That international law would be damaged beyond repair, in particular with reference to the Ukraine and Gaza conflicts, or, at the minimum, subject to substantial erosion, has been regularly commented upon.
Other examples abound, not all of them connected to the unbridled use of force which, except in self-defense or with the authorization of the UN Security Council, joins a long list of legal failures. What is new is that the discipline itself seems to be at a critical juncture. As President Donald Trump said: “[H]e who saves his country does not violate any law.”
Since the 17th century, when relations between princes came to be regulated by a law of nations, international law has always navigated between the vanity of a so-called legal order and the fragility of delicate institutions born to support it.
The law itself has been questioned in terms of usefulness, legitimacy or even existence. How could this be different when a de- or re-globalizing, but still interconnected, world is faced with rules and norms that, as impeccable or workable as they might first appear, are too easy to breach or disregard?
The prospect of international law becoming sede vacante is one of the possible outcomes of recent events. Accumulated elements of discord – some of them thoughtfully calculated – and an era of limited cooperation are likely to prevent the rapid reimposition of an international legal order required to be able to assure the application of minimum legal standards.
If international law were to live perpetually under the crumbling values of a collapsing order, it would need to adapt to a loose and perhaps ad hoc structure. What should it do, then, with the stiff rules and codes it supposedly accommodates and values?
Isaiah Berlin, the philosopher and historian of ideas, once remarked that the best that humanity could hope for was compromise. A flexible and ambiguous compromise, “since out of the crooked timber of humanity, no straight thing was ever made.”
The United Nations is based on a Charter whose only ambit, according to US President Harry Truman, was to be the essential organization to keep the peace post-World War II.
In contrast, the current order, largely based on a “coalition approach” to multilateralism, requires more flexibility or elasticity and a good amount of tolerance when great powers break the rules.
“Above all, not too much zeal!” Talleyrand’s motto resonates again in an age where we are collectively expecting too much from international law, and at a moment where we tend to remember it only when we need it.
Like Heraclitus’ River, international law depends more than ever on the changing balance of power between the “liberal West” and the “illiberal rest.”
If the objective is to restore faith in the international legal system, international law has first to integrate states initially excluded from rule-setting. The price to pay is that commitments may become more general compared to those from like-minded groups. But this inclusive approach is essential to mitigate potential conflicts arising from competing blocks.
Second, the international order is presently based on international rules that not all states consider akin to rules of international law. But these laws are not only a set of technical norms agreed to, but authoritative expressions of principles that define the objectives and course of collective action.
The fundamental principles of the UN Charter and other international standards already include respect for sovereignty, non-intervention and territorial integrity, as well as human rights, fundamental freedoms and an open international economic system.
Principles able to respond to global complex shocks are also being anchored in the international system, such as the principles of trust, equity and solidarity or, in connection with the environment and development, the principle of common but differentiated responsibilities.
Enduring international orders have usually relied on some basic consensus and principles of conduct among nations.
It is undeniable that these principles cannot offer automatic solutions to specific problems due to their conflicting implications. However, they can serve as criteria to be carefully weighed and balanced to arrive at rational solutions. Despite inherent tension between principles and immediate needs, they can be aligned to work in harmony.
Why is this so? Because principles are flexible in that they do not prescribe specific procedural patterns or detailed mechanisms for action. But they are necessary for the negotiating possibilities they open up and the constructive additions they offer in international attempts to resolve conflicts of interest.
In allowing for adaptation, they are able to embody opposing tendencies. Even in a UN system replete with privileges and hierarchy, power differentials are moderated to promote a more predictable environment, enabling diverse actors to participate in decision-making and have a voice.
Thus, the principle of equality among states is always viewed within a framework that includes the responsibilities of major powers.
Working beneath the surface, those principles entertain a life of their own. Tolerating idiosyncrasies, they don’t require maintenance, contrary to rules and norms which require “long-term thinking and acceptance of short-term costs.”
Obviously, considerations of principle and law, however rational or righteous, might not suffice to settle the international law problem currently being faced.
The Euclidian definition of the straight line may not always hold true. Such a line, as traced by the purposes and principles of the Charter, might at times cross other lines in the intricate pattern of international political action.
But, applied in a less fervent and more cautious way in individual cases, principles can influence the development of more frequent ad hoc arrangements and operational measures. Problems associated with political judgment will remain for those in charge of “saving a country.”
Eric Alter is a former UN servant and dean and professor of international law and diplomacy at the Diplomatic Academy in Abu Dhabi.
