On September 26, 2024, the Jacob Blaustein Institute for the Advancement of Human Rights (JBI) gathered prominent experts, diplomats, advocates, and scholars for the JBI Human Rights Lecture in New York City. Delivered by Professor Yuval Shany, entitled “International Law Under Fire: The International Rule of Law, International Lawfare and the Gaza War,” the lecture examines the erosion of the international rule-based order amidst global crises and escalating challenges. Professor Shany is an esteemed authority in public international law and former chair of the United Nations Human Rights Committee.
A Pivotal Moment for International Governance
Professor Shany’s lecture occurred at a critical juncture for the international rule-based order. Crises in countries around the world underline the urgent need for robust human rights mechanisms. At the same time, the international system is increasingly seen as impotent and politicized, particularly with respect to the conflict between Israel and Hamas.
Shany expresses particular concern about the trend of international law appliers advancing legally dubious and practically unsustainable positions against States that are threatened by non-State actors that effectively deny States the ability to protect their legitimate interests. Observing that "international law...is not a suicide pact," Shany observes that this practice is encouraging State actors encountering these claims to adopt more confrontational positions towards the international rule-based order than they otherwise would have and undermining the ability of outside critics to invoke international law against them even when they violate widely-supported norms.
Shany also warns of another alarming trend of certain international legal actors with strong political agendas promoting loose and hyperbolic interpretations of international law for the purpose of inflicting reputational harm on States. Shany observed that this practice erodes these actors' credibility while also raising unrealistic expectations among some constituencies that international courts and law enforcement bodies will act on their claims and will eventually generate further popular disappointment with international law.
Shany also exhorts international law appliers to handle this fragile system "with care" and avoid "overreaching in making legal claims that have limited support in legal doctrine and the actual facts on the ground, and which run contrary to important and legitimate state interests, around which the rule-based order is built, such as protection from acts of aggression and resorting to self-defense when necessary." He urges those that have done so to "reconsider their drift towards fringe legal positions that are often based on overly-ambitious structural change agendas and/or collapsing important distinctions between law and politics" and "avoid adopting controversial, at times hyperbolic, legal characterizations when more simple and straight forward ones are readily available."
Shany urges international law appliers to act responsibility and work to restrain the loose and hyperbolic use of international law, recalling that their ability to use it as a basis for advocacy depends on the continued viability of the rule-based international order. He stresses: "For our fragile rule-based international system, the perception that key actors in the system apply international law in a manner that is highly politicized is extremely harmful." Without such changes, he warns, confidence in the impartiality of international law and its ability to address modern challenges will only continue to erode at a time when it is critically needed.
A recording of the lecture can be viewed here: