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The Politics of International Law
International relations is in flux. Major political developments affect the interpretation and application of international law, just as international law continues to shape the contexts in which political events unfold. This page will be updated regularly to reflect recent developments in the politics of international law.
COP26 and climate change governance
Between 31 October and 12 November 2021, representatives from nearly 200 states met in Glasgow for the twenty-sixth conference of the parties to the 1994 UN Framework Convention on Climate Change (UNFCCC). The purpose of the ‘COP26’ summit was to reaffirm and strengthen states’ commitment to the climate change mitigation goals of the 2015 Paris Agreement. In keeping with the concept of ‘cycles of ambition’ introduced at Paris, COP26 offered an opportunity for each state to revise its ‘Nationally Determined Contribution’ (NDC) and to commit to even deeper emissions cuts by 2030. Above all, COP26 was about ensuring that the world would remain on track to prevent an average global temperature rise of more than 1.5C above pre-industrial levels - the level at which scientists expect that the catastrophic effects of climate change will become unavoidable and irreversible.
As with previous global climate change summits, the fanfare with which COP26 began was not matched by its rather more modest results. For example, a proposed commitment to ‘phase out’ the use of coal power was watered down to a commitment to ‘phase down’ its use after a late intervention by China and India, two major consumers of coal-powered energy. Nevertheless, the identification of coal as a major root cause of human-made climate change and the specific commitment to reduce its use was still a breakthrough. Other notable agreements struck at Glasgow included a commitment by countries accounting for around 85% of the world’s forests to stop deforestation by 2030, and a commitment by over 100 states to cut methane emissions by around a third by 2030. The world’s two largest greenhouse gas emitters - the US and China - also pledged to work together on a range of issues, including the transition to clean energy.
Ultimately, then, the COP26 outcome document has kept alive the goal of limiting global temperature rises to 1.5C above pre-industrial levels, but has fallen short in terms of eliciting the concrete commitments necessary to meet that objective. In line with the approach taken at Paris, the latest national targets are not legally binding, and their achievement relies, instead, on ‘soft’ compliance mechanisms such as monitoring, peer pressure and ‘naming and shaming’. The next major test of states’ commitment to climate change action will come at the end of 2022, by which time governments are to have strengthened their 2030 emissions reduction targets so to have aligned them with the longer-term goal of reaching ‘net zero’ emissions.
COVID-19 vaccines and the TRIPS agreement
As 2021 draws to a close, the global COVID-19 pandemic shows no signs of ending. On the contrary, new ‘variants of concern’, which may be more virulent and more resistant to existing vaccines, continue to emerge. Indeed, in late November 2021, scientists in South Africa detected and sequenced a new variant, dubbed ‘Omicron’ by the World Health Organisation (WHO), which has led several states to re-introduce travel and other restrictions.
These developments draw attention to the deep and pervasive inequalities that have marked the global response to COVID-19. Although several safe and effective vaccines have been available since the beginning of 2021, as of late November, more than 4.7 billion people worldwide remain unvaccinated. And while ‘vaccine hesitancy’ has been a problem the world over, the unvaccinated are overwhelmingly concentrated in poorer countries and regions of the world, where governments with limited purchasing power have struggled to procure timely and sufficient vaccine supplies, while wealthier countries stockpile doses, many of which will expire before they can be used. In fact, only 3% of the population in low-income countries are fully vaccinated, while over 60% of people in high- and upper-middle-income countries are fully vaccinated.
‘Vaccine inequality’ is where the global governance of public health meets the global governance of trade. For most of 2021, a coalition of over one hundred low- and middle-income countries, led by South Africa and India, and supported by the WHO and numerous other international organisations and non-governmental actors, have been pushing for a temporary waiver to the World Trade Organization’s TRIPS agreement, which governs ‘trade related intellectual property rights’. This agreement has been controversial ever since it came into effect in 1995. It is often held out as the paradigmatic example of the Global North’s use of international trade law to protect and promote its own interests at the expense of the Global South.
In the case of COVID-19 vaccines, a TRIPS waiver would enable poorer countries to manufacture and distribute vaccines themselves, without being sued by the pharmaceutical companies that hold the patents. Since US President Joe Biden announced that the US would support negotiations for a temporary waiver in May 2021, the most significant stumbling block has been the EU, which continues to prefer to frame its efforts at aiding vaccination in the developing world in terms of ‘charity’ rather than justice.
The Taliban takeover of Afghanistan
In August 2021, nearly twenty years after the US-led invasion of Afghanistan ended their regime, the Taliban swept into Kabul, ousting the government of President Ashraf Ghani and re-installing themselves in power. The Taliban takeover of Afghanistan has raised many issues of international law, from the human rights and international humanitarian law obligations of the Taliban, to the obligations of the many states that participated in the conflict towards Afghan refugees, to the question of whether the international community should subject Taliban-controlled Afghanistan to asset freezes and other sanctions.
It has also raised the question of recognition. Namely, whether other states should recognise the Taliban as the legitimate government of Afghanistan and, relatedly, whether Taliban representatives should take Afghanistan’s seat at international organisations, such as the United Nations (UN). It should be noted that recognition of governments is a separate issue to that of recognition of states. The Taliban takeover of Afghanistan does not jeopardise the international community’s recognition of Afghanistan as a sovereign state with attendant rights and duties under international law. However, it does have implications for who gets to speak on behalf of Afghanistan in international forums. Afghanistan’s current UN ambassador, Ghulam Isaczai, was appointed by former President Ghani, while the Taliban has nominated Suhail Shaheen as its would-be representative to the world body.
For the time being, there is a consensus against recognition, not least because the UN and other actors hope to leverage the Taliban’s desire for the voice and legitimacy that recognition confers to extract concessions on human rights issues. Thus, it is expected that the UN credentials committee, which is meeting on 1 December 2021, will defer its decision on Afghanistan, allowing the current non-Taliban representative to retain his seat. A similar decision is expected in relation to Myanmar, where the military government that come to power via a coup in February 2021 remains largely unrecognised by the international community.
Conviction in Yazidi genocide trial
On 30 November 2021, an Iraqi national and former member of Islamic State (IS), Taha Al-J, was convicted of genocide and committing a war crime over the killing of a five-year-old Yazidi girl whom he had purchased as a slave in Syria in 2015. This marks the first genocide conviction arising from the displacement and violent persecution of the Yazidi community by IS, after the latter overran their homeland in northern Iraq in 2014. The case took place in Frankfurt, Germany and was prosecuted by German authorities under the principle of universal jurisdiction. Thus, alongside Germany’s prosecution of Anwar Raslan for crimes against humanity on behalf of the Syrian regime of Bashar al-Assad, the conviction of Taha Al-J is a milestone in the use of universal jurisdiction to achieve justice for victims of heinous international crimes. Given the political and legal obstacles to bringing such cases before international courts and tribunals, it is to be hoped that states will make more use of universal jurisdiction-based prosecutions in future.
Nicole Scicluna
December 2021