Are we being manipulated by the story we tell ourselves about international law? It's a bold claim, but what if the familiar narrative of 'crisis and renewal' is actually hindering progress, blinding us to deeper issues, and even serving the interests of those in power? Buckle up, because we're about to unpack five compelling reasons to ditch this comfortable, yet potentially misleading, storyline.
Imagine a world where every setback in international relations is framed as a temporary crisis, inevitably followed by a period of renewal and progress. It's a reassuring thought, isn't it? It suggests that even in the darkest of times, international law will rise again, stronger and more just. But here's where it gets controversial: what if this very belief is part of the problem?
Some time ago, I was reminded of a story about a Brazilian diplomat during World War I who couldn't mail a letter from Boston to Europe. He used this at a 1921 ASIL meeting to recommit to rebuilding international law. It seemed a fitting anecdote to offer reassurance during today's dark times—a reminder that cycles of crisis and reconstruction repeat, leading to slow progress. But then I remembered a conversation with my neighbor, who, upon hearing my optimistic take on the current state of international law, simply laughed and said, 'Who cares about crisis and renewal when international law is dead… and there is no resurrection.' His words hit hard, prompting me to rethink my reliance on the crisis-renewal narrative.
So, why should we be wary of the 'crisis and renewal' framework? Let's dive into five key arguments:
1. The 'Crisis' Card Might Be a Cheat: International lawyers, perhaps unintentionally, might be exaggerating crises to justify their own relevance and the need for 'reconstruction.' As Hilary Charlesworth, now a judge at the International Court of Justice, warned us over two decades ago, crises can narrow our focus, obscure structural problems, and limit our imagination when it comes to finding real solutions. It's easy to declare a crisis and propose exceptional measures, but it's much harder to truly understand why international law isn't delivering peace, security, and justice. It’s like reaching for a readily available painkiller instead of diagnosing the underlying disease. Are we, as international lawyers, sometimes guilty of prioritizing our own sense of importance over genuine progress?
2. Renewal Doesn't Automatically Equal Progress: Just because international law changes after a crisis doesn't mean it's necessarily getting better. We often point to historical events like the Napoleonic Wars or World War I as catalysts for progress in international law. However, change isn't always linear or positive. Consider the 16th-century requerimiento, a Spanish legal document that was supposed to be read to indigenous populations before conquest, offering them a chance to surrender. Today, individuals in 'drug boats,' identified through advanced surveillance technology, are often killed without warning. While the requerimiento might seem barbaric by modern standards, at least it offered a formal opportunity for surrender. And this is the part most people miss: While we now have institutions like the International Criminal Court (ICC) to prosecute international crimes, it often lacks the jurisdiction to address abuses committed by powerful nations. Has international law truly progressed, or has it simply evolved in ways that serve different interests?
3. The Narrative is Misleading, Featuring 'Monsters' and 'Heroes': The crisis-renewal narrative often paints crises as the result of external villains ('monsters') who disregard international law, while renewal is attributed to enlightened individuals ('heroes') who champion it. Think of historical figures like Vitoria or Grotius, celebrated for their contributions to human rights and international law. Today, some might blame figures like Putin, Netanyahu, or Trump for the current 'crisis.' But can we really ignore international law's own complicity? Great powers often claim a legal privilege to use force beyond the limits of the UN Charter, a reality not lost on the Global South, remembering interventions in Iraq, Afghanistan, and Latin America. Moreover, focusing solely on 'monsters' allows us to ignore the suffering that international law contributes to during times of stability, such as the plight of refugees drowning in the Mediterranean. Are we too quick to celebrate our 'heroes' and demonize our 'monsters,' neglecting the systemic issues that perpetuate injustice?
4. It's Inevitably Eurocentric: The 'crisis and renewal' narrative tends to focus on European cycles of war and peace, overlooking the experiences and contributions of non-Western actors. We readily discuss the impact of World War I on international law, but how often do we consider the 19th-century partition of Africa, the 'opening' of Japan, or the Opium Wars in China as crises that shaped the international order? We rarely use the term 'reconstruction' to describe the contributions of Latin American, African, and Asian diplomats to key developments like the codification of statehood standards or the right to self-determination. By framing the narrative through a Eurocentric lens, we miss fundamental transformations in international law that occurred outside the Western world. For example, the international legal order of 1842, defined by unequal treaties and colonialism, was fundamentally different by 1960, thanks in part to the work of semi-peripheral actors. Does our focus on European history blind us to the global dynamics that have shaped international law?
5. It Doesn't Fully Explain How International Law Changes: The idea of cycles of crisis and renewal makes sense from the perspective of the winners of wars and the elites who administer the post-war international legal orders. It emphasizes continuity over genuine change, often reinforcing existing power structures. The UN Charter, for instance, reflects both the lessons of the Holocaust and the realities of Hiroshima and Nagasaki, enshrining the great power privilege in Chapter VII. But then, how do we account for the fundamental shifts in international law, such as the transformation from the era of unequal treaties and colonialism to the era of self-determination and codified statehood? These changes were often driven by semi-peripheral actors who rearranged existing legal doctrines to challenge the status quo. They didn't 'reconstruct' international law; they reimagined it.
In conclusion, the 'crisis and renewal' narrative, while comforting, may be a flawed lens through which to view international law. It can obscure deeper issues, reinforce existing power structures, and limit our ability to envision meaningful change.
So, what do you think? Is it time to abandon this narrative and embrace a more nuanced understanding of international law's evolution? Are there other reasons to be wary of the 'crisis and renewal' framework? Share your thoughts in the comments below – let’s get this conversation started!
