By Charles Camp And Theresa Bowman
From a bipolar world marked by the Cold War between the two major powers, the United States and the Soviet Union, to a decade largely dominated by the United States, the international system now appears to have drifted into a multipolar world crowded with state and non-state actors. This article gives a historical perspective of how the recognition and administration of international law responds to changes in the global power structure.
“We will lead by inducing greater cooperating among a greater number of actors and reducing competition, tilting the balance away from a multi-polar world and toward a multi-partner world.”
– Hilary Clinton, former U.S. Secretary of State
Whether it is termed “multipolar” or “multipartner,” the current global field of international political and economic influence has long ceased to orbit around a Washington, D.C. address. In the decade after the Cold War, the United States enjoyed a unity of political and economic global vision with its allies so pervasive as to be described as a unipolar, American global hegemony. By contrast, the present world’s crowded cast of state and non-state actors exerts influence in unexpected ways that redefine concepts of warfare and state intervention.
When the United Nations Charter was signed in 1945, a central goal was to develop a vehicle for the formal administration of international law that would last for generations – and that would, as the Charter’s preamble stated, “save succeeding generations from the scourge of war.” Arguably, the world the drafters foresaw was one in which international legal norms would be applied universally. A world in which all sovereign states belonged to, and respected the legal obligations imposed upon, the same club.
Instead, in more recent decades, the global power structure has seesawed dramatically between periods of concentrated and distributed power.
If history is any guide, international organisations like the United Nations, charged with the implementation and development of international law, will continue to see global expectations regarding the recognition and meaning of international law shift alongside changing power dynamics.
During the Cold War, the interplay between two major powers, the United States and the Soviet Union, relegated the rest of the world to bystander status. Depending on your point of view, such a bipolar system either lent greater global stability to the international legal system or nearly destroyed a world order that only survives peaceably as a complex and fragile network of relationships between many powers. The fall of the Soviet Union on December 25, 1991 provided a conclusive bookmark to that chapter of bipolar international relations.
In the decade following the Cold War, the United States emerged as the leader of a largely unipolar political reality.
After experiencing a decade of this pronounced unipolarity, the international system has slowly shifted to what is currently described as a “tendency towards multipolarity.”1 Examples of this multipolarity are commonly described to include Russia’s highly controversial, but largely unchecked, military activity in the Ukraine, China and India’s growing displays of trading and economic supremacy, as well as the rise of regional trading organisations.
Vehicles of international legal norms have always sought to balance the desire for justice and some consistency of outcome for individuals with the need to respect and reconcile often dramatically different legal systems.
The difference between international law in a unipolar and a multipolar world is thus primarily one of function. Arguably, international law in a multipolar world trends to find greater relevance and support in its application to individual state-to-state relationships rather than global codes of conduct, such as the case with human rights. It focuses instead upon the law of the interactions between the state actors, law which “serves to smooth [States’] interactions and permitting them better to pursue certain common aims.”2
American law professor Paul B. Stephan has approached general trends of recognition of international law as an inverse relationship between symmetry in global relations and the universality of the implementation of international law:
If the recognition of international law reflects the rational interests of states, then international law should trend toward universality during times of hegemony and toward selectivity during periods of multipolar great power competition. Conversely, if international law does not conform to this pattern, then something other than the rational interest of states must explain its content.3
During the Cold War, the United States and the Soviet Union exercised remarkably different approaches to international law, each taking selective approaches to what the UN Charter drafters envisioned would be a global code. Americans’ understanding of international legal practice was largely consistent with their domestic common law system. From the American perspective, international law was formed through consistent state practice as guided by any number of specific legal principals or norms that existed to demand state compliance. The Soviet perspective, by contrast, insisted that international norms be guided largely by the principle of the maintenance of peaceful global relations as a path to preserve the international status quo in anticipation of the eventual transition of the world order to socialism. As a result, the Soviet view of international law focused less on specific legal norms and obligations and more upon its consistency with socialist principles. This approach guided “Soviet officials [to dispute] the meaning of treaties even as they ratified them and categorically [reject] particular customary claims, further deepening the selectivity of the opposing systems of international law.”4
During this period, two states acting as the two cores of a bipolar global power structure took differing, and selective, views of the relevance and implementation of international law. It is no wonder that the Cold War period provided little opportunity for influence for global organisations intended to forward a more universal approach to international law. The United Nations Security Council, for example, took little official action in response to state conflicts during this period.
Where the global powers could not reconcile their differing approaches to international law, regional bodies administering more localised transnational law gained prominence. Some regional byproducts of the Cold War bipolar period remain, such as the American Convention on Human Rights, the Organisation of American States General Assembly, and the Inter-American Court of Human Rights. Other products of this period, such as the Central Treaty Organisation and the Southeast Asia Treaty Organisation, did not survive.
This state of affairs changed dramatically after the fall of the Soviet Union.
Where international legal systems were undermined significantly by the power dynamic between the United States and Soviet Union, the period of American hegemony at the close of the Cold War heralded a return to prominence of international organisations, and with it a more universal approach to international law, especially with regards to human rights as a global code of conduct.5
The 1990s proved a historically active period in the development and promulgation of human rights legal protections. Notably, the concept of humanitarian intervention, or morally justified unilateral state action, arose out of this period of American political hegemony. In 1993, the United Nations undertook the prosecution of human rights violations committed during Yugoslavia’s civil war. Also during this period, NATO intervened in Kosovo and a multi-national taskforce undertook an intervention in East Timor.
The U.K. Ministry of Defense has made a clear prediction that the shift toward multipolarity in global relations is here to stay, stating “[o]ut to 2040, the locus of global power will move away from the United States… and Europe towards Asia, as the global system shifts from a uni-polar towards a multi-polar distribution of power.”
The multi-polar world that we face is vastly different from the bipolar power struggle of the Cold War. Not only are there multiple states exerting significant global influence, but also a number of non-state actors. States “are being challenged from above, by regional and global organisations; from below, by militias; and from the side, by a variety of nongovernmental organisations (NGOs) and corporations. Power is now found in many hands and in many places.”6 This next period may more accurately be termed one of “nonpolarity,” given that global power dynamics can no longer be understood by analysing only state actors.
International legal practice has likewise reentered a period marked by more fractured and uneven global interpretation. For example, in the war on terror, European states frequently clash with the United States where extradition requests bring to the spotlight a fundamental disagreement regarding the death penalty and human rights. European states, as a function of the European Declaration of Human Rights, will typically not extradite an individual to a state where they face execution.
It seems clear that the period of American-focused global unipolarity coincided with, and perhaps bears responsibility for, a renaissance in the power and influence of international organisations. During that time period, the United Nations took unprecedentedly concrete action in response to conflict, and the prominence of human rights law became a widespread example of a global, universally applied and respected international law.
It remains to be seen whether or not this movement toward some level of universality in international law, as well as the organisations charged with implementing it, may be maintained in a multipolar world. Certainly a more symmetrical system of global power will result in greater recognition of regional differences in the interpretation of international law. Perhaps the most optimistic outcome would simply be a global community that strives for universality of commitment to those norms, even if the implementation prompts disagreement.
Feature Image: Eleanor Roosevelt of the United States examines a copy of the Declaration of Human Rights at the United Nations in Lake Success on November 1, 1949, New York, US
Image Courtesy of On Being flickr.com/photos/speakingoffaith/4306302472/
About the Authors
Charles Camp teaches international negotiations at the George Washington University Law School and is an international lawyer with over thirty years experience representing foreign and domestic clients in international litigation, arbitration, negotiation, and international debt recovery. In 2001, Mr. Camp opened the Law Offices of Charles H. Camp, P.C. to focus on effective, personalised representation in complex, international matters.
Theresa Bowman is an associate at the Law Offices of Charles H. Camp, P.C., practicing in the areas of international commercial disputes and arbitration. Before her current post, Ms. Bowman, a graduate of the George Washington University Law School and President of its Student Bar Association, completed a post-graduate fellowship as a judicial law clerk for the Honorable Reggie B. Walton, District Court Judge for the District of Columbia.
References
1. ‘Introduction’ to International Law in a Multipolar World 2 (Matthew Happold ed., 2012).
2. Ibid.
3. Paul B. Stephan, “Great Power Politics: Symmetry and Selectivity: What Happens in International Law When the World Changes,” 10 Chi. J. Int’l L. 91, 92 (Summer 2009).
4. Stephan at 110.
5. Professor Stephan has observed that it was in 1991 that the Security Council, for the first time in its history, authorised an armed intervention with full member support in response to Iraq’s invasion of Kuwait and that this Security Council action could not have come about in a bipolar power structure.
6. Richard N. Haass, “The Age of Nonpolarity: What Will Follow U.S. Dominance,” Foreign Affairs, vol. 87 (2008), pp. 44-45.
