Nuke war, eco collapse, and biotech cause extinction---revitalized i-law’s key but at a tipping point.

Significantly, these two narratives of historical development of international law are not mutually exclusive. First, certain developments can be understood as clean breaks from the past, whereas others are the product of a long-term process. Second, identifying historical trajectories depends on the focal length of the historical lenses used: What is viewed as a major shift in direction at the time in which events take place, might be regarded decades or centuries later as a minor course correction, a short period of instability, or a mere point on a pattern showing the overall trajectory. And third, the two narratives may merge to generate processes of change, accelerating in particular moments in time due to ‘tipping points’ generated by certain dramatic events.5 Indeed, it would appear that certain important developments in international law can be described as part of long-running trends punctured by sudden fluctuations correlating to dramatic events. For example, the evolution of IHL norms governing non-international armed conflicts can be narrated as stemming from a gradual process of restraining violence in and around the battlefield that started picking up momentum in the mid- 19th century, with certain regulatory peaks occurring after and in connection with major international crises such as World War Two, Vietnam and the Global War on Terror (e.g., Common article 3 in 1949, the 1977 Additional Protocols, and the development of laws governing transnational or asymmetric armed conflicts in the 2000s).

The COVID-19 Pandemic as the Harbinger of a Constitutional Moment

The question before us is whether COVID-19 has the potential for generating a constitutional moment or a tipping point for the development of international law separating between epochs or significantly accelerating already-occurring trends? Discounting serendipitous changes in the course of history (the ‘unknown unknowns’ of historical change), such a question invites an assessment of whether a structural change in international law can be envisioned or required in the near future, or whether the current crisis might facilitate such a change or accelerate existing trends going in this or the other direction. If the answers to these questions are in the negative, then the reaction to the COVID crisis is likely to showcase ‘more of the same’ for international law.

One possible vision of a percolating crisis that might lead to a new epoch in international law is found in the writing of my Hebrew University colleague, the historian Yuval Noah Harari. Among the major challenges confronting humanity in the 21st century, which he has identified, are nuclear war, ecological collapse and technological disruption (e.g., dangerous applications of AI and biotechnology).6 What’s common to these challenges is their potential for catastrophic consequences, and the need for close global cooperation in order to effectively address them. In addition, they all fit into a Frankensteinian crisis narrative: Scientific, technological and economic progress getting out of control and creating a threat to the survival of human civilization (at least in its current form). Noah Harari advocates in response to the looming threats a change of paradigm of international relations, a new epoch perhaps, which is based not only on tight global cooperation,7 but also on giving a prominent role for scientific knowledge in policy debates.8 Arguably, such a new international relations paradigm would also require a corresponding new international law paradigm.