The Crisis in International Law
Introduction:
- A judge of the International Court of Justice, Professor Hilary Charlesworth, called international law “a discipline of crises.” Since then, not much has changed. Russia’s invasion of Ukraine last year once again called attention to the “crisis” aspect of international law, just when the world was starting to get past the suffering caused by COVID-19.
About international law:
- The majority of nations concur that the corpus of law known as international law is enforceable among them. For countries, it creates normative norms and a shared conceptual framework in a number of areas, including conflict, diplomacy, economic ties, and human rights.
- The adoption of the United Nations Charter, which specifically forbade war, served as one of the fundamental pillars of the post-World War II international legal system.
- The UN Charter serves as the intergovernmental organization’s guiding document. The six primary UN system bodies are the Secretariat, General Assembly, Security Council, Economic and Social Council, International Court of Justice, and Trusteeship Council. At this point, the goals, guiding ideals, and general structure of the organisation are also specified.
- According to the UN Charter, member nations and the organisation are required to uphold international law, maintain global peace and security, improve living conditions for people, address “economic, social, and health issues,” and advance “universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
- Its provisions apply to all members and take precedence over those of other agreements because it is a charter and constituent treaty.
- The U.N. Charter has been successful in preventing future global conflicts, but it has failed to do so with regard to intrastate conflicts. The limitations of international law will be tested this year due to the ongoing conflict between Russia and Ukraine as well as a number of other causes that will emerge during 2019 and beyond.
The geoeconomic difficulty:
- Following World War II, a “capitalist” America and a “communist” Soviet Union competed for supremacy in a divided world. The Soviet Union’s collapse and the demise of communism were both caused by the conclusion of the Cold War. According to C. Raja Mohan, this “unipolar” period boosted multilateralism and ushered in a three-decade-long period of “relative concord” among the main powers.
- While the North Atlantic Treaty Organization (NATO) bombarded Kosovo, Western forces attacked Iraq in flagrant defiance of the U.N. Charter. According to Ralph Wilde, these U.S.-led military operations did not elicit a substantial international response like the Russian invasion of Ukraine did.
- During the “relative concord” era, universal human rights were more widely acknowledged, democracy was expanded, and independent international tribunals and multilateral organisations arbitrated disputes.
International law securitization:
- However, the multipolar world we now live in and the securitization of international law have put these fundamental foundations in danger. The great powers are at odds with one another.
- The emergence of “autocratic” China and “expansionist” Russia, as well as the decline of the “liberal” and “capitalist” West, have changed the contemporary landscape of international law. Beijing is now asserting its influence as a result of China’s rapid expansion, including by utilising international law as a weapon. China sees the law as a tool at the disposal of the government. The rule of law doctrine, which contends that the goal of the law is to restrain unchecked governmental authority, which is pervasive in liberal democracies, is in contradiction to this.
- The Westphalian understanding of international law, which was said to safeguard the territorial integrity of nations and the rule of law on a global scale, competes with Chinese and Russian interpretations, which hold that international law can be utilised to further national interests. National sovereignty and territorial integrity aren’t especially important in Chinese and Russian beliefs.
- For instance, the Russian interpretation of international law asserts that the diversity of cultures and civilisations, rather than universality, is the foundation of international law. The Russian interpretation of international law makes a distinction between states with true sovereignty and states with nominal or limited sovereignty, like Ukraine, in flagrant violation of the UN Charter. In 2023, this conflict between opposing theories of international law will get worse, compounding the current calamity.
There is no economic regulation worldwide:
- The concomitant development in economic protectionism is a significant outcome of the establishment of the geoeconomic order. The United States is concerned about China’s rise due to its strong desire to maintain its status as the world’s preeminent power. The neoliberal consensus of interdependence and non-discrimination in international economic law was painstakingly constructed by Washington over the previous three decades, but it is now crumbling.
- The United States has strenuously disagreed with recent World Trade Organization (WTO) panel reports that found the nation’s industrial protectionist policies, which were passed off as national security goals, to be illegal.
- The U.S. has obstinately obstructed the nomination of the members of the Appellate Body, suffocating the WTO’s efficient dispute resolution process. In 2023, all of these issues will only get worse, severely destabilising the global economy.
The barrier of populism:
- Even if populist and ethno-nationalist leaders like Donald Trump and Jair Bolsonaro have left power in nations like Hungary, Turkey, Poland, and Israel, populist and ethno-nationalist governments will still pose problems for international law in 2023.
- Populists disdain international law and treat it as “foreign law,” which is detrimental to their country’s interests. Some people also doubt its legitimacy. In the populist view of the world, international law is sometimes reduced to a simple law of coordination. This law of coordination strives to maintain a restricted relationship between nations with comparable ideological foundations rather than encouraging international collaboration to build and advance universal principles.
Various perspectives on international law:
- Researchers use a variety of terms to refer to the international law crisis. If imperialism is not handled, there will be a crisis in international law, according to B.S. Chimni.
- On the other hand, the late James Crawford claimed that international legal crises happen because there is “no other constitutional system, other than the constitutional order of States.” One could contend that this elevates nationalism above international law.
- Some people, including Jan Klabbers, claim that the current worldwide legal controversy is a crisis in liberal democracy.
Conclusion:
- Regardless of how it is described, the liberal international legal order is under attack from a number of angles. In 2023, how will the world react to the ongoing challenges that populism, protectionism, and securitization pose to the universal values that international law upholds?