The ruling of the International Court of Justice (ICJ) in January calling on Myanmar to undertake a set of Provisional Measures to protect the Rohingya minority could indirectly have a major impact on the global order.
The first important aspect of the ruling is the setting of the precedent that the ICJ, and by extension the UN enforcement apparatus, have jurisdiction in this case. This was established not merely by legal fiat in the court, but politically by the presence of the civilian leader of Myanmar, Aung San Suu Kyi, who unexpectedly volunteered to come before the court on behalf of her country. It was also notable that she did so with the blessing of the military establishment, which is the principle party accused of genocide here.
The Court will likely take years to adjudicate the respective claims of The Gambia, which brought the case before the court, and of Myanmar. But in appearing before the court, Suu Kyi recognized the Court’s standing to pass judgment on the question. It subsequently took the Court only two months to conclude that there continues to be an acute risk of genocide being committed in Myanmar’s northwestern Rakhine state against the Rohingya, before getting to the question of whether what happened so far does amount to genocide.
The major question that follows is that of enforcement. The responsibility of enforcing the ICJ order on the Provisional Measures falls on the UN Security Council.
Myanmar’s initial response to the order was that it is already meeting these requirements. This was expected. The first test of this claim will come when Myanmar delivers its first report on the developing situation in accordance with Measure 4. Meanwhile, the Security Council has decided to take no further action on the order at this point – mainly on a veto from China, which is backing Myanmar on this matter. This was also expected.
At this point, and until Myanmar is in flagrant breach of the order, this decision of the Security Council is just about tenable. The question is what happens if and when Myanmar falls foul of the requirements of the court order in the future.
As the dominant player and beneficiary of the current order, the US is obviously the player with the most to lose in this new environment.
If UN Security Council history is anything to go by, nothing will happen. The permanent members, in this case China and also possibly Russia, will likely continue to wield their vetoes in much the same ways the US does when it comes to protecting their respective client states.
But the situation this time will be legally different. This will not be a merely a question of the political will of Security Council, or whether it can agree to anything. It will be a question of whether the Security Council will meet its legal obligations under the international laws and charters under which it exists, to enforce a court order issued by the ICJ.
In other words, if China or Russia choose to wield its veto on the question of enforcing ICJ orders, they would be challenging the legal foundation underpinning the existence of the UN and the Security Council themselves, as well as their own nations’ lofty standing and their right to veto in the Security Council.
This puts the very concept of international law in a precarious position. On the balance of probabilities, Myanmar will fall foul of the ICJ sooner or later. When it does, China will most likely prevent the Security Council from meeting its legal obligation to enforce an ICJ order.
If both those things come to pass, we will suddenly find ourselves in a very different geopolitical arena – an arena where even the pretense of there being an international law will have been dispelled.
Such a scenario could develop in a number of different directions. Whichever way things do go, this will mark a fundamental shift in the waters of international relations, and the global order as it stands will likely face a considerable upheaval.
As the dominant player and beneficiary of the current order, the US is obviously the player with the most to lose in this new environment. The new environment may also afford the US new opportunities, but the chances that the country will be able to maintain its current prominence in international affairs are rather remote.