A Crisis of International Law or of Mutual Respect? An Optimistic Legacy to Our Students

[Emanuele Cimiotta is a Professor of International Law at the University of Perugia (Italy)]

According to many commentators (Hakimi and Cogan; Peters; Aust, Kress and Krieger), over the last few years international law has been experiencing a number of shocks.

First, unilateral massive military actions have been undertaken in Ukraine, the Gaza Strip, Lebanon, Venezuela, and Iran, along with targeted killings and arrests of high-ranking state officials, as well as threats of forceful territorial acquisitions, not to say annexations of large swaths of Ukraine and the Palestinian occupied territories.

Secondly, a huge number of horrible gross violations of fundamental human rights and international humanitarian law – including forced displacement, starvation, bloody massacres of civilians – have been committed again in Ukraine, Gaza, Iran, as well as Myanmar, Syria, Sudan, and elsewhere in the world. In the West Bank, ever-broader Palestinian communities have been subject to a ruthless apartheid system.

In all of these cases, so the argument goes, senior state officials have sidelined international law, at times not even mentioning the norms their states have breached or attempting to provide a sound legal justification. Ultimately, this resulted in systematic breaches of the most fundamental norms of international law – norms that belong to jus cogens and protect essential interests of the international community as a whole – such as the prohibitions of aggression, genocide, crimes against humanity, and the right to self-determination.

Against this backdrop, most observers claim that international law is currently unable to effectively constrain state conduct and put an end to those breaches, let alone punish perpetrators and hold states accountable for their actions. This results in a sort of double standard in the enforcement of international law, which strikingly differs depending on whether the wrongdoer is a great power or one of its closest allies.

Thirdly, other unilateral measures affecting global problems have multiplied despite clear-cut treaty prohibitions on them: the imposition of customs tariffs, the deportation of migrants, the extraterritorial arrest of drug traffickers and terrorists, the boost in greenhouse emissions, and the sanction of UN and ICC officials just for doing their job.

Fourthly, an ever-growing number of states are withdrawing from, or hampering the work of, pivotal international organizations more than ever before (like the ICC, WTO, WHO, and many more). In parallel, a new body with a corporate structure has been established with the stated purpose of replacing the UN, and whose decision-making authority is primarily concentrated in the person of its chair: the Board of Peace.

This led many to argue that international law failed in handling common problems such as peace and security, climate change, global trade, migratory flows, global pandemics, and so on. The language of international law has been abused to achieve nationalist and imperialist goals.

In debates accompanying these escalations, some observers maintain that international law is in crisis (Domingo; Tzouvala; Rajagopal). Others even claim that international law, or the West’s international rules-based order, is dead (see also here extensively)

For international lawyers – and perhaps also students and the civil society – all this raises the question of whether we should change our attitudes, and if so, how. But most importantly, in my view, it raises the question whether all this is true in the first place. Is international law really in a state of crisis or even fading away? Is talking about crisis truly helpful? And if the time has come to work for a better international law and community, then what role, if any, for scholars?

International Law Is Not in Crisis

Let me say it frankly, international law is not in crisis, let alone dead. This is not simply because it is working as usual in many areas, most of its rules are complied with as a matter of routine, and a significant part of the international community has condemned the said internationally wrongful acts. It is not even because a number of noteworthy countermoves are currently underway: key multilateral agreements have recently entered into force or are being negotiated, an unprecedent number of judicial proceedings addressing issues of global concern are pending, or have been concluded, and several international organizations are doing their business as normal. Conversely, what really matters is that the four shocks I mentioned have not been caused by a fault in international law.

If anything, their occurrence reveals the essence and functioning of international law. They remind us what is international law, what is the community it seeks to govern and how it works. Additionally, they remind us what are the international law’s functions (constraining state conduct and holding wrongdoers accountable being just one of them, along with facilitating social action, offering a vocabulary for the conduct of politics, and fostering transparency and predictability, which are not less important: see Falk; Henkin; Slaughter; Onuf; Kratochwil), and where to draw the bottom-line of the expectations we can genuinely put on the efficacy of international law. As a matter of common sense, to say that something is in crisis, one must first realize what it is and how it works.

Rather than exposing the longstanding flaws and strengths of the international legal order, present events show its main tenets: its interdependence with power politics and interests; the perennial emergencies it strives to govern; the absence of a formal constitution; the decentralized set up of its law-making, law-enforcing, and adjudicating functions, as well as the lack of a single overarching authority. Those events also reveal the pluralistic and anarchic nature of the community international law aims to regulate, whose various elements often come to different conclusions about some state of affairs, as well as the continuing tension between community and individual interests, stability and change, without this necessarily giving way to profound transformations.

Undoubtedly, at present, something alarming is going on. We are somewhat moving away from faithful commitment to dialogue and compromise, from a certain typology of universal multilateralism and, at the same time, we are experiencing ever greater authoritarism, confusion between authority and property, dictatorship of private capital, arrogance and inhumanity of the leaders of some of the most powerful states. To some extent, unilateralism is gaining ground. Yet, unilateral assessment is not completely alien to international law, even to core norms intended to protect fundamental collective interests (see Crawford on Article 41(2) ARSIWA, and Dinstein on Article 51 UN Charter).

Moreover, needless to remind that, to operate, legal rules need socio/political commitment. What is missing today (as it sadly did in various degrees in other times as well) is political action of states and other actors to implement and enforce some international rules, including some of the foundational ones, due to economic, political, and social drivers that push somewhere else.

Changing International Law or Promoting Political Commitment and Mutual Respect? The Role of International Lawyers

For international lawyers, it is crucial to address such drivers and raise awareness of current and future rulers on the importance of political commitment. To this end, one option is to educate our students – for the time when they will be in charge of decision-making authority at the institutional level – as to the responsibility of their respective states to act consistent with, and ensure respect of, international law. They should be sensitized that, for international law to help humanity refraining from descending into chaos, international sentiment has to prevail over national sentiment, and that international law is not only useful if it helps their state to address the problems it is facing. Under this perspective, building bridges with historians, political scientists, sociologists, and economists, to grasp the rationale and socio-economic premises of power politics, as well as the way it establishes, supports, and reinforces international rules, can certainly help.

Furthermore, we may well be willing to take the opportunity the present events offer to reimagine a fairer, more inclusive international law, or an international law from below, to make it less dependent on hegemonic powers, regardless whether these are monsters or heroes. This shift in law-making would be highly desirable, as it could promote greater wellness and justice. Absent a formal constitutional arrangement, things in international law could go either forward or even backward. There is no norm that cannot be reversed. Even peremptory norms can be superseded by norms having the same character (Article 53 VCLT). Nonetheless, such a noble aspiration could only succeed in changing the content of some international norm. Yet, it is not the content of international law that has to be blamed for the times we are navigating, but domestic politics and the shield of state sovereignty, as an artificial construct which far too often has been abused to conceal abomination. That the world could get rid of sovereignty in the near future looks rather unrealistic. Arguably, then, one should rather work on national self-interests and mutual respect.

Counterintuitively, thus, talking about crises is not necessarily harmful, since, if pursued with an optimistic approach, it can instill consciousness in the existence of norms beyond national boundaries. Unsurprisingly, in these days, ever-broader groups of people are realizing that a network of rules exists out there, which are intended to govern world relations. In the streets, more and more people have started talking about international law and voicing concern for its alleged failures. Most of them are electors. By casting their votes and protesting, they may have an impact on domestic politics and on the development of national self-interests. Greater mindfulness of the existence and importance of international law and of the global values it aims to protect may help sparking a critical reassessment of national interests, aligning them with the prescriptions of international law, including its core norms, such as the prohibition on the use of force.

Lastly, and most importantly, in my opinion one of the fundamental teaching of international law and the multiperspective community it seeks to regulate – which is our responsibility to disseminate among current and future rulers – is that unlike, or at least less than, domestic law (whose efficacy benefit from a complex set of centralized institutions, on which every community member can rely and thus afford to forget looking after matters that affect the common good, such as street cleaning, maintaining order, etc.), international law inevitably calls its actors to understand each other, to pursue self-restraint and tolerance, to nurture a sense of responsibility and mutual respect, otherwise it could hardly work.

As a matter of principle, this urges every actor to do its best to put obligations and responsibilities first – a move that makes it a “member of a community” and facilitates socialization – rather than rights and demands – which makes it an “individual” and isolates it from the rest of the community, leaving little room for conversation and civic sense. Yet, this is something every actor must find deep inside themselves. International law cannot be held responsible for pulling it out of the human conscience and mindset, let alone from state policy.

Ultimately, altogether what precedes is meant to promote global inter-subjective comprehension, leading community members to move off their position to common ground, after hearing the arguments of the other members and considering potential modifications of their demands in light of them, as ways to reach a compromise and ensure mutual respect. One has to be ethically and politically equipped, willing, and ready to do so.

Conceptualized along these lines, this very much looks like the internationalist sentiment we, as international scholars, should primarily transmit as a legacy to our students. As was rightly stated, a strength for international law would be lots of people who are not international lawyers having a primary allegiance to it, rather then to national selfish priorities.