A Crisis of International Law

My columns are largely about international trends and innovation around justice delivery at the national level. But I am an international lawyer. On holiday in Tuscany I am able to digest (as opposed to take in) the news about the tsunami of peace & security crises the world is now facing: Russia, Ukraine and the tragedy of MH17, the Israel-Gaza war, the war in Syria, and the conquests by ISIS. A propos: we have an economic and global-warming crisis as well. All this has me deeply worried about the very idea of international law.

Mark Mazower’s impressive book Governing the World – The History of an Idea, 1815 to the Present (2012) gives great insights into the idea of global governance from Tsar Nicholas and Metternich to Putin and Obama. One of strands in that story is the story of justice: the dream to liberate people from capricious and tyrannical leaders and to deliver them from oppressive poverty to give them opportunity. Looking for better modes of governance was a key part of this. There were plenty of innovations. Rule by DNA was abolished and rule of law emerged. Empires were broken up. And in the second half of the 20th century the West started accepting that the world was bigger and more complicated than initially thought: Asians, Africans, South Americans, and Arabs also have aspirations (Mazower quotes Churchill, 1953: “I have lived seventy-eight without hearing of places like bloody Cambodia”).

The preferred governance mechanism that emerged is that of ‘the state’: a well-defined territory for a well-defined group of people, governed by institutions that have the ultimate authority on enforcement and the use of force. It came in a variety of forms: the fascist state, the communist state, the capitalist state, the social democratic state, and the religious state. In some, authority was centralised, while others had a looser, more federalised model. Some of these models worked really badly and fell into disrepute. Others endured because they provided for most of the needs of the people living within them. We see from the news that in many parts of the world the struggle for ‘the state’ is still going on; Syria, Iraq, and now, Ukraine. But the idea of the state is so ingrained that we even have the category of ‘failed states’ now (by the latest count, 34 serious cases).

This atomization process (there are now 193 UN member states) raises the question how all those states relate to each other and how they can, in areas of common of interest, work together. One strand of thought answers this question with Darwinism: when two or more states need to relate to each other, the strongest will dictate how it is done. That’s how the universe works. Power and politics reign supreme and if there is justice, that’s where it will come from. At the other end of the spectrum stand those that believe that power relations between states can be mitigated in much the same way as power between individuals was mitigated in states that developed rule of law. Justice through rules. That led to the emergence of international law.

Having both studied and practiced international law and having been part of what is perhaps the most extreme embodiment of that development to date – the creation of the International Criminal Court – I cannot but marvel at how naïve and brave the advocates of this line of thought were. They struggled with two key challenges: if each state is sovereign, how do you make rules at the international level and how do you then organise legitimate governance bodies to implement and enforce them? Serious proposals for global executives, global rule making bodies, and global courts, some even organised in relation to each other as Montesquieu would have it, saw the light of day. Despite the Darwinists, real organisations were constructed: the League of Nations and the United Nations, with its Court and specialized agencies.

On the bright side, Mazower shows out how the idea of rules at the international level developed fairly well at the level of technical standard setting: rules and standards around health, meteorology, maritime activities, and industries and trade, for instance. When my wife, a medical doctor, looked up what the Ebola crisis could mean for her I saw that the standards and protocols set by the World Health Organisation are quite effective.

On the other hand, looking at the domain of peace and security, it is obvious that international law as an idea is in a deep crisis. Considering the millions people that are affected by these situations, the word ‘crisis’ is perhaps too kind. The UN body that was tasked with peace and security and upholding the lofty goals of the Charter – the Security Council – cannot speak effectively on many of these situations. What happens does not go beyond fairly empty condemnations, warnings that are not heeded, and sanctions that change little. The International Criminal Court is largely irrelevant. Rules seem soft as butter: during the Kosovo crisis the US and its allies pressed ahead with force despite the obvious absence of a UN mandate. Russia is now invoking that precedent in Eastern Ukraine while the West cries foul. The Responsibility to Protect for one, a violation of the Charter for another. ISIS exemplifies an entirely new phenomenon: carving out territory for itself, but unlike the former colonies that fought to govern themselves in the 1960s, it does not even want to be a state.

We are a long way from fulfilling the dreams of those that wanted to use international law as a way to anchor more justice based governance. Two fundamental challenges, that perhaps for a while looked (partly) resolved, have, it seems, still not been met. Firstly, there is no real international community. And law needs a community to which it is linked if it is to work. When a small group of states ruled over the world one could perhaps see one. But those days are over. And it’s not just that there are more states with more diverse interests. There is also the huge swath of other actors, from international business, to NGO’s to things like ISIS. Secondly, there is no pinnacle of authority. And law that is effectively implemented and enforced needs that. The Security Council is not seen as that pinnacle. Nor does it act as one. The two global courts – the International Court of the Justice and the International Criminal Court – have not been built to be real pinnacles. The UN General Assembly is a toothless talk shop. The world’s regional organisations often incoherent and rarely agree.

This points to the direction where innovative ideas needs to come from if the naïve and brave believers in the idea of international law (like me) are not to loose out to Darwinism. Firstly: rule-based justice somehow needs to be anchored in the mix between governance within the local level and between the local levels. Secondly, it needs to work in diversity, allowing room for many interpretations and applications. And thirdly, it needs to be implemented and enforced without a clear pinnacle of authority.

Proclaiming universal norms, referring to the international rule of law, using the term World Court, and quoting the famous preambular line from the Charter “to save further generations from the scourge of war”, is not enough. It’s time to look international law as a way to bring about peaceful governance in the eye and say it’s not working. Because we believe it can. And then innovate like crazy to make it work. I’d be curious to hear other thoughts on what other circles need squaring to get it done.