Five Reasons to Stay Away from the ‘Crisis and Renewal’ Narrative in International Law  

Image: Place markers in preparation for the Bandung Conference, 1955 (Howard Sochurek).

This post is the second in the mini symposium, International Law in the Current Moment.

A couple of weeks ago I went to the post office in Florence. A friend had asked me to send an exhibition catalogue to Boston. When the clerk informed me that the shipping of small parcels had been suspended after the Trump administration’s decision to impose tariffs, I protested: ‘But what about international law? No one respects the WTO anymore?’ To my surprise, the clerk replied: ‘But sir, you don’t know that international law is dead?’ As I returned home, the clerk’s sarcastic answer replaying in my mind was suddenly interrupted by loud laughter. I looked up the staircase to find my neighbor looking down and shouting with a smile: ‘What are you telling your students today? Is there any international law left to teach after Gaza?’ 

I could now offer my neighbor the explanation I wasn’t quick enough to articulate to the clerk. Not all is lost, I replied. Remember 1939, 1914, the Napoleonic wars, the 30 years’ war? Times are dire for sure. But all these wars ended with peace treaties, 1648, 1815, 1919, 1945. After each war, the international community has learned a small lesson and taken small steps, adding new rules and institutions to advance peace and justice. This is how international law makes slow progress. My answer was a rehearsal of what could be my talk at ESIL’s annual conference, which a few weeks later was convening in Berlin on the topic of the reconstruction of international law. 

Now, I must immediately confess that although the first part of the story could have happened today, I stole it from the past. It belongs to a Brazilian diplomat who, during the Frist World War, could not send a letter from Boston to Europe. He used this anecdote at the 1921 ASIL meeting to strengthen the commitment to rebuilding international law after the war. I thought recalling this story would offer a response to today’s dark pathos—a sort of reassurance that, as cycles of crisis and reconstruction repeat, slow progress is made.    

The problem is that the other half—the part about my neighbor—is a true story. And the truth is that he remained utterly unconvinced by my answer. As he continued pulling his groceries up the stairs, I could hear his laughter echoing as: ‘who cares about crisis and renewal when international law is dead … and there is no resurrection.’  

So, I changed my mind. Hoping to do better next time with my neighbor and do better in Berlin, I decided to stay away from the crisis and renewal narrative. Well, actually, I haven’t changed my mind. I have never believed in the cyclical death & renewal of international law, nor have I ever found the idea of slow progress convincing. I find the 16th century requerimiento—the summon laying out the legal case for Spanish conquest—to be as sound  and also implausible as the ‘unwilling or unable’ standard invoked today by the US to justify targeting ‘belligerents’ in the ‘war on terror’ or the war against ‘narco- terrorists.’ But for all our sophistication, when pressed by a clerk or neighbor, we fall back to the crisis-renewal-progress litany.  Is it because it would take too long to start with Francisco de Vitoria and end with Antony Anghie to explain that international law has always been both dead and alive? But then, since the excuse that “it’s too complicated” is a lousy one, let me offer five short, but I hope strong and clear reasons to move away from the crisis-renewal-reconstruction narrative (and maybe persuade your neighbor!). 

First, the one invoking crisis might be cheating. Crisis is cyclically affirmed to justify the reconstruction of international law. ‘International lawyers revel in a good crisis’—Hilary Charlesworth warned us more than two decades ago! And this is not an obscure ‘crit’, but a prominent scholar who now sits in the International Court of Justice.  We should have learned that crises do not simply provide international lawyers with a sense of relevance and with prospects to empower international law and the profession to reconstruct international law; crisis also justifies adopting exceptional measures. The problem is that, as Charlesworth pointed out, invoking crisis narrows the examination of root causes, overlooks structural dimensions and limits international lawyers’ imagination when engaging in reconstruction. But in Berlin, it was as if no one had ever heard of Charlesworth (the scholar). This was odd for a meeting with “reconstruction” in the title. 

That some have found Charlesworth’s academic insights illuminating proves that it is not that we have forgotten her lesson. On the other hand, in this blog, in Berlin and elsewhere, Charlesworth is cited to acknowledge her warnings about framing international law’s challenges in the language of crisis, only to set the warning aside and proceed to explore the unprecedent nature of the current crisis. International lawyers are cheating because they know—or since Charlesworth should know—that it is more difficult to understand why international law is not delivering peace, security and justice than simply invoke a crisis. 

Second, renewal does not necessarily mean progress. I can hear some international lawyers objecting: ‘Why are you blaming us?’ Publicists, historians and the public have defined 1618, 1803, 1914 and 1939 as dates inaugurating periods of international crisis. Can we really ignore the impact of these wars on international law, especially since each one ended with a peace treaty establishing the fundamental structure of the international legal order? Yes, when looking back at our history, we must consider these wars. The problem arises when we assume that after each crisis, renewal follows as progress. 

International law has changed over time, but this change has neither been linear nor clear. For example, the aforementioned requerimiento was at least intended to be read to the cacique, giving the addressee opportunity to surrender before combat. Today, those in ‘drug boats’ are not given this opportunity. Once identified through signals intelligence (with the help of Palantir?), they are killed without warning as ‘enemy combatants‘. On the other hand, although disobeying the obligation to read the requerimiento could be punishable, it was for the Crown to administer justice. Today, the international community has a third party, a permanent court—the ICC—to prosecute international crimes, though without jurisdiction to prosecute American ‘drug boat’ killings. 

Then fine, if we are conscious of Charlesworth’s lesson and if we do not assume progress, it would seem that we may safely look at the cycles of crisis & renewal descriptively to understand how international law changes.  

Third, the ‘crisis-renewal-reconstruction’ narrative is misleading. It assumes that monsters produce crises and heroes bring renewal.  Crises are believed to be caused by forces outside international law. Reformation, Napoleon, militarism, Nazism and Fascism triggered the big crises of the past. Today, some explain the current crisis with the rise of the three ‘monsters’—Putin, Netanyahu and Trump—who disregard the international rule of law. But can we simply blame the monsters without interrogating international law’s own responsibility? It might be surprising in the “North” to discover that great powers claim a legal privilege to use force beyond the limits of Article 2(4) UN Charter This is not news to the “South”—remember Iraq, Afghanistan, the Balkans, Latin America.  

When we focus our attention on monsters, we see the wreckage they leave behind, but we miss the suffering international law contributes to producing in times of stability—the thousands of refugees bound to Europe who drown in the Mediterranean year after year, to mention just one example where we international lawyers are the monsters. 

If we focus on monsters, it is maybe because we want to find heroes and angels within our own ranks. It is common to talk about Vitoria as the forerunner of human rights and of Grotius as the architect of the international rule of law. We celebrate Lauterpacht and Lemkin for the invention of the concepts of crimes against humanity and genocide, and we thank “the internationalists” for the prohibition of war. But does change in international law really happen because of the geniality of a bunch of our enlightened forebearers? Aren’t they simply humans—complex actors with contradictory agendas? Focusing on monsters and heroes is a flawed framework. Not only does it overlook root causes and structural dimensions (again); it also creates a moral scale defined by how much one contributes to the international law project in the abstract, rather than how one contributes to its real-world outcomes. Heroes advance international law, while monsters destroy it. Then, none of us international lawyers are responsible for the international legal order that enables, if not sanctions, the genocide in Gaza.  

Fourth, have you noticed how Eurocentric the ‘crisis-renewal-reconstruction’ narrative is? Eurocentrism is only a problem if overemphasizing European cycles of war & peace (and the Western heroes behind each reconstruction) comes at the expense of underemphasizing other cycles and other international lawyers that, although geopolitically peripheral, are relevant for the ‘universal’ history of international law. I think that the underemphasizing of peripheral events, authors and locations has a cost. 

We rarely think of the 19th century partition of Africa (in 1884, in Berlin, again), nor the ‘opening’ of Japan or the Opium War in China as crises. Similarly, we rarely use reconstruction as a term to describe semi-peripheral international lawyers and diplomats’ contributions to the history of international law.  We do not use reconstruction to describe the work of Latin-Americans in the codification of a formal standard of statehood that finally abrogated the standard of civilization, nor the work of Africans and Asians in the codification of self-determination as peoples’ right to decolonization. Given that we define the cycles of crisis & renewal along Eurocentric lines, we miss fundamental transformations in international law. In 1842, the year the Treaty of Nanjing ending the Opium War was signed, unequal treaties, consular jurisdiction (and diplomatic protection in Latin America) and of course formal colonialism, were all central parts of the international legal order. This international law was fundamentally transformed between 1933, the year the Montevideo Convention was signed, and 1960, the year resolution 1514 of General Assembly was passed. 

Finally, as these examples of fundamental transformations in the international legal order show—the fifth reason to stay away from the common crisis-renewal-reconstruction narrative is that it does not offer a full and convincing account of how international law changes. 

The idea of cycles of crisis and renewal makes sense from the point of view of the winners of wars, from the perspective of the lawyers, diplomats and professional elites that have administered the post-bellum international legal orders that each law-creating war inaugurates. Embroiling bellum-power into post-bellum law, this is the international law that reflects apology. This insight refutes the idea that cycles of crisis are resolved by reconstruction. In fact, cycles of crisis end with reassertions of power that often leave the root causes of crises intact. The UN Charter does not only reflect the lessons of the Holocaust in its recognition of human rights, but it also reflects Hiroshima and Nagasaki, in the great power privilege instituted in Chapter VII. And remember that the Charter, as written and understood in 1945, did not end colonialism.  

From this point of view, the common narrative about cycles of crisis and renewal points more to continuity than to change. But then, how does international law undergo fundamental change, such as the transformation from 1842-1884 (Nanjing-Berlin) to 1933-1960 (Montevideo-New York)? Semi-peripheral international lawyers, who arguably were most influential in this transformation, do not find themselves in the position of reconstructing international law—that is to say, in the position of the winners of world wars. Peripherals do not reconstruct, but rather rearrange existing legal doctrines to change the rules of international law. For example, the abrogation of unequal treaties required a formal change in international law that was ultimately produced by first internalizing and then weakening the doctrine of the standard of civilization. And the end of formal colonialism was in part produced by work on the doctrine of the sources of international law, according to which General Assembly resolutions are legally binding as instant custom. 

I could continue, but five reasons should be enough to get the conversation going with your neighbor. Let me know how it goes!