International Law in a Post-Post-Cold War World

This post is related to previous posts on the legal system, as well as the political system.

Notes on “International Law in a Post-Post-Cold War World—Can It
Survive? Current Challenges to International Law” by Alison Pert (2017). All quotes are from the Pert.

If there can be such a thing as an international atmosphere (as in mood), then the last 5 years have seen some extraordinary changes in that atmosphere. There have been a number of different moods since the end of the Second World War. For a short period during and after the drafting of the United Nations Charter in 1945, there was a feeling of hope and optimism for the future development of a world society. The League of Nations had been a useful experiment, requiring a radical adjustment of member states’ willingness to compromise their sovereignty in the quest for a better world achieved through multilateral cooperation. The lessons learned from that experiment were applied in the design of the League’s
successor, the United Nations. In the United Nations Charter, all forms of interstate violence were outlawed, and the central enforcement body, the Security Council, was empowered to order corrective or punitive measures against errant member states, ranging from economic sanctions to full military force. The fervent hope of those creating the United Nations was that war would finally be made illegal and therefore, if not eliminated from international relations, at least greatly reduced in likelihood.

The inherent flaw in the new collective security structure was the veto: the requirement that all non-procedural decisions of the Security Council be supported, or at least not expressly opposed, by the five major victorious powers that were granted permanent seats on the Council (the ‘P5’).

Asia & the Pacific Policy Studies, vol. ••, no. ••, pp. ••–••
doi: 10.1002/app5.174

The goal of finally making war illegal would represent the victory of the legal system over the political system. But the five major powers, by insisting on the veto power, refused to allow  that.

In the first two decades of the United Nations’ existence, the veto was used over 80 times, on all but four occasions by the USSR, and often on matters unrelated to international peace and security. Thereafter, the US became a frequent employer of the veto, and altogether during the Cold.

During the 45 or so years of the Cold War, international tensions rose and fell with each crisis, and on occasion there were genuine fears of a new world war or a nuclear conflict, such as during the Cuban missile confrontation. But paradoxically, and perhaps assessed with the benefit of hindsight, there was an element of stability or at least predictability in the relations between P5 members.

From a system-theoretical perspective, the predictability is important. Complexity is greatly reduced if the decisions are limited to a binary choice:  veto/no veto. After the end of the Cold War, expectations rose.

Suddenly, it became thinkable that the Security Council might operate as originally intended, and indeed it did for a while. Many more peacekeeping operations were authorised, and the use of the veto plummeted to just nine instances in the 1990s. The paradigm example of this new flowering of cooperation was the international response to the first Iraq War in 1990, when the Security Council authorised member states to use all necessary means (Security Council code for military force) to remove Iraqi forces from Kuwait.

Since 2000, Vladimir Putin has pushed back against this multilateralism. Putin

is an avowed nationalist apparently intent on, among other things, reclaiming—or at least maintaining Russian influence over—as much as possible of the former Soviet satellite states and restoring ‘Great Russia’.

NATO’s expansion into Eastern Europe likely provoked Putin. Then came the invasion of Iraq.

The invasion of Iraq in 2003 led by two of the P5 members, almost universally agreed to have been a clear violation of international law because it lacked Security Council authority, did not help. Nor did NATO’s overreach in its 2011 intervention in Libya, when Security Council authority to use force to protect civilians caught up in the civil war was exceeded, and resulted in régime change. That overreach has been referred to by Russia in its serial blocking of Security Council resolutions that even hint at criticising the Assad régime in Syria.

But it has really been in the current decade of the twenty-first century that serious cracks have started to appear in the post-Cold War structure. The first of these to become obvious was Russia’s covert invasion and subsequent seizure of Crimea in 2014.

China’s military build up in the South China Sea is another example of a state disregarding the UN’s authority. China has refused the bound by the United Nations Convention on the Law of the Sea (UNCLOS).

China uses the ‘three warfares’ of legal, media and psychological operations to
distort legal reality.

Pert cites  Peter Navarro, “China’s Non-Kinetic ‘Three Warfares’ Against America,” The National Interest, 5 January 2016.

These events involving Russia and China in part illustrate a retreat to placing the national interest above all, even international law. It reflects, or is related to, a swing to the right (or, perhaps more appropriately for states such as Russia and China—towards nationalism) that has become apparent in other countries: the Philippines, Europe (France, Netherlands, Italy, the United Kingdom), Turkey, India and even Australia. And now Donald Trump has been elected President of the United States. All illustrate a turn inwards rather than outwards, a retreat from multilateralism, the placing of national interest above all else.

This week’s French presidential election offers hope for slowing this neo-nationalist movement.

The election of Rodrigo Duterte in the Philippines in June 2016 is another issue. Duarte’s position toward China seems to place economic interests over national pride. So the economic system is clearly a factor, or irritant, here as well.

He effectively reversed his predecessor’s policy and appeared to disavow
any interest in pressing the Philippines’ claims in the South China Sea . . . During his state visit to China in October 2016, Duterte famously announced his country’s ‘separation’ from the United States, and that henceforth the Philippines would be aligned with China, making it clear that trade and financial support (from China) were far more important than resolving sovereignty disputes.

And, of course, we have Trump.

. .  .  there are clear and worrying signs that under Trump, the US may not maintain its role of seeking to uphold (admittedly selectively, given its record of foreign military interventions and dubious military detention practices) the rule of international law.

Russia and a few African countries now oppose the Rome Statute establishing the
International Criminal Court.

. . . international law relies on state compliance for its moral authority. If that is lost, we are back to the nineteenth century world of might is right.

If we observe from a moral perspective–making the distinction good/bad (or respectable/disrespectable)–we might say that the political system is wrong to assert itself over the legal system and politics should abide by international law. But in terms of science, it is what it is. This is what systems do.

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