Are international legal barriers sufficient?

Khoo Wu Shaun

We live in a time when international law has steadily become an accepted norm of global diplomacy. Today, unilateral invasions of other sovereign countries are decried as ‘violations of international law’; barely a century ago, the only sounds anyone heard were those of the victors announcing their success. We have come quite a long way since Bentham first coined this term in the 18th century.

Yet, international law has not shed its image of being toothless. We have seen countries act in defiance of international law, but leave happily unpunished for their transgressions. This article will examine what these international legal barriers are, and whether they are currently sufficient to deter countries from intruding on the sovereignty of other nation-states.

Questions of legality in an international context are far more complex than those in a local context. Within a country, sovereignty empowers the government to set and enforce laws on people within its jurisdiction. Globally, it is difficult to define any clear overriding principle or government which can fulfil those roles. Our closest option is the United Nations (UN), an inter-governmental organisation which serves to promote peace and cooperation between member states. The International Court of Justice (ICJ), founded in 1945, serves as the UN’s judicial branch. Its purpose is to settle legal disputes submitted to it by member states and provide advisory opinions on legal questions for the UN bodies. But, since there is no global legislation for international law, where do these legal barriers we apparently pay homage to come from?

In the landmark North Sea Continental Shelf case, the ICJ affirmed that there are two primary sources of international law: treaties, or customary international law (CIL). Treaties are more enforceable than custom, as the countries have explicitly consented to the provisions contained within the document. In contrast, CIL is derived from customary practices between states. 

Most are aware that UN Security Council (UNSC) resolutions are legally binding on all member states in the UN. In some sense, UNSC resolutions also serve as a form of international law, since it applies to all countries regardless of whether they agree with the content of the resolution. Since their legal authority flows from the UN Charter, UNSC resolutions fall under the first category of treaties and agreements. 

Thus, international jurisprudence clearly exists, although it is less obvious than national legislation. Another question arises here: since there is no global government, what kind of punishments can international law mete out, and are these effective?

Theoretically speaking, the ICJ enjoys unfettered discretion in handing down punishments to countries which have violated international law, since there is no “international legislation” which states the maximum or minimum punishment for a particular offence. Realistically, the ICJ has little room to mete out harsh punishments, as their credibility hinges on countries viewing the ICJ as a fair judicial body, and not an overly strict and punitive institution. Despite this, the ICJ has doled out quite a few punishments, from ordering a country to withdraw from an occupied territory to ordering reparations for damages. Crucially, ICJ judgements are influential in global discourse. In the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ ruling that Israel had violated international law served as a powerful riposte to Israel’s constant denial to the contrary.

Although the ICJ seems toothless, its judgements are actually supported by the UN Charter, which empowers the UNSC to impose punitive measures for non-compliance, such as political and economic sanctions. Interestingly, most countries voluntarily comply with the judgement even if it was not in their favour. Countries are aware that if they lose and refuse to follow ICJ judgements, they will become outcasts for refusing to comply with international law. It is telling that no country has ever blatantly refused to comply with ICJ judgements. 

Akin to how punishments deter people from harming other citizens, international law also serves to deter countries from harming the sovereignty of other nation-states. Examples of such actions include the use of force in disputed maritime areas or intentional neglect of transboundary crises. Is international law sufficiently robust as a deterrent to such actions? 

While treaties and agreements are legally binding, they also require all parties to unambiguously agree not to carry out certain actions.If, however, the country has a strong incentive to keep their options open, they would simply refuse to sign. For example, Israel and India are both powerful nuclear-armed states which have not signed the Nuclear Non-Proliferation Treaty due to regional security concerns. This hurts the treaty’s objective to prevent the spread of nuclear weapons and its associated technology.

Perhaps UNSC resolutions are a better option since the resolutions are binding on all countries, circumventing the problem of requiring consent. However, the UNSC is only empowered to use its power in cases of “the maintenance of international peace and security”— hardly applicable to most problems in the world. Furthermore, the UNSC itself comprises countries which can protect their interests against the weight of international law – Russia and its annexation of Crimea come to mind here – and may not work in intractable situations.

The last possibility is customary international law, which appears to be the weakest tool of all three legal instruments. Yet some fundamental international principles— the right of international passage, rules on the use of force, and the duty to cooperate in transboundary environmental harm— were first conceptualised and subsequently reinforced in ICJ cases. These landmark cases have reinforced widespread agreement on certain issues, and crystallised this consensus into official CIL, thereby ensuring its fair application to all countries involved. Moreover, as we’ve seen, the ICJ has the influence and backing to ensure that its judgements are respected by the countries involved in disputes.

One drawback is that the ICJ does not have legal jurisdiction unless both countries declare they recognise the authority of the court. Some countries who have yet to officially acknowledge the ICJ have still proceeded with cases in it, somewhat undermining its authority. Furthermore, the Permanent Court of Arbitration (PCA), another international judicial body, recently ruled that it had jurisdiction over the Philippines’ case on China’s maritime and military activities in the South China Sea, despite China’s opposition to the proceedings. This demonstrates the growing force of international law which is slowly increasing its ability to influence global discourse and pressure countries into accepting its jurisdiction. This strengthens international legal barriers against unilateral intrusions on the sovereignty of other nation-states.

The implications of this are obvious. National legislation protects citizens, especially vulnerable ones, from harm. Similarly, international law functions as a protective barrier which shields weaker countries from the coercive pressures of stronger countries. In Nicaragua v. United States of America, the court ruled that the U.S. had illegally trained and funded anti-government rebels to overthrow the incumbent anti-American government. This sent a powerful message to the global community that superpowers cannot do as they wish: they are equally held to task by international law. 

Furthermore, global peer pressure and a body willing to persecute countries for illegal actions acts as a deterrent. For example, the U.S.’s foreign surveillance programme, PRISM, was criticised by government officials and legal experts from all over the world, forcing President Barack Obama to strengthen restrictions on the National Security Agency (NSA). In the past, the U.S. would have simply turned a deaf ear.

Having a strong understanding of its foundations, powers, and limitations is crucial towards developing this fledgling institution into an influential force for good in the world. Supranational judicial institutions, such as the ICJ and the PCA, still struggle for influence in countries where the rule of law and human rights protections are not as well-respected. It remains an uphill battle for these international courts as they slowly overturn the old belief that countries may do what they please as long as it is within their borders, or if they are the victors.

More essentially, international law serves as a platform for countries to tussle with each other over serious, but not drastic or permanent, intrusions of national sovereignty. In the past, the only available responses were acquiescence or full-out war. Today, international judicial bodies enable these countries to settle their disputes in a fair and peaceful manner. That must surely be the most important contribution that international law can make to the global community.

Japan’s Search for Meaning

EUNICE KIM

One of the most destabilising factors to regional peace is the preeminent rise of one country. When the balance of power breaks down, there is an increased risk of conflict. This is the reality confronting East Asia with the ascent of China. In regaining the balance, the strength of the network of other Asian countries is important – and Japan may be a significant player in constructing and strengthening these ties. Perhaps it is the case that Japan has been startled by the precipitous rise of China and its emerging presence in East Asia. Many analysts talk of Japan becoming increasingly isolated in the region with historical revisionism and disillusionment of the Japanese people with a plateauing economy. However, Japan is still an economic powerhouse and through nurturing its alliances in East and South East Asia it will be able to provide effective checks against the emerging Chinese threat.

Japan was once deemed as the ‘land of the rising sun’, being one of the first countries in East Asia to open borders and trade with the Westerners in the 19th century. Even after its defeat in the Second World War, the country remained internationally competitive in the electronics and motor industries and has maintained its place as the world’s second largest economy since 1968 until 2010, overtaken only by China. In fact, the last few decades have posed many challenges for Japan, not least the ‘Lost Decade’ where low inflation, stagnant economic growth and a weak employment rate – following an asset price bubble puncture – crippled the Japanese economy. Moreover, the country confronts chronic problems such as a rapidly ageing population and relative decline in political influence in the Asia Pacific region. Some have used metaphors such as the popular cartoon series, Attack on Titan, where the protagonists enlist in the military to fight against Titans invading their town. The looming presence of Titans was understood as capturing Japan’s perception of mainland China and military involvement seemed to signal Japan’s militaristic message against the threat. However, such a depiction of Japan may be too simplistic and its recent military posturing is less effective compared to its more interesting economic and political strategy to build a diverse alliance.

Japan’s economy is finally growing – albeit by a modest amount – after the implementation of Abenomics policies, characterised by fiscal stimulus, monetary easing and structural reforms. The country’s GDP per capita is still greater than that of China and it is forming new ties with other economic partners in South East Asia. Japan has consistently engaged with ASEAN (Association of Southeast Asian Nations), increasing its investment over the last decade. Many Japanese businesses are thinking twice about investing in China due to anti-Japanese sentiments and rising wages. South East Asia, on the other hand, offers relatively lower wages and Japanese firms are increasing their presence in Malaysia, Indonesia and Thailand as a result of a squeeze in the domestic market.

However, Japan is not just seeking economic ties but also diplomatic alliances. Since Shinzo Abe was elected as the Prime Minister, a number of his ministers have visited South East Asian countries to cement relatively good ties and to cooperate on naval training and even sales of military equipment. Through diversifying its partnership with other democratic countries, Japan plans to cooperate on maritime security, military preparedness and securing human rights. This outreach has been an ongoing project for over a decade.  More recently, Japan has cancelled Myanmar’s $1.8 billion of debt and promised $500m in aid loans; Mr Abe also visited the country’s President Thein Sein as well as the opposition leader, Aung San Suu Kyi, promising support for major reforms to the former British colony.

Moreover, the country is the key provider of security assistance for many ASEAN countries, including the Philippines, Vietnam, and Indonesia. Despite tensions between Tokyo and Seoul over historical issues, the Japanese and South Korean armed forces continue to pursue quiet security cooperation. Considering China’s long-seated territorial disputes with many ASEAN members, including Vietnam, the alliance between Japan and ASEAN could potentially develop as a check against China’s dominance in the region.

However, Japan’s foreign policy is grounded in its domestic politics. Mr Abe and his Liberal Democratic Party (LDP) enjoyed a rare majority support for the coalition government in two successive elections in 2012 and 2014. As a result, the Japanese domestic politics has experienced a strong right-ward shift. Recent statements and public comportment of the Prime Minister has led to the indignation of many neighbouring countries. His visit to the Yasukuni Shrine on several occasions to respect the war dead, including several notorious war criminals, was met with disapproval in South Korea and China. More serious is the party’s move to amend the country’s pacifist constitution that would rule out military aggression to settle international disputes, a policy deemed counterproductive in terms of forming democratic alliance with other Asian nations.

Shinzo Abe visits the controversial Yasukuni Shrine 

One can speculate as to the cause of such a veer towards nationalist right-wing tendencies. Many of Abe’s cabinet members are also members of the Nippon Kaigi or “Japan Conference,” a nationalistic right-wing group whose members believe that Japan should be applauded for liberating much of East Asia from Western colonial powers; that the 1946-1948 Tokyo War Crimes tribunals were illegitimate; and that the killings by Imperial Japanese troops during the 1937 ‘Nanjing massacre’ were exaggerated or fabricated. Some commentators have compared the Nippon Kaigi to the Tea Party in the United States; both movements which claim to represent grassroots and traditional values but are products of deep conservative anxieties about the future.

Yet, these groups are growing in influence and they recognise Japan as an international power matching both that of the US and China. Hence, Japan has increased its military expenditure to become more independent from the American defense umbrella and engaged in territorial disputes with China regarding the Diaoyu/Senkaku islands, and with its more adjacent neighbour South Korea over sovereignty of the Dokdo/Takeshima islets. This is not to say that a more militarist Japan would necessarily be followed by more hostile Sino-Japanese relations. In fact, both nations are well aware the high costs entailed in engaging in warfare; the two nations’ ties may indeed be closer than media depicts them to be. Having an unfriendly neighbour is mutually beneficial for the politicians of these two countries as their populations can vent anger outwardly against such a perceived threat, rather than inwardly to the government. Thus, as long as the two countries are careful not to escalate the tension, the likelihood of military conflict in East Asia may be low. Nonetheless, Japan’s increasingly belligerent attitudes have left many countries suspicious of its motive and acts as a hindrance to constructing stronger international ties.

Japan is a country searching for meaning: reverting back to its imperial past and military doctrine is not the answer. Instead, it should look towards the future of the multi-polar world where the cooperation of smaller countries can go a long way to provide checks on larger powers. Therefore, continuing its project to diversify its alliances in East Asia, the Asia-Pacific and Southeast Asia will be more fruitful in allowing Japan to find its new place as an indispensable player in international cooperation. It goes without saying that Japan’s role in maintaining the American alliance and healthy relations with other Asian countries is crucial in maintaining the balance of power the region sorely needs.