Volume 37 – Issue 1 – Twenty-Fourth Annual Philip D. Reed Memorial Issue Fordham International Law Journal

The Incoherence and Functional Incompetence of International Law: Toward a New Paradigm of Human Relationship

Our generation has witnessed the unmasking of international law and it is not necessarily a bad thing. This unmasking process might well culminate in a “Grotian Moment” of sorts but in the end, international law as we have come to know it will not survive.  The international law of today, modern international law, is an inheritance from the age of conquests that has gone through periodic regeneration to emerge as it is today incoherent and incompetent. It has found sustenance in a convincing retelling of its lineage and has nurtured exaggerated promises among those who have long suffered under its savage embrace and who should have rationally rejected it.  Instead, these victims made pragmatic accommodations and adopted their masters’ restatement of history. The law that once aided conquest and domination was thus transformed into guiding principles of a future world built on sovereign equality, self-determination, human rights, peace and economic cooperation. The venerable Hersh Lauterpacht proclaimed broadly that, “international law, which has excelled in punctilious insistence on the respect owed by one sovereign State to another, henceforth acknowledges the sovereignty of man. For fundamental human rights are rights superior to the law of the sovereign state.”  Professor Mary Ann Glendon wrote passionately of “a world made new,” where “the mightiest nations on earth bowed to the demands of smaller countries for recognition of a common standard by which the rights and wrongs of every nation’s behavior could be measured.”

The dispossessed generally signed on to this renewal mission, presented as the progressive realization of law. They often infused it with their own hopes for transformative global change. Indeed, over the course of the decades since World War II, the re-casted regime of international law did nurture noble aspirations and inspire courageous efforts to indeed remake the world.  Nelson Mandela and many others in the decolonization movement testified to this.  The decolonization movement was matched by a spirited international commitment to transnational institution building and frenzied standard-setting initiatives.  The Genocide Convention, the United Nations and it many agencies and affiliates, international finance and development institutions, the Universal Declaration of Human Rights, the human rights covenants, all mark just the tip of this effort. The overarching goal was to remind us of who we thought we were before the nastiness of unrestrained war making, slavery, genocide, ethnic cleansing, and economic exploitation took us off course.  The language of international law was applied liberally. Some of course may have cynically signed on knowing that the game had not really changed at all and that the outcome was rigged.

The post Second World War evangelical recommitment to international law sustained the quest for a new secular Holy Grail, for a future in which, in Tennyson’s words, “the kindly earth shall slumber, lapt in universal law.”   Yet, the refurbished regime has grown unwieldy under the weight of its contradictions, and increasingly inconsequential in the face of humanity’s greatest concerns and demands.  Our common heritage of general war making with all its attendant savagery is as vibrant and attractive as ever. The threat of nuclear annihilation, ironically introduced in the infancy of the new international regime, has not receded.  In fact, it poses a greater threat to human survival and happiness today than ever. Moreover, the persistence of human misery policed by structured violence continues to astound. Our commitment to material development built around exploitation of fossil fuel has not only given us an even more unequal world, it has also given us the new threat of catastrophic climate change. Thus, even as devoted legions of believers in the new global regime of international law continue to press on with happy talk, our hopes are increasingly stressed and our faith unhinged from everyday realities of life for much of humanity. How long can the faithful continue to assert the reality of the enterprise called international law in the face of persistent evidence of its doctrinal incoherence and functional incompetence?

Not long ago, Cuban dictator, Fidel Castro was asked by members of a delegation of prominent human rights activists why racial discrimination remained so stubbornly prevalent in the socialist country.   To the evident consternation of subordinates, he admitted that his authoritarian regime had failed to stamp out racism but not for a lack of laws and governmental policies. With a degree of resignation, he suggested that psychology might provide a more helpful answer to the hardiness of racism in Cuba. Perhaps his observation has relevance to the situation facing international law today. As global crises, from climate change to nuclear confrontation, endemic misery to assorted crimes against humanity, escalate, international law theorists and activists strive to secure a role for the regime of international law, impelled by a devotion unjustified by history or necessity. Their fidelity is misplaced.  International lawyers and activists, looking objectively at the critical issues facing humanity today, should come to a conclusion that the discipline as currently conceived is not the proper vehicle for the change the world needs now.

The simple fact that this much venerated object of faith has not fed a single starving child, freed oppressed peoples anywhere, stopped recurring genocide or crimes against humanity, nor held back the oceans should engender a more reflective perspective. Doctrine is not fate.  So much energy is being wasted trying to justify and maintain this essentially bankrupt system. Is this being done because there is not a reasonable alternative? Or is it because its adherents are much too invested in the edifice? It would be more worthwhile to embrace the radical changes that are needed and engage more forthrightly the process of developing a new paradigm for human relationships unfettered by tired and discredited doctrines, processes, and faiths, all accouterments of fidelity to a fictive narrative.

In a 2004 article on the invasion of Iraq, I asked whether international law was on the verge of a “Grotian Moment.”  I wrote, “This age cries for humility. We don’t need a Grotius to tell us that. So much has been tried and the landscape is littered with regrets, failures, and catastrophe.  But the problem was not trying.  It was the conviction. The past century offered too many solutions and not enough questions.”   In retrospect, that was a restrained assessment of the role of international law for it saw a continuing role for the discipline, properly refurbished.  That article urged that we keep trying, an expression of optimism that is common even among the severest critics of international law. Such optimism is an integral part of the heritage of progressive development of international law catechism.

This article argues that modern international law in the areas where it should matter most is dying under the weight of doctrinal incoherence and general functional incompetence. In other words, international law is not meeting its prime justifications in critical areas. It is not doing what it was supposedly refurbished to do after the Second World War and it exists today largely in a state of disarray doctrinally and functionally when it comes to dealing with critical problems afflicting humanity.  Further, the article insists that international law has not relinquished its foundational role in helping to rationalize a global order that is characterized by a predatory international economic system, systematic violence that ultimately serves the interests of powerful states and interests, broad tolerance of structured misery, as well as a general incapacity to get nations to act in concert in the interest of humanity as a whole. On the other hand, international law has succeeded magnificently as the source of faith or numbing happy talk for those who believe that we have or could develop the will and expertise to do better, identify and civilize savages, and fix the world.

To support my argument, I examine international law’s contributions to how we deal with problems in three critical areas of human life: avoidance of catastrophe, containment of destructive conflicts, and promotion of decency in terms of the reduction of global misery or structured poverty.  Within these categories, I look specifically at the challenges posed by climate change, the threat of nuclear annihilation, the 2003 invasion of Iraq, the on-going civil war in Syria, and the persistence of misery policed by violence in much of the world as well as the Millennium Development Goals initiative designed to address it. These case studies support the argument that an unjustifiable importance is placed on international law as we now conceive of it instead of accepting and confronting the reality of international politics.

This article builds on TWAIL critique of international law going back to luminaries like Mohammed Bedjaoui, R.P. Anand, and Georges Abi-Saab.   It also benefits from other critical perspectives on the limits of international law, including Marti Koskenniemi’s “From Apology to Utopia: the Structure of International Legal Argument,” and David Kennedy’s the “Dark Sides of Virtue.”  These critical perspectives should be distinguished from those of positivists who actually question whether international law is really law at all or critics who argue that international law is merely law that “emerges from states acting rationally to maximize their interests, given their perception of the interests of other states and distribution of state power.”  Both positivists and the latter rational choice theorists adopt narrow and shortsighted understanding of both the nature of law and how people and countries define their interests. The perspective offered here does not reject a place for law in global affairs. On the contrary, it presumes a need for it in the classic sense of law as sanctioned regularity, or legitimized politics of the common, helpful, indeed essential, in varying degrees to some areas of international life.   Furthermore, while the criticism of the dominant conception of law presented here does not develop a different vision of law for the global community, such as a “law of humanity,” it does not reject the possibilities for such.

 

Full Article Available in:
Fordham International Law Journal
Volume 37, Number 1

 

Suggested Citation:
Ibrahim J. Gassama, The Incoherence and Functional Incompetence of International Law: Toward a New Paradigm of Human Relationship, 37 Fordham Int’l L.J. 53 (2013)

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