How the West weakens rules-based global order
Powerful countries continue to sacrifice international law at the altar of political expediency. They actively quote international law to judge the actions of their adversaries but disregard it to support their unlawful actions and those of allies
The year 2022 shall go down in history as one that posed a fundamental challenge to the international legal order due to Russia’s illegal invasion of Ukraine. The world — especially the United States (US) and Canada — didn’t leave any stone unturned to remind Russia about its illegal occupation. The United Nations (UN) was repeatedly used to adopt resolutions indicting Moscow. Western powers are correct in pointing out that Russia’s invasion of Ukraine is illegal because it constitutes an unlawful use of force, not mandated by the UN Charter. Furthermore, Russia’s occupation of Donetsk, Luhansk, Zaporizhzhia, and Kherson — four regions that are an integral part of Ukraine – is also illegal. Russia claims that these four regions have had referendums. However, the so-called “referenda” were conducted in areas under Russian occupation. Thus, it is unlikely that they constituted a genuine expression of popular will. Furthermore, consequent to the occupation, Russia unilaterally merged these four Ukrainian territories with it. This is illegal because it violates Article 43 of the 1899 Hague Regulation. Russia, being the occupier, has no “sovereignty” but only “authority” over these regions.
But the same western powers turn Nelson’s Eye to another blatant violation of international law, that of Israel’s occupation of Palestinian territory. Israel’s occupation of the West Bank began in 1967 and has deepened over 55 years, notwithstanding an advisory opinion by the International Court of Justice (ICJ) and adverse UN Security Council resolutions. The hypocrisy of the West’s respect for international law lay barefaced when the UN General Assembly (UNGA)’s Special Political and Decolonization Committee voted on a resolution on Israeli practices affecting the human rights of the Palestinian people. The resolution is significant as it came against the background of the recent Israeli election won by a coalition of Right-wing parties, with some having strong anti-Palestine sentiments.
While the resolution was overwhelmingly adopted, Israel contested it and referred to ICJ as a “weapon of mass destruction”. Since ICJ is the UN’s principal judicial organ, this is equivalent to launching a frontal attack on the UN Charter. Yet, astoundingly, several western powers voted against the resolution and chose to stand with Israel.
The resolution seeks legal answers to two questions. First, what are the legal consequences arising from the violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement, and annexation of the Palestinian territory occupied since 1967? Second, how do the policies and practices of Israel affect the legal status of the occupation, and what are the legal consequences that arise for all States and the UN from this status?
The answer to both these questions will have significant ramifications in the future. For instance, the right to self-determination is the legal right of people to decide their destiny and is a settled principle of international law. Therefore, Palestinian people’s right to self-determination means that Israel must end its occupation of Palestine. Likewise, all countries will be under an international legal obligation not to recognise Israel’s illegal occupation of Palestine, just like Russia’s illegal occupation of Ukraine should not be recognised.
Israel’s chutzpah at the UN, its impertinence for ICJ, and the West’s soft corner for Israel’s illegal occupation are not new. In 2003, UNGA adopted a resolution seeking ICJ’s advisory opinion regarding a wall that Israel had constructed on Palestinian soil cutting through Palestinian communities. ICJ, in the “the Wall” case, opined that Israel’s actions violated international law under various treaties. Though ICJ’s advisory opinions are not binding, they carry legal and moral weight. Supporting Israel, the US, Germany, and Australia made submissions to ICJ against giving any opinion. Canada requested the court to be cautious while deciding what to do with UNGA requests.
In 2022, history is repeating itself. Unfortunately, powerful countries continue to sacrifice international law at the altar of political expediency. They actively quote international law to judge the actions of their adversaries but disregard it to support their unlawful actions and those of allies. This heads I win tails you lose approach is the chief reason for the abject failure to erect a durable rules-based international order.
Prabhash Ranjan is a professor at the Jindal Global Law School. Aman Kumar is assistant professor, IFIM Law SchoolThe views expressed are personal