Re-enchanting International Law is a Global South Project

[Professor Alanna O’Malley is Chair of Global Governance & Wealth at Erasmus University and an ERC Laureate with a research project entitled: ‘Challenging the liberal world order from within, the Invisible History of the United Nations and the Global South.’ Her second book, Decolonising Global Order is forthcoming.]

Among proclamations of the ‘crisis’ of multilateralism and the peril facing the rules-based international order, one note rings clear: international law is on the brink of a renaissance. On one hand, flagrant violations of basic principles such as the prohibition to use force, respect for international humanitarian law and human rights by Russia, Israel, and the United States have demonstrated the willingness of powerful states to act as if they are above this common code of conduct of the international community. On the other, major Global South actors, from Brazil to South Africa, have re-engaged with the institutions and normative processes of international law, exhorting their sanctity and shared importance. 

The consternation over how best to respond when international law is systematically violated has created a sense of urgency and appeals to states to ‘save’ international law or renew multilateralism. As part of a wider Western-led chorus about the ‘crisis’ of global order, it appears as though some of the states who have long proclaimed the inviolability of the ‘rules-based international order’ are now the very perpetrators of attacks on the basic principles of that order. However, this narrow view tends to ignore the agency of Global South actors, who, were both excluded from large parts of the creation of international law and have been largely disenfranchised by the practice of the international legal system for decades. These actors are now leading a quiet campaign to retool international law and reclaim is liberatory potential. Far from being a short-term response to the current atmosphere of alarm, this has been a gradual and gathered approach, with clear historical continuities. 

Reversal of Fortune

When South Africa and its supporters launched their case at the International Court of Justice in January 2024, accusing Israel of committing genocide in Gaza, a sense of historic importance electrified the atmosphere of the Great Hall of the Peace Palace in The Hague. It was not just because of the gravity of the humanitarian emergency on the ground, nor the sense that international law could be utilized in the struggle against mass violence, but because the power and impetus of the moment lay with actors that had previously not just been ignored by international law, but against whom the system had been stacked for decades. South Africa and its people have suffered under various imperial systems and later an apartheid regime from 1948 to 1994, during which time the ICJ ruled in favour of its suppressors. Yet, in a moment of global abhorrence over the killing in Gaza, the turn towards international law represented an effort to reconstitute the system to reanimate its emancipatory potential, an effort with a deep and disregarded history.

In 1960, Ethiopia and Liberia took a case against South Africa at the ICJ, arguing that the state had violated its obligations under the continued existence of a League of Nations mandate over South West Africa (now Namibia). They were referring to South African claims of sovereignty over the territory, which Ethiopia and Liberia argued were contrary to the mandate agreement which should be subject to the supervision of the United Nations. The case continued until 1966 when the ICJ rejected their claims on the basis that although they had been members of the League, Ethiopia and Liberia did not have the right to take the case. With this jurisdictional objection, in one fell swoop the Court struck down the hopes of millions, demonstrating for many that the decolonising momentum of the 1960s had not spread to international law. 

In response, efforts were redoubled. African states took this issue to the UN General Assembly where they succeeded in comfortably securing a resolution which declared South Africa’s claims illegal and revoked the League of Nations mandate over South-West Africa. Further, they argued persuasively that following the earlier ‘scandalous’ and ‘irresponsible’ 1966 ruling, the ICJ bench needed revision. They pressed for the Commonwealth seat be transferred to an African country and just months after the ruling the Nigerian Judge Charles Onyeama was elected to the Court. 

Resurgent, Global South states took the case of the legality of the South African mandate back before the ICJ, this time via the Security Council, finally securing a victory in 1971 when the Court ruled in an advisory opinion that South Africa’s presence was illegal and ordered its immediate withdrawal. The process of anti-colonial solidarity which characterises Global South agency was evident not only in their determination towards achieving a legal result, but also by fusing the political climate around this issue with action in some of the most contested spaces within the UN. This heralded the 1974 initiative led Cameroon, Iraq, Kenya and Mauritania, during which South Africa was suspended from the UN General Assembly due its racial policies and perpetration of human rights violations. This move produced a revision of South Africa’s contentious relationship with the UN, during which Western states gradually began to distance themselves from the apartheid regime, finally resulting in its downfall in 1994.

Turning the Tide Back

The recent revival of engagement with international law (including the groundbreaking case on climate change led by Vanuatu), must then be viewed in this longer arc of historical continuity, rather than merely opportunity or political expediency. Global South states and South Africa in particular, have had the experience of being isolated from the protections of international law, but have now turned the tide. These states responded to their exclusion not by disengagement and disillusion, but with creative interpretation, patient resilience and defiance in the face of structural inequality and sustained resistance to their demands. For its part, South Africa has transformed from being a pariah state under the apartheid regime to a global leader on human rights, directing the animation of international law to this end. This latest moment is a representation of wider Global South efforts to turn the tide of disenfranchisement back and carve out a more universal vision for the international legal system and its capture. 

Critiques from TWAIL scholars have of course long focused on the structural inequalities of international law, but arguably less on the creative agency of those that have been treated as unequal. The 1974 effort to direct the UNGA towards definitive action on this issue appropriately capitalised on the political relationship of the Assembly with the legal power of the Court. But a further key element in this is public opinion, which is essential to establish a climate of possibility, provenance and empowerment which benefits the authority of the World Court, increasing its relevance to a broader and more diverse global public. There could be no clearer demonstration of this than the throngs of crowds gathered outside the Peace Palace for the recent public hearings, nor the echo of their chants inside the chambers in the background of the formal proceedings.

Historical Continuities Point the Way Forward

This longer history reveals also that the empowerment of international law lies not just with creative engagement with its institutions but with a wider re-enchantment of its very functions. This requires going beyond a rejuvenation of the case-list the Court deals with to a more open engagement with international law as a living instrument to address humanity from a more representative perspective. Taking the historical agency of Global South actors into account, international law appears less as the means by which imperialism is continued but rather provides the tools to advance the process of decolonisation in a more profound sense. As Ronald Lamola, the South African Minister of Justice, noted in his opening address to the Court in January 2024, quoting Nelson Mandela: “In extending our hands across the miles to the people of Palestine, we do so in the full knowledge that we are part of a humanity that is at one.”

Indeed, this broader sense that international law can be redirected towards those whom it has traditionally been applied against, provides purchase for a different reading of the current moment. Rather than the rhetoric of crisis, multilateralism is in a moment of flux in which international law can play a larger role to redress long-term structural inequalities and address global challenges in a more equitable way.

Re-enchantment requires a recovering of the emancipatory potential of international law, making it the method of enfranchisement and activation, rather than the means of discrimination and exclusion. Global South actors are leading that process, through words and action, holding violators to account legally, as much as in the court of public opinion in the General Assembly. Such an approach, aimed at fulfilling the aims of decolonisation, is not new, but has clear historical continuities and can be seen as a logical evolution. The tapestry of a new global order, with a revived multilateralism at its core, will be woven not by the currently disillusioned, but by the traditionally disenfranchised.