6th January 2026
What happens to an international legal order when a superpower goes rogue
The notion of international law prompts strong opinions.
(Here is meant what lawyers call “public international law” – in general, the law which governs nation states and international organisations. There is also “private international law” which is generally dull and uncontroversial – cross-border contracts and what-not.)
Some even doubt international law exists.
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I once heard a very distinguished legal academic – whose name is on the spines of volumes in every law library throughout the land – aver the following:
“In court, the laws of England and Wales are a matter of law. You just have to show the relevant legal authority or instrument and the court should accept that as what the law is.
“Foreign law – say the law of France – is different. This is a matter of evidence – expert evidence. You get an expert in that foreign law and their evidence is put before the court.
And international law, well. (Pause.)
International law is a matter of fiction.”
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There is perhaps no other branch of law which is the subject of such scepticism, if not outright denial, among even lawyers themselves.
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From one perspective, this rejection is perhaps understandable.
A great deal of what is called (public) international law will never be determined or enforced by a court of competent jurisdiction – it will never be litigated, and the nation state (and head of state) breaching that law will feel confident there will not be any consequences.
As one famous jurist once put it: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
And if there ain’t a court that will “do” international law then it is little or nothing more than a polite political fiction – a set of normative assertions with no positive existence.
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But.
There is more to law than its determination or enforcement by a court.
Even domestically, the vast majority of statutory provisions – and indeed many statutes – have never been litigated and will probably never be litigated. Yet they are still the law.
And this is because – in very general terms – they are recognised to be the law and parties regulate themselves accordingly.
As the greatest of all contract law academics G. H. Treitel put it in his classic definition of a contract (emphasis added):
“A contract is an agreement giving rise to obligations which are enforced or recognised by law.”
Enforcement – and thereby the possibility of enforcement – is not the only test of whether a thing is a law or not.
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In (public) international law, many of the obligations are created and agreed by nation states themselves. These are usually in the form of treaties.
There can be treaties between states for particular purposes – and there can be treaties of general of general application. Sometimes the latter are called conventions, as in the Geneva convention. And there can be charters to which member states subscribe – sometimes to create international organisations. There are many ways in which obligations in public international law can be created and agreed.
And then there is what is called customary international law – the international laws which are said to govern nation states regardless of whether the nation state agrees to those laws.
Taken together all these laws constitute (public) international law.
The problem is, however, very little of that law can or will ever be litigated.
But it is treated generally- that is, recognised – by many nation states as law nonetheless.
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One may have sympathy with the view, to adapt the famous aphorism attributed to Gandhi about western civilisation, that international law would be a good idea.
And generally, when nation states recognise it and regulate their conduct accordingly, it is a good thing as well as a good idea.
But what happens when a nation state – a superpower no less – goes rogue?
Where just because it can – like a dog licking itself – it breaches international law again and again, with barely a shrug?
One response is to say that such (mis)conduct discredits the notion of international law entirely – that the polite fiction of international law has been undermined by the (to say the least) impolite.
It is certainly the case that the current administration of that superpower – the United States – do not seem to care less about international law when it would restrain them.
(No doubt they would plead international law against another country if it suited them.)
But the notion of being in breach of international law is not the same as international law not existing.
International law is still there – it is just not being complied with.
International law is still there – it is just not capable of being enforced in these instances (at least not yet).
Other nations will recognise and abide by those laws even if the United States will not.
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An eminent professor may say international law is a matter of fiction, but unfortunately the many breaches of international law by the United States are a not a matter of fiction.
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DAG writes: “But the notion of being in breach of international law is not the same as international law not existing.
International law is still there – it is just not being complied with.
International law is still there – it is just not capable of being enforced in these instances (at least not yet).”
I respectfully submit that this may be misleading at best, perhaps even wrong at the extreme.
To get to the heart of my challenge, this is a question of authority and of jurisdiction. The scope of domestic law is undisputed because any citizen [of a western democracy, at any rate] would challenge that the people of their nation have granted their democratic government the authority to write [through their legislative branch] and enforce [through their judicial branch] the laws of the land. The term, “the laws of the land” is of particular relevance because they determine the outer boundary and scope – not just of where the nation has the right to enforce those laws, but where the nation has the right to act under its own cognizance.
The most authoritative body to address legal disputes between nations is the International Court of Justice, formed under Article 35 of the United Nations Charter.
However, where the ICJ differs from, say the British High Court, concerns authority. Article 38(1) of the ICJ Statute defines the following sources of law that it follows:-
1. International conventions and treaties – agreements to which the involved party nations have previously signed an agreement to be bound by
2. International Custom – which it defines as evidence of general practice that is accepted as law by the states concerned
3. The general principles of law recognised by “civilised nations” which serve to fill gaps in the first two sources
4. Instructive judicial decisions, as well as the input from internationally regarded legal scholars, which form the ICJ equivalent of “case law”.
The point I try to make here is to illustrate the fundamental difference between the application of national law, where the legislative and judicial branches of government have formally defined roles to play; and international law, where the legislative process is absent and only partially covered by international agreements and treaties. In short, the only way for “international law” to be applied [when it pertains to nation states, at any rate], is for the nations concerned to agree to be subject to them. When one nation in a dispute clearly knows that it is acting outside those quasi-legal frameworks, it is axiomatic that it will not agree to be bound to them, thus rendering the entire structure of international law to be worthless.
During President Trump’s first term in office, the people of the United States got a first-hand look at the way that the “conventions” and “traditions” of their system of government was completely vulnerable to a single individual who decided that since they could not be forced to abide by those formalities, they would not be limited by them.
Based on recent evidence, we might conclude that President Trump’s second term in office will be illustrated by the same level of disdain being applied to international conventions instead.
Brace, brace.
Thank you for stating plainly that the kidnapping of Maduro was a breach of international law, rather than hedging as many European politicians have done out of fear of offending Trump. Whether or not we approve of Maduro and his regime is beside the point. What occurred was not the lawful apprehension of a common criminal, but a kidnapping at gunpoint—carried out with roughly a third of the U.S. military force and some 180 aircraft overhead. Yet claimed not a military operation or an act of war!
To describe such an operation as a routine law enforcement action is disingenuous. Moreover, it was conducted under U.S. law, yet not on U.S. soil. How can one state claim jurisdiction to hold individuals accountable under its domestic laws for actions allegedly committed in another sovereign state?
Happy New Year David and what a great starting post for the year.
There’s a lot to unpack but given the times we live in, I’m minded of the old General De Gaulle famous quote on treaties highlights their temporary nature, stating:
“Treaties, you see, are like girls and roses: they last while they last,”
a sentiment reflecting his view that international agreements are not static but dynamic and depend on changing interests.
Dynamic and changing interests spring to mind currently as do the phrases ” hard” and “soft” power.
In the Western World we’ve become quite taken with the terms above but in particular in the UK /Europe with the concept of ” Soft” power.
Maybe the idea of “Soft” power is taking or has taken a back seat much like the concept of ( lack of) “enforcement” in International Law because there is no entity capable of enforcing such laws currently.
We do know that ” hard power ” exists because that is how the US ( Venezuela) and Russia ( Ukraine) are currently behaving.
Your point about about International Law that can’t be enforced still stands – the challenge of “hard power” is that it kind of makes a mockery of international law, precisely because it isn’t and can’t be enforced.
Of course International Law cannot be argued in a national court. It is based on treaties and other agreements to regulate how nations behave towards each other. Ultimately it protects national sovereignty by giving up some freedom of action. It’s also the basis upon which the UN exists. For years the UN has been weakened by resolutions that are routinely ignored. Now the UN is just a talking shop. It has been powerless to protect Ukraine from invasion, for example, and is not involved in Trump’s peace “deals”.
International Law only has meaning if a nation respects the treaties and agreements that it has signed. The UK is usually strong in this regard. Starmer’s response to the attack on Venezuela is mealy mouthed weakness to avoid upsetting Trump. Badenoch’s is even worse, calling the attack morally right. We are on a very slippery slope, with the USA threatening an attack on fellow a NATO member, without even bothering to try and negotiate a settlement.
There is some similarity between the recent Venezuela operation and two previous US actions: the 1989 intervention in Panama to capture General Noriega, the effective ruler of that country; and the 1983 intervention in Grenada to enforce regime change there. The Panama operation took several days and around 500 Panamanians died in it.
I was shocked by the Grenada intervention at the time, but afterwards it didn’t seem so terrible. I shed no tears for Noriega, and Panama is much better for his removal. Probably there was some angst about international law at the time of those actions, but it was soon forgotten.
I shed no tears for Maduro either, and fortunately it was done without collateral deaths as happened in Panama.
Noriega was clearly a criminal and in charge. Whereas Maduro looks more like the puppet, a figurehead for the real criminals deeper in the Venezuelan regime. Diosdado Cabello’s name is often mentioned in relation to the criminality. It is often said that it is the army that really runs Venezuela.
So it’s probably rather harder to connect Maduro to serious wrongdoing. Some of his wife’s relatives are serving US sentences having been caught red-handed with a lot of drugs, in the so-called Narcosobrinos affair of 2015. FARC transports or used to transport drugs from Venezuelan military bases. But that doesn’t make Maduro guilty of it. The US indicted him in 2020 for conspiracy, which looks like an admission they haven’t got very good evidence connecting him to specific criminal acts.
But I also wonder if we look at the Maduro operation differently from these earlier ones, because it is Trump, and because of the incompetent loyalists now in charge of the DOJ, etc.
“I shed no tears for Maduro either, and fortunately it was done without collateral deaths as happened in Panama.”
It is being reported that about 56-80 deaths did occur in the US operation to remove Maduro. It seems that there were deaths of 32 Cuban military/security personnel, and about 24 Venezuelan military/security personnel. That brings the total to 56, which is reported in some sources. Other sources (US officials) said variously “67 people were killed in the predawn strike, while another said that about 75 to 80 people were left dead”.
The latest reports from Venezuela now quote 100 deaths. The number of deaths is however surely not the point.
It was an illegal invasion by the USA. Now compounded by piracy and theft of oil on the high sea to sell off to others for profit, threats of military attacks on other countries in the Western Hemisphere who criticize and the pending seizure of Greenland, given Denmark’s refusal to sell.
Unfortunately, the seizure of the empty renamed Bella 1 oil tanker, now under a Russian flag and well away from any claimed US sphere under a “Donroe” policy, was supported by the UK government, presumably so as not to offend Trump. The likelihood of Russia now supporting a ceasefire in the Ukraine will surely receed even further.
We are seemingly drifting into a 19th century era, where might in right, international law does not exist, and where the United Nations has become the League of Nations 2.0 – both irrelevant and toothless.
Well, there was the Rhineland, then there was Austria, the Sudetenland, Poland and then you have a longer list.
At the end of it all you have a big meeting to establish an international legal system.
Over the years this frays so you get Vietnam, Afghanistan, (from both directions) etc.
Now it’s starting again. Perhaps we need a jolly good war every 60 years or so to establish an international legal system – that never works.
Depressing really.
Interesting idea on War – Richard Haas, an Under secretary of state under Hilary Clinton made similar comments in an op ed in the Financial Times c. 15 years ago – his argument being that World War acted as a reset in numerous dimensions.
Maybe too, International Law is just ephemeral and subject to the old aphorism, ” nothing lasts forever”.
In philosophy, there is a concept known as philosophical zombies.
A philosophical zombie behaves just like a human would, however she lacks any kind of a subjective experience.
Now the question is: is the concept contradictory?
One sometimes considers a philosophical zombie world, a world just like ours, except no subjective experience exists whatsoever and never had.
Could such a world exist?
The best argument for why such a world would be at least highly improbable is very simple: we do in fact talk about subjective experience. For such a world to exist, at some point, a philosophical zombie would have to start describing subjective experience that sounds just like ours, despite never meeting a person who had such experience, a person who met such a person… (and so on, inductively). You then have to construct some unknown mechanism different from subjective experience in a brain of such a philosophical zombie that makes one precisely (or as precisely as we do) describe just that unprompted. Which just seems unlikely.
Perhaps then, analogously, the best evidence for the existence of international law is the same, that we do in fact talk about it. Foreign leaders, even the most heinous ones, most of the time at least try to reason that they do in fact follow that law. China never actually recognized Crimea as Russian territory despite de facto supporting Russia in her aggression on Ukraine. If international law did not exist and it had no consequences one struggles to find a reason why they would not do it.
In democratic countries (and even in some not-so-democratic ones), whenever the government is perceived to be in breach of international law, they are sure to face at least some criticism from some opposition. Sometimes strong opposition from strong opposition. The government will in turn aver they do in fact follow the international law rather than dismissing its existence altogether. If international law did not exist and it had no consequences one struggles to find a reason why they would not do it.
You do not have governemnts trying to convince people of existence of fairies, Santa Claus or Spider-Man.
What I am trying to prove is that a world in which international law does not in fact exist would be a different, perhaps very different, world than the one we actuallly occupy. From which it arises our world does in fact posses international law. One could argue in good faith that international law does not satisfy some abstract definition of law, that it, international law is in fact not law at all. But that is a wholly different beast from it nor existing at all.
Clive and John Jones above make my point below in a far more informed and eloquent manner.
D.A.G. may aver that ‘international law breaking is not a fiction’ but unless international law is enforced to a conclusion within acceptable timescales and all relevant perpetrators are dealt with it is recognised by everyone else as partial and therefore subordinate to other factors. In which case the distinction between ‘fiction’ and ‘partial’ is one with no difference.
Especially to wealthy and powerful perpetrators.
We seem to be entering a period in the West in which Enlightenment values are in retreat, as evidence-based reasoning is increasingly undermined by social media systems that reward group conformity and shortcut thinking, making intellectual laziness the norm and manipulation the default.
Applied to international law, this erosion of reasoned constraint appears to be fostering a growing tolerance for the belief that outcomes can justify the abandonment of legal and moral principles.
Is there a risk that the principle expressed as “the end justifies the means” will take root among politicians (of any persuasion) or has it already?
Tim – good points made.
Much depends on where the enlightenment is coming from.
Like it or not, we’ve had a good run post 1945 of a kind of ‘ global UN ‘ enlightenment. Trump has tragically ( arguably) merely created a somewhat newer, cruder enlightenment based on a credo of “Might is right”.
On reflection of the Yalta agreement when Roosevelt/Stalin and, to a lesser extent Churchill, sat down and effectively carved up a new Europe, I do wonder if “Might is right” ever went away or else we chose words/phrases such as ” new world order” and ” enlightenment” to gloss over our more base realities. 🫣
The comment is referring to the specific period from about 1680–1820 called the Enlightenment which was a time of discovery and learning that flourished among Europeans and Americans that changing the way they viewed the world.
We’ve a new enlightenment – it’s been redefined and/or repurposed.
We had a period of what was known as International Law. This is now in tatters.
“Might is right” never went away, but international law used to either inhibit it or coordinate reaction against it. All international conflict since 1945 has been the result of a leader thinking might is right was a good solution. The UN used to be effective ending conflicts and policing peacemaker. But that day is gone, the UN has no power if nations don’t respect it. Trump certainly doesn’t. It seems his pecemaking days are over before they actually began.
I think the invasion of Iraq in 2002 was a turning point. Despite not getting UN authority for it, the USA pressed ahead anyway.
Deputy Security Council Chairman Dmitry Medvedev advises “The maximum reinforcement that guarantees that the country will be reliably protected is only the nuclear arsenal! Long live nuclear weapons!”
Not quite as simple as that but a good point.
I do feel that when (if) Mr Trump’s term of office ends we will discover in his play room the broken bits of perfectly good countries and OK-ish political systems strewn around like broken toys.
Re Venezuela and possibly Greenland the question is why? There are perfectly good business and law enforcement methods to achieve the same ends.
I get the feeling America has become a lady over a certain age who drinks too much and throws tantrums at the sight of younger models.