Six Viewpoints on the Future of the International Legal Order and the Role of International Courts

It has become trite to question the role and meaning of international law in a world where it is being flouted – often flagrantly – on a daily basis. President Trump’s second term has prompted cries of the “demolition”, “death” or “end” of the post-WWII international legal order.

Among lawyers, views are divided as to whether we should fight for the survival of international law, seek innovation within existing legal bounds, or push for a radical overhaul.

In the midst of this debate, international courts are being called on to determine matters involving divergent State positions, such as States’ climate change responsibilities and the legality of Israel’s actions in Gaza. Do these courts represent a beacon of hope in the face of ineffective multilateralism elsewhere? Or should we pare back our expectations of what can be achieved judicially under current conditions?

In an attempt to develop a framework for chaotic times, we present six viewpoints on the future of the international legal order and explore their implications for the role of international courts. There is of course a universe of potential nuanced viewpoints and a lot of ideological noise to cut through. We acknowledge that our six categories are more reflective of a Western viewpoint; views in China, India, Brazil, Russia and elsewhere may well be very different and we welcome different perspectives in the comments.

We cite various commentators in support of each viewpoint, but these categories also draw upon our anecdotal impressions – holders of these views have not necessarily put their position on paper or may adhere to more than one view depending on the context.

Viewpoint 1: International law should be maintained and respected, even in the face of non-compliance

Some commentators, such as the UK’s Attorney General Lord Hermer KC, observe that a “pick and mix” approach to international law would ultimately lead to its disintegration and is fundamentally at odds with the nature of international law as “law”. Similarly, Jonathan Goldsmith encourages lawyers of all specialisms (not only international lawyers) to be more vocal in protesting recent challenges to the international legal order, as all lawyers have a vested interest in the rule of law and the resolution of disputes through peaceful means.

On this view, international courts and their judgments ought to be respected as the agreed mechanisms by which disputes are resolved peacefully and as safeguards against differences being settled by the “force of the strong”. But this is not to say that international courts have unlimited authority. For Lord Hermer, there are some areas more appropriately dealt with through political and diplomatic means, where domestic authorities should be afforded more independence. It is in this context that he advocates for a renewed focus on subsidiarity in the European Convention on Human Rights (ECHR).

Viewpoint 2: We should be trying to preserve the international legal order, but not at the expense of the national interest

The UK’s Shadow Attorney General, Lord Wolfson KC, argues for a different approach. For him, while the UK should take international law seriously, its international legal obligations remain independent of domestic law and should not be followed uncritically. Lord Wolfson suggests there are circumstances where it would be reasonable for the UK to depart from its international law obligations on the grounds of national interest, provided such a breach would not “threaten the entire legal order itself”.

The consequence of Viewpoint 2 is that judgments and orders of international courts should be treated with respect but may be departed from if, for example, they are “impossible to reconcile” with the terms on which the UK signed up to the court. Lord Wolfson points to interim measures of the European Court of Human Rights (which he contends find no basis in the ECHR), and the arrest warrant issued by the International Criminal Court (ICC) against Prime Minister Netanyahu (which he argues would breach domestic law if implemented), as examples of orders which the UK may reasonably decline to follow.

Viewpoint 3: We should be seeking innovation within the existing international legal order

For what it is worth, this is the Viewpoint that the authors favour.

Commentators such as Daniel Bethlehem and Itamar Mann say there is much in the present international legal system – institutions, laws and practices – against which we cannot fully turn our backs. But both advocate for reform within the existing framework in order to accommodate a new global reality. Philippa Webb, one of the authors of this post, has argued for “incremental creativity” – the use of existing exceptions and mechanisms in innovative ways to make progress – as a way of framing our approach to international law.

Viewpoint 3 is compatible with, but not necessarily the same as what UK Foreign Secretary David Lammy has labelled “progressive realism” – a concept also endorsed by Lord Hermer.

Holders of Viewpoint 3 want to improve the international legal order, but the focus and motivation behind that reform differs from person to person. “Innovation” is in the eye of the beholder. In this way, Viewpoint 3 may not be far removed from Viewpoints 5 or 6 if reform calls for creative destruction in a certain area. The withdrawal of the US from multilateral initiatives, for example, may call for totally new alliances with novel structures to facilitate cooperation.

Under Viewpoint 3, we ought to consider how cases before international courts might present opportunities for legal innovation. For Mann, this is worth doing even in spite of enforcement difficulties: he argues that South Africa’s case against Israel before the ICJ helped build a movement and sound an alarm despite Israel’s non-compliance with provisional measures. Advisory proceedings may also assume greater prominence as a means of achieving progressive development with fewer jurisdictional and evidential obstacles. The ICJ’s historic Advisory Opinion on Climate Change was unlikely to have been realised through contentious proceedings.

Viewpoint 4: We should be trying to preserve just those parts of the international legal order that have the greatest buy-in

Michael J Mazarr argues from a US perspective that, to preserve the post-war international order, Washington has to “moderate and restrict its promotion of the order’s norms and the enforcement of its rules”. It should focus on a few non-negotiable norms such as constraints on physical and cyber-aggression, collaboration on climate change and cooperation to promote a stable global trade and financial system. Otherwise, Washington risks jeopardising the consensus at the post-war international order’s core.

It is interesting to consider what is “non-negotiable” according to this Viewpoint. For Mazarr, it is use of force (but not necessarily laws of war), climate change (but not necessarily biodiversity), and stable trade and finance (but not necessarily equitable development). In classical international law, it is jus cogens norms that are non-negotiable, or at least non-derogable. The International Law Commission (ILC) has previously identified a number of jus cogens norms in a non-exhaustive list, including the prohibition of aggression, genocide and crimes against humanity; yet, despite its peremptory nature, there has so far been a lack of consensus at the ILC as to whether aggression constitutes an international crime in respect of which immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply.

A pared-back approach to the international legal order – however we define what is to be retained – may mean scaling down expectations of what international courts can achieve. For example, as part of their proposal that the EU focus on protecting core elements of the international legal order, Anthony Dworkin and Mark Leonard suggest that the EU temper its expectations that the ICC will, in the short term, bring members of hostile regimes to justice or have significant influence on active conflicts, given the unlikelihood of Security Council referrals being made.

Viewpoint 5: There should be a more fundamental restructuring of the global world order, including the international legal order

Ngaire Woods suggests in the economic governance context that, in a world where the US is no longer a reliable partner, States could pre-emptively build new coalitions that are willing to sustain cooperation and support collective crisis management; States should engage in what Leonardo Ramos has called “alternative multilateralism”. The rise of BRICS, for example, has been motivated by a shared interest in reducing dependency on the US dollar and on US-led institutions.

Others suggest that States should be considering alternatives to multilateralism. Bethlehem has argued that we should be prepared to act regionally, bilaterally, thematically or sectorally. He proposes convening the “Climate 6” – three States accounting for about 50% of the world’s rainforest (Brazil, the DRC and Indonesia) and three States accounting for over 50% of the world’s carbon emissions (China, the US and India) – for a more focused approach to climate change.

Under Viewpoint 5, existing international courts may no longer be first choice for litigating international disputes. Ukraine and the Council of Europe have, for example, agreed to establish a Special Tribunal for the Crime of Aggression against Ukraine in light of the ICC’s jurisdictional limitations. Regional courts may be preferred over broader multilateral institutions: the Inter-American Court of Human Rights has been praised for offering a map of climate governance “with Global South points of orientation” in its recent Advisory Opinion on the Climate Emergency, providing a more tailored approach to State responsibility with the concerns of a specific regional coalition of States in mind. Meanwhile, the African Court of Human and Peoples’ Rights has received a request for an advisory opinion on climate change.

Viewpoint 6: Let’s start over – there should be radical destruction and reconstruction

For some, threats to the international legal order have exposed its fundamental deficiencies. Yusra Suedi has pointed to the horizontal nature of the system as rendering it inherently vulnerable to politicisation; other critics, including Mann, note that international law offers States a vocabulary that may be co-opted to justify wrongful acts. Shahd Hammouri argues that rampant impunity and assaults on multilateralism demonstrate that the current system is no longer viable; we need a new legal order that does not favour the powerful. This would require the abolition of institutions such as the Security Council and the moving of international law out of the West to pave the way for a new international legal order that “finds virtue in justice rather than power”.

Hammouri proposes that international courts and institutions that serve as platforms for Global South voices be endowed with more power. The Inter-American Court of Human Rights, the African Court of Human and Peoples’ Rights and the Economic Community of West African States would therefore likely be prioritised in her vision of an anticolonial world order. By contrast, the ICC – long criticised for Western bias – may be deprioritised or even dismantled. Charlotte Carney has argued for the abolition of the ICC to “rupture the (colonial) international order that [it] helps preserve”. She calls for a reorientation away from the liberal international order and a focus instead on nations and communities, querying the necessity of “international” justice.

We find Viewpoint 6 unnerving. It is not clear what (or who) would fill the void of multilateralism. Regional bodies are important, but their effectiveness tends to be localised. They are important incubators of new concepts (the right to a healthy environment was initially developed by regional bodies), but we wonder whether their identity associated with a specific region limits their ability to be the basis of a new legal order.

Conclusion

Despite consensus regarding the precarity of the international legal order, there is a wide spectrum of views as to how – and indeed whether – international law should evolve. Many consider it worth preserving (at least some) features of the post-WWII international legal order; others see recent developments as the impetus for more seismic change.

Various factors affect the Viewpoint that one may be drawn to. Frustration with Western or colonial dominance tends to favour Viewpoints 5 or 6. A populist perspective is compatible with Viewpoints 4 or 6, as well as Viewpoint 2 if it is taken to an extreme. Faith (albeit with a dose of realism) in the international legal order as represented by the United Nations, Bretton Woods institutions and a commitment to the peaceful settlement of disputes in accordance with international law leads one to Viewpoints 1 and 3. A focus on collectively tackling climate change or AI governance favours Viewpoints 1, 3, and 4, whereas a desire to make some progress even with the resistance of some major players leads us to Viewpoint 5.

Whichever Viewpoint emerges as dominant will in turn dictate whether international courts continue to be called on to regulate matters of global concern, or will be forced to give way to a more decentralised vision of international law. As international lawyers, we need to reflect on where we stand.

Disclaimer: Lydia Kim is a Lawyer at the European Court of Human Rights. The opinions expressed are under the responsibility of the author and do not represent the official position of the Court or the Council of Europe.