The United States’ diplomatic establishment likes to talk about a thing called the “rules-based order”, and to cite others, like Russia invading Ukraine, for violations of it. Vladimir Putin, for his part, has asked where are these rules written, and who gets to write them? One has to concede that these are good questions.
A more academic exposition of Putin’s position can be found in this essay by John Dugard, which contrasts the "rules-based order" with "international law”, on the presumption that "international law" is legitimate. He describes, and ultimately endorses, a view of the rules-based order “as the United States’ alternative to international law, an order that encapsulates international law as interpreted by the United States to accord with its national interests, ‘a chimera, meaning whatever the US and its followers want it to mean at any given time’.”
He’s right enough about the “rules-based order”. But he’s wrong, in my view, that there is some more legitimate project, “international law”, which the United States’ malleable alternative undermines.
International law is a cargo cult. It has founding documents and esoteric codes and courts that interpret them, just like national legal systems do. All of that is masturbatory and ultimately quite destructive, in my view. It adds a liturgical patina of law to a set of practices that cannot operate as law. International law cannot come anywhere near keeping its end of the most basic bargain that the law makes to those whom it binds: If you conform, you will be protected.
Obviously that six word formulation of the basis of law needs caveats and elaboration. Sometimes, for example, the law compels a person to fight and to die for their country, quite the opposite of protection. Sometimes the law requires that a person who has committed no crime must leave their home, even when they have no other destination but the streets. Just exactly what the law protects of those whom it binds is always a matter of contestation. But at a minimum it means that those who abide the law will be treated equitably when the coercive power of the state is brought to bear. Similarly situated citizens will be treated similarly, and the basis for state discrimination, when citizens are seen not to be similarly situated and can be treated differently, must be widely accepted and adhered to for a body of coercive practice to be understood as law.
For example, Jim Crow law was, from the vantage of today, not law at all, just a law-like patina on a practice of oppression. From the vantage of its own time, whether it was law depends upon just how universally its discriminations were accepted and adhered to. To the degree those subject to its very invidious discriminations internalized and accepted its distinctions — even if they disliked them and could argue against them in theory — then it did function as law. Once sizable classes of people did not accept those dinstinctions, and began actively to resist the "law", well, then it ceased to function as law at all. Legal order was only restored in the United States by revising the putative law to a version that the law’s resisters would accede to, and using the coercive power of the state when necessary to overpower and demoralize the resistance that same revision of the order provoked.
Legal order might have been restored the other way, by overpowering and demoralizing Jim Crow’s resisters, instead of those who resisted civil rights. That a thing is law does not mean it is good. It just means that it performs a function that is prerequisite to the form of social order provided by modern states. Food is necessary for life, and Cheetos perform the function of food, but that doesn’t mean there are no important distinctions to be made between a fine meal and Cheetos.
International law is not even not-law in the way that Jim Crow became not-law when postwar social movements rendered it illegitimate and widely resisted. Fundamentally law is a bargain between citizens who generally abide it and a state that holds both a monopoly on legitimate violence and a near monopoly in practice over violent coercion. If adherence to the law purchases equitable treatment when the coercive power of the state is brought to bear, then it buys nothing at all if there is no state, if there is no entity with a near monopoly on violent coercion that distinguishes those who abide the law from those who do not. International law is not in crisis, the way American law came into crisis in the 1950s and 1960s. "Law" is simply a construct that cannot be meaningfully applied to the international order as currently constituted.
Without any institution that credibly stands in for the “state", without a coherent agent that holds a monopoly on legitimate violence and a near monopoly in practice over violent coercion, to use the word "law” is to perform exactly the kind of rhetorical legerdemain that John Dugard accuses of the "rules based order”. It becomes a loose, flimsy tactic for importing an aura of legitimacy to whatever outcome one might be pursuing.
Israel is committing crimes against international law, say its critics. For the record, I agree at a moral level with those critics. Israel’s prosecution of its current war is morally indefensible. I would shed few tears for a Netanyahu at Nuremberg. But a few days ago, the security counsel by its duly chartered procedure declined to demand a cease fire which — in the unlikely event that Israel complied — would have halted those “crimes”. Do those who say Israel’s practices are war crimes under international law now stand corrected, since the body closest to a supreme international legal institution has declined to intervene?
When the US Supreme Court declines to proscribe partisan gerrymandering, those of us who are outraged understand that means the practice has essentially been legalized, at least until Congress or a future Court changes the situation. Partisan gerrymandering is abhorrent, a deep violation of democratic and ethical norms, but it is legal in the United States. Similarly, prior to the overturning of Roe vs Wade, there were plenty of state-level statutes “on the books” forbidding abortion, but as they were unenforceable, nobody mistook them for law.
Are international law proponents willing to say, following the United States’ veto under duly authorized procedures of the United Nations Security Counsel, that Israel’s continuing war on Gaza is legal? (Yes, some of its tactics might still be judiciable at an International Court for Justice, whose edicts Israel has in the past ignored without consequence.) The Security Counsel could have intervened against Russia over its invasion of Ukraine, but it has not and would vote (veto) down any attempt to do so. Then isn’t that invasion also legal?
Of course proponents of international law will not say that. Because proponents of international law don’t actually mean anything like what we mean by law in a nation-state context. No less than America’s “rules-based order”, international law contains an explosion of mutually contradicting verbiage and ideals, and there is no identifiable entity whose actual behavior supervenes into a coherent set of expectations to which some body of citizens (or states, in an international context) might mutually conform.
There’s no such thing as international law. And yet global affairs are far from anarchic. How do we actually organize and sustain the (remarkably high!) degree of peace and interchange that prevails?
World affairs, like the vast majority of human affairs, are governed not by laws but by norms. If we want to think clearly about “the world order”, and to prevent the various apocalypses its breakdown might occasion, we’ll have to think more clearly than we have about the distinction, about how norms work rather than laws.