcement capabilities; it repeatedly fails as a deterrent to nation states with ill intentions.

The Russian invasion of Ukraine is a salient recent example of the ineffectiveness of the international legal system. The 2022 Russian full-scale invasion of Ukraine is a blatant violation of Article 2(4) of the UN Charter. Article 2(4) outlines the agreement of member states to respect the “sovereignty, territorial integrity and political independence of other States” [5]. The exception that exists within this agreement is a situation in which one state is using self-defense against another. Clearly, Russia cannot justify its invasion of Ukraine and refusal to show respect for its territorial integrity with arguments about self-defense or humanitarian intervention. Although Russia has made erroneous claims that Ukraine had planned armed attacks on the Donetsk People's Republic (“DPR”) and Luhansk People's Republic (“LPR”), Russia’s invasion on the grounds of self-defense is not backed under international law, since each of these regions are not part of Russia, nor are they UN member states. Even if Russia claimed that Article 51’s permission of attack as self-defense was necessary in Ukraine, there is no backing because of the status of the DPR and LPR [6]. International legal scholar Allen Weiner of Stanford makes a similar claim, stating that in terms of international legal backing, Russia has absolutely none. Their claim about the genocide of ethnic Russians by the Ukrainian government is patent disinformation. In addition to the Russian argument about defending the DPR and LPR, Weiner also brings up the Russian perspective that their invasion on the basis of self-defense is justified because of Ukraine’s possible joining of NATO. Weiner counters this claim by stating that a threat warranting self-defense must be fast approaching, not a possibility years down the line [7].

Not only is the 2022 Russian invasion a concern in general, but the specific strategic moves that Russia has made in regard to nuclear weapons are of high interest to the West as well. As of January 2024, it was reported in the Wall Street Journal that Russia brought nuclear weapons into Belarus, which is a blatant violation of Article 1 of The Treaty on the Nonproliferation of Nuclear Weapons (“NPT”) [8]. Article 1 of the NPT states that nuclear weapon states (such as Russia) are not allowed to transfer nuclear weapons to a non-nuclear weapons state (like Belarus) [9]. The decision of Belarus to switch course and abandon its obligations to remain a non-nuclear weapon state illustrates the toothlessness of this transnational agreement. Despite Western backlash and statements that this new status of Belarus will not be recognized, Putin has not reversed his decision to send nuclear weapons across the border into Belarus [10]. It was even reported that Russian soldiers were training Belarusians, equipping them with the skills necessary to launch a tactical nuclear weapon [11].

My argument is not that international laws are never able to be enforced, holding bad actors accountable. In fact, in select situations, countries willingly subject themselves to their international legal obligations. In fact, in the DRC v. Uganda (2022) case through the International Court of Justice (“ICJ”), reparation payments were able to be secured from Uganda to the DRC. The first payment to the DRC in September of 2022 was made on time, implying the merits of the enforcement of the international legal system at times [12]. However, the reason that the international legal system worked in this situation is due to the type of nation states involved. When the international legal system applies to bigger actors on the world stage, including Russia, problems with compliance can easily arise. Academic Allen Weiner offers insight into some of the problems that apply to Russia in terms of accountability, particularly for Putin. Weiner states that due to the strange structure of the Rome Statute, and because Russia is not part of the Rome Statute, the specific crime of starting an illegal war cannot be held against Putin [13]. Weiner views the possibility of other Russian military members being charged with war crimes as highly probable. However, he states that it would be difficult to specifically indict Putin without explicit evidence that he issued orders for war crimes to be committed [14].

With each of these breaches of treaties in mind, what type of response should be taken by the international community? A multi-pronged intervention that includes varying degrees of financial incentives, diplomatic action, and even military force (depending on the needs of each conflict) can increase enforcement of international law. Although economic and diplomatic sanctions might not always elicit a quick response [15], these options can certainly move a nation to change course depending on the general domestic response. Increased political turmoil at home can often incentivize leaders to change course in their foreign policy decisions. Another option is use of military force, allowed under Articles 24 and 25 of the UN Charter [16]. This option worked well in the First Gulf War, as it allowed for a prompt military response from the U.N. Security Council [17]. Especially when larger actors are involved, the use of a joint military force can sometimes be the international community’s best option for enforcement of norms.

In general, the international legal system can act as a useful tool in select situations, but it has been repeatedly seen on the world stage that this mechanism is largely unable to enforce norms and prevent mass atrocities when greater powers are involved. A multi-faceted reform strategy that utilizes more than one form of punishment (with the option for collective force from the UN particularly emphasized) is needed to build an international legal system able to protect against nuclear danger and human rights abuses in times of dire need.

Bibliography

[1] United States Institute of Peace, “How the ICC’s Warrant for Putin Could Impact the Ukraine War,” accessed March 3, 2024, https://www.usip.org/publications/2023/03/how-iccs-warrant-putin-could-impact-ukraine-war.

[2] Peter Dickinson, “Russia’s Mass Abduction of Ukrainian Children May Qualify as Genocide,” Atlantic Council (blog), July 27, 2023, https://www.atlanticcouncil.org/blogs/ukrainealert/russias-mass-abduction-of-ukrainian-children-may-qualify-as-genocide/.

[3] Rebecca Ingber, “International Law Is Failing Us in Syria,” Just Security, April 12, 2017, https://www.justsecurity.org/39895/international-law-failing-syria/.

[4] Ernest Moniz, “On Iran and North Korea: Don’t trust, and verify, verify, verify,” Nuclear Threat Initiative, March 27, 2018, https://www.nti.org/analysis/articles/iran-and-north-korea-dont-trust-and-verify-verify-verify/.

[5] “Purposes and Principles of the UN (Chapter I of UN Charter) | United Nations Security Council,” accessed March 3, 2024, https://www.un.org/securitycouncil/content/purposes-and-principles-un-chapter-i-un-charter.

[6] Council on Foreign Relations, “How Russia’s Invasion of Ukraine Violates International Law,” accessed March 3, 2024, https://www.cfr.org/article/how-russias-invasion-ukraine-violates-international-law.

[7] Stanford Law School, “Stanford’s Allen Weiner on Russia’s Invasion of Ukraine and the Laws of War,” Stanford Law School, February 21, 2023, https://law.stanford.edu/2023/02/21/stanfords-allen-weiner-on-russias-invasion-of-ukraine-and-the-laws-of-war/.

[8] WSJ Editorial Board, “Putin Sends Nukes to Belarus,” Wall Street Journal, January 7, 2024, https://www.wsj.com/articles/russia-nuclear-weapons-belarus-alexander-lukashenko-vladimir-putin-a87df19d.

[9] Non-Proliferation Treaty, “Understanding the Text of the Treaty,” accessed March 3, 2024, https://tutorials.nti.org/npt-tutorial/understanding-the-text-of-the-treaty/.

[10] Reuters, “Belarus Referendum Approves Proposal to Renounce Non-Nuclear Status - Agencies,” February 27, 2022, sec. Europe, https://www.reuters.com/world/europe/launchpad-russias-assault-ukraine-belarus-holds-referendum-renounce-non-nuclear-2022-02-27/.

[11] - WSJ Editorial Board, “Putin Sends Nukes to Belarus.”

[12] Ambassador Juan Manuel Gómez-Robledo Verduzco, “The International Court of Justice: A Bright Light in Dark Times,” Just Security, October 24, 2022, https://www.justsecurity.org/83723/the-international-court-of-justice-a-bright-light-in-dark-times/.

[13] Stanford Law School, “Stanford’s Allen Weiner on Russia’s Invasion of Ukraine and the Laws of War.”

[14] Ibid.

[15] ASIL, “Enforcing International Law,” accessed 10 Mar. 2024, https://www.asil.org/insights/volume/1/issue/1/enforcing-international-law.

[16] United Nations, “United Nations Charter (Full Text),” accessed 10 Mar. 2024, https://www.un.org/en/about-us/un-charter/full-text.

[17] Mary Ellen O'Connell, “Enforcing the Prohibition on the Use of Force: The UN’s Response to Iraq’s Invasion of Kuwait,” Maurer School of Law: Indiana University, 1991, https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3087&context=facpub.