A Lateral View of the International System: Responding to the Collapse of Global Government

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The human world is beset by unprecedented global problems in a state of unprecedented global disorder. Climate change. Destruction of habitats, exhausting of natural resources, extinction of animal species. Global threats to human health, including plagues and pandemics. War and the threat of war, including new forms, such as cyber war, space war, bacteriological war. Internal wars that are proxy wars, or in which other states intervene directly or indirectly. Inherited, and still threatening, international situations, such as those in the Middle East and the South China Sea and Taiwan, and arising from the scarcity of essential natural resources.

Global and local terrorism, supported in some cases by governments. Internationally organised crime and corruption, affecting governments and major economic actors. Failed states, and the descent of democratic states into autocracy. Gross abuse of public power by governments oppressing and exploiting their people. Global and regional intergovernmental systems that have failed to transform the international relations of their members.

A globalised economy in which profound and persistent social and economic inequality are sources of internal and international instability. Global social media causing deep harm to the quality of public debate, and damaging interpersonal human relations, giving rise to a form of post-political rootless populism, national and global.

Widespread non-fulfilment of international treaty obligations. International legislation on human rights and fundamental freedoms that is regularly violated or circumvented or simply ignored. Widespread reluctance by governments to undertake binding dispute-settlement obligations. A residual customary international law lacking the power to override ultimate considerations of self-interest on the part of governments.

The most sanguine observer of the current state of the human world would be unable to believe that the human world in its current state is capable of meeting effectively the self-made existential challenges facing the human species.

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All these things are happening in an international system that we have inherited from the eighteenth century.

That system organises the co-existence of so-called states, currently some two hundred of them, each of which is considered to embody total governmental power in a specific territory (sovereignty) to the exclusion of the exercise of power therein by any other state (independence), all of them being considered to share the same status as states, regardless of their real-world differences (equality).

The sovereign, independent and equal states are subject to a form of law whose source is in their consent, arising inherently, as an implied condition of their statehood (customary international law) or created ad hoc in their inter se relations in the form of treaties, which have legal effect under customary international law. Its government is the exclusive representative of each state in exercising its external power.

The use that a government makes of the powers of the state is determined under the constitutional system of that state, which determines the government’s legal responsibility under national law in exercising its international powers, and its participation with other constitutional organs of the state in their exercise.

This top-down vertical system of the distribution of public power across the whole world has the virtue of elegant simplicity. It also has real-world consequences which deeply affect the whole of humanity, all human societies, and all human beings.

It privileges the self-interest of the states as determined by their governments. Their interaction takes the form of diplomacy, where conflicting self-interests are reconciled in ad hoc agreement as to their mutual self-interest in a particular matter. They are not required to consider a common interest that may transcend their self-interest. International law can only be enforced against them by means to which they have consented, or else, ultimately, through the use of force, with international law purporting to lay down conditions on the use of force.

The real-world consequences of the system are plain for all to see, in the history of the last two centuries. In countless ways, humanity has progressed dramatically in the quality of life of ordinary human beings everywhere, compared with the human condition through most of human history, even if that progress is distributed with radical and persistent inequality.

But the world’s experience in the twentieth century has revealed another, much darker aspect of the system. The horrors of world wars and countless other wars. The massive abuse of public power by governments to oppress and exploit their own people, and to condemn to discrimination and exclusion, and even to death, people who are indigenous to their territory, or who are seen as internal enemies of the state. The disregard of the common interest of humanity, let alone the common good of humanity, not least in the spoliation of the natural world, to the extent of threatening the survival and prosperity of humanity itself.

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In considering the constitution of a particular national society, it is heuristically useful to distinguish three aspects or vectors. The ideal constitution contains the ideas that explain and justify the distribution of public power, such as communist, or liberal democratic, or theocratic ideas. The real constitution is the actual day-to-day activity in the society, including the reality of the distribution and exercise of public power at any given time. The legal constitution is the bridge between the ideal and the real constitutions, applying and enforcing the ideas of the ideal constitution manifested in the day-to-day activity of society, especially in its politics, to serve the common interest and the common good of the society.

Applying such an analysis to international society allows us to see what is causing the collapse of global government. The real constitution of international society is no longer reflected in its ideal and legal constitutions. The distribution and exercise of power in international society is now far more complex than a distribution of power among states.

The frenzied activity of the globalising world has made governments into quasi-dependent phenomena, their activity strongly determined by social activity that far surpasses them. Their activities may still dominate the front-pages of newspapers and TV news programmes, because they can be related to the behaviour of individual politicians to make dramatic stories. But governments themselves are fully aware of their dependence on external power structures and systems that are now beyond their control.

The Alpha of the real constitution of international society is the whole of humanity, including all human societies and all human beings collectively. The Omega is each individual human society, including the family, and each individual human being. The One and the Many.

Between the two is a massive number of layers of human activity separate from the activity of governments. The activity of universal religions may have effects anywhere. The natural sciences, mathematics, philosophy, and high culture are intrinsically universal.

There are hundreds of intergovernmental organisations, including the UN and its specialised agencies and their own agencies, whose legislative and executive and judicial activities are collective, not merely the continuation of diplomacy by other means. There is a vast international civil service whose loyalty is to their organisation, and not to any state.

Then there is the mass of economic activity conducted by economic actors who may be established in more than one national legal system, and whose day-to-day activity may be governed by many competing national legal systems, if by any. And there are an uncountable number of non-governmental international organisations, loosely forming an international civil society, seeking to change opinion or to promote special interests. And there are the social media forming attitudes and opinions globally and nationally, oblivious of traditional cultures and ideals.

Then there are the states, strictly so-called, with governments whose external activities may have effects anywhere in the world, especially though diplomacy and war. And the states have national legal systems whose jurisdiction is limited, in principle, to their national territory, but which may be extended in practice to cover external events and transactions by reference to the nationality of a person or a corporation involved, or else because of the internal effects of external events and transactions.

A remarkable consequence of all this is that the human world is now, in a real sense, a lawless world, not merely because of the frequency of the violations of international law, but because there is a legal wasteland in which those involved in events and transactions can pick and choose among competing and conflicting legal systems to suit their purposes. And there are countless events and transactions that take place in a legal vacuum without any clear connection to any legal system. International law does not apply directly when a state is not directly involved in the given event or transaction.

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A lesson from national constitutional experience is that a society develops the nature of its legal constitution by the interaction between changing ideas in its ideal constitution and the ever-changing reality of its real constitution. This may happen over a substantial period of time, as in the case of Britain, or it may be stimulated by revolutionary events, as in the case of France or Russia or China.

This happened in the making of the vertical model of international law in the late-eighteenth century. The idea of the internal sovereignty of national society, especially in the European absolute monarchies, interacted with the emergence of an oligarchy of a few European powers with self-interested worldwide interests. The ancient Greek and Roman idea of the unity of humanity as a natural society, which had been taken up by the Spanish founders of the modern law of nations, simply fell by the wayside.

At first in the English language, following a suggestion by Jeremy Bentham in 1789, the law of nations became international law, to affirm that it is separate and distinct from national law.

We may hope that a third world war will not be required to bring about a new constitution of international society.   We may hope that ideas about common goods and the common good that are emerging in global consciousness may come to fill a void in the ideal constitution of international society, stimulated by anguished recognition of the challenges that threaten the survival and prosperity of humanity. Those ideas might interact with the frenzied reality of the contemporary human world, to produce a new model of international law as the true law of a true international society under a true International Rule of Law.

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Gilles Hosch says

October 14, 2021

Dear Philip,

I read your piece with delectation this morning. In Luxembourg the Government is embarking on a project of constitutional reform, and your piece is very useful to provide "internal" and "external" context and contrast, so I am sharing this with my friend in politics (I only have one of those). My understanding is that the current Government wants to enact constitutional reform without consulting the public...

With best wishes,