The Retreat Of International Law


Despite the discussions of rule-based systems in governing maritime security, recent events seem to point to the erosion of influence of international law and supranational organizations. Instead, a resurgence of states in international affairs appears to be more than likely as global integration recedes and nationalists reassert themselves in national politics. Increasingly, post-WWII institutions are under attack and being delegitimized by nationalist governments. National interests, instead of appeals to common humanity or global commitments, are increasingly persuasive. Instead of appealing to international law, appeals to history and ethnic kinship are invoked more often in international disputes. This trend is not limited to the more “autocratic” countries, but is spreading in the heartland of liberal internationalism itself. The pursuit of refining international relations, so that state interaction is governed by a set of codified international rules that can trace its roots to Western liberalism, is unlikely to succeed under the current atmosphere of state rights and national interests.

Rules and Law

It is useful to make a distinction between rules and law. Rules governing the  interaction between states have existed since ancient times. Many of these rules are idealizations, and are sometimes violated. For instance, rules such as “don’t shoot the messenger”, guarantee the safety of foreign dignitaries, and rules on conduct of armies during war have been in place since there were organized states. The enforcement of these rules usually rely on voluntary compliance in order to work. Therefore, like the fabled laws of chivalry, there is nothing stopping actors from breaking these rules when it is convenient for them. Episodes such as the Iran hostage crisis showed the limits to international conventions. Nevertheless, breaking these widely accepted customs would mean disgrace and loss of credibility. Also, there is the possibility that other sovereign entities would use the breaking of an accepted custom to advance their own interests. The most recent dispute over whether Syrian forces loyal to Bashar al-Assad used chemical weapons is heavily fought over by the superpower backers of the warring factions. This is due to the potential loss of credibility and legitimized armed intervention if Russia failed to defend Assad from American and European criticism. The penalty the actor would suffer therefore depends on the ability of others to enforce penalties, and how willing the rule breaker is willing to endure the penalty.

Laws usually differ from rules in that laws usually have some form of enforcement mechanism that forces people to obey the law. In most countries, laws are debated and then passed by a recognized legislature. Courts and police forces enforce these laws and ensure compliance. Law has to be well-defined, to avoid casting an overly wide net that penalizes the innocent. The “rule of law” has become a modern mantra for a good society. Therefore, at least theoretically, criminals cannot escape sanctions purely because they have resources.

Modern international law grew out of these ill-defined rules. The pursuit of a more rule-governed world is often associated with “liberal internationalism.” The formation of international law automatically presumes an international society, and an entity that is more authoritative than sovereign states. In contrast, many of the more traditional international relations theories, such as “realism”, believe that interstate relations are governed by national self-interest. International law is purely the product of the international hegemon imposing its rule on others for its own benefits. The waning of liberal internationalism in politics therefore also sees a waning of popularity in appealing to international law.

There have been efforts to provide formal institutions to international law to make it resemble domestic law. These initiatives have been met with rather mixed success so far. The legitimacy of some of the older and more established institutions, such as the International Court of Justice (ICJ), remains relatively unchallenged. Some of the more recent innovations, such as the International Criminal Court (ICC) remain controversial, especially among the large powers that can use their resources to leverage negotiations with other states. Needless to say, attempts to create an international enforcement mechanism to punish states that break international law have generally not been successful. There was a post-Cold War attempt to create a United Nations force. However, the onset of the Cold War and the unwillingness of states to have their armed forces answering to another organization saw that project flounder. After the Cold War, the effort to codify Responsibility to Protect (R2P) as a law was initially met with enthusiasm from NATO in the aftermath of the Yugoslav Wars. R2P also floundered after the disastrous invasion of Iraq and the drawn-out war in Afghanistan.

Strengthening international law, as Western liberals understand it, seems to be less likely. The United States and Europe have both seen a retreat to nativism. Also, rising states like China and India are potentially less willing to accept supranational organizations that adjudicate on state behaviour. Russia did not even bother to pay lip service to international law, citing the protection of its ethnic kin and historical ties for its the annexation of Crimea. While international laws still remain important to these states, the rules that the new emerging powers are willing to defend are more likely to be those that strengthen the sovereignty of states rather than those that weaken them.  On the other hand, it is possible that India will come to support liberal notions of supranational courts even on sensitive issues of territorial disputes. For instance, in 2014 India accepted the Permanent Court of Arbitration loss against Bangladesh over a disputed area in the Bay of Bengal. However, India also refused to join the ICC. Theoretically, as a rising power, India also has similar interests to China and now the U.S. This interest is in weakening the reach of supranational organizations so it can better bring its superior resources to bear during negotiations with other states. Only time will tell the direction that India will pursue.

Conclusion

Within the near future, there is little possibility that a widely accepted formal legal system will be able to establish itself. As nationalist and populist sentiments become more prominent in the heartland of liberal democracy, one can expect less appeal for the formation of a permanent international court that has the power to adjudicate disputes. Instead, talks of national interests and bilateral relations are likely to dominate state-to-state relations for the next 4 to 8 years.

International law will continue to be relevant, but it will likely develop away from its liberal conception of supranational organizations that are able to pass binding arbitration on states. While the reassertion of state power does  not put an end to international law, it is likely to put more emphasis on state interests and absolute sovereignty.

Hanyu Huang

Hanyu Huang

Correspondent at The Organization for World Peace
Hanyu Huang was born in 1994 in China. Migrated to Canada in 2006. Graduated from University of Toronto in 2016 from the Economics and International Relations program. Interested in East Asian economic and security issues.
Hanyu Huang

About Hanyu Huang

Hanyu Huang was born in 1994 in China. Migrated to Canada in 2006. Graduated from University of Toronto in 2016 from the Economics and International Relations program. Interested in East Asian economic and security issues.