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How international law is being reshaped and the challenges it faces

International law is resilient, but vigilance is needed to maintain its legitimacy Image: REUTERS/Adam Hunger

 This article is published in collaboration with
Chatham House

This article is part of the World Economic Forum’s Geostrategy platform

International law flourished in the aftermath of the Cold War, broadening in scope, deepening in content and embracing a focus on individuals.

While this period furthered many governance projects envisaged in the post-1945 settlement, shifting power and rising nationalism now suggest the arrival of a more difficult phase for international law.

In the coming year (and beyond), areas of the law perceived by some as too liberal will be vulnerable to attack, and tensions will persist between key states on how the law applies to emerging global challenges.

The dynamics of international law are shifting.

Countries that traditionally have led the way in shaping international law are ceding space, as a consequence of reduced global power, tarnished prestige and rising nationalist sentiment.Meanwhile, countries such as China are increasingly engaged, recognizing the potential for the law to further their interests.

Stability not stasis

This new phase does not amount to an existential crisis. Much of international law remains uncontested, facilitating the daily workings of an interconnected world;and states continue to rely on the law to settle disputes peacefully. The continued legitimacy of international law in a multipolar world demands greater plurality. A degree of contestation is thus inherent and healthy in the law’s evolution – stability as opposed to stasis. Nonetheless, a degree of vigilance is justified on two principal grounds.

Firstly, greater assertiveness on the part of states with a sovereigntist or transactional approach carries risks for areas of the law associated with progressive liberal values – for example, sexual and reproductive rights. The pushback on such rights is not confined to states from the Global South; the US and a number of European states are increasingly advocating illiberal values.

 

Alongside this, China and many developing countries are likely to increase pressure for greater attention to economic rights. Progress on addressing inequalities through economic rights is long overdue. However, the risk remains that advocacy on economic rights can be used by some as cover for encouraging restrictive approaches to civil and political rights.

Secondly, in relation to emerging challenges for international law, achieving consensus may become increasingly complicated in the short term. Issues around cybersecurity governance are illustrative. A UN Group of Governmental Experts has failed to reach agreement on how international law applies to cyber operations by states, with a split emerging between Western countries on one side and China and Russia on the other. At present, prospects for convergence look slim.

The extent to which these risks materialize will depend on the relative efforts made by key states. Will engagement by traditionally influential states in these vulnerable or emerging areas be strategic, addressing competing visions of the global order, in particular as advanced by China?

And to what degree will such countries be able to maintain a coordinated approach? On the human rights side, the US will not be a consistent partner anytime soon for states wishing to defend ‘progressive’ rights. Meanwhile, the EU’s ability to wield collective influence is increasingly compromised by internal splits on values and by questioning of the EU’s own recent human rights record.

Nevertheless, Western states can draw on considerable expertise in international law. And the opportunity for building issue-specific alliances among them and with states from the Global South exists.

Moreover, China is intent on being seen as a responsible power, seeking not to disrupt international law but to have a more influential role. The increasing visibility of non-state actors is also worth noting, for example in judgments of national courts which deal with international law, parliamentary enquiries into government compliance, academic initiatives and civil society advocacy.

Ultimately, the longer view is perhaps instructive. International law is resilient, having in the past weathered numerous disruptions in global politics, intermittent antagonism from powerful states, and notable breaches. While complacency would be misguided, so is despair.

A More Contested Space: Shifting power and international law, Ruma Mandal, Chatham House Expert Perspectives 2018, Risks and Opportunities in International Affairs

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