Challenges to International Law in the 21st Century [1/4]

Since the 1940s, States have been guided on what is considered appropriate when faced with threats to international and domestic security. In the 21st century however, the nature of war has shifted considerably; new threats in the form of non-state actors and advanced technology mean state centric laws are no longer as pertinent. This four part blog will discuss the various challenges international law is being faced with following the changes to warfare and security. 

Significant portions of international law developed as a result of WWII and a collective desire to not see a repetition of the atrocities. The new legal order saw the creation of the Charter of United Nations (1945) and the UN Declaration of Human Rights (1948). Reflective of an aspiring liberal global order, these legal principles operate on the basis of reciprocity; “the most effective guarantee to ensure the application of international law is… the expectation of the subjects of international law that their counterparts will comply with the law if they do the same.”
Eleanor Roosevelt holding the English language version of the Universal Declaration of Human Rights.

Although not completely rigid, international legal order was drawn up with the idea that States were the main actors in global order, and this has not yet progressed. International legal principles of this era see states as the sole players engaged in armed conflict. In reference to what Woolsey refers to as “dragons” and “snakes” (1993); where “dragons” speaks of large state actors and the threats they pose, such as the USSR, and “snakes” speaks of the new challenges, such as the proliferation of weapons and ethnic conflict, international law remains concerned only with “dragons.” 

The legal principles developed under international deliberation were formulated at a time where conflict reflected Clausewitz’s concept of war; a “conflict of great interests which is settled by bloodshed.” This is echoed in the Preamble of the Charter of the UN, which looks to “save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind,” (1945). 

War, in the eyes of these legal principles, is understood to fit into a binary of either war or peace. Realistically however, no sooner had WWII ended, the Cold War began and immediately challenged this notion. 

Whether it was through proxy wars or regional conflict, war has continued throughout the 20th and throughout 21st Centuries. The only change is that international powers have not been consumed or directly impacted by the conflict, just because it is not on the Western world’s doorstop, does not mean it does not exist. As observed by a U.S soldier, “America is not at war. The Marine Corps are at war; America is at the mall.” 

A handwritten note by a U.S Marine in a Military Civil Affairs Office in Iraq. Photo: John Moore/Getty Images

International law is challenged in the 21st Century by remaining focused on an outdated concept of multi-state conflict; where there were clear lines of a battlefield and the enemies all wore uniforms. It continues to attempt to bring order to a growing spectrum of war with a binary set of rules which do not always fit.

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