International law is dying, and it's a massive American own goal
By Alexander With
International law has long been an important regulator of wars and conflicts, but recent developments have weakened it to the point where it is now fighting for its relevancy. To the detriment of Europe – and the United States.
The laws regulating the conduct of war (jus in bello) and the circumstances under which wars can be fought (jus ad bellum) can be seen as an attempt to limit suffering and cruelty in wars, as well as to prevent wars from being fought in the first place. In the aftermath of WWII, almost all states signed the UN Charter, and most states also signed the laws of armed conflict such as the Geneva Conventions, although some states included national caveats. Later treaties, such as the UN Convention on the Law of the Sea, were also signed by most nations, and even states that did not ratify them – such as the US – still mostly adhered to them in practice.
It could be argued that this so-called rules-based world order was never fully implemented. States would break or bend the law when it did not suit their national interests. For example, when the US blockaded Cuba in 1962 during the missile crisis, they called it a “quarantine,” since a blockade would have constituted aggression under international law.
However, it could also be argued that, while many states never adhered completely to international law, they all at least acknowledged it officially. This official adherence naturally had a constraining effect, since there were limits to how much one could break the law while still claiming to respect it. Moreover, the near-universal acceptance of the law – officially, if not always in practice – gave the world a common language when discussing wars and conflict. The status quo was not a perfect system, far from it. But it was nevertheless a system that influenced the decisions of states.
Today, the status quo is under serious contention. Many contenders reject the rules-based world order, which they see as an extension of American dominance. They argue that the law was written when the world was controlled by Western powers and that it is unfair because it does not reflect current power relationships. In short, they argue that the rules-based world order was in reality a fig leaf for a Western (or American) world order.
These may be valid points. For an example, it is difficult to justify why the United Kingdom and France should be permanent members of the Security Council while countries like India are not. However, a counter argument could be that just as national laws are rarely in the interest of criminals, neither are international laws in the interest of would-be aggressors or perpetrators of war crimes. Seen from this view, the contenders challenge international law, because it prevents them from pursuing national interest by using force against others, or from fighting in prohibited ways.
We are now witnessing international law in rapid decline. Russia’s invasion of Ukraine is an aggression under the UN Charter, and Russia commits daily war crimes. In the South China Sea, China openly ignores the ruling by the International Court, and in the Middle East, neither Hamas, Iran, nor Israel respects the laws of war or UN rulings.
While none of this is new, what is new is that the law is so blatantly ignored not only by perpetrators but also by the system as a whole. International laws have always been broken, but in the past, such violations would often be met with negative reactions from the rest of the international system. A state could break the law, but other states would condemn, there would be loss of prestige and, if the violation was bad enough, economic or in some cases even military sanctions could follow. Sometimes, states would risk these reactions regardless, deeming the gains from breaking the law to be worth it. But at other times, states would prefer not to be labelled an international pariah and therefore restrain themselves.
Since the return of Donald Trump to the White House, however, the legal aspects of conflicts seem absent from the American position. The examples are many. Trump argued that Ukraine must cede land to Russia purely because of power relationships. Considerations of whether this would be legal under the UN Charter, or under the Ukrainian constitution for that matter, are completely absent. Trump has also repeatedly threatened the International Criminal Court, fired missiles into countries without declarations of war, killed suspected drug smugglers on the high seas without trial, and supported Israel despite Israeli war crimes.
The point here is not whether these actions are morally justified or not. The point is that under Trump’s presidency, not only have legal arguments been absent from US positions in international affairs, but the president has also shown a clear disdain for international law as a concept. Instead of law, the US position is based on power relationships, transactionalism, and nationalism.
The new development is thus that in the current world order, neither the status quo power nor it’s challengers respect international law. International law is broken, as it always has been, but these violations are more accepted by the system as a whole than they used to be. Because once the major status quo power turns its back on international law, smaller status quo powers will too.
A world order based purely on power relationships does not bode well for smaller powers. European states therefore have an interest in banding together and forming communities of like-minded states that still respect international law. Yet even in Europe, small states like Hungary and Slovakia have been reluctant to sanction Russia for breaking the law in its invasion of Ukraine. The Trump effect is spreading.
A world without international law is not in America’s interest. American companies have prospered in the post-WWII era, where international law provided stability and predictability in what has been called Pax Americana. As the world becomes increasingly multipolar and raw American power declines, it will be ever more difficult to maintain an American world order that is not supported by a rules-based world order. It is ironic that while USA’s contenders want to get rid of international law because they see it as a Western instrument that favors the USA, America itself is actively dismantling the legal foundation of the American world order.
About the author:
Alexander With is commander (OF-3) in the Royal Danish Navy and military analyst at the Royal Danish Defence College. His website is https://www.alexanderwith.dk