On Second Chances: Discursive Maintenance of International Law Amidst Ukraine and Gaza

[Ole Aldag, LL.M. (Aberdeen) is a bar-registered lawyer in Düsseldorf (Germany) and a doctoral student at Bielefeld University]

When international law’s core prohibitions are violated in full daylight, accompanied by strained legal justifications of actors showing no restraint in exercising their powers— what remains of its authority? The prohibition on the use of force has always operated in tension with global power dynamics. Yet recent events have escalated this tension into a deeper challenge to international law’s authority itself.  Russia’s invasion of Ukraine, Israel’s military operations in Gaza, and strikes on Iranian nuclear facilities have all invoked — and distorted — the language of law. The problem is thus not only material, as in international law’s lack of enforcement, but discursive. When states act in defiance of clear legal norms and justify their actions in the very vocabulary of law, the system risks cognitive dissonance and calls for discursive damage control. Does international law matter if even its breaches wear a legal mask – and how can international legal scholarship put a counterweight to its perceived demise?

This post resists the conclusion that international law’s authority slowly collapses with each violation and co-option— it argues that international law endures through the way we continue to speak about it. It frames the task of legal scholarship as one of discursive maintenance when international law is under conceptual attack in showing how law structures expectations and remains operative even after rupture.  Discursive maintenance refers to communicative practices through which the authority of international law is preserved and semantically stabilised in contexts of material disregard or instrumental distortion. By naming violations, reiterating normative expectations, and sustaining the vocabulary of legal responsibility, it aims to safeguard the normative intelligibility of international law when its binding force is disregarded. This concept builds on understandings of international law as discourse and aligns with theories of discursive institutionalism, according to which legitimacy depends not only on institutional design, but on the continuous reproduction of meaning in public fora. 

Discursive resilience conceptualizes discourse as a constitutive practice that sustains or challenges normative structures. Where international law is disregarded, its restoration depends on the agency of those who speak in its name. This proposition rests on the understanding that international law derives its practical authority not only from institutional enforcement, but also from how it is invoked, negotiated, and rearticulated in political, diplomatic, civic, and academic venues, where significantly, law is interpreted, contested, and reiterated through scholarly engagement. This perspective aligns with the premise of Talking International Law, which demonstrates how legal meaning and authority are constituted, contested, and maintained through discursive engagement across diverse institutional and public spheres.

The central claim is that even if international law cannot prevent its rules from being broken, it can—precisely at the moment of violation—assert its continued relevance through persistent structures and institutional responses. This includes instances where legal language is not rejected but strategically appropriated through co-option— for example, when the vocabulary of self-defence, proportionality, or self-determination is deployed to justify uses of force that plainly exceed legal thresholds. 

In such contexts, discursive maintenance does not resolve the underlying violation, but works to expose the dissonance by reaffirming legal baselines, challenging justificatory framings, and resisting the dilution of legal standards through repeated misuse. This task is assigned to international legal scholarship, which bears responsibility not only for analysing law’s failures, but for actively defending its conceptual boundaries. That includes clarifying the limits of lawful interpretation, and calling out the distortion of legal categories in the guise of academic neutrality. Especially in moments when legal vocabulary is co-opted to legitimise the unlawful use of force, the integrity of international law depends in part on whether its core concepts are meaningfully upheld in scholarly discourse. Where international law is co-opted—its terms invoked to shield their own betrayal—discursive maintenance becomes an essential act of resistance. The task is not only to preserve legal vocabulary, but to defend its meaning against instrumentalisation by drawing boundaries, rejecting mimicry, and exposing simulated legality.

State Responsibility as Legal Memory: Beyond Enforcement

A key resource in this strategy is the framework of state responsibility. According to the ILC’s Draft Articles (DARS), internationally wrongful acts give rise to legal consequences irrespective of adjudication or sanction. Under Articles 30 and 31, a state must cease its wrongful conduct and offer full reparation. These obligations arise ex lege—not from adjudication, but directly from breach. The rule persists through the obligations it generates. This structure allows law to perform what might be called a memorial function, since the violation does not erase the rule, but instead activates a layered process of legal reaffirmation. As the ICJ made clear in the Chorzów Factory case, reparation aims to ‘wipe out all the consequences of the illegal act’. This logic was reiterated in Gabčíkovo–Nagymaros, in the Genocide judgment, and in DRC v. Uganda. In each case, the Court insisted that international law responds not only to compliance but to transgression.

As Crawford emphasised, international law’s authority does not rest solely on compliance, but on the continued articulation of legal consequences—and on the community of actors willing to speak in legal terms despite normative rupture (pp. 63–66). From a discourse-maintenance perspective, this matters enormously – as it provides a discursive powerful counter-argument vis the lack of enforcement. It allows law to speak normatively after it has failed preventively. Here, too, lies its purpose. It gives international legal actors—states, courts, civil society—a language for insisting that wrongs remain wrongs, that legal obligations survive their breach, and that accountability remains legally framed, even when politically deferred – a notion all too often ignored in debates about an alleged superfluity of international law. This logic remains relevant in ongoing conflicts. In the case of Russia’s aggression against Ukraine, the ICJ’s provisional measures and the General Assembly’s resolutions do not merely declare illegality—they reactivate the normative grammar of responsibility, even in the absence of enforcement. Similarly, in Gaza, where allegations of widespread violations continue to mount, the invocation of international law by the ICJ, the ICC Prosecutor, and civil society actors reflects a shared insistence that the legal framework is not voided by breach. Rather, the persistence of legal claims in both cases affirms the enduring structure of responsibility—even where compliance is absent, and consequences are contested.

The Ukraine Register of Damage: Law as Claim Infrastructure

Ukraine’s response to Russian aggression exemplifies this dimension. The establishment of the Ukrainian Register of Damage under the auspices of the Council of Europe marks a paradigmatic case of law operating as what Koskenniemi once called ‘a structure of meaning’. The Register does not coerce, and it does not adjudicate. But it catalogues loss, attaches it to a legal norm, and thereby transforms private and public grievance into a legally claimable harm. As such, it exemplifies discursive resilience in action – a non-coercive but normatively dense structure that sustains international legal meaning in the face of political blockage. By articulating loss in legal terms and preserving legal vocabulary amid breakdown, the Register maintains the semantic infrastructure of international law.  Its discursive function begins with its very genesis. 

As a collective political act by Council of Europe member states, the Register reaffirms that mass-scale violations generate not just humanitarian concern, but enduring legal consequences. Structurally, it records claims from individuals, businesses, and public entities—transforming harm into juridically framed injury. The mechanism thereby anticipates a future reparations process without predetermining it. As some observers have noted, the Register’s legal effect remains contingent and may never materialise in the form of enforcement. But its function lies elsewhere, namely in consolidating a legal narrative of responsibility, and in preserving a publicly accessible archive. Importantly, such structures signal in public discourse that the wrong remains legally framed—even when reparations are deferred. Precisely in such mechanisms lies the potential for discursive self-assertion of international law. Those who speak of law’s ‘powerlessness’ often overlook the symbolic force of such instruments. They are not escapes from political reality, but a mode of inscribing legal order into that reality—perhaps not now, but not never.

The Role of the ICJ: Legal Continuity amid Crisis

This logic also plays out before courts. In South Africa v. Israel, the ICJ issued provisional measures without yet deciding on the merits. But even this procedural step carried significant normative weight. It affirmed that the conduct in question—however politically charged—is subject to legal categories. It publicly asserted that international law remains applicable even as violence unfolds. The Court explicitly reaffirmed the applicability of the Genocide Convention, called for the prevention of acts potentially amounting to genocide, and demanded the preservation of evidence. In doing so, it did not merely address the parties, but signalled to the international community that law continues to operate in the midst of violence. A similar function was visible in Ukraine v. Russia, where the Court, again at the provisional stage, called for the suspension of military operations. While the legal enforceability of such orders remains limited, their discursive function lies in preserving the grammar of legal responsibility. Following the order in South Africa v. Israel, several states publicly referenced the Court’s language to frame their own diplomatic statements, effectively amplifying its normative signal. Thus, each measure reactivates the normativity of law not through coercion, but by restating the distinction between what is lawful and what is not. The Court’s language—its careful invocation of obligation, urgency, and evidentiary precaution—serves as a stabilising reference point when the political field is saturated with justificatory speech.

From a purely legalist view, such measures may seem weak. But discursively, they preserve the distinction between legality and realpolitik. In this sense, the ICJ is not merely a forum for dispute settlement. It is also a bearer of immense symbolic weight in a normative order where many already doubt the continued force of law. Every act of the Court intervenes in public discourse—and that is precisely where its significance is greatest today. From a discursive-institutionalist perspective, the distinction between coordinative and communicative discourse highlights how legal authority is not only produced within institutional arenas but must also be rearticulated and defended in public discourse. From this perspective, the ICJ’s authority derives not only from its jurisprudence, but from its capacity to structure legal expectations in the broader forum of ideas.

Is symbolic persistence enough? Critics argue that international law masks powerlessness with formal vocabulary—especially when obligations are declared without political means to enforce them. But this criticism overlooks the difference between absence of enforcement and absence of normativity. A rule can be violated without losing its legal quality. The rule’s authority lies not in its perfect observance, but in its continued invocation, application, and defence. International law, lacking a centralized enforcement mechanism, has long operated through processes of repetition, contestation, and re-articulation. For legal scholars, this opens a specific responsibility, not to cover over structural weakness, but to assert the normative value of law where its validity is questioned by rhetorical abandonment. Maintaining the distinction between rule and violation—between an order under pressure and an order in collapse—is not an abstract task. It is a form of discursive intervention. 

Discursive Fragility: The Cost of Speaking Law

Israel’s military operations in Gaza have triggered widespread allegations of international law violations, including indiscriminate attacks, deprivation of aid, and possible genocidal conduct. Yet alongside the material dimension of these violations unfolds a deeper discursive pattern. Legal vocabulary is not denied, but weaponised. Concepts such as self-defence or human shields are invoked to shield excessive violence from scrutiny. In statements before the UN, Israel has framed military operations as a lawful exercise of self-defence under Article 51 of the UN Charter—a framing contested by multiple UN bodies as exceeding legal limits. The result is not the absence of law, but its saturation by justificatory speech that empties legal terms of constraint.

In this environment, discursive maintenance becomes an immensely fragile task. Not only because legal norms are broken or co-opted, but because the social conditions of legal speech are themselves threatened. Within Gaza, the destruction of universities has erased spaces where international law might be studied, critiqued, or rearticulated from within affected communities. Outside Gaza, legal scholars critical of Israeli conduct may face professional isolation, reputational risk, or institutional pressure. This chilling effect undermines not only academic freedom, but the discursive conditions under which international law sustains its authority. If critical legal voices are marginalised—especially those from or allied with the Global South—then the field risks reproducing the very asymmetries it claims to regulate. Discursive maintenance, in this context, must include resisting such silencing by allowing space for dissonant perspectives, defending the legitimacy of normative dissent, and insisting that international law is not the property of states, but the shared language of a global legal community.

This is also where the academic discourse plays a pivotal role. Scholarly legal analysis must resist the temptation to equate inefficacy with irrelevance. Instead, it should map and articulate how legal authority survives breach—how law is preserved not by brute force, but by its capacity to remain invoked, referenced, and demanded. Critical traditions such as TWAIL challenge the self-universalizing claims of international law by exposing its structural entanglements with imperial power. In doing so, they contribute to its discursive resilience by demanding reflexivity and inclusion, they compel the law to rearticulate its authority on more legitimate grounds. In this way, academic voices may not only contribute to understanding the law, but to preserving its social function. Strategic discourse maintenance may then serve as an act of legal stewardship.

Continued Authority After Rupture

It is crucial for international law’s discursive survival to uphold that it does not cease to be law when it is breached. It persists because it continues to shape expectations, coordinate state conduct, and provide a grammar of legitimacy. As the International Law Commission’s work on State Responsibility shows, the very act of formulating legal consequences to violations (Articles 40–41 DARS) rests on the idea that norms bind even—and especially—after they are broken. This concept finds further support in the ICJ’s approach to obligations erga omnes, which bind all states and may be invoked collectively—as seen in South Africa’s Genocide case and now in the ICJ’s advisory opinion on climate change-related obligations. Breach harms not only victims, but the world order itself, another powerful discourse point. 

The use of force by Russia and grave humanitarian violations in Gaza may all signal normative breakdown. Yet each activates a distinct legal grammar—of responsibility, reparation, and reassertion. These mechanisms remind us that international law’s force is not confined to prevention, it extends into the aftermath and relies on steadfast discursive resilience. International law continues to speak through claims, procedures, and memory. As von Bernstorff has argued, the persistence of legal norms—especially in institutional and symbolic forms—is a central feature of international law’s claim to legitimacy. Even when enforcement fails, law retains its authority through what he terms the ‘normative grammar’ of institutional practice and collective memory (pp. 222–225). To maintain and safeguard this authority is the work of discursive resilience and the task at hand for international legal scholarship – not denying failure but resisting fatalism, and insisting on the architecture of international law that endures even after rupture. After all, international law deserves its second chance, sustained by those who speak for it when cutting off communication seems the easier choice – it never is the right one.