Lawfare Archive: The World Crisis and International Law
Dec 31, 2024
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Paul Stephan, the John C. Jeffries, Jr. Distinguished Professor of Law at the University of Virginia, explores the vulnerabilities of international law amidst rising global crises. He argues that the accelerative knowledge economy is undermining legal frameworks. The conversation tackles the backlash against international courts by national judiciaries, the unexpected limits of Russian cyber warfare, and the influence of trade dynamics on global cooperation. Stephan suggests innovative, bottom-up solutions for a firmer international legal structure.
The rise of populism and nationalism has led to a growing skepticism towards international law and its effectiveness in crisis management.
Technological advancements within the knowledge economy are creating disparities that challenge international collaboration and fuel distrust in global governance.
A bottom-up approach to reforming international law emphasizes cooperation through individual state initiatives, potentially restoring faith in legal frameworks.
Deep dives
International Arrest Warrants and Compliance Challenges
Recent years have seen the International Criminal Court (ICC) issue arrest warrants for notable figures, including Vladimir Putin and Benjamin Netanyahu. However, these warrants face compliance challenges, especially from countries not part of the Rome Statute, as seen when France and South Africa declined to arrest Putin during significant events. This illustrates the complexities of enforcing international law amidst geopolitical tensions, as states prioritize their national interests over international commitments. The situation raises questions about the effectiveness of international law, particularly when powerful nations defy or dismiss it.
Erosion of Liberal Internationalism
Liberal internationalism, which advocated for the importance of international law in fostering peace and prosperity, faces significant challenges today. The notion that top-down structures would inherently promote values of cooperation and stability has been questioned in light of rising nationalism, geopolitical rivalries, and global crises. This trend can be viewed as a response to events from the pandemic to climate change, highlighting how international law struggles to adapt to a rapidly evolving global landscape. The failures of institutions ostensibly designed to uphold liberal values underscore a disillusionment with the ideal of collective international governance.
The Impact of the Knowledge Economy
The knowledge economy, characterized by technological advancement and the reliance on information, is a crucial factor in the challenges facing international law today. It fosters both economic growth and significant inequality, creating a divide between those who thrive under new technological frameworks and those who are marginalized. This dynamic contributes to rising populism and diminished trust in international systems, as people feel left behind by globalization. A shift towards valuing knowledge as a primary resource complicates international collaboration and raises apprehensions about how these changes impact global governance.
Judicial Pushback Against International Law
National courts in various states are increasingly resisting international law, with examples seen across the European Union and beyond. This judicial pushback signifies a fundamental shift in how countries view the applicability and relevance of international treaties and agreements. Countries such as Germany are asserting their constitutional norms against EU mandates, threatening the foundational concept of international legal cooperation. This trend indicates a growing skepticism towards international legal frameworks and a diminishing belief in their efficacy to resolve contemporary issues.
Proposing Bottom-Up Solutions for International Law
In light of the challenges facing international law, a shift towards bottom-up solutions is proposed as an effective approach for reform. By encouraging individual states to take initiative and collaborate on shared issues, organic solutions can emerge that respect national sovereignty and local circumstances. Historical examples, such as the U.S. anti-bribery initiative, illustrate how unilateral actions can inspire international cooperation rather than top-down mandates. This strategy emphasizes the importance of trial and error in addressing complex problems and could rekindle trust in legal frameworks by grounding them in successful, cooperative efforts.
From February 10, 2023: International law has been under significant stress in the last decade as a result of global populism, the rise of China, the war in Ukraine, and the challenges of the pandemic, climate change, and cybersecurity threats, among many others. To discuss why international law seems to be failing in important respects and what to do about it, Jack Goldsmith sat down with Paul Stephan, the John C. Jeffries, Jr., Distinguished Professor of Law at the University of Virginia, and author of the new book, “The World Crisis and International Law: The Knowledge Economy and the Battle for the Future.” They discussed whether international law is truly failing, and if so, how; Stephan's claim that the accelerating pace of technological change induced by the knowledge economy best explains international law’s unraveling; why the highest courts of important states are increasingly rejecting international law and the orders of international courts and tribunals; and Stephan's bottom-up prescriptions for these problems.
