Strengthening International Law

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Richard Falk
Prof. Emeritus Int. Law & Practice, Princeton

In an era when international cooperation is critical no overall reliable system of global governance is in place that enjoys universal respect and satisfies concerns about accountability of leaders, participation of peoples and their representatives, and transparency of the regulatory process itself. Particularly disturbing is the persistent tendency of political leaders to consider resort to war as their fundamental instrument for the resolution of international conflict and to divert vast resources to the preparation for war without being constrained by the limits set by international law governing the use of force.


It is important not to overstate the role and contributions of international law, which in the past has been used to lend an appearance of legality to colonialism and aggressive war as well as to serve the interests of oppressive governments who engaged in abuses of their populations, being shielded by the law that upheld the territorial supremacy of sovereign states.

International law is relevant in many different settings that reflect the extraordinary diversity of transnational activity in the contemporary world. Legal professionals- lawyers- represent governments, corporations, banks, international institutions- to facilitate their activities, both by acting within the limits set by regulations contained in international law, and by altering legal standards to the extent helpful for more orderly conduct of affairs. Ordinary citizens, NGOs, and international civil servants all invoke international law to influence policy debates on a variety of global issues. International law is an important means for communicating claims and grievances, and provides insight into whether particular demands are reasonable or not.

The viability of international law has been recently drawn into serious question by the American response to the 9/11 attacks. It has been claimed that the nature of international terrorism combined with potential access to weaponry of mass destruction, especially nuclear weapons, makes it unreasonable for states to wait to be attacked. The United States Government relied on such reasoning to justify its invasion of Iraq in 2003, which was widely regarded by international law specialists and world public opinion as a flagrant violation of both the UN Charter and international law. International law is partly motivated by considerations of mutual convenience (e.g. the immunity of ambassadors, safety signals at sea) and partly reflective of the accumulated wisdom of seasoned statesmen.


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.


The lessons of failed wars over the course of recent decades need to be converted into a sophisticated appreciation that reliance on military superiority and discretionary recourse to wars has become increasingly dysfunctional at this stage of history, and extremely wasteful with respect to vital resources needed to achieve other essential human goals, including the reduction of poverty, disease, and crime. Protecting the future for the peoples of the world presupposes an ethos of responsibility, which in turn rests on the willingness by both the powerful and the disempowered to replace whenever possible, coercion with persuasion, and to rely much more on cooperative and nonviolent means to achieve order and change. Law is centrally important in providing guidelines and procedures for moving toward a less violent, more equitable, and more sustainable future for the whole of humanity. With the rise of non-state actors (market and civil society actors; international institutions of regional and global scope) there is underway a necessary transition from an era of international law to an epoch of global law. It will be beneficial for the citizens and governments of the world to encourage this transition.

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Unfortunately, political leaders resort to war as the way to resolve international conflict. Preventing this in the future will require an ethos of responsibility and a willingness to rely on cooperative and nonviolent means to resolve conflict. Strengthening International Law — and making it more accountable and transparent — will be critical for moving toward a less violent, more equitable, and more sustainable future for the whole of humanity.

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