While international law colleagues across Europe presumably found time for a summer break, now over, international politics did not. On our way home from our own holiday, my son and I sat at one of the world’s great crossroads, Istanbul Airport. Sipping orange juice, I noticed that every headline flashing on the screen above us touched on international law. The right of passage through the Strait of Hormuz. Negotiations for a peace deal in Lebanon. And did the defence pact among Turkey, Saudi Arabia and Pakistan violate NATO rules?

A rare moment of curiosity about my professional life followed when I pointed this out to my son. He asked: “What is it like to work in a field that draws so much attention?” To be honest, it has been a strange few years. It became increasingly clear that my own country has resolved to pursue a genocide in Gaza, and that international law would fail to stop it. This left me ever more jaded about the discipline I chose two decades earlier, when I first suspected Israeli law would not suffice against the occupation. “There’s a kind of reverse correlation,” I told him. “The more attention the field gets, the less influence it has.” We both had a laugh. “But how can that be possible?”

Many in the field have asked my son’s question. An increasingly common view goes something like this: yes, the most fundamental rules of international law are being systematically ignored. But the problem is not with the law. It’s simply a matter of political will, which is lacking. This view also has a practical upshot: let’s keep going with what we’re trained for, explaining and applying the law, hopefully in a reasoned and principled way. Keep calm and carry on! But I suspect that for us lawyers, this is merely a comfortable way to externalise the problem.

From Palestine to Climate Change

Perhaps the most articulate version of the position that “the problem isn’t law but politics” has been advanced in the last couple of years by Judge Dire Tladi. Tladi’s remarkable career as an international law scholar first led him to spend a decade on the revered UN International Law Commission. In February 2024 he became the first South African judge ever to sit on the World Court. Tladi is, by any measure, one of the most respected international lawyers of his generation. When he addressed the European Society of International Law by video conference from his office in The Hague last September, the Berlin audience sat on the edges of its chairs.

What we are watching, he said, is not the failure of international law. It is the failure of international politics. The sudden attention given to the Court, on this account, is not a sign the Court is winning but a sign of a political vacuum when it comes to issues like preventing atrocities and protecting the planet. Accordingly, only a renewed political will can bring back a functioning international legal order.

While the Berlin talk distilled this view, one can also find it in some of Judge Tladi’s writing from the bench, specifically on two issues: Palestine and climate change.

In December 2023 South Africa asked the Court to find that Israel’s conduct risked breaching the Genocide Convention, and to order Provisional Measures. The Court returned to that request three times over the following five months, in January, March and May 2024, and indeed indicated such measures. However, each time the situation on the ground grew worse. In March, Tladi joined three colleagues in a declaration “regretting” that the Court’s order did not simply tell Israel to suspend its military operations.

In May –  when the Court ordered a halt to the offensive in Rafah – Tladi wrote a Declaration of his own. At the conclusion of his legal analysis, the register shifts from the analytic to the elegiac. “There are no more words to describe the horrors in Gaza. The words ‘apocalyptic’, ‘exceptionally grave’, ‘disastrous’ and ‘catastrophic’ have all been used to describe the current situation, and all seem to pale in comparison to what is unfolding before our very eyes.” The moving condemnation is seemingly followed by a note of judicial despair, with a notable exclamation mark:

“The Court has previously, albeit in implicit and indirect ways, ordered the State of Israel not to conduct military operations elsewhere in Gaza because such operations prevent the delivery of human assistance and cause harm to the Palestinian people. The Court has also reiterated its urgent call for Hamas to release the hostages. But the Court is only a court!”

Still on Palestine, two months later came the Advisory Opinion on the legality of Israel’s occupation of the West Bank and East Jerusalem since 1967. The occupation is unlawful, the Court found, and must end as rapidly as possible. Israel must cease all new settlement activity, evacuate settlers, and make reparations. No state may recognise the situation as lawful, and none may render aid or assistance that sustains it.

Here too, Tladi’s declaration is unsparing. The Palestinian question is not a bilateral dispute. The policies breach peremptory norms. Israel’s security concerns cannot override its legal obligations. Importantly – and going beyond anything the Court said explicitly in its judgement –  “the policies and practices of Israel constitute a breach of the prohibition of apartheid […]”

Nobody was under any illusion that Israel would comply. After failing to act for so many years, the Security Council was not going to change course. Meanwhile, human rights monitors had documented a sharp rise in settler violence across the West Bank: arson, land seizure, killings, often with the army standing by or actively supporting. In the concluding lines of his Declaration, Tladi warned of the foreseeable political inaction:

“The 285 paragraphs of this Advisory Opinion will be meaningless if the United Nations does not act upon the advice provided by the Court to promote the resolution of this conflict which is a large stain on the claim that there exists an international community, for how can any community permit such indignity and suffering as that imposed on the Palestinian people?”

A year later came the climate Advisory Opinion, which is often lauded as “historic”. The Court called climate change an “existential threat”, treated the IPCC as the best available science, and held that the Paris Agreement generates binding obligations. Nobody had confidently predicted that it would be unanimous. But here we were. Tladi’s declaration reinforced the most demanding parts of that holding. He agreed that states have no unfettered discretion over their nationally determined contributions, which must be objectively capable of contributing to the goal.

Then the final paragraphs once again shifted gears in a similar way. No number of advisory opinions, however robust, can save the planet. Instead, Tladi wrote: “I still maintain modest hope. Modest hope that those in positions of power will realize, before it is too late, that money cannot be eaten. Hope, that future generations will make better choices.” Everyone in that courtroom knew the major emitters were not going to restructure their economies because the ICJ said so. But in his concluding remarks, Tladi rolled the responsibility back to “those in positions of power”. A position, notably, he does not hold.

***

Across all three moments, the same pattern holds. The Court, with Tladi writing his own Declarations, speaks in a language of legality. At the same time, there is a recognition that the Court’s principal addressees will likely not be listening.

Situated after the legal analysis but before the signature placeholder “(signed) Dire TLADI”, any student of legal writing will easily identify the rhetorical role of the paragraphs quoted above. This is what, at least in the common law tradition, we call “a prayer for relief”. The practice originates in English equity and is by no means an ordinary component of judicial writing. Rather, it is part of a complaint or a petition, asking for a specific remedy, and is sometimes required by rules of procedure. While the theological register of the term is self-evident, it is notable that here the Court does the praying.

The Court sets out what a lawful world would require and lets the distance between aspiration and reality become its own accusation. That also lands the shortfall in someone else’s lap: the Security Council, third states, politics today, or politics tomorrow. Is it the fate of international law to be a set of norms respected only in their breach?

To be sure, there is a genuine ideal underlying this view. In the most general terms, this is a Kantian view in which international law plays the role of a universal morality. For Kant, the moral imperative cannot change just because it is not followed in empirical reality. Similarly, international law cannot change when states shrug it away. Indeed, international law is not to be bent according to the wishes of states, least of all the powerful ones. A court that asks in advance what Washington or Jerusalem would tolerate would not be a court at all. But should we international lawyers rest content with a hortatory Court, one that takes no responsibility for the question whether its remedies are effective?

The Nostalgic Division between Law and Politics

The idea that law can be neatly divided from politics is an old one. According to this view, an objective standard of truth is articulated by lawyers, and subjective interests are articulated by, well, everyone else. Lawyers, we might say, have a quasi-prophetical role as the mediators of truth about right and wrong to the larger public. They can hold up the standard of legal truth against the world. When the world fails to match it, the failure belongs to the world, and not to lawyers. But this idea has long been discredited by much of contemporary legal theory. Specifically, a school of thought that has developed in the U.S. in the early 20th century, legal realism, teaches us that there are two fundamental problems with this picture.

The first is that a legal norm never has only one available reading. Somebody has to choose among reasonable readings, and the materials won’t make the choice for us. The realist point was that once you see the choice, you can’t unsee the responsibility it puts on the shoulders of those who make it. If several readings are defensible, which will ultimately be adopted is a question not only about what the law says, but about what consequences follow. When the ICJ opines that Israel must evacuate its occupied territories “as rapidly as possible”, it matters whether that can be expected to change reality or not. The language chosen should not only be legally correct, but one that can help remedy the underlying problem. The same thing goes for the emerging “due diligence” obligation to regulate emissions in international climate law. The Court could have reasonably called it something else. This raises the question of which formulation might better transform reality for the better.

For the realists, the transformational task was confronting American inequality, distributing property, protecting labour, and—ultimately—creating the legal groundwork of F.D.R.’s New Deal. In our own time, the progressive tasks may be (partly) different; but the realist perspective still requires us to think about how the court – any court – can be part of a progressive transformation. My concern is that for Tladi, “hope” that political action is taken elsewhere replaces a more granular account of remedies. Such an account would insist that the Court is responsible for creating the conditions in which the kind of change it seeks to see in the world can be initiated.

The second point goes beyond the realm of courts, and rests on an insistence that law is a wider arena. To say the law is fine and politics has failed assumes law is something we merely apply. But such application has never been all of what the international legal profession was about. For better or worse, lawyers helped write the Genocide Convention. For better or worse, lawyers helped write the Paris Agreement on climate. Each was an act of political will by lawyers who worked with non-lawyers and had transformational aspirations. Saying that “the problem is not with international law; it is with the lack of political will” risks sidelining these projects, in which the two go hand in hand and are inseparable.

Today, some of the dangers that frighten us most are precisely the ones the existing corpus of international law does not address properly. And so, application of the law cannot do much to solve them. Despite the Paris Agreement, climate change is one such danger: since the failed Kyoto Protocol, we have not yet had an effective climate-specific treaty. (The Paris Agreement does not clearly make the temperature goals binding, and that’s the reason the climate Advisory Opinion had to rest so heavily on customary international law or on “subsequent agreements” in the form of COP decisions). The rise of artificial intelligence surely presents another: states are far from any agreement on how they must regulate firms developing such tools, despite growing evidence that the tools may go rogue. Even in the context of Gaza, where surely a lot of existing law has been violated, there is an argument that we have confronted issues that are not properly regulated, as international law stands. Is this not high time for a specific international treaty barring starvation as an instrument of war, beyond the current rules – many of them customary – that arguably sometimes allow for the weaponization of hunger? Those aren’t compliance gaps. They are drafting gaps. Solving them is not about applying the law (though it could be about creating new law). If we are directed to believe that international law is only what international courts do, we may miss the most important issues.

So why does the imagined division between law and politics survive? I think of this as a form of nostalgia. Tladi and others implicitly reach back to a moment in the past in which political will was more amenable to international legal norms. They hope that time will return and finally restore order to international politics. Nostalgia might be a strange word in this context, since the innocence it reaches for never quite existed. But perhaps this fictional foundation is of the very essence of nostalgia. In fact, there was no golden age in which international lawyers stood outside politics and simply declared the law as it was. The nineteenth-century jurists who built this discipline’s vocabulary of sovereignty and consent were surely active members of a political project. As Third World Approaches to International Law (TWAIL) scholars have shown, they were sorting the world into civilised states and the rest.

Today, you may ask any practicing international lawyer whether law and politics are mutually constitutive, and you will get a yes. No one will say they are separable. But ask the same person the next morning why the Court is being ignored, and you may hear the quip that the problem is not with the Court, but with politics. These are, however, positions that are mutually contradictory. Furthermore, the latter view conveys a false modesty. It amounts to a performed retreat into humility by people who know better. For Tladi, as for many others, the division has become a convenient cop-out. It lets us witness the legal order being disregarded on the most important questions and conclude that our own working methods require no revision.

 A More Political Practice?

None of this is in any way new. It’s in fact almost embarrassing that, in 2026, I have to relitigate the point that international law is always-already political.

In the 1920s and 1930s the legal realists showed that judicial reasoning smuggles in political choices under the appearance of deduction. In international law specifically, the insight was developed somewhat later. In her classical Legalism (1964), Judith Shklar made her momentous case about legalism as an ideology, and about the Nuremberg trials as a quintessential case of legal politics. But its fullest articulation is attributable to Martti Koskenniemi, whose 1989 book From Apology to Utopia arguably remains the field’s single most influential work of theory. His argument was that international legal reasoning is structurally caught between two poles, and can rest stably in neither. Ground a rule in what states consent to, and you have apology: a vocabulary that describes power well but cannot judge it. Ground the same rule in principles independent of state will, and you have utopia: a vocabulary that can judge power but has no purchase on it; no way of compelling anyone to listen. International legal arguments are almost invariably vulnerable to the charge of being merely apology or merely utopia.

In the wake of such arguments, international legal practice must acknowledge its own politics and constantly critically reflect upon it. If political will is lacking, our own political will is also part of any analysis. Though the idea of legal politics is not new, the current sense of crisis in the discipline has arguably brought about a new retreat into our turtle’s shell of formalism. We are alone in there, but at least we’re allowed to keep politics away from the front and centre of our analysis.

Indeed, what would an international law practice acknowledging its political nature look like? For a court, it would mean constantly seeking to find the evasive point of equilibrium reducible neither to apology nor to utopia. Neither simply conceding to the powers that be, nor simply throwing up hands. Enforceability (or “compliance”, as our discipline sometimes prefers) is not simply a political problem that begins only after the judgment is signed. It is baked into the Court’s own language and therefore its responsibility. It is part of the consequentialist nature of judgement, which the realists taught us to consider, and which was also central for Shklar.

What would this look like, concretely, in the two issues discussed above, namely, Palestine and the Climate Crisis? Here I can only provide preliminary thoughts. What must be clear above all is that whatever the effect (or the lack thereof) of any judgement, the Court cannot be let off the hook.

Let us briefly consider Palestine. One better approach might have been to acknowledge – explicitly or implicitly – that the chances of Israeli compliance or U.S. backing are virtually null. The Court would then have to develop a more robust doctrine regarding the responsibility of third states, which are the actual addressees of the Palestine Advisory Opinion. It would have to articulate a concrete floor that states would be required to meet in order not to support genocide or unlawful occupation. This would have to be something that states, in their current composition, could realistically comply with. The ban on trade deals in which settlement products are considered as Israeli products seems like a relatively low bar.

As of today, 12 governments, including those of the UK, France, and Canada, have announced “their intention to introduce national and/or support European restrictions on trade in goods with settlements which are illegal under international law.” This “Joint Foreign Ministers’ Statement on the Two State Solution” is a welcome step and may even be thought of as a response to Judge Tladi’s plea. And yet, the statement makes no reference to the ICJ and arguably comes too late for its stated purpose. That European states that claim to observe international law, such as Germany, are still not moving toward such restrictions, is beyond my comprehension.

The climate change Advisory Opinion raises the same question. Tladi’s closing plea, that those with power realize money cannot be eaten, is utopia at its purest. It is precisely the kind of gesture I question as a prayer for relief. Instead, I would expect to see a firm vision of what it means to reduce emissions in line with the Paris goals, and how those who fail to comply should be regarded by compliant states. In his separate opinion, Judge Bhandari provides some concrete measures of what that could look like. While several are potentially compelling, my attention was caught specifically by para 7: “the Court should have concluded that restitution should include, where appropriate, the continued recognition by all States of the maritime entitlements and sovereign rights of States adversely affected by sea-level rise, including in cases where their territory becomes submerged or otherwise compromised.” At present this is still perceived as not costly for third states. But it is potentially crucial, and engages the core mandate of the Court as the authorized interpreter of public international law. None of this is legally exotic. It is the discipline’s ordinary machinery, with a reduced emphasis on moral language and, correspondingly, an increased emphasis on remedies designed to be effective in the real world.

Conclusion

Law is supposed to allow us to hold a string taut between what is morally desirable and what is factually possible. Let go of either end, and the string goes slack. Release the desirable end and you are left describing power, which is apology. Release the possible end and you are left with a sermon, or utopia. The legal craft consists entirely in keeping both ends under tension.

The same problem also appears beyond judicial practice. Litigators and legal scholars are not exempt from thinking within their own historical moment, in terms of principle as well as consequence. This, in my mind, is what the word “strategic” means in the often-misunderstood term, “strategic litigation”. Legal practice was never only about being right. It was always also about helping a client through an actual problem. Public interest lawyers and scholars have a client too. It is “the public” – however we imagine it. Call this approach utopian realism.

The term “courts are only courts” can maybe make sense if this is meant in the following, more limited way: as international lawyers, we must remember that courts are only a small part of our legal practice. Courts are only courts, but international law is not only courts. After WWII, Raphael Lemkin got buy-in for the Genocide Convention only due to his legalistic-diplomatic campaign. The result was not exactly what he hoped for, but it was nonetheless extremely important. After WWI as well as after WWII, the ebbs of international law have followed with remarkable flows. Against this historical backdrop, we must ask today: what new frameworks will states need to adopt in the wake of the crisis we are living through? What does the coming flow bring with it? The answer goes far beyond simply analysing the law and waiting for politics to fix itself.

Since the end of the summer, my son has gone back to school. As he did that, the departures board in Istanbul kept moving: a favourite example international lawyers invoke to illustrate that international law works far more ordinarily than we usually acknowledge. (The argument is that global aviation would be impossible without resting on an international legal infrastructure of inter-state agreements). What will also likely keep living in the airport are the push notifications dressed up in the vocabulary of international law. When it comes to many of them, international law will, in fact, be ignored.

We should not tolerate a condition in which all eyes are on international law, but precisely when it is needed the most, it remains unenforceable. Keeping calm and carrying on should mean keeping our eyes open not only about what is desirable for the world, but also on what can realize such desires here and now. If we offload that responsibility and bask in our own legal purity, we do that only at our own expense.

The original version of this essay was published in Danish, at Information.dk. Thanks to the editors for permission to reproduce it in English here.