Law and global disorder

The liberal rules-based order and the seeds of its destruction.

Section from a map of German states by legal tradition and courts, anonymous, 1895, Ch. G. Fisher & Co., Kassel.

In this week’s Not in Dispatches, we continue our new format of a weekly overview from our Chief Strategist, Michael Feller. If you're enjoying this, or have any other suggestions, comments, or questions, please let us know.

From warfare to lawfare

The week was bookended by two legal developments for the war in Gaza.

On Monday, the International Criminal Court issued arrest warrants for the leaders of Hamas and Israel, including Benjamin Netanyahu and his defence minister. Netanyahu described the move as antisemitic. Joe Biden said he was outraged.

On Friday, the International Court of Justice – a separate entity, but, like the ICC, also based in The Hague – issued an order that Israel must halt its offensive in Rafah.  This is part of a wider probe the court is taking into allegations – brought by South Africa – that Israel is committing genocide against the Palestinian people.

Israel is determined to ignore both and many of its friends are rallying to its side.

Israel claims its actions in Gaza are essential to defeating Hamas, which has been designated as a terrorist group by the US, the EU and key Western partners, but notably not the UN. The moves have ironically given Benjamin Netanyahu a boost, as former detractors rally around the flag and their beleaguered prime minister (who also faces legal woes domestically). And for a growing number of commentators and citizens alike – who have grown sceptical of international institutions – it is yet another nail in the coffin of the global rules-based order.

On Monday, I said the ICC’s warrant would erode the court’s legitimacy and standing, and thus the legitimacy and standing of the global order writ large. This turned out to be a common refrain – at least among commentators in the West – but many of you wrote in to complain that I was biased.

For someone routinely accused of being pro-Israel and pro-Palestine this was par for the course. But my point was not that the warrant was wrong-headed or legally dubious (for the record, I don’t think the prosecutor, interpreting the laws as they are, could have done any different), but that it would erode legitimacy from the view that whatever legal, moral or ethical grounds the ICC had taken, these aren’t universally shared, including by the world’s most powerful actors, including the US.

Indeed, prominent liberals like Secretary of State Antony Blinken immediately rushed to not just condemn the move, but raise the possibility of sanctions against the court.

Norm core

So how did the ICC get it so wrong? Well, it didn’t. The fact is, there’s no right or wrong. Unlike the legal systems within countries, the legal system between them – the system of international law – remains highly contentious and increasingly controversial.

In liberal orders, that is, those governed by the rule of law, their core and their legitimacy rests on agreed norms, standards and ethics.

Across history, for most societies, this was by no means a given, which is perhaps why liberal orders are the exception, not the rule. What the best of them do is manage to keep the laws, rules and regulations in pace with their society’s norms and expectations. This happens through legislative democracy – elected representatives in a parliament update the laws to reflect changing realities. And it also happens through the principles of common law, where each court ruling creates a new set of precedence – a sort of judicial Wikipedia – that allows the law to evolve and flex through the shifting sands of culture, economics, environment, and technology.

Systems that lack these functions – dictatorships and many of the democracies that have inherited the civil law tradition, which builds on the Napoleonic Code and Roman law before it – tend to be more brittle.

Dictatorships, which rule by decree, are almost always out of step with social expectations (hence the need for surveillance and control and the constant risk of revolution). Civil law societies, which preference statutory law – often fiendishly entrenched through constitutions with high barriers to amendment – over case law, tend to be slower to adapt. One of the most prominent civil law institutions – the European Union – is famous for its dense, legalistic treaties, directives and procedures. It is the Catholic Church to Britain’s Anglicanism.  And, famously, it regulates the shapes of bananas (European Commission regulation 2257/94). Regardless of which system is “better”, no wonder Brexit happened.

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Rough justice

So what, then, is international law?

It’s a blend. And a messy one at that. Further, unlike the nation-states of common, civil, or even despotic inclination, it is built upon an anarchic system with a lack of common identity or monopoly of violence. Idealists may describe themselves as global citizens, or denizens of Earth, but they are the minority. For most, the law is set in national capitals, not European towns like Geneva or The Hague. And for most – just like the Israelis – any threat to national sovereignty is generally met with refusal and force.

Thomas Hobbes was one of the seminal founders of the modern concept of sovereignty.  In his 1651 book Leviathan, he wrote that the state of nature "the war of all against all" could only be dominated by an absolute sovereign – his "leviathan" – with a monopoly of violence.

Hobbes remains controversial to this day. For good reason, not everyone likes his gloomy philosophy, where life is "nasty, brutish, and short" and many consider his views as the excuse for dictatorship. The imminent historian of fascism and Nazi Germany, Hugh Trevor-Roper, once summed Hobbes up neatly:  "the axiom, fear; the method, logic; the conclusion, despotism."

Yet the world that we live in is a world of Hobbes and Realpolitik, not an ideal world of his antithesis, John Locke -  father of liberalism – and of life, liberty and the pursuit of happiness. For even in the United States – that so-called liberal light on the hill, guided by the philosophies of republican reason and tolerance – the common wealth is protected not by law alone (or even the US dollar or the Treasury market), but by the 11 nuclear-capable aircraft carrier battle groups that sail the world, projecting a terrible potential violence, that could destroy the planet several times over.

To quote George Orwell – who may or may not have actually said it – "people sleep peacefully in their beds at night only because rough men stand ready to do violence on their behalf."

Paper tigers

The ICC doesn’t have one carrier battle group, let alone 11.

The United Nations, of which the ICJ forms a part, has an annual budget smaller than the New York Police Department (reflect on that for a moment). The NGOs, think tanks and academic faculties that buttress the edifice of international law have even less influence. Ditto the students protesting outside. And it’s turtles all the way down.

So, what then does it matter that international law and international rules are being ignored by Israel or condemned by Washington? The concern is two-fold.

First, the edifice – to use the phrase – may be a legal fiction, but it serves as a common narrative and system through which trillions of dollars of trade are conducted, billions of lives have their rights protected (at least on paper), and millions of lawyers earn their billable hours.

Second, the edifice provides a hitherto acceptable basis for Western hegemony. From the use of the US dollar in financial contracts, to the acceptance of New York or English law in arbitration, to the tolerance of American standards online – including, for the most part, American definitions of freedom of speech – the rules-based world is a Western world, and a world familiar to the readers of Francis Fukuyama’s The End of History and the Last Man.

But what happens when the edifice is ignored and the leviathan that lurks behind it – the rough man, not the last man, who is ready to do violence – ignores it to?

Hobbes would argue that anarchy would resume. A return to his concept of the "kingdom of darkness" and the anarchic condition. The state of nature, or the law of the jungle. The condition where:

"there is no place for Industry, because the fruit thereof is uncertain: and consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continual Fear, and danger of violent death”.

We’ve written about this before, it’s the geopolitical interregnum.

Rights and wrongs

Yet it needn’t be so.

In previous eras of multipolarity, where there wasn’t a single superpower – let alone one with super-powered aircraft carriers circling the globe – a more limited set of international rules applied, such as the ‘Concert of Europe’  in the 19^th century, and the agreed conventions around diplomatic inviolability and the laws of war, which predate the ICC, the ICJ, and the UN. And these conventions, with exceptions like World War I, largely kept the peace.

This relatively laissez-faire world, with minimal codified law and a greater acceptance that might was right (the world described by Thucydides of Athens – “the strong do what they can; the weak suffer what they must”) was by no means perfect. And in many ways – particularly if you were a woman, black, or lacked property – it was a horrible world. Yet it was a world where the rules remained largely resilient to an extreme pace of technological and economic change – from the steam engine to the telegraph – that rivals, or even exceeds our own. Contrast this with today’s world, where the rules can barely keep up and the doubters – who yearn for a world without rules – have gone from the anarcho-libertarian fringes to seemingly the majority in many countries.

Perhaps the problem with the rules is that there are too many of them.

This can be seen in the laws around human rights, where the basics – like habeas corpus – are diluted by "the right of trade unions to function freely subject to no limitations other than those prescribed by law", or "the right to rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays". All important no doubt, but part of the 1966 UN Covenant on Economic, Social and Cultural Rights, which the Soviet Union spearheaded to weaken the civil and political rights (e.g., let people vote; don't keep slaves) advanced by the West.

It can also be seen in the pronouncements, treaties and international agreements around climate change, social development, refugees, and dumping rubbish in the ocean, that all but a tiny fraction of countries – the entities with sovereign agency and rough men doing violence – roundly ignore.

And it can be seen in international commercial law, where – like its domestic equivalents – jurisdiction shopping, well-paid lawyers, and confidential settlements remain the surest way to a favourable outcome.

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The nature of things

So, the law’s an ass. Big deal, right? Far from it.  We’ve likely reached a tipping point – also seen domestically, particularly in the US where institutions like the Supreme Court are distrusted in historic margins – where more and more players, not just Netanyahu or Vladimir Putin, will start ignoring the rules of the road and start riding roughshod on everyone else.

And in that roughshod, Hobbesian world, the cost of doing business internationally will be greater, not to mention potentially prohibitive for a lot of firms and transactions.

It’ll be a world where legal niceties can’t be relied upon to enforce a contract or a relationship. It’ll be a world where “natural law” – like win-win cooperation (which sounds so ominous, yet prescient, when used by Xi Jinping) – will govern. It’ll be a world where the law – presumably designed to operate from behind the “veil of ignorance” and allow commerce between perfect strangers – will be replaced by trade between friends and well-armed frenemies (friend-shoring, not off-shoring; trusted value chains, not global supply chains). A feudal system or custom, of personality, and of the sword.

And it’ll be a world where if international law survives, it’ll be international in the sense that it’ll be between consenting nations. Perhaps, in a similar form to the one we recognise today, it’ll be just between the Western countries where such rules are largely accepted by society. A parallel win-win-global-community-for-a-shared-future system might concurrently exist within the Chinese sphere of influence. A Siloviki system in the Russian world. Islamic jurisprudence in much of the Middle East, etc.

Be careful what you wish for

People love to hate international law (especially self-described realists like me), but it’s something you’ll miss when it’s gone. Like the driver who gets a speeding ticket and curses the police, the absence of the law – the force, the rough men – is an absence most should worry about.  And unless, Wagner-like, you want to combine your business interests with a private militia, any dilution or relative absence of international law will be expensive for most firms and investors, not to mention time-consuming, risky, ethically dubious, and dangerous.

As George Orwell also once wrote, "if you want a vision of the future, imagine a boot stamping on a human face – forever." And unlike your attorney, that boot won't be a pair of expensive brogues.

On that note, thank you for reading. That certainly wasn’t short, but hopefully, it wasn’t too nasty or brutish either.

Enjoy the rest of your weekend.