International Law in Crisis: Challenges, Theoretical Foundations, and Solutions

Photo by The Law Studies

International law faces a profound crisis today, with pressing challenges across humanitarian, political, economic, and technological dimensions. The erosion of compliance, selective enforcement, and emerging global issues threaten its effectiveness, putting peace, security, and human rights at risk. We need a multidimensional analysis rooted in political, economic, and philosophical theories to understand and address these challenges.

Violations of International Humanitarian Law (IHL)

International Humanitarian Law (IHL) embodies the principles of protecting civilians and non-combatants during armed conflicts. However, violations of IHL have become increasingly prevalent, from targeting civilians to hindering humanitarian assistance. Notable recent examples include conflicts in Gaza, Ukraine, and Sudan, where international norms have been flagrantly disregarded (Reuters 2024). This undermines the very tenets of IHL and raises ethical questions about global justice.

Just War Theory, which has historically framed the ethics of warfare, insists on principles such as jus in bello (justice in conduct) to prevent harm to civilians and to ensure proportionality in warfare (Walzer, Just and Unjust Wars). Despite this, many conflicts today defy these moral principles. The principle of civilian immunity is central to IHL, yet the deliberate targeting of civilians and infrastructure reflects an erosion of the basic human rights that underpin IHL.

From an economic perspective, such conflicts deepen economic instability, disrupt global trade, and create protracted cycles of poverty. The neoliberal economic framework promotes open markets and peaceful cooperation, as mutual trade benefits reduce incentives for conflict (Friedman, Capitalism and Freedom). However, when conflicts arise, the economic fallout has cascading effects: local economies are devastated, global supply chains are disrupted, and migration flows increase. A commitment to IHL thus serves ethical purposes and fosters global economic stability and growth.

Selective Enforcement and Double Standards

Selective enforcement remains one of the most pervasive issues in international law, leading to a perception of double standards. Powerful states often champion international law when it suits their interests but disregard it when inconvenient, aligning with Realist Theory, which posits that nations act primarily in their self-interest (Mearsheimer, The Tragedy of Great Power Politics). This selective application is evident in the International Criminal Court (ICC), where the focus on prosecuting leaders from less developed nations has sparked allegations of bias and undermined its credibility.

This inconsistency is also philosophically problematic—kantian ethics advocates for universal principles that apply equally to all actors. Selective enforcement violates Kant’s principle of universality, compromising the ethical foundation of international law (Kant, Perpetual Peace). If laws are to be legitimate, they must be applied consistently, irrespective of a nation’s power or status. Failing to adhere to this principle risks undermining the very legitimacy of international law as an impartial system.

The impact of selective enforcement extends into the socio-political arena. Smaller states, often those most reliant on international protections, lose faith in the system, fostering regional instability and weakening multilateralism. Dependency Theory suggests that this selective enforcement creates a cycle of dependency, where weaker nations remain subordinated to the influence of stronger powers, compromising their autonomy and economic potential (Prebisch, The Economic Development of Latin America). A commitment to unbiased enforcement would signal a shift toward a more equitable international system, essential for global stability.

Challenges in International Criminal Justice

International criminal justice, particularly the role of the ICC, has faced criticisms regarding its ability to impartially prosecute those responsible for serious human rights violations. The Nuremberg Trials established a precedent for prosecuting leaders who committed egregious crimes based on the belief that national borders should not restrict justice. However, the ICC’s selective prosecution has led to allegations that it disproportionately targets leaders from the Global South, while Western leaders often evade similar scrutiny.

Such actions align with Constructivist Theory, which suggests that social norms and identity shape international relations (Wendt, Social Theory of International Politics). Western dominance in international law perpetuates norms that often shield Western leaders, reinforcing a skewed global power dynamic. According to Moral Relativism, a perspective in ethics contends that moral actions are culturally dependent, and the prosecution bias may be shaped by the Western values embedded within the ICC’s structure. Yet, a moral relativist stance is incompatible with a just international order, as it suggests that justice varies with power and influence.

Economically, prolonged conflicts and human rights abuses hinder development, impeding progress in the Global South. International legal institutions, therefore, must adopt an unbiased approach, pursuing justice irrespective of geopolitical alliances. Dependency Theory, which critiques the systemic inequalities perpetuated by global power dynamics, underscores that without impartial enforcement, the ICC risks reinforcing dependency patterns that maintain the status quo.

Emerging Global Issues: Technology, Climate, and Health Crises

Emerging global issues, including technological advancement, climate change, and health crises, introduce challenges that international law was not designed to address. For example, technology has outpaced legal frameworks, especially concerning data privacy, artificial intelligence (AI), and cybersecurity. The concept of Global Public Goods (GPGs) posits that certain goods — like clean air or cyber peace — are inherently global and must be protected collectively (Kaul, Global Public Goods). However, international law struggles to establish enforceable frameworks to protect GPGs from abuse.

The rapid pace of AI and other digital technologies presents opportunities and risks for international law. AI tools, when used ethically, could improve transparency and accountability; yet, when deployed in warfare, they raise profound ethical concerns. Drawing from Utilitarian Theory, which advocates for actions that maximize overall happiness, the unregulated use of AI in warfare likely fails this principle due to its potential for indiscriminate harm (Mill, Utilitarianism). Regulatory frameworks are urgently needed to address such risks, ensuring that technological advancements contribute to peace rather than conflict.

Climate change represents an existential challenge, disproportionately affecting vulnerable nations despite being primarily caused by industrialized countries. The Paris Agreement introduced the principle of Common but Differentiated Responsibilities (CBDR), recognizing that wealthier nations are more responsible for climate action (Harris, World Ethics and Climate Change). Yet, without enforceable mechanisms, CBDR remains aspirational. This lack of enforcement allows wealthier nations to sidestep their obligations, leaving vulnerable nations to bear the brunt of climate-induced catastrophes.

Reaffirming Commitments and Adapting Frameworks for Modern Realities

The path forward for international law must be rooted in a renewed commitment to core principles and a restructuring to address 21st-century realities. Drawing from Rawls’ Law of Peoples, which argues for fair and just societies that cooperate internationally, we see a framework for collective action that prioritizes equity, accountability, and mutual respect among nations. Rawls’ philosophy suggests that only through cooperation can we create a stable global society.

To strengthen international law, reform is needed in several areas:

1. Establishing Binding Mechanisms: International agreements, especially climate and technology, require binding mechanisms. The current non-binding nature of agreements like the Paris Accord diminishes their effectiveness. Enforceable global frameworks would align with Kant’s principles, promoting universal standards of justice.
2. Strengthening the ICC’s Neutrality: Reforming the ICC to ensure its impartiality and independence from political pressures could restore trust. Constructivist approaches suggest reshaping norms within international institutions to foster an inclusive system where all nations feel represented and fairly treated.
3. Integrating Emerging Issues into Legal Frameworks: New frameworks are needed to address technological advancements and climate change. A model for international cybersecurity norms, AI ethics, and climate accountability could draw from GPG theory, recognizing that certain resources and technologies are global commons that require collective stewardship.

International law faces significant challenges, yet by integrating ethical principles, adapting to modern challenges, and promoting universal application, the global community can revive its efficacy and relevance. International law can only fulfill its role in promoting global peace, justice, and security through a unified, equitable, and inclusive approach.

References

Collier, Paul. The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It. Oxford University Press, 2007.

Floridi, Luciano. The Ethics of Information. Oxford University Press, 2013.

Friedman, Milton. Capitalism and Freedom. University of Chicago Press, 1962.

Harris, Paul G. World Ethics and Climate Change: From International to Global Justice. Edinburgh University Press, 2010.

Kant, Immanuel. Perpetual Peace: A Philosophical Sketch. Hackett Publishing, 2003.

Kaul, Inge, ed. Global Public Goods: International Cooperation in the 21st Century. Oxford University Press, 1999.

Mearsheimer, John J. The Tragedy of Great Power Politics. W.W. Norton & Company, 2001.

Mill, John Stuart. Utilitarianism. Parker, Son, and Bourn, 1863.

Prebisch, Raúl. The Economic Development of Latin America and Its Principal Problems. Economic Bulletin for Latin America, 1950.

Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. Penguin Books, 2006.

Walzer, Michael. Just and Unjust Wars: A Moral Argument with Historical Illustrations. Basic Books, 1977.

Wendt, Alexander. Social Theory of International Politics. Cambridge University Press, 1999.