Anarchy and Anachronism: An Existential Challenge for International Law

The war in Ukraine has opened our eyes to two things that have long been there to be seen.  The post-1945 world order has collapsed into a new world disorder. The utopian dream of inevitable social progress across the human world has revealed itself as an illusion. History has ended, not in improbable optimism but in a sense of hopeless disorder. 

The social function of international law is to create the conditions for peace, order, and good government in the human world. International law now faces a challenge far greater than those that it faced on three previous occasions when world order was suddenly unsettled.  

At the end of the fifteenth century, it had to respond to the recognition of an extra-European world of countless different cultures and social forms, some of them ancient, in America and Africa and Asia. In the sixteenth century, it had to respond to the end of integrated Christendom in Europe, leading to wars of religion and the terrible Thirty Years War.  In the nineteenth century, it had to respond to the rise of competitive nationalism, leading to the explosion of worldwide barbarism in the twentieth century from 1914 to 1945. 

A benevolent view of the history of international law allows us to say that international law responded well on those occasions.  In the sixteenth century, the law of nations re-imagined itself as the law of all-humanity and developed customary international law as a form of law to the making of which all countries everywhere could, in principle, contribute.  The Peace of Westphalia in 1648 established a universalisable model of live-and-let live, respecting the co-existence of disparate national social forms which had begun a process of rapid organic development.  In 1945 a new world order was constructed, under the intelligent leadership of a newly dominant United States of America, centred on the United Nations Organisation, together with countless other institutional forms of intergovernmental political and economic co-operation, eventually embracing virtually all countries everywhere. 

Such is, of course, a benevolent view, given the persistence of a deep-structural and intractable anarchy in the unsociety of all-humanity, whose destiny is ultimately in the hands of the rulers of national governments.  Their self-centred interests, personal whims and obsessions might not be in the best interest of their own people, but collectively they form the substance of international relations, for the failures of which their people have to pay the price. The unending struggle of international lawyers to subject this state of affairs to the rule of law is worthy of respect. 

The UN Security Council failed to safeguard international peace and security, its primary responsibility under the terms of the UN Charter, the conferring of the veto power on its permanent members proving to be its fatal weakness. When NATO ceased to be matched by the Warsaw Pact in Eastern Europe, Russia was liable to see itself as encircled, as Germany had seen itself as encircled before the First World War. 

 The World Trade Organization failed to counteract the collateral damage of globalising capitalism. The European Union failed to fulfil its potentiality as a new kind of world power and a new model of multinational social order, nationalising the international and internationalising the national.   

It is for historians in the future to unravel the complex causes of these failures. In the meantime, we may say that the failures were not inevitable. The new systems were not utopian.  They were realistic responses to bitter experience in the real world.  They were achievements of traditional diplomacy which, notwithstanding great inequalities in the power of the participating governments, allows conflicts of interest to be resolved by finding a common interest, expressed in legal terms and conditions negotiated word-by-word. Such achievements are analogous to the operation of the general will in national societies. 

There are reasons to think that restoring world order may now be beyond the capacity of traditional diplomacy.  

The post-1945 world order after 1945 came to be dominated by two so-called superpowers, opposing each other in what came to be called a Cold War, forcing other countries to ally themselves with one or other of the superpowers or to claim some sort of neutrality as members of a Third World.  

The Cold War was not only a confrontation of power. It also had a dialectical ideological aspect, specifically in relation to matters of social organisation.  Liberal democratic capitalism and communism seemed to be contradictions of each other. This led to a crusading spirit on the two sides with a belief in the final domination of one social system over the other.  Third World countries were also known as developing countries, in the belief that they also were on a path of social progress. 

Today the social disparity among the nations cannot be resolved into a dialectical opposition.  There are now some one hundred and ninety members of the UN, all of them engaged in their own process of social development. There are now many more autocracies than liberal democracies. Even the governments of some liberal democratic countries have shown themselves tempted by anachronistic autocracy. 

At the same time, worldwide economic inequality, which may now be increasing rather than diminishing, means that there are many countries simply struggling to survive and prosper in a world in which some countries have been getting more and more wealthy and less and less generous towards those who are struggling. 

In short, the human world has become a great anachronism in which the new Cold War is a Hobbesian war of all against all, with no imperial powers to impose order and little prospect of forming the general will of traditional diplomacy. And, as ever, the people pay the price of the new world disorder. And, when cold war descends into hot war, on grounds that are themselves crudely anachronistic, that price is death and destruction. 

It has been said that progress is a journey without a destination. But it at least requires a belief that a better future is not only desirable but also possible. International lawyers surely have an exceptional responsibility to explore every possibility of making a better human future. Two possibilities present themselves. They may themselves seem to be anachronisms, stemming from the history of the development of law in national society. 

Law is a necessary condition of sustained prosperity and progress in a society. An effective legal system is, above all, in the self-interest of those who have the most to lose in a collapse of social order. In many cases, the rise of a dynamic middle class has been the cause of the progressive development of constitutionalism, based on the rule of law. 

The leaders of countries with the most to lose in a collapse of international social order might be led to see their existential self-interest in exercising a leadership in the piecemeal reconstruction of the necessary elements of a new international social order based on the rule of law. In other words, they should identify themselves with the great powers of the nineteenth century whose intelligent understanding of their own self-interest produced a century of relative peace from 1815 to 1914, using the capacities of traditional diplomacy and modern international law. Their leadership should include framing the terms of a peace settlement, even as a war is still proceeding. 

Secondly, global consciousness has been transformed in the twenty-first century.  It is analogous to the transformation of consciousness involved in the revolutionary transformation of national societies after 1789, and not only in European societies. They were revolutions from below managed from above. The ideological content of their consciousness produced some collateral monsters which Goya, in a searing image, attributed to the sleep of reason, including reigns of terror and the massive abuse of public power to oppress the people. And so it is with the new global consciousness. It is a very mixed blessing.  

However, the new global consciousness is an irreversible feature of the new international situation. International lawyers can help to make it into something that could be a collective human consciousness, a self-consciousness of the human species.  

If traditional diplomacy is no longer capable of forging a general will of international society, it may be that the new human consciousness makes such a thing possible in a new way. The world is full of good people, with common sense and moral sense, able to judge the behaviour of the governments who are supposed to be acting on their behalf, but who are often acting against the best interest of their people, denying, ignoring, or simply violating their international legal obligations, undermining the peace and good order that they are supposed to promote, which is the only justification of their possession of governmental power. 

International lawyers may seek to engage the understanding of reasonable people everywhere in the function and the necessity of international law as an integral part of the peace, order, and good government of international society.