Commentary: International law only works if everyone plays by the rules
The US has lost moral authority with latest U-turn on Israeli settlements in the West Bank, says Tunc Kaplan.
SINGAPORE: US Secretary of State Mike Pompeo announced on Monday (Nov 18) that the United States no longer considers Israeli settlements in the West Bank a violation of international law.
This unilateral decision reversed four decades of American policy and removed what has otherwise been an important barrier to Israeli designs of annexing occupied territory.
It also breaks away from a common consensus forged internationally and shared by most countries. International condemnation to the announcement has thus been swift, with Palestinians, the Arab League, the United Nations (UN), the European Union and a number of countries decrying the move as undercutting any chances of a broader peace deal.
Without specifically naming the United States, Britain, France, Germany, Belgium and Poland issued a joint statement stating: “Our position on Israeli settlement policy in the occupied Palestinian territory, including East Jerusalem, is clear and remains unchanged.”
These countries — all American allies — went on to say: “All settlement activity is illegal under international law, and erodes the viability of the two-state solution and the prospects for a lasting peace.”
Saudi Arabia has also said it completely rejects Washington’s statement, and the Arab League held an emergency meeting of foreign ministers earlier in the week over the issue.
Palestinian chief negotiator, Saeb Erekat, said the Palestinians would take a series of measures to oppose the US decision, including calling for a UN Security Council debate.
"We are going to the [UN] General Assembly and we will ask ... the International Criminal Court to open an official judicial investigation", he added.
What the US repudiation of its own 1978 US State Department legal opinion, which held that civilian settlements in the occupied territories are “inconsistent with international law”, means that, in effect, a big power is unilaterally setting aside international norms that have been established for decades.
In doing so, the United States is abdicating its so-called moral leadership, rendering toothless its proclamations should another country choose to disregard international law.
One example is Russia’s annexation of Crimea in 2014. Following a Moscow-backed referendum, Russia sought military intervention in Crimea as a means to effectively integrate the Republic and its people, officially part of Ukraine, under its jurisdiction.
Since then, Washington has continued to denounce Russia’s actions, while maintaining sanctions against it. US denunciation of the Russian move continues, with the latest coming as recently as February this year.
Many international law experts and scholars have scrutinised the legal arguments against the latest US move and have picked it apart.
The Middle East Institute at the National University of Singapore’s Senior Fellow Victor Kattan wrote that “nothing has changed in the last 40 years to make the settlements legal; on the contrary, the prohibition has become even stronger, with the International Law Commission going as far as to list the right of self-determination as a peremptory norm of international law”.
In a commentary for The Washington Post, Fareed Zakaria opined that: “The Trump administration has also given up on support for broad-based norms and values”.
What this means, in effect, is that the United States is guilty of hypocrisy. US condemnation of other states that do the same, in other words, could be characterised as a case of the pot calling the kettle black, and will no longer have the same deterrent effect to acts of aggression that violate international law.
WHAT THIS MEANS FOR ASIA
This move is worrisome for small states like Singapore, where the rule of law has been a cornerstone of not only domestic and economic policies, but also foreign policy.
It is internationally recognised norms of good state behaviour that have helped to create a conducive, peaceful environment for Singapore.
Upholding the rule of law is also what helped Singapore distinguish itself from other developing countries in its early days of independence and is key to Singapore’s survival, Singapore Prime Minister Lee Hsien Loong has reiterated on several occasions.
It was barely in October this year when Chief Justice Sundaresh Menon spoke at length in a lecture about why the rule of law is an “existential necessity” for the Republic.
“The rule of law is, and has been, the lynchpin of our economic success and this has earned us the world’s respect. It is the ethical code that governs our conduct on the international stage … no state can afford to violate the rights of others without risking exclusion from the international community, or having its rights violated in the same way by some other state”, he said.
Indeed, Ambassador-at-Large, Tommy Koh, has referred to international law as a “shield and sword” for a small country like Singapore, helping to protect it from actions by other states, and to take proactive actions to protect its interests against other countries.
Even larger states in Asia, such as Malaysia, have found the latest US pronouncement problematic.
Calling the US reversal an “absurdity amounting to legalising land grabs by a neighbour of the country”, Prime Minister of Malaysia, Dr Mahathir Mohamad, said it was a blatant disregard of international laws and multiple United Nations’ resolutions.
“We are no longer safe. If a country wants to enter our country and build their settlements, that is legal. We cannot do anything”, he added.
The latest US position thus has the effect of re-igniting the debate on Thucydides’ oft-(mis)quoted axiom: “The strong do what they can, and the weak suffer what they must”.
Tunc Kaplan is currently pursuing a Master of International Relations at the University of Sydney. His areas of research include international law. He contributed this column to the Middle East Institute at the National University of Singapore.