Ukrainian soldiers fire a 2A65 Msta-B howitzer towards Russian troops during Russia’s offensive on Ukraine in Ukraine’s Zaporizhia region. , photo credit: Reuters
IAnn An influential essay written two decades agoProfessor Hilary Charlesworth, now a judge at the International Court of Justice, described international law as “the discipline of crisis”. Not much has changed since then. Just as the world was reeling from the pain of Covid-19, Russia’s invasion of Ukraine Last year once again highlighted the ‘crisis’ dimension of international law. One of the underlying foundations of the post-World War I international legal order is to explicitly outlaw war through the adoption of UN Charter, While the United Nations Charter has been successful in ensuring that the world does not fight another world war, it has failed to prevent inter-state wars. This year is going to further test the limits of international law, not only because of Russia’s ongoing illegal war, but also because of many other factors that will unfold over the next 12 months and beyond.
geo-economic challenge
The post-World War II world was a bipolar one with great power competition between a ‘capitalist’ US and a ‘communist’ Soviet Union. The end of the Cold War led to the disintegration of the Soviet Union and the fall of communism. This ‘unipolar’ moment gave multilateralism a leg-up and led to what C. Raja Mohan terms three decades of “relative harmony” between the major powers. However, also during this period, the North Atlantic Treaty Organization bombed Kosovo and Western forces invaded Iraq in complete disregard of the United Nations Charter. As Ralph Wilde argues, these US-led military actions did not attract as vocal an international response as the Russian invasion of Ukraine did.
The ‘relative harmony’ phase saw the spread of democracy, greater acceptance of universal human rights, and a global consensus to uphold the international rule of law, with multilateral institutions and independent international courts acting as referees. However, these universal values are under threat as we have entered a multipolar world that involves the securitization of international law. The major powers are at each other’s throats. International law today faces a new ground reality – the decline of the ‘liberal’ and ‘capitalist’ West and the rise of an ‘autocratic’ China and an ‘expansionist’ Russia. China’s meteoric rise means Beijing is now increasing its power, including weaponizing international law. China views law as an instrument in the service of the state. This is in stark contrast to the rule of law principle in liberal democracies where the function of law is to restrain autocratic state power. The Westphalian notion of international law, which directly supported the international rule of law and the territorial integrity of states, is now pitted against Chinese and Russian versions that believe in gaming international law for national interests. Under the Chinese and Russian versions, the territorial integrity of nations and the sovereignty of states do not matter. For example, the Russian approach to international law holds that the basis of international law is not universal but cultural and civilizational particularity. The Russian vision of international law, in complete violation of the UN Charter, distinguishes between countries that are de facto sovereign and countries that have nominal or limited sovereignty, such as Ukraine. As the conflict between different approaches to international law intensifies in 2023, it will push international law into a deep crisis.
international economic chaos
An important consequence of the rise of the geo-economic order is the concomitant spread of economic protectionism. The rise of China has raised a cat among pigeons in the US, which is desperate to ensure its continued hegemony. Washington is increasingly turning back on the neoliberal consensus of interdependence and non-discrimination in international economic law that it has painstakingly built over the past three decades. The US recently adopted the Inflation Reduction Act, which aims to make the transition to clean energy by providing massive industrial subsidies to domestic US companies at the expense of imports and foreign companies. Similarly, the US has recently rejected reports from a World Trade Organization (WTO) panel that invalidated US protectionist industrial policies for national security purposes. The US has also throttled the WTO’s effective dispute settlement mechanism by continuously blocking the appointment of members of the Appellate Body. All these challenges are only going to get ominous in 2023, causing more and more chaos in the world economy.
populist challenge
Although leaders such as Donald Trump and Jair Bolsonaro have stepped down, in 2023 international law will face challenges from populist and ethno-nationalist regimes in several countries such as Hungary, Turkey, Poland and Israel. Populists attack the validity of international law and refer to it as foreign law, which is inimical to their national interests. In the populist scheme of things, international law is often reduced to the law of coordination. The purpose of this law of coordination is not international co-operation to develop and support common global values, but only to ensure a minimum of association between countries with common ideological bindings. Populists also attack international institutions and international courts for preventing them from pursuing the interests of the ‘pure’ people they claim to represent. They enact domestic laws to protect the ethnic identity of ‘pure’ people, even when these laws undermine international law.
Scholars interpret crisis in international law in different ways. BS Chimney is of the view that if the phenomenon of imperialism is not addressed then there will be a crisis in international law. On the other hand, the late James Crawford argued that crises in international law arise because of the “absence of any constitutional order other than that of states”. Arguably, this allows nationalism to trump international law. Others, such as Jan Klabbers, argue that the crisis of international law today is a crisis of liberal democracy. The characterization notwithstanding, the fact remains that the liberal international legal order is under attack from many quarters. Will 2023 see the international community fighting back against the relentless assaults by securitization, populism and protectionism on the core universal values enshrined in international law?
Prabhash Ranjan is Professor and Vice-Dean, Jindal Global Law School, OP Jindal Global University. views are personal