Symposium on the Global Sumud Flotilla: The Mechanics of Legal Accumulation – From the Namibia Precedent to the Sumud Flotilla

[Mehmet Emin Büyük is an Assistant Professor of Public International Law in the School of Law at Ibn Haldun University. His research lies primarily in the field of general international law, with a particular emphasis on the doctrine of sources, international legal theory and history, and the judicial methodology of the International Court of Justice]

Introduction

Combined, the ongoing devastation in Gaza and the glaring inability of global institutions to halt the violence have triggered an existential crisis within the discipline of international law. Driven by a profound sense of disillusionment, an increasingly dominant narrative questions whether international law exists as anything more than a rhetorical instrument for the hegemon. When the International Court of Justice (ICJ) issues provisional measures that are immediately flouted, the instinctive, widespread reaction is to declare the system entirely inoperative.

There is a familiar litany of traditional apologies deployed to defend the field against this despair: that domestic legal systems are fraught with violations too, that the vast majority of routine state interactions actually occur in accordance with established rules, or that non-compliance is merely a breach rather than proof of a rule’s non-existence. While these classical defenses are empirically accurate, they are widely rehearsed. More importantly, they fail to move the needle. They offer no strategic utility in the face of ongoing atrocities, nor do they articulate why our legal persistence fundamentally matters. Asking “is international law effective?” based on these traditional metrics is quite simply the wrong question. The more productive question is whether international law is a systemic necessity — whether, as long as the modern state system exists, this field must exist by logical consequence. If states exist within a system of states, international law is not a constraint imposed from outside; it is the system’s own legal extension. The question is therefore never whether international law will exist, but who will shape it, and in whose interest.

Diagnosing international law as “ineffective” based solely on its lack of immediate coercive power is a conceptual error. It relies on a flawed, domestic-law paradigm of instantaneous enforcement. To understand the true mechanics of international law—particularly for the Global South—we must shift our analytical focus from immediate enforcement to the concept of legal accumulation (cumulative practice). In an asymmetrical world order, international law is rarely a switch that can be flipped to stop violence; rather, it is a normative scaffolding built over decades, frequently utilizing institutional failures as its primary raw material.

To illustrate this dynamic, the following sections will first examine the South West Africa (Namibia) proceedings as a foundational historical precedent of legal accumulation. It will then trace how this legacy has evolved into contemporary state practice through the Global South’s expanding institutional capacity, specifically through South Africa’s ongoing proceedings against Israel. Finally, it will demonstrate how this cumulative process extends beyond courtrooms through civil society interventions on the ground, analyzing the Sumud Flotilla as a vital mechanism of physical legal confrontation that forces the activation of international law.

The Illusion of the Immediate and the Namibia Precedent

To grasp the mechanics of this legal accumulation, we must look to historical analogs that closely mirror today’s institutional paralysis. The South West Africa (Namibia) proceedings offer arguably the most profound doctrinal precedent for our current moment.

Like Palestine, Namibia was placed under the League of Nations Mandate System (specifically as a Class C mandate administered by South Africa), governed by the principle that the well-being of its people formed a “sacred trust of civilization.” Instead, South Africa effectively annexed the territory and exported its system of Apartheid. In 1960, recognizing that the political avenues were stalled, newly independent African states made a strategic decision to utilize the international legal architecture. Acting essentially to vindicate a collective interest in the administration of the mandate — a legal standing that the Court ultimately denied in 1966, but which would later crystallize into the concept of erga omnes obligations in the 1970 Barcelona Traction case — Ethiopia and Liberia initiated contentious proceedings against South Africa at the ICJ.

The resulting 1966 Judgment in the South West Africa Cases represented a profound doctrinal crisis. In a highly controversial 7-7 split, decided by the President’s casting vote, the ICJ dismissed the case, ruling that Ethiopia and Liberia lacked a sufficient “legal right or interest” in the administration of the mandate. For legal scholars and newly decolonized states, the 1966 judgment was an institutional betrayal—the apex of colonial international law shielding an apartheid regime. It mirrors the deep despair many international lawyers experience today regarding the UN Security Council’s deadlocks and the perceived impotence of the ICJ’s provisional measures concerning Gaza.

Yet, critically, this institutional bottleneck did not signal the demise of the legal order; it acted as a catalyst for relentless normative accumulation. The judicial failure at The Hague mobilized the political organs of the United Nations. Later that same year, the UN General Assembly adopted Resolution 2145 (XXI), formally terminating South Africa’s mandate. The Security Council subsequently endorsed this termination. This political accumulation eventually forced a judicial course correction: in its 1971 Advisory Opinion on the Legal Consequences for States, a reconstituted ICJ validated the termination of the mandate, solidified the right to self-determination, and established clear legal consequences (including the duty of non-recognition) regarding South Africa’s illegal occupation.

When Namibia finally achieved independence in 1990, it was not the result of a single, immediately effective court order. It was the culmination of seventy years of cumulative legal and political friction. The 1966 disaster was not the death of the law; it was the anvil upon which the ultimate legal legitimacy of Namibian independence was forged.

The Trajectory of the Global South and Institutional Persistence

This cumulative approach demonstrates how the historical strategies of decolonization and the Global South transition into concrete state practice. Anti-colonial movements have historically recognized that the international system abhors a vacuum. If marginalized actors step back from the legal framework due to disillusionment, the normative field does not remain empty—it simply calcifies around the interests of the powerful.

We see the direct legacy of the Namibia accumulation expanding today. In the 1990s, the capacity of the Global South to trigger international accountability mechanisms was structurally constrained. Today, South Africa’s initiation of proceedings against Israel at the ICJ represents a historic evolution of this capacity. The very state whose apartheid policies were the target of the 1960s litigation is now utilizing the Genocide Convention to bring a military power—and implicitly its superpower backers—to the world’s highest court. Regardless of the immediate enforcement of the Court’s orders, the procedural capacity to force this legal reckoning, invoking erga omnes partes standing under the Genocide Convention, is a triumph of decades of cumulative legal persistence.

The Sumud Flotilla as a Mechanism of Physical Legal Confrontation

When we view international law through this lens of accumulation, the pursuit of legal avenues is not confined to courtrooms; civil actions on the ground—even those that appear immediately futile—take on a fundamental weight. Every UN Special Rapporteur report, every independent commission of inquiry, and every provisional measure request serves a structural function, fixing the violation permanently in the historical record.

However, this cumulative process is not merely a matter of paperwork; it necessitates physical and strategic interventions on the ground. The Sumud Flotilla, and similar civil society maritime initiatives aiming to break the illegal naval blockade of Gaza, serve as the most concrete examples of this. Defining these flotillas solely as “humanitarian aid efforts” fundamentally misreads their legal function. The Sumud Flotilla is a direct, physical legal confrontation designed to test the legitimacy of Israel’s blockade on the grounds of the law of the sea and international humanitarian law.

These actions prevent the sovereign power from comfortably operating within a zone of “legal ambiguity.” By forcing the sovereign into a dilemma—either militarily intervene against civilians or allow the blockade to be breached—the flotilla compels the activation of international legal mechanisms. It is no coincidence that past flotilla initiatives have prompted preliminary examinations at the International Criminal Court (ICC) and triggered independent investigations by the UN Human Rights Council.

In this context, Sumud is stripped of its romanticized or purely cultural connotations; it operates as a strategic practice that materializes the abstract promises of international law through physical confrontation. When global governance mechanisms stall, the sheer will to physically breach a blockade proves the existence of the violation. It generates the tangible friction required to spark global collective action—boycotts, political pressure, and diplomatic isolation. International law may not lift the blockade autonomously, but this civil, physical persistence generates the evidentiary record and normative friction upon which civil society mobilization and future accountability mechanisms will ultimately draw.

Conclusion

Power politics has always coexisted with international law, and pretending there are quick, utopian solutions to deeply entrenched asymmetrical conflicts is neither honest nor legally rigorous.

Acknowledging this cumulative reality, however, is not an attempt to romanticize the structural slowness of the international legal order. As international lawyers, our urgent imperative must be to critically redesign and accelerate these mechanisms of accountability. Gaza, the Occupied Palestinian Territories, and other marginalized communities should not have to wait decades for a justice whose delay is devastatingly measured in human lives.

However, while we must actively struggle to expedite these processes, abandoning the field because it cannot deliver instantaneous justice remains a profound strategic error. What links the Ethiopian and Liberian applicants in the 1960s to those sailing in the Sumud Flotilla today is a shared, relentless insistence on shaping the trajectory of international law. As legal scholars and practitioners, our role is to ensure the continuous accumulation of norms without making peace with the lethargy of the system. The law takes time, it builds upon its own systemic failures, and ultimately, the normative scaffolding it erects -however slowly- provides the indispensable framework for those who refuse to leave the room.

Photo attribution: by Ömer Faruk Yıldız on Unsplash