International law will Collapse

In fact, international law moves unpredictably or in cycles, with periods of enthusiasm and advance followed by periods of decay and retrenchment. A gradual but real development in international law and institutions in the second half of the nineteenth century, and the early twentieth century, collapsed with World War I. The League of Nations was followed by fascism and World War II. Another burst of international law-making saw the creation of the United Nations, the seeds of the human rights treaty regime, and the development of security, economic, and financial institutions mainly in the west, but gave way to the Cold War. The post-Cold War enthusiasm for international law has now collapsed as well.

This collapse can be traced through a series of crises that began twenty years ago, and that are now wearisomely familiar: the 9/11 terrorist attack, which flowered into an ongoing conflict between the west and Al Qaeda and other violent Islamic organizations, and a war in Afghanistan that has not yet ended; the Iraq War that began in 2003, that has also not really ended, but rather extends in various ways to Syria and Iran; the financial crises that began in 2008; the ensuing global recession; the European debt crisis from 2009 to 2015; the Arab Spring and its collapse from 2010 to 2012; a refugee crisis that began around 2015; Brexit, which threw the European Union in turmoil in 2016; and the global pandemic and recession of 2020. These crises accompanied and contributed to deepening popular unhappiness with globalization and international governance, which in turn generated domestic political upheavals as nationalist, nativist, and populist movements made inroads on popular opinion. These movements took place both in entrenched liberal democracies like the United States, the United Kingdom, France, Germany, the Netherlands, and Italy, as well as in developing countries, like China, India, Brazil, and the Philippines, where the commitment to liberal democracy is shakier or non-existent.

Meanwhile, the American-led international order has faced challenges from a rising China and a newly aggressive Russia. Under the leadership of Xi Jinping, China has suppressed democracy in Hong Kong, ratcheted up pressure on Taiwan and in the South China Sea, increased domestic repression, committed horrific abuses against millions of Uighurs in particular, and used its economic might to expand its influence in East Asia, Central Asia, Europe, and Africa through the Belt and Road infrastructure initiative. Russia under Vladimir Putin has also increased domestic repression, and put pressure on its neighboring countries by going to war, in Georgia and Ukraine, and using covert operations to interfere with elections and government operations in the United States and other countries.

These upheavals have had an impact on international law. The United States under Trump upended the WTO by gutting the appellate body and sparking a global trade war. It remains unclear which of these moves violate the WTO and which simply exploit its loopholes, but either way, the weakness of the regime has been revealed. Also revealed is the extent to which powerful nations will retreat from global trade rules that no longer serve their interests. It is noteworthy in this regard that the Biden administration has accepted Trump administration’s basic critique of global trade rules, and has announced that it will take a “different” approach to “free trade agreements” that will focus sharply on the interests of “American job[s]” and the “interests of all American workers.”40

Whether conceived in terms of violations of international human rights treaties or the ostensible customary international law of human rights, the last fifteen years have witnessed a similarly broad retreat in respect for human rights. The supposedly developing international law right to democracy that was touted in the 1990s and early 2000s has been replaced since 2006 with fifteen straight years of decline in democratic freedoms.41 According to Freedom House, countries experiencing deterioration in democracy in 2020 “outnumbered those with improvements by the largest margin recorded since the negative trend began in 2006.” Freedom House concludes that “The long democratic recession is deepening.”42

The U.N. Charter’s injunction to states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” has also taken a beating. To take only the most obvious examples: Russia invaded Georgia, annexed Crimea, committed a number of assassinations in the West. China ceaselessly threatens Taiwan and asserts its territorial will in the South China Sea (in part through ignoring a ruling by a tribunal constituted under the Law of the Sea treaty). The territorial integrity and political independence of many Middle Eastern nations—most notably Yemen and Syria—are regularly violated. Other examples include the great power fight for control of the U.N.-sanctioned destruction of Libya, the war between Ethiopia and Azerbaijan in Tigray and Nagorno-Karabakh, and clashes between Armenia and Azerbaijan. There have been dozens of other cross-border conflicts in the last fifteen years.43 And perhaps most significantly, the United States has so broadly expanded the “self-defense” exception to the prohibition on the use of force in the last fifteen years that it now swallows the “rule.” 44