Project 2100—Is the International Legal Order Fit for Purpose?

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It is in the darkest moments that we must ask the hardest questions and peer through the gloom in an attempt to see the light.

The events to the east of us raise stark questions—about the current world order; about the place and effectiveness of the United Nations; about what the U.S. long-term assessment of global trends has called “a more contested world”.

We have become used to talking about the international legal system, about the rules-based international order.  But we are increasingly confronted with the sense that what we have is only an international order; a rules-based international system—the implicit acknowledgement being that we cannot rely on what we have known, and tried so hard to develop, maintain and advance over the past 75 or so years.

And in the shadows is a more worrying question still—certainly in the near-to-medium term but perhaps in the longer term as well. Can we conceive of a functioning multilateral, global, rules-based international order in the period to come or do we need to look to other modalities of inter-State engagement?

My response to this question is that we cannot assume a functioning multilateral, global rules-based international order in the near-to-medium term, whether as reality or as reasonable aspiration. There is no line of continuity from Bretton Woods, the Havana Charter and San Francisco that will see us, the global community, safely through to 2100­—the start of the next century.

The institutions and bedrock rules and principles that are at the heart of the international legal order that we know today—conceived in their current form in 1944-45, although rooted in 1919-22—are not fit for purpose.  When we cast our eyes to the future, as our forebears did in Versailles and San Francisco, looking to the turn of the next century, can we really say that the framework of institutions and rules and principles that we have fought to create and preserve over the past 75 and more years will see us safely through to 2100?

This is not an appreciation that arises solely from the events in Ukraine, although these events necessarily inform the analysis.

Before February 2022, the global community was facing the acute challenges of Covid. Before that, we had the global financial crisis of 2007-8. In parallel, there is the looming challenge of climate change. There are global national security threats, and more.

The international legal system has struggled to cope with these challenges. There has been affirmation, innovation and resilience.  But we are patching and re-engineering and re-upholstering a heavily worn vehicle rather than asking ourselves whether we need a more fundamental overhaul for the next leg of the journey.

To be sure, I do not mean to imply that core rules and principles and institutions should be discarded.  On the contrary, the United Nations, Article 2(4) of the UN Charter, the network of global specialised agencies and other institutions, are and will remain cornerstones of the architecture of international cooperation in the period to come.  But we need to ask more searching questions than those we have been asking to this point—and contemplate more fundamental answers.

Let me pause for a moment and focus on what is happening today in Ukraine—events that are shocking to us all, to the conscience of humanity, a body-blow to key pillars of the international legal system.

Before we ask ourselves whether the United Nations can survive, we must step back a moment and try to bring current events into wider perspective.

Ukraine is a European country.  It has a long and proud history.  In emerging from the Soviet Union, it gravitated towards the values of democracy, a free market, individual rights.  Its progress on that journey has not always been free from difficulty and challenges.  But that is the road that it chose.

Russia is a European country, at least to its west.  It has been a member of the Council of Europe.  The European historical narrative includes Russia at the heart of so many of the stories—the wars, the peace, the formulation of rules.  The St Petersburg Declaration of 1868, outlawing exploding bullets, began the quest for an international humanitarian law.

The end of the Cold War, and the collapse of the Soviet Union, in the early 1990s, ushered in a period in which the vision of the founders of the United Nations 45 years before at last came into closer focus.  The use of the veto fell.  International criminal justice became a realisable goal.  The WTO was established.  There was multilateral cooperation over the former Yugoslavia.  Shamed in Rwanda, shared efforts were made to find shared solutions.  It was not a golden age, by any means, but there was a shared commitment to multilateralism.

The Russia of Vladimir Putin stopped that train.  There were other causes, to be sure—a fracturing of consensus over Iraq amongst them—but a sense of European rapprochement and progress increasingly ground to a halt as we moved further through the 21st century, including with the Russian annexation of Crimea in 2014.  And now we have the events in Ukraine starting in February 2022.

The dismay and sorrow and anger at what we see in Ukraine today goes beyond the Russian invasion and the terrible individual atrocities.  In public discourse in the west, it is fuelled by a sense, often expressly articulated in these terms, of “how could this happen in Europe?”.  It is fuelled by a loss of innocence.  It is fuelled by a loss of virtue.  It is fuelled by an outrage that what we have built is being torn down.

I don’t know, as I am a European speaking about the vision of others, but I would wager a good deal that, viewed from the perspective of the people of Darfur, viewed from the perspective of the people of central and eastern DRC, viewed from the perspective of the Uighurs, viewed from the perspective of the down-trodden and oppressed and brutalised around the world, the questions may well be a little different.  What did the United Nations ever do for us?  Where was the rules-based international legal order when we needed it?  Where were the multilateral rules on human rights, and international humanitarian law, and international criminal accountability, when we needed saving?

And there is something in these questions.  We cannot simply look away.  We cannot simply say that we did what we could; that we tried.  We cannot simply say that we delivered humanitarian aid and worked through international institutions to try to make things better.

In Ukraine, there has been a loss of virtue; a loss of innocence—our virtue and our innocence.  The shortcomings of the system that we created, that we championed, that we have struggled to preserve, have been laid at our doorstep.

We have, though, still not quite lost our innocence, our virtue, when it comes to the looming challenges of climate change or of pandemic cooperation or of food security.  We continue to turn to multilateral rules and institutions in our search for solutions to these challenges.

And we must, because it is in such rules and institutions—shared endeavours—that lie our only hope of enduring and effective solutions.

But let us not kid ourselves that these vehicles—the institutions, rules and principles—on which we are riding into the future, are robust and nimble enough to see our children and grandchildren, and their children and grandchildren, to 2100.

There is a need for an effort of renewal and re-conception and reinvigoration.

In 2014, I published an article entitled The End of Geography: The Changing Nature of the International System and the Challenge to International Law.  The piece focused on six areas of challenge to the international system, and to international law, arising from the changing place of geography in the international system.  These were:

  • the international environment, shared spaces, the atmosphere, and the global commons;
  • the movement of people, both forcibly displaced and voluntarily migrant, and the economic and financial flows, and challenges of civil and social integration, that go with them;
  • the challenges to human, animal and plant life and health, and to global food security, that comes from a growing and already massively interdependent world and the migratory movements of both people and animals;
  • the enormous and increasing growth in global trade and financial flows and the symbiotic interconnectedness, and potential for systemic vulnerability, of the global economic system;
  • the dramatic increase in the global use of the electromagnetic sphere and the practical challenges and risks, and opportunities, that this presents; and
  • the transboundary challenges to security that arise from the activities of non-State actors that operate across boundaries and beyond the control of States.

Faced with these challenges, I suggested areas that were ripe for reform, to better equip the rules-based international system to address the challenges faced by the international system, including:

  • international institutional reform—in the areas of representation, decision-making, accountability, and focus [on international dispute settlement reform, see further here];
  • reconceiving notions of jurisdiction—who is entitled to regulate what, where and how;
  • law-making and legal reform—law-making, through treaties and custom, is egregiously cumbersome. There are no adequate rules of change.  We struggle often with a dead-hand on the law-making tiller, and with debates about what the relevant and applicable international law is rather than only about its interpretation and application to the facts;
  • the subjects of international law—States are increasingly only the intermediaries of private transactions of transboundary character rather than principal actors in their own right. But the law only addresses private actors inadequately and peripherally;
  • the sources of international law—the need to reconceive the sources of international law to better address the challenges of law-making, legal reform and the subjects of international law.

These are big challenges—and we do not as yet even have a shared view of the problem.

In a piece that will be published shortly, written with Don McRae [at chapter 41], we address some of the deeply-rooted shortcomings of the international trading system: unfairness and disparities with respect to developing countries; the fracturing of multilateral rules by regional blocs; the limitations and fault-lines increasingly evident in the philosophy underpinning the rules; sectoral issues; the challenges that come with a more contested world.

In this area too we cannot rest on the achievements of the past—the current rules, the current philosophy underpinning them, the current workings of the institutions we have, will not carry us, and those who follow us, happily into the future.

The events in Ukraine, the rise of China, the fracturing of American democracy and leadership, the indecision and bureaucracy of Europe, the growth of the disaffected and displaced and deprived of the world, pose huge challenges going forward.

And the bigger question, with which I began, remains—in a multipolar world, in a more contested world—is there a place for multilateral solutions?  Is there a multilateral vision that is likely to be workable in the near-to-medium term?

I hope so—because it is only in the truly multilateral that solutions will be found to many of the common challenges that we face, climate change being the standout, but not the only, example.

But, and it is a big but, we cannot rely on the multilateral.  We need also to conceive of, and take forward, a workable model of variable geometry where we do multilaterally what can be done multilaterally but are also prepared—proactively, not simply as a last resort—to do regionally or bilaterally or thematically or sectorally what can be done by such means, even if the effect of such action may only be to move the issue partway forward.  A highly contested multipolar world is going to require different tools to address global challenges.

Let me conclude with some thoughts about the United Nations.

The events in Ukraine have laid bare the effectiveness, or ineffectiveness, of the Security Council to address threats such as those posed by Russia.  These threats and challenges are not new, but they have come into sharper focus.

Anyone who has watched the debates in the Security Council over the past few months will have come away profoundly disturbed and depressed.

It is a saving grace—a small but nonetheless important saving grace—that the Council has at least been a forum and a pulpit for shining a light on what has been happening.  As the motto of the Washington Post reminds us: Democracy Dies in Darkness.

But we need to redouble our efforts to reform the United Nations.  It is not just the Security Council, and the use of the veto, that is in need of reform.  It is the attitude of those who sit in that chamber—exercising a sacred trust—that needs to change.

And it is also the Purposes and the Principles of the Organisation that warrant scrutiny.  Article 2(4) of the Charter, prohibiting the threat or use of force, is and must continue to be a cornerstone of a rules-based international system going forward, but it is not enough.  Article 2(4) is the provision that links 1945 to 2022, but new threats and challenges also need to be placed firmly on the Council’s agenda.

These remarks are not intended to depress.  Law—international law—is operational, but it is also strategic.  It is about the way in which we choose to organise and regulate our society into the future.

Legislative moments do not only emerge in moments of calm.  They also emerge from trauma—the League of Nations, the United Nations, the Permanent Court and the International Court of Justice, the Geneva Conventions, the Universal Declaration of Human Rights, and more.  But for there to be change, for there to be evolution, there needs first to be vision—a vision that lifts the gaze beyond tomorrow or the day after or the year after that, to the longer-term.

International policymakers, international strategists, international lawyers, need a Project 2100—something to challenge us into a longer-term vision for our world and the world of our children.

 

This post is a lightly revised version of a conference presentation delivered at BonelliErede in Milan on 4 May 2022.

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    Dire Tladi says

    November 29, 2022

    Dear Daniel,

    Thank you for a very interesting piece. I suspect very few international lawyers would challenge your basic proposition that the system is not fit for purpose. Yet, the reasons that we advance for why international law is not fit for purpose are likely to be very different depending on our perspectives. This is a point that is of course acknowledged in the piece ("I would wager a good deal that, viewed from the perspective of the people of Darfur, viewed from the perspective of the people of central and eastern DRC, viewed from the perspective of the Uighurs, viewed from the perspective of the down-trodden and oppressed and brutalised around the world, the questions may well be a little different. What did the United Nations ever do for us? Where was the rules-based international legal order when we needed it? Where were the multilateral rules on human rights, and international humanitarian law, and international criminal accountability, when we needed saving"). I would add that a major reason for its unfitness for purpose is its almost agnostic posture towards poverty.
    So, yes, there is, from my vantage point, no question that the system is not fit for purpose.
    I would, however, take issue with what I sense to the solution propose, namely, to rely more (or to rely when necessary) on unilateralism and coalitions of the willing.
    I think this is a dangerous path and threatens to make the world more insecure and undermines the already thinning security. It solidifies the idea that the strong do what they can and the weak suffer what they must.
    No! The solution should be a reform of the collective system of security (security broadly defined).
    The events in Russia should convince even those that have compromise their power (here I speak of the P3), that the threats from no reform are greater than the costs of reform.

    Daniel Bethlehem says

    November 29, 2022

    Dear Dire

    Thanks for your comment and for joining the debate. Your point about reforming the collective security system is well made, and indeed amongst the elements I highlighted:

    " ... we need to redouble our efforts to reform the United Nations. ... new threats and challenges also need to be placed firmly on the Council’s agenda."

    So, I agree with you entirely.

    But, that can't be our only focus. There is much to be done between now and then. And even more important will be to try to conceptualise the institutional and legal framework, more nimble than we have at present, that will be needed as we move into the deep long term.

    Bill Boothby says

    November 29, 2022

    Daniel
    I think your piece is timely, to be welcomed and right. In a world in which perspectives are diverging rather than converging, in which states seem increasingly to be organising themselves into mutually exclusive blocks of opinion, in which principles and rules of law that were previously generally accepted are now being observably flouted by major players, a concept of international law that has as one of its two key pillars the idea of a general practice of states accepted as law is bound to be suffering strain. In a world in which consensus is required if new treaty law is to be adopted on a broadly-based, multilateral basis, fundamental differences of position between states or groups of states will impede the development of conventional law and unhealthy gaps in legal provision are bound to be, and indeed are, the inevitable consequence.
    Reform, if it is to be achieved, will necessitate some kind of coming together of nations. While disasters of one kind or another have been the catalyst for past reform, perhaps we need to make the point now more forcefully that global, collective self-interest favours addressing the major challenges that you mention in your piece in a structured, collective and global way. Indeed, one can but agree that only a collective approach is capable of coping, wholly or partly, with those major issues.
    But there will remain states, some of them large and highly influential, that see national self-interest as being opposed to a collective 'rules-based' approach. Is the answer there to address the specific areas of concern on a more flexible basis, with states choosing the 'pace of progress' that suits them, some accepting legal rules, others adopting voluntary best practice, and yet others undertaking a path towards best practice.
    However, I appreciate that that is all a bit too specific at this stage. Maybe for the time being, our thinking needs to identify and agree on the core principles, the core institutions and the core international arrangements that are non-negotiable and then start to build the 'structure for 2100' around them. Who knows, as we formulate the detail of further principles and rules, as we consider the institutions that we need, their functions and modi operandi, we might well find ourselves constructing an architecture much of which will bear a striking resemblance to the body of international law with which we are familiar. Stranger things have happened.
    All the best
    Bill

    Daniel Bethlehem says

    November 30, 2022

    Bill

    Thank you for your comment and for engaging so thoughtfully in the debate. Your focus on identifying core principles, core institutions and core international arrangements around which multilateral agreement can coalesce before we start to build the structure for 2100 is wise. And I expect that some such consensus around a core would indeed be possible. This pulls in the same direction as Dire's comment above, and I agree with and applaud the prioritisation of multilateral reform, including of our core institutions, such as the UN.

    This said, a key concern on my part is that there may not be enough of a true consensus to coalesce around and/or that as we focus on the pursuit of multilateral goals we may take our eye off other avenues that may also be sensibly pursued.

    Dire, from his vantage point, characterises my nod in the direction of regional, bilateral, thematic and sectoral endeavours as dangerous unilateralism or coalitions of the willing, with all the political baggage that these terms have come to embody in recent times. The endeavours I have in mind, though, are not cut from the same cloth as the perceived military adventurism connoted by this language.

    Benign regional or similar initiatives on climate change, on pandemic health, on food security, on migration, and on many more issues, could readily build momentum for multilateral approaches in the medium-to-longer term in circumstances in which starting from the multilateral may simply be too hard or too elusive.

    We, as the college of international law, which has provided the glue that has bound together the core initiatives of the rules-based international system over the past century, need also to give clear-eyed thought to what the world may look like in the foreseeable longer term - both with a view to trying to positively influence the cascading variables and to plan for less welcome outcomes.

    The US Global Trends 2040 report of March 2021, to which I referred in my piece - "A More Contested World" - makes interesting reading. It is peering into the medium term, the outlook over the next 18 years. It does not propose policies, and indeed is precluded from doing so, but tries to identify trends. Looking forward from the midst of the COVID-19 pandemic, it identifies five 'alternative scenarios for 2040':

    * a renaissance of democracies - in which open democracies lead developments that see a transformation of the global economy that eases societal divisions;

    * a world adrift - in which the international system is directionless, chaotic and volatile as international rules are largely ignored by major powers;

    * competitive coexistence - in which global economic interdependence exists alongside competition over political influence, governance models, technology dominance, and strategic advantage;

    * separate silos - in which the world is fragmented into several economic and security blocs focused on self-sufficiency, resiliency and defence;

    * tragedy and mobilisation - in which a global coalition seeks to implement far-reaching changes designed to address climate change, resource depletion and poverty.

    This appreciation of trends is already in the past. The global outlook has moved on immeasurably in the 18 months since publication of the More Contested World report. And, in any event, as the report's authors emphasise, the dynamics they identified are not fixed in perpetuity and will interact and be influenced by human choices along the way.

    As the college of international law, we need to go boldly in our longer term thinking. And peering even further ahead, to 2100, takes us almost into the realm of science fiction.

    There are, nonetheless, glimpses of vision that may be apparent, and mechanisms of change and renewal that can be put in place, that may enable the global community to better ride the waves that are to come. My Project 2100 piece is an entreaty towards an open and vigorous debate about these issues.

    Bill Boothby says

    December 2, 2022

    Daniel
    Thank you for your response. These are of course tricky issues and thinking of necessity develops as one debates them.
    The past should in my view inform any new construct. Indeed, much of what we have at the moment in the form of processes, principles and rules have evolved through hard-won experience and it would be foolish to discard them entirely. It occurs to me that recent events suggest broad global support for them, when one considers for example the rejection by very many States of the Ukraine invasion and the discomfort felt by many in relation to the treatment of particular minorities in certain States.
    This causes me to wonder whether a key problem here is not so much the fitness for purpose of certain processes, principles and rules as the lack of respect for them by certain powerful States and the institutional inability to ensure that respect by all States. That in turn leads me to wonder whether it is wholesale change that we need, or perhaps targeted reforms that are designed to help a collective global security structure to work more effectively than the present arrangements, e.g. in the Security Council, permit.
    We could debate whether the current state of customary law is accurately represented in the ICRC Customary Humanitarian Law Study. We could discuss whether the international courts and tribunals have got the relationship between LOAC and human rights law right.
    It is, however, significant and clear that numerous events, for example during the current conflict in Ukraine, are seen by the overwhelming body of global opinion for what they are, namely crimes deserving of punishment. The challenge lies in bringing all those responsible at all levels to justice. So maybe the 'flexible pace of progress' point I made earlier is not right - perhaps what is needed is an evolution, as opposed to a revolution, of key international systems to facilitate enforcement of the key and generally accepted principles and rules.
    This all pre-supposes acceptance of a 'rules-based' approach. Surely such an approach is essential if the global community is to prosper. Perhaps the correct approach is to incentivise all States, including the moist powerful, to embrace that approach and to comply with the rules, including when individual national interest might indicate otherwise. So while adjustments to sort out the irritating wrinkles in the system (such as UNSC permanent membership and veto powers) are needed, I cannot help thinking that the key elements of what we have should be built upon rather than scrapped.
    I hope this is useful.
    All the best
    Bill

    Daniel Bethlehem says

    December 2, 2022

    Bill

    Thank you for your response. No one is talking about scrapping key elements of what we have.

    Your focus is on the now, and how we move forward from the challenges of the present. Of course this must involve an affirmation of the cornerstone principles we have. That is not in doubt.

    My focus is not on the present, or on current geopolitical configurations, save only insofar as they may illuminate wider trends - leading to the enquiry about whether we are witnessing a fin de siècle, the decline of realisable visionary multilateral aspiration. I fear that we are, at least around the kind of consensus that informed those gathered in Versailles or Bretton Woods or San Francisco. I hope this is not the case, but strategic thinking requires that we do not simply affirm the vantage point on which we stand.

    We need to raise our gaze, and our enquiry, to the outer edges of our imagination, to try better to anticipate the future, and shape it, and plan for it. This is part and parcel of long-term thinking in other disciples. The US "More Contested World" report is one such attempt, but such endeavours are a deeply rooted part of serious government strategic planning more widely. The UK Office for Budget Responsibility, for example, issues regular long-term fiscal projections - looking 50-years into the future - based on demographic, economic and fiscal developments. Its most recent report, issued in July 2022, projecting to 2072, focuses on what it describes as three more significant threats to public finances:

    * rising geopolitical tensions;
    * higher energy prices;
    * long-term fiscal pressures.

    Under these headings, the OBR addresses not simply global contestation but also the risks of a wider breakdown in global cooperation, demographic and environmental considerations, issues of energy security, and more.

    Inter-governmental organisations (such as the OECD, WTO, IMF, IBRD, etc) and private sector undertakings (such as The Economist Intelligence Unit, PwC, etc) regularly engage in long-term forecasting, with all the caveats that these require. These forecasts raise significant questions about the shape of things to come, including as should engage those thinking about the institutions and rules that will be appropriate to those times.

    Lawyers are less familiar with peering into the long-term gloom. Our discipline is the here and now, and the more readily foreseeable. There have been, of course, visionary international lawyers, who have set out to shape the future through a prism of law. Hersch Lauterpacht is the outstanding example. But we are too often focused on how the cogs are turning in what we have rather than on whether more radical innovation is warranted.

    We are now almost exactly halfway between the establishment of the United Nations in 1945 and the date that I have called into focus in my piece, 2100. There is a deeper enquiry required of us than simply whether we can better oil the machinery we have. We may come to the conclusion that what we have is simply in need of renewal. But we may also conclude that more is required.

    Bill Boothby says

    December 3, 2022

    Daniel
    Thank you.
    In a former life I was involved in the UK MOD Strategic Trends process, so I am of course well familiar with the thought processes, the peering into the future, that such a process requires. Doing so from a legal perspective is not, I found, easy. Often it involves considering anticipated change in other fields and then trying to assess their implications in the legal sphere.
    I guess a challenge will be to identify where exactly the line is to be drawn between the 'key elements' to be retained and the features of the status quo that require reform.
    For example, I recognise that if scarcity of resources, conflict and population pressures among other phenomena imply mass movements of people we need to ask ourselves whether the current state-centric approach to international relations and international law continues to make sense. If not, is there an alternative representative unit of humanity that can be employed, and do those units feature alongside or instead of states?
    However, where the process of reform is concerned, we start with a state-centric system, and that is the system that would, I guess, provide the forum for change - and that is the system that also, therefore, is likely to, or might, provide the limitations on the scope and nature of likely change.
    Perhaps the starting points might be to identify some of the 'key elements' for retention, and to consider which 'Strat trends' reports might form a useful basis on which to work. It might be useful to obtain a limited but globally diverse selection of the latter.
    I agree with your point about the depth of inquiry that is needed. Clearly, that enquiry must start somewhere, and it will be important at the outset to frame both scope and methodology.