Towards a New Theory of International Law

by James Niiler

Since the conclusion of the Peace of Westphalia in 1648, the West – and now by extension the rest of the world – have supposedly relied on the concept of national sovereignty as the guiding principle of international law. However, the true principle of international law is not actually national egalitarianism, but liberalism, the ideological backbone of Western foreign policy.

Liberalism is the belief in the so-called ‘open society.’ It posits the natural state of humanity is one of perfect freedom (Gaus et al., 1996). It champions individualism, egalitarianism, and the democratic process as the ideal methods for social governance. Its economic arm, neoliberalism, seeks to draw the world closer together into the fold of capitalism and free trade; its military arm, neoconservatism, seeks to expand liberalism through armed conquest.

Liberal endeavors rely on the assumption that all people are fundamentally the same, and that under the right environmental conditions – whether they be the introduction of the free market, the removal of a dictator, or foreign invasion – non-Westerners can be made to love freedom, democracy, and egalitarianism just as Westerners do.

Liberalism, at least in the present day, is universalist in scope. It possesses a missionary zeal matched only by Christianity or Islam, and it has the might of the Western states to support its aims. It thus offers both a ‘carrot’ and a ‘stick’ to countries which fall outside its auspices: non-liberal countries, whether their governance is of the socialist Left or reactionary Right, are invited (or pressured) to join the ‘world community,’ usually for economic benefits.

Failure to do so – whether because a country rejects liberal social policy, declines to centralize its finances, or rejects a ‘global’ initiative – can spell economic sanctions if not outright invasion for the offending party. Such a policy, pursued time and time again in recent decades, has not endeared the liberal West to much of the rest of the world.

On one hand, liberalism seeks to uphold the egalitarian ideal of national self-determination prefigured at Westphalia, and re-introduced by Woodrow Wilson’s ‘Fourteen Points’ in the wake of World War I. On the other, it professes a belief in a global schema of governance, given its first formulation in the League of Nations, and now symbolically embodied in such institutions as the United Nations and the World Court. In reality, these institutions have little power; the United States is the judge, jury, and enforcer of liberal-international law the world over. The maintenance of the doctrine of human rights, among which is that of national self-determination, is supposedly the central concern of liberal countries and institutions. Yet here, a contradiction immediately presents itself: how can independent nation-states be expected to self-determine their own laws and destinies, while at the same time subjugating some of their sovereignty to a supranational authority?

For all practical intents and purposes, the laws of a country or nation-state serve as Law’s highest level of manifestation. Laws cannot be enforced beyond this level, only mutually assented to – in which case, they are not laws, but treaties. To speak of ‘international law’ as something which can be broken is to operate completely inside the a liberal construction of the law. Non-Western powers do not recognize this conception of law; the rulings of the World Court, or complaints about human rights violations, mean nothing to them.

What do non-Western countries think when they see the West engaged in hypocrisy of the most blatant kind, in regards to their own liberal ideology? Western governments frequently align with decidedly non-liberal powers such as Saudi Arabia – among the greatest violators of human rights today – without batting an eye to any sort of humanitarian or ideological inconsistency. The West has also engaged in the follies of neoconservatism, which despite its stated aim of ‘spreading freedom,’ has left millions dead in its wake, wrought incredible political instability throughout the Middle East, and has observably failed in securing the values it claims to promote.

Western liberalism is thus filled with internal contradictions which exhaust its host countries and render it ideologically incoherent. For these reasons, the West ought to abandon its commitment to liberalism in the realm of foreign policy. Few outside the West are interested in pursuing its path; the West itself is unable to adhere to its own liberal dogma in a systematic fashion. Its system of ‘international’ law, therefore, is in desperate need of an overhaul. What ought to replace it?

Ideally, a practice of realpolitik, an updated system of that foreign policy philosophy created in nineteenth-century Germany, designed to deal with the harsh realities of the “post-Enlightenment world” (Bew, 2014). Today’s realpolitik would be a recognition that no one, including the West itself, ‘plays by the rules.’ Western countries ought to deal with other world powers from a position of strength, not from a position of appeals to a supposedly ‘common’ standard that no one actually adheres to. A multipolar world reminiscent of Westphalia, not a Western-dominated unipolar one, would be ideal for international peace and development.

The U.S. is being rapidly eclipsed by China as the world’s superpower; its looming economic and military might will soon dwarf that of the West’s. Shaking one’s fist in the air at the world’s next giant through threats of legal action is not only laughable, but foolhardy.

A sensible Western policy would seek to accomodate – or ideally compete with – China’s rise, not delude itself into thinking its current foreign policy is workable through a heightened sense of being ‘holier-than-thou.’ America and the West will not remain the world’s hegemon by triumphally bleating about their nonexistent and hypocritical commitment to human rights.

Western policymakers also ought to understand that economic sanctions are rarely, if ever, successful. The track record of sanctions’ success may be compared to that of the marriage alliances which used to be formed among the royal houses of Europe.

Punishing a country such as Russia through sanctions for its deviations from liberal-international law only heightens anti-Western sentiment in the targeted country. A solidified sense of ‘us-versus-them’ and inflamed cross-national tensions replace what could have been a fruitful and mutually beneficial relationship. Even beyond their dubious success rates, sanctions can be destructive: several orders of magnitude of more deaths resulted from the Gulf War-related sanctions than the actual war itself (Pape, 1997). How is this situation ‘liberal’ or respecting of human rights?

The measures that could be adopted to better the West’s foreign policy are sensible, and grounded in the knowledge of history and human nature. If the West wishes to maintain its power throughout the remainder of this century, it would do well to abandon its universalist aspirations and chart a different course.