The crisis of international law.

• Author: Domingo, Rafael

ABSTRACT

This Article delves into the reasons for the current crisis in the traditional international law system, considering how the system developed through the centuries in order to respond to the needs and circumstances of past historical epochs, as well as how the system is no longer capable of meeting the unique developments and needs of life in the Third Millennium. The Article considers the fundamental problems of a state-based system of international law that--rather than focusing on the prime actor and focus of the law, the human person, and his inherent dignity--concentrates on and gives enormous power to the artificial construct of the nation-state, and its animating principles of sovereignty and over-dependence on territoriality. This inborn defect in the system (i.e., the emphasis on the nation-state) was imported wholesale into the United Nations system, ultimately rendering it incapable of meeting the basic security, social, and economic needs of a world that longs for a true global community of persons. The nation-state paradigm, as well as the United Nations system, requires essential and profound reform. New institutions with real global power must established to meet the demands of our globalized world, especially as regards defending human rights from the incessant assault from both state and non-state actors.

TABLE OF CONTENTS I. INTRODUCTION II. INTERNATIONAL LAW AND THE GLOBALIZATION OF LAW III. THE BASIC PRIMACY OF STATES AS SUBJECTS OF INTERNATIONAL LAW IV. THE DEATH THROES OF THE STATE A. Sovereignty and the Sovereign People B. The Crisis of Territoriality C. Jurisdiction: Does it Belong to the State? D. The Nation-state: A Marriage of Convenience Doomed to Divorce V. THE FUTURE OF THE U.N. I. INTRODUCTION

International law is in its death throes, and with it an outdated order will become extinct, giving way to a new paradigm-globalization. This much is certain. What is also clear is the need to legally regulate the interactions of a concrete and increasingly extended human community that gives rise to a host of legal relationships and questions of justice that must respond to the imperatives of the new millennium.

The efforts of internationalists and politicians to find a way out of this historic crisis, which threatens to become endemic, have been extensive. However, international law as currently conceived is insufficient; it is lacking. Its capacity for action has been compromised by global terrorism, the hegemony of a sole superpower (the United States), and the rampant imperialism of various nations--China, Russia, and India--that strive to recover their lost grandeur.

We are no longer dealing with the perennial questions of whether international law is closer to morality than to legal science or whether it is more or less dependent on legal orders--both of which are eminently interesting theoretical questions in their own right. Rather, we are faced with a crisis that stems from the very structure of international law, one that is based on political concepts that have become obsolete: those of sovereignty, territoriality, and the nation-state. For centuries, during which wars and conflicts persisted, these principles served to delineate the framework of existing relations among certain states that had decided to exercise their power by way of recourse to various counterbalances of alliances and hegemonies.

Nevertheless, however much we try to apply such principles today with the same attitude through a consolidated bureaucracy-the United Nations (UN)--we accomplish little to nothing when faced with the complexity of this new global order and the great interdependence of postmodern global relations. Thus have the conceptual grounds of modern international law changed; reality does not and will not wait for theory. And if common sense compels us to redefine the law in light of the new phenomena that give rise to globalization, this eagerness for reform will not always be shared by the defenders of an outdated legal system that, going against the tide of history, prefers to anchor itself in nineteenth-century concepts that have failed to bring peace to the world.

The creation of an effective and powerful United Nations was the highest aspirational goal of the international law system, which was built according to the criteria of the Peace of Westphalia. The realization of that goal occurred over sixty years ago, at the end of the Second World War. Following the establishment of the UN, the spread of the legal order was intimately linked to the process of gradual expansion of that body. However, over half a century later, we have reached a crossroads. Either we continue on the familiar road or we follow a new path into the future. Traditional notions that support international law--notions that, in their time, were modern--do not help us to effectively respond to the issues arising from the new order. For a long time now, state-centered solutions have been inadequate. World problems have changed, giving way to the development of new and transformative trends.

The law cannot remain irrelevant to the needs of our time. Twenty-first-century jurists must embark on a new route, as the founders of so-called "classical international law" did in their own day. Only in this way can we establish a global legal system that is capable of overcoming the defects and gaps of the current one, promoting peace and the development of nations, and creating, above all, a style of "doing law" that firmly rejects any idealized, particularist, or biased notion that might in any way legitimize inequality among nations. Further, no matter the circumstances, we must always face this new challenge solidly from within the bounds of democracy.

2. INTERNATIONAL LAW AND THE GLOBALIZATION OF LAW

   Though it may seem like a paradox, it is not. While the concept of international law is in crisis, an apparently irreversible process of internationalization is gaining momentum, thanks to the myriad facets of globalization. The phenomenon of globalization has so transformed conditions around the world that some are beginning to speak of a third wave of global knowledge. (1) It is a genuine technological revolution that has had, and will continue to have, repercussions affecting all aspects of civilization and thus on the legal and democratic system. (2)

   Hans Kelsen warned, with good reason, of the "increasing inclination to internationalize the law," with international law determining the content of the norms of various national legal orders or, more generally, gradually replacing them. (3) However, it has been globalization that has unleashed this process of law's internationalization and not vice versa. Therefore, the legal ordering of globalization cannot be accomplished by the imposition of international treaties from above, which, as Kelsen explains, (4) can cover any issue, thus giving international law a potentially unlimited sphere of application. (5)

   While internationalization of the law is part of that legal globalization that directly affects states, globalization itself is a larger social phenomenon that cannot be ordered solely by the principles of modern international treaty law. Indeed, globalization unleashes the forceful reaction of national legal systems, which refuse to perish under a superior law that threatens to constrain or limit them.

   We can say that "if states are internationalized, society is globalized." The conceptual crisis of international law results from its pretension to deal with globalization without undergoing a change in its basic principles--principles founded upon an obsolete structure and doctrine, unacceptable for a society called to reflect true universality and solidarity. The clothes of international law have become old, tattered, and useless for a global society.

   What is more, since it appears impossible to continue along the path we are on, which would involve severely restricting our international community, we should move from a definition of international law as ius inter nations--much less inclusive than Vitoria's notion of ius inter gentes--to a broader definition that looks beyond that mere segment of the law regulating international relations or the international community itself. (6) Until the person (replacing the current centrality of the state) is recognized as the primary subject of international law, this will remain an impossible task. When that day comes, international law will cease to be what it is and will instead become global law.

   In the meantime, it is urgent that we recover the concept of the person. The objectification of the idea of the person over the last several decades is undeniable; it is an means of instrumentalization reflected in the most disparate legal systems. Personalizing the law is indispensable to the development of modern legal studies. The law's excessive technification and the arrogant technicality with which it is applied to key aspects of human life increasingly threaten to relegate the human person to the humiliating role of the eager legislator's passive and silent guest. This needs to end.

   Globalization has transformed the international sphere into another dimension of each pars scientiae iuris. Thus, we now have the areas of commercial, economic, and criminal international law, for example, along with more novel branches such as international mediation and arbitration, international environmental law, and international constitutional law. (7) These make up only a dimension of several larger bodies of law. Thus, international law has become the legacy of all jurists--a new, much broader category called globalization (sub specie globalizationis)--and not just the internationalists.

   Of course, strictly international areas also continue to exist--for example, the law of international treaties or the law of international relations--though the practical and theoretical significance of their role is diminishing...