The Crisis of World Order and the Missing Voice of International Law

[Mohamed Helal is an Assistant Professor of Law  at the Moritz College of Law & Affiliated Faculty – Mershon Center for International Security Studies, The Ohio State University.]

Even the most cursory scan of the foreign policy and international affairs commentariat in the western world reveals a pervasive sense of uncertainty, unease and apprehension, or even hysteria, about the state of the world. Journals such as Foreign Affairs and Foreign Policy, leading newspapers such as The New York Times, The Washington Post, The Wall Street Journal, magazines like The Atlantic and The New Yorker, and major think tanks such as IISS and Stratfor, have, for several years, been discussing what has been variably dubbed: the crisis of world order, the demise of the liberal world order, the retreat of western liberalism, etc. Whatever the label used to describe the current political moment, the core idea is the same: the political and socio-economic values that the United States and Western Europe articulated and advocated since World War II, and which were globalized, institutionalized, and thought to have achieved a resounding victory in 1989, are now being challenged and dismantled.

For many writers, this crisis or demise of the liberal world order is lamentable. This order, they argue, brought relative stability by avoiding a major confrontation between the Great Powers, promoted increased volumes of world trade which lifted billions of people from poverty, and advanced democratic governance leading to greater protections of human rights and human dignity. For others, the liberal world order, was neither liberal nor orderly. Rather, the past seven decades are described as having been marred by ideological battles, nuclear standoff, and proxy wars between the Great Powers and a post-Cold War era marked by state failure, genocidal civil conflicts, and terrorism combined with American imperial wars, neoliberal economic and commercial expansion, and rampant inequality within and between countries.

However one views the path of history since World War II and whatever ones’ views about the state of the world, one thing I have noticed is that we – the invisible college of international lawyers – are largely absent from this conversation. That, I believe, is unfortunate. Of course, as lawyers, our primary preoccupation is with the description, elucidation, development, and critique of the rules and institutions of international law. It is imperative, however, as we engage in academic and policy debates about the doctrinal content and institutional infrastructure of our field, that we consider the broader political and strategic climate within which international law operates. We must neither retreat nor exile ourselves to what Felix Cohen so memorably called the “heaven of legal concepts.” International lawyers could make valuable contributions to debates about the so-called crisis of world order and would add an important voice to ongoing discussions about the principles and values that ought to govern the world in the future. After all, international law is the lingua franca of international relations, the instrument of justification and the standard of critique of state policy, and the medium through which much of international politics occurs.

Our participation in debates about the future of world order is also necessary because the content of international law, its institutional forms, and its trajectory will be determined by the outcome of these debates. Law, all law, is the continuation of politics by other means. This is especially true with international law, where the layer of recognized doctrine, settled precedent, accepted practice, and institutionalized norms is thinner and less evolved than entrenched domestic legal systems. Therefore, major political developments, such as realignments in the balance of power that lead to significant revisions in the values, principles, and norms underlying the international system, invariably reshape the content of international law and redirect its orientation. In short, the future of international law is inextricably linked to the future of world order.

Thinking about the past, present, and future of world order will generate a broad range of questions for international lawyers. Among those are definitional questions such as: What does the term “liberal” mean in the context of international law and what do it mean to speak of a “world order”? Other questions are of the historical/genealogy-of-ideas type such as: When and how did the ideas associated with the “liberal world order” emerge and how did these ideas shape international law in the 20^th century? Other questions could be critical in nature: Was the post-World War II order truly liberal? What were the politics underlying the ostensible or declared liberalism of the post-World War II order? (I explore some of these question in a forthcoming article titled: The Crisis of World Order and the Constitutive Regime of the International System).

Numerous scholars of international law, global governance, international relations, and history have investigated these questions and generated a valuable body of literature that interrogates the historical origins and political and ideological commitments of our field. (Mark Mazower’s Governing The World is an especially enlightening contribution). However, few, if any, have examined these questions in the context of discussions on the crisis of world order. Little, if any, has been written by international lawyers about how international law will be affected by recent political developments all of which portend deep transformations in the international system (a notable exception is this article by William Burke-White). These developments include China’s reemergence as a global power, Russia’s resurgence, America’s flirtation with isolationism, the continued spread of Euro-skepticism, populism and nativism in the West, the global retreat of democracy, anti-immigrant sentiments in western and non-western countries, the rising specter of trade wars, and decades of secular stagnation in many western economies. Viewed in isolation, none of these trends or phenomena is unprecedented. What makes our current political moment unique, however, is the combination and confluence of these developments within a short period, which is why we are living in a period of systemic instability and uncertainty.

It is impossible to address or even comment on all of these developments in a blog post or even in a law review article. However, in my view, the most significant development for the future of international law is the ongoing shift in the global balance of power. For centuries, the North Atlantic region has been the center of global material, economic, and ideational power. As Opinio Juris readers are well aware, international law as we know it today is a European innovation that was exported to and imposed upon the rest of humanity. Western (or western-educated) jurists were (and remain) the leading voices in designing the rules of international law and constructing the institutions through which it is implemented. If current political and economic trends continue, however, we will gradually move towards a multipolar world (or, according to some commentators, a non-polar world) in which power is distributed among multiple power centers, the most significant of which are South and East Asia, in addition to the North Atlantic region. I cannot fully predict the impact of these developments on international law. However, because the law is, ultimately, an institution and child of power, as the topography of global power shifts, so will the ideological orientation and doctrinal content of the norms that govern international relations.

“The ultimate problem of our day,” Henry Kissinger has written, is “the crisis in the concept of world order.” It is imperative for international lawyers to engage in debates on the nature and scope of this problem and to participate in the articulation of future visions of world order. This is not a question of mere academic interest; this is a matter of professional responsibility. As students, scholars, and practitioners of international law, we (and, I realize, “we” are a lawyerly community of immense ideological diversity) are duty-bound to consider how the rules, tools, ideas, and institutions at our disposal can be employed, reformed, and reimagined to minimize the potential for conflict and maximize the possibilities of realizing a modicum of justice in an uncertain world.