The crisis in international law

Source– The post is based on the article “The crisis in international law” published in The Hindu on 6th January 2023.

Syllabus: GS2- International relations

Relevance– Impacts of emerging world order

News– The article explains the challenges created by emerging global order and rising populism for international law

What has been the shape of global order after the 2nd world war?

After the second world war, the world order was bipolar. There was great power competition between a ‘capitalist’ America and a ‘communist’ Soviet Union.

The end of the Cold War led to the disintegration of the Soviet Union and the collapse of communism. This ‘unipolar’ moment promoted multilateralism and led to “relative harmony” among the major powers for almost three decades.

However, during this period, NATO bombed Kosovo and the Western forces invaded Iraq in complete disregard to the UN Charter.

This phase saw the spread of democracy, greater acceptance of universal human rights, and a global consensus for maintaining international rule of law.

How has the changing global order in recent times impacted international law?

We have entered a multipolar world. These universal values are under threat.It involves the securitisation of international law. There is increasing rivalry between major powers. There is the decline of ‘liberal’ West and the rise of an ‘autocratic’ China and ‘expansionist’ Russia.

China is now flexing its muscles. It is weaponizing international law. China views law as an instrument in the service of the state. This is diametrically opposed to the rule of law theory in liberal democracies where the law’s function is to constrain uncontrolled state power.

Under the Chinese and Russian versions, the territorial integrity of nations and the sovereignty of states doesn’t quite matter.

The Russian approach towards international law believes that the basis of international law is not universal but cultural and civilisational distinctness. It distinguishes between countries that are truly sovereign and countries that possess nominal or limited sovereignty, such as Ukraine.

The geo-economic order has been impacted by economic protectionism. The U.S. is desperate to ensure its continued hegemony. It is backtracking on the neoliberal consensus of interdependence and non-discrimination in international economic law.

The U.S. has rejected the recent WTO panel reports that held the U.S.’s protectionist industrial policies masquerading as national security objectives illegal.

The U.S. has also weakened the WTO’s effective dispute settlement mechanism by continuously blocking the appointment of the Appellate Body members.

How the rise of populism is impacting international law?

2023 will continue to face challenges from populist and ethno-nationalist regimes in several countries such as Hungary, Turkey, Poland, and Israel. Populists’ leaders attack the legitimacy of international law. They refer to it as foreign law, which is inimical to their national interests. It is often reduced to a mere law of coordination.

Populists also attack international institutions and international courts for preventing them from pursuing the interests of the ‘pure’ people they claim to represent. They enact domestic laws to protect the ethnic identity of the ‘pure’ people even if these laws undermine international.