The Decline of International Law: Reflections of a True Believer

Just World Admin Blog, Global Balance, International law, Israel, U.S. policy

by Richard Falk

This piece is crossposted from the personal blog of JWE Board member Richard Falk.

[Prefatory Note from R. Falk: This post was initially published on January 27, 2020 in a Turkish online publication, Fikir Turu, and is slightly modified below.]

The Decline of International Law

There is widespread agreement that international law is experiencing a sharp decline in relevance when it comes to foreign policy, especially in the eye of the public. At first glance, this seems surprising. The digital age and economic globalization require more than ever a reliable regulatory framework to enable international transactions of many types. The growing complexity and networked style of international relations would lead most observers to anticipate an increased role for international law, and in many spheres of transnational activity, this has happened. In this respect, the public is somewhat misled when it generalizes its impression of decline to the whole of international law.

The impression of decline derives from high profile issues of governments acting without regard for international law, especially in the area of peace and security. A recent such example is the drone killing of a leading Iranian general, Qasem Soleimani, while on an apparent diplomatic visit to Baghdad at the invitation of the Iraqi Prime Minister. More revealing, perhaps, is the seeming international disregard of flagrant war crimes by the Assad Government during the civil strife that has brought such mass suffering to the Syrian people since 2011. Also, the genocidal massacres of the Rohingya people in Myanmar or the military coup staged by General Sisi in 2013 against the elected Egyptian government of Mohamed Morsi raised few cries of official protest about such flagrantly unlawful behavior. Even the gruesome murder of Jamal Khashoggi in the Saudi Consulate in Istanbul last year, while bringing tears to the eyes of many, brought no meaningful international response to such an outlandish state crime.  

The Trump presidency has reinforced this impression of decline, bordering on irrelevance, by its unilateralism in foreign policy—the 2018 move of the U.S. Embassy to Jerusalem in violation of the UN consensus that the future of the city be determined by negotiations; the legalization of Israeli settlements in the West Bank despite their clear violation of Article 49(6) of the Fourth Geneva Convention and prior Washington policy, the disruptive withdrawal from the from the 2015 Iran Nuclear Agreement (JCPOA) and the Paris Climate Agreement finalized the following year. Overall, global issues that are reported on by the media strengthens this impression that international law is not respected by many governments, and nothing adverse happens to them as a consequence.

Yet there is more to international law than this negative impression leads us to believe. The entire fabric of the modern world is dependent on a generally respected international law framework. Without this framework every standard activity from tourism to diplomacy to trade and communications, as well as maritime and commercial air safety, would produce chaos on a grand scale. The reality is that we take most of the international law dimensions of the modern world for granted, never think about it, or if we do, we are grateful for bringing this kind of order into our everyday activities. On a larger scale governments and businesses plan many large-scale long-term operations on the assumption that international law guidelines can be relied upon. In other words, in many spheres of international life, international law is dependable, and is mutually beneficial both for ordinary people and for powerful actors.

Yet, the impression of decline is real when it comes to peace and security, human rights, and cooperative global problem-solving for such challenges as climate change and migration. It was not always quite this way. The United States, in particular, but many important countries believed in extending the rule of law as far as possible in international arenas. There was a widespread belief about World War II that a law-governed world order was essential to avoid the disastrous recurrence of major warfare and another economic collapse of the magnitude that brought on the Great Depression of the 1930s. Unregulated nationalism was seen as a severe threat to a peaceful and prosperous future for humanity, including those states with a geopolitical agenda. Even the development of a human rights architecture within the UN embodied the liberal faith that adherence to a common set of legally grounded values, as qualified by civilizational diversity, would be of benefit to the whole of humanity.

Yet, there were always major limitations to what could be achieved by a law-oriented approach to world order. Even the UN was framed in such a way that it exempted the most powerful, and generally the most dangerous states, from an obligation to comply with international law, including even the UN Charter. This exemption was signaled to the world by making the five dominant governments in 1945 permanent members of the UN Security Council, and more consequential, conferring on them a right of veto, which was a way of making international law inapplicable whenever it was really needed to curb the behavior of these large states and their smaller friends who could always be shielded from legal obligations. Such shielding has been long done most spectacularly by the United States in relation to Israel. The best takeaway is that for geopolitical political actors, international law is a matter of convenience, not obligation.

There are also issues bearing on the effectiveness of international law that arise from the decentralized nature of world order. States even in the aftermath of a great war that caused widespread forebodings about the future were never willing to entrust the UN with enforcement capabilities. What enforcement occurred was the work of geopolitics, the willingness of large states to intervene for the sake of preventing severe criminality, itself usually instances of dubious legality. Arguably, this was what happened in 1999 when NATO acted to prevent Serbian criminality in Kosovo or when international sanctions were imposed by various countries on South Africa to bring apartheid to an end can be used as examples of extending international law in the face of state sovereignty and through circumventing a geopolitical veto. Yet depending on geopolitics to uphold international law is generally not a good idea. Geopolitical motivations are self-interested, strategically contoured, and ideologically driven, with the language of international law, democracy, and human rights often used as a cover to soften criticism. Over the decades, American sanctions were imposed on Cuba because of its Marxist orientation toward governance while countries with far worse human rights records, such as Guatemala or Chile under Pinochet, were not punished because they were allies. In other contexts, such as the struggle of the people of Tibet, Chechnya, and Kashmir, the costs of confronting China, Russia, and India were deemed impractical, with costs far too high to justify intervention, and to the extent concerns were expressed, it was done by way of hostile propaganda in which the moral message was submerged beneath clouds of partisanship.

Yet these structural problems of world order are also not the whole story. World history, which seemed in the struggles against fascism and colonialism and, later, in the collapse of the Soviet Union, to be heading toward greater reliance on international law, the UN, human rights, and the belief that only constitutional democracies were legitimate, but something happened to reverse these trends. What has happened in the 21st century is the rise of authoritarian leadership in virtually every important country on the planet, often by anti-democratic governing processes, but more surprisingly, by electoral choices in functioning constitutional systems such as India, Brazil, Philippines, and the United States, among others. The trend is global, which suggests structural dimensions, but each national narrative reflects particular conditions. Some explanations have stressed populist backlashes against neoliberal globalization and the impact of many dimensions of inequality it has brought about or the related effort to strengthen feelings of national identity and community in the face of migrants or the homogenizing impacts of transnational franchise capitalism. The cumulative effect of these developments is to elevate even the most arbitrary authority of the national leadership beyond any notion of accountability to international rules and institutions, making the perception of decline real, alarming, fostering a nihilistic mood at the very historic moment when constructive cooperative action is desperately needed. Added to these negative features of the present reality,  current prospects for reversing this decline are not favorable seem virtually non-existent.

Yet we can take a small comfort in the radical uncertainly of the future in which what is anticipated rarely happens. Less visible contradictory forces are present, mostly below the surface, making despair inappropriate, and calling on all of us to act on and struggle for the future we seek. It is this uncertainty that alone allows us, even mandates us, to be hopeful about the future, and to act as citizen pilgrims seeking a better future for humanity.