Strengthening International Law

From the perspective of the United States, the country that is most responsible for establishing the legal framework governing war after World War II and also the main challenger in light of recent global developments, the resolution of the debate about whether to limit foreign policy by reference to international law is of the greatest importance. It should be noted that the two greatest failures in American foreign policy in the last fifty years have resulted from the Vietnam War and the Iraq War. These failures would not have occurred if American policy had been self-limited by reference to international law. It is a general fallacy to suppose that in the twenty-first century a powerful country is better off if it is not restricted in its policy options by law. The evidence suggests that the restrictions contained in international law reflect the encoded wisdom of several centuries of statecraft. The narrowing of the availability of war by international law over the course of the last century is an acknowledgement, in large part, of the growing dysfunctionality of war as instrument for the resolution of conflict.

It is not only war and uses of force that need to be regulated effectively by international law, it is also necessary for advancing the human security of peoples throughout the world afflicted by disease, poverty, environmental degradation, oppressive governance. Respect for law and international institutions encourages cooperative problem-solving that is increasingly necessary given the realities of globalization. In this regard, it is necessary to adapt the law-making procedures of the world to the significant roles being played by a variety of non-state actors, including market forces, regional organization, and civil society organizations. Whether incorporating this globalizing agenda and these non-state actors is achieved by an enlarged conception of international law, or by a transition in legal conceptualizing that adopts the terminology of global law is less important than the realization that the law dimension of world order is of critical importance in the struggle to achieve a less violent, more equitable, and more sustainable future for the whole of humanity.

The prospects for strengthening international law have two important current centers of gravity: (1) the unresolved debate in the United States as to whether to pursue security within a framework that respects international law and the authority of the United Nations. The learning experience associated with the failure of the Iraq policy needs to be converted into a renewed appreciation that reliance on military dominance and discretionary wars is dysfunctional at this stage of history, and that a voluntary respect for international law would simultaneously serve the national and global interest.
The resolution of this debate is of great importance to Americans and the world because of the leadership role that the United States plays on the global stage. The evidence supports the view that American global leadership will only recover its claims of legitimacy if it is able to revive its earlier enthusiasm for promoting the rule of law in world politics.
(2) This specific debate, heightened in intensity after 9/11, hides an underlying set of issues associated with achieving a more effective and equitable approach to global governance in light of a series of world order challenges that have been generated by such problems as global warming, an imminent energy squeeze, mass migrations, and an array of self-determination struggles. At present, contradictory trends are undermining efforts to fashion a humane approach to these challenges. On the one side, globalization in all its forms is rendering the boundaries of states increasingly irrelevant to the patterning of many substantive concerns, while at the same time border controls are growing harsher and walls are being created to fence some people in and others out.
This requires a new set of international legal initiatives, ambitiously conceived, to address these problems in a manner that does not produce chaos, oppressive violence, and ecological collapse. It is no longer acceptable to consider that world order can be entrusted to sovereign states pursuing their short-term interests. Protecting the future for the peoples of the world presupposes an ethos of responsibility, which in turn rests on the willingness to replace traditions of unilateralism and coercion with improved procedures of cooperation and persuasion. It is here that the past and future of international law offers hope to humanity provided the turn away from law can be reversed.

The growing fragility and complexity of international life provides a fundamental argument for strengthening international law, and for moving toward the establishment of ‘global law’ that is able to regulate for the common good activities of market forces, regional organizations, international institutions, civil society actors, as well as the behavior of states. With a growing prospect of an energy squeeze requiring a momentous shift to a post-petroleum world society, the strains on regulatory regimes will be immense. Trust in and respect for international law will encourage approaches that are more likely to be fair and effective than the sort of chaos and resentments that will follow if relative power and wealth are relied upon to shift the main burdens of adjustment to the weak and poor.