Source: The Conversation – Africa – By Danny Bradlow, Professor/Senior Research Fellow, Centre for Advancement of Scholarship, University of Pretoria
The international legal order that was created after the second world war is no longer fit for purpose. Its response to urgent global problems like climate, poverty and pandemics is inadequate. Its key institutions like the United Nations are incapable of restoring peace in Ukraine, Iran, Sudan or the Democratic Republic of Congo or stopping genocides in places like Myanmar or Palestine.
The World Trade Organization is paralysed because its most powerful member states have lost confidence in the trading system that they created. The international community is unable to reform the global financial system so that it provides adequate development finance to Africa and other parts of the global south.
These developments lead many people to conclude that international law is merely nice-sounding words that hide a more cynical truth: the only effective international legal rule is (and has always been) that “the strong do what they can and the weak suffer what they must”, as the ancient Greek historian Thucydides put it.
There is indeed a history of international law being used by the strong for evil purposes. For example, international law was used to justify slavery and colonialism. It was also used to force newly liberated Haiti to compensate its French colonisers for the loss of their slaves.
The International Court of Justice initially relied on legal technicalities to uphold South Africa’s unlawful post-second world war control of Namibia.
My experience as a scholar and practitioner of international law convinces me that this view ignores the many ways in which international law is essential for the functioning of the world. Without it, for example, planes would be unable to fly people around the world. Ships could not carry goods across the globe. And the services on which we all rely, such as the internet and cross- border payments, would not function efficiently. Governments could not be held accountable when they abuse the human rights of their citizens. Multilateral development banks would be able to avoid responsibility when they fail to comply with their own policies and procedures, causing harm in their borrower countries.
Although international law has failed to stop the current illegal wars, at least two of their perpetrators – Israel’s Benjamin Netanyahu and Russia’s Vladimir Putin – have been charged with international crimes. They now find it difficult to travel outside their home states.
Most states know that without widely understood and accepted international laws and principles it would be harder to resolve their disagreements peacefully or to structure their international economic transactions with confidence. Their own sustainable development would proceed more slowly and unpredictably.
Consequently, they continue advocating for a world based on international legal principles. For example, this view motivated South Africa and The Gambia to bring cases to the International Court of Justice seeking to stop alleged genocides. It inspired students in Vanuatu to advocate for an advisory opinion from that court on the legal implications of climate change.
They seem to accept a more optimistic view of international law, originally articulated by the legal scholar Louis Henkin:
Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.
Henkin’s qualified endorsement cautions that international law is an imperfect instrument. States will ignore it when they think it does not suit their purposes. Over time, the gap between the state of the world and the content of international law expands. Eventually it becomes too large and, to remain credible, the law is forced to adapt.
We are approaching such a tipping point.
But the current breakdowns can’t be fixed easily. There are two complex challenges that must be addressed if a new international legal regime is to be formulated, agreed and respected. It requires the international decision making process to become more inclusive. States must also accept that there are some issues that they cannot control alone because the issues do not respect national borders.
What needs to change
First, global decision-making arrangements must change so that they reflect the interests and concerns of the whole international community. The existing global institutions need to more completely incorporate those who were not present when the current legal order was created. These include the many states that only gained their independence in the past 70 years and are not fully part of the structures of global governance. Non-state actors like corporations, civil society organisations and international organisations that are influential in international affairs should also be brought in.
The need for these changes drives states in the global south to promote more inclusive governance in institutions like the World Bank and the International Monetary Fund and to advocate for reform of the UN Security Council. It inspires both states and civil society organisations to try to make businesses more respectful of human rights and their tax obligations to their host states.
All these actors must accept that they have international responsibilities and obligations towards the communities and individuals that are affected by their decisions and operations.
Second, the international community must adjust to the fact that states are no longer fully sovereign. To be sure, states can close their borders. They can refuse to allow goods, services or people from other countries into their territory. They can refuse to participate in the global financial system and can break off diplomatic relations. However, there is at least one problem, climate change, that they cannot stop on their own. It transcends national borders. Resolving it requires collaboration among all state and non-state actors that are affected by and that influence climate change.
The new international order must rethink sovereignty so that it respects the agency of states and their citizens to the extent feasible.
But it must not allow states to use sovereignty as the excuse to avoid their global responsibilities. The new international law must acknowledge that individuals, communities, corporations, sub-national and national governments and supranational organisations all have an impact on the climate and are affected by it.
– The international legal order is broken: 2 key shifts needed to fix it
– https://theconversation.com/the-international-legal-order-is-broken-2-key-shifts-needed-to-fix-it-285844
