CRISIS OR COLLAPSE OF INTERNATIONAL LAW?
I have been involved in international law for about 50 years, and I have heard for almost as long that international law is in crisis. It was said to be so as it got shaken by the new States born out of the decolonization process when I first became interested in the field in the second half of the 1960s (yes – already!). It was still so when Prosper Weil in his famous pamphlet on relative normativity referred to the “pathology of the international normative system” in the early 1980s. After the ephemeral euphoria of the first half of the 1990s, it was again so, for other reasons, when the United States attacked Iraq and, less conjuncturally, because of globalization and the new understanding of international law that it has imposed. And, it is even more than ever in crisis today with… there is ample choice: the systematic demolition of the post-war international order by Donald Trump, the dubious annexation of Crimea by Russia, the refusal of several States (China, Colombia, Croatia) to respect judgments or arbitral awards that prove them wrong, etc.
As Jean-Marc Sauvé, the former Vice-President of the French Conseil d’État, said recently in a remarkable speech to the European Society of International Law: “notre époque semble marquer une double rupture : la crise n’est plus ponctuelle ou périodique, elle est devenue permanente ; elle ne nous éclaire plus sur le sens d’une évolution ; elle est devenue source d’indécision, de désordres et d’incertitudes quant à ses causes et ses effets, à son diagnostic et ses remèdes. Les crises ne s’inscrivent plus avec autant d’évidence qu’auparavant dans l’horizon d’un ‘après-crise’. Cette double rupture tient sans doute à un ébranlement profond de notre conception du progrès et des identités individuelle et collective. Nous sommes aujourd’hui confrontés au vertige d’une crise sans fin, sans ordre et sans limite”.
Does all this mean that international law has come to an end? I don’t think so. On the contrary in a way: most threats to it are rooted in the exacerbation of sovereignty; yet, contrary to a widespread belief, sovereignty is not incompatible with law but makes it absolutely necessary. Either a single power is capable of completely dominating the world and then, yes, farewell to international law in favour of a global State without any external counterweight, or – equally – sovereign States continue to coexist and then, unless they resort to war (which would be suicidal for humanity if it were to occur between great powers), law is indispensable to ensure their coexistence through a certain legal order.
Which legal order? As things are going, probably not the legal order we know, defend and want to improve; but a more “inter-sovereigns” order, less multilateral, with greater emphasis on new and “raw” power relations: the United States weakened (but far from defeated) by their denial of the less unjust order of which they were the main founders in 1945, in the name of a demagogic slogan – America first – and by their attempt to project their own law beyond their borders; China weaving its web by exalting State sovereignty for the greater benefit of its own; and the others, whether it is Putin’s Russia, India, or lesser lords – but just as worrying (and first and foremost regional powers such as Saudi Arabia or Iran) by trying to take advantage of the new Cold War to make their way between the two giants who more than ever practice a somewhat obscene clientelism; as well as Europe, swarmed by populism, which plays “blind man’s buff” with migrants…
This exacerbated sovereignism is not only deployed in the international order. It also has an impact within States themselves: leaders flatter peoples’ nationalism, plant the seeds of populism and maintain the “migrant crisis” even as the flow dries up. “Illiberalism” flourishes within the very heart of the “free democracies of Europe”; dictatorships have nothing more to fear; the duty to intervene died long ago and the responsibility to protect, which seemed more realistic and received a minimum consensus, is, at the very least, in a bad shape.
And that’s not all: while States play these dangerous games, the planet is dying. Despite the increasingly distressed warnings of scientists, the irrefutable evidence of the degradation of the environment and its dramatic effects on climate, biological diversity as well as, ultimately, the very survival of humanity, nothing stands in the way of the financial appetites of large corporations and hedge funds. In the same vein, inequalities are increasing and are likely to become a factor of instability in the long run.
In the meantime, what are lawyers doing? What are we doing, we internationalists? Some – and it has become an influential and attractive trend, especially among young internationalists – indulge in sterile navel-gazing by denouncing the turpitudes (supposed or real) of the small world of internationalists (of which they are part…): “new stream” and the new critical studies are not interested at all in the substance of the law but only in criticising those who make or study it. Others, though fewer, use the law as an instrument to defend national and nationalist theses. And then there is the so-called main stream, which strives to present the law as it is and to make it serve the cause defined by the founders of the United Nations:
“to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom”.
It is this international law that the Statutes of our Society invite us to defend. Do we do it? Can we do it?
We do, in the sense that we certainly contribute to its study and dissemination – if only through our conferences, workshops and publication, which, immodestly, I consider to be models of their kind, through the encouragement given to the activities of young researchers, through the Rousseau Moot Court Competition in international law, through scholarships and thesis prizes. But is it commensurate with the stakes? In any case, it seems to me that the time has come to ask ourselves the question of the raison d’être of our society (and, in general, that of societies for international law): should we not position ourselves more as a “pressure group” to try to preserve what must and can be preserved as well as to push international law in a better direction? Do we have the means to do so? How to give the necessary means to ourselves?
Two events on which we are working will try to provide (modest) answers to these questions, which seem to me both crucial and difficult, if not scary:
- on the one hand, jointly with the American Society of International Law, the SFDI will organize in The Hague on 2 and 3 September this year, the Second World Meeting of International Law Societies on a theme whose title has not yet been completely decided but will focus on the challenges facing international law today and the role that societies for international law can play in meeting them; and,
- on the other hand, we plan to hold, most probably in Strasbourg, and at a date that has not yet been fixed, “Assises sur/pour l’enseignement du droit international”.
The Society lives for and thanks to its members. Help us to keep it alive; don’t just pay your membership fee (even if I can’t encourage you enough to do so – in fact, have you paid it for the year 2018?); give us some ideas; participate, if you want, in the organization of these events.
President of the SFDI
 « Discours de clôture par Jean-Marc Sauvé, vice-président du Conseil d’État lors de la 12ème conférence annuelle de la Société européenne de droit international (SEDI), qui s’est tenue à Riga en Lettonie du 8 au 10 septembre 2016 » (http://www.conseil-etat.fr/Actualites/Discours-Interventions/Comment-le-droit-international-fonctionne-en-temps-de-crise). My translation: “Our time seems to mark a double rupture: the crisis is no longer punctual or periodic, it has become permanent; it no longer enlightens us on the meaning of an evolution; it has become a source of indecision, disorder and uncertainty as to its causes and effects, its diagnosis and its remedies. Crises are no longer as obvious as before in the post-crisis horizon. This double rupture is undoubtedly due to a profound shaking of our conception of progress and individual and collective identities. Today we are confronted with the vertigo of an endless, unrestrained and limitless crisis.”
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 With thanks to Tessa Barsac, consultant in international law, who kindly translated this paper.