America-First Alternatives to International Law (AFAIL)

In international law, the development of legal theories has always been a political weapon. The developments in recent months have further intensified the drama of the debates within the field of international law. A recent closed-door conference held in the United States offered a wealth of insights – some profound, others downright bizarre – into current schools of thought.

While, particularly after 1989, the central divide for several decades was between the so-called Global South and Eurocentric international law, this contrast is now increasingly fading. Its historic founding moment was the 1955 Bandung Conference in Indonesia, which until very recently was followed by the formation of a collective political movement. It eventually found its academically recognized label in the acronym TWAIL – Third World Approaches to International Law. This progressive-critical movement not only claimed a voice (manifested in its own journals: TWAIL Review) but also demanded comprehensive changes to the legal architecture of international law. For, according to the critique, international law is shaped by the political-economic interests of the Atlantic world and capitalism, thereby reinforcing their injustices and epistemological blind spots. Critical feminist perspectives joined this movement.

After TWAIL and SWAIL, Now AFAIL?

It took a relatively long time for another critical variant to emerge alongside TWAIL. While TWAIL stood for the genuine voice of the so-called “Third” World, other states with their own concerns regarding international law policy gathered under the SWAIL label: Second World Approaches to International Law. In February 2025, a conference on this topic took place at the Central European University (CEU) in Vienna, placing the role of emerging economies in international law at the center of discussion. From the organizers’ perspective, Vienna provided the appropriate genius loci, as Central and Eastern Europe had experienced a double exclusion – both from the mainstream of Western international law and from non-Western approaches to international law. In its double negation, this was still primarily directed against the unwelcome hegemonic claims of the Global North.

But like any such development, it inevitably generates a counter-movement, as can currently be seen in a new, authoritarian-reactionary approach emerging from the United States. From an opposing perspective, it turns against the traditional structures of universal international law. Instead, in the spirit of an “America First” doctrine, international law is also being reshaped according to power-political interests, and thus the acronym reads: America-First Alternatives to International Law (AFAIL).

No, It Kant

It is highly doubtful that the conference recently held in the U.S. can be regarded as its founding moment. After all, it was an exclusive circle of participants in which the shared political agendas were negotiated and formulated. The public was explicitly unwelcome; recordings and even mobile devices were prohibited. No external citations were permitted from the mission statement or the conference invitation. The fact that the author of these lines – albeit unnoticed – was able to participate was due to a carelessly sent Zoom link containing the telling (or intentional?) typo: “International Low. A Failure.” This makes the premises assumed to be shared convictions behind the closed doors of Waindell College (NY) and their dubious outcome all the more intriguing. It is one of the bizarre footnotes that some of the participants seemed to deliberately pronounce it as “Vandal College” in order to performatively account for the desire for destruction.

The keynote was delivered by an international legal scholar from Athena College (Western Mass.), which amounted to nothing less than a scathing critique with a supposedly overly liberal international legal order. Whether liberal international law, in the spirit of Immanuel Kant, could still offer guidance today was unsurprisingly answered in the negative – with a dubious pun: “No, it Kant.” The West had allowed itself to be walked all over for too long; America alone now had the moral legitimacy to radically alter the former project in order to save it. It comes as no surprise that the concept of a stoppable loss of power from the novel “The Leopard” was invoked here: what once befell the Sicilian princely house could one day befall the current U.S. pseudo-aristocracy as well. The implicit motto of the new, openly hegemonic AFAIL international law – which is to be minted on a gold coin – is correspondingly defensive and modernizing: “If we want things to stay as they are, things will have to change” (Tomasi di Lampedusa). Imperial interests, it is argued, are by no means harmful here, but rather the only viable way to bring power interests into practical harmony with legal claims.

This approach seemed neither particularly bold nor original, but presumably made for a useful starting point precisely because it defined a common ground from which AFAIL institutions like Trump’s “Board of Peace” could be evaluated favorably. At Waindell College, in any case, security advisors and political scientists collaborated in an interdisciplinary manner with international law experts for a few days. In panels such as “The Dark Side of Peace Conferences,” the costs of unnecessary diplomatic correspondence and expensive foreign policy were weighed against current military expenditures to make the latter seem less exorbitant. In “Avoided Ceasefires,” participants argued from a sustainability perspective for the “utilization” of existing surplus ammunition. Workshops by the “Art of the Deal” Academy (Detroit) served as part of the accompanying program to impart knowledge under the guidance of experienced used-car dealers and were offered at a discount to Trump Gold Card holders.

Carl Schmitt Redivivus

The institutions of classical law of war (now to be called the “New International Law of Peace”) were not only critically evaluated but also adapted to the needs of the 21st century. If the dichotomy between war and peace or combatants and non-combatants is unrealistic in the reality of hostilities anyway, why should military strategy even take it into account at all, a civilian employee of the University of Rummidge (UK), Department of Nonlegal and Lethal Defense, pointed out? The same applies to the protection of cultural property, where in the future one could preemptively demand that the opposing state surrender protected cultural property before launching “peace missions” against it. This would make superfluous the hair-splitting legal debates over responsibility and compensation that typically take place after destruction and lead to no agreement. However, here too – as was already the case during the Napoleonic Wars – the logistical question would arise of how, for example, the Pyramids could be transported to Washington.

At present, the majority of U.S. participants – many of whom belonged to the so-called national security sector – seemed to view the global political situation as favorable for cultivating such ways of thinking; some took them to extremes. A suggestion from a participant: Couldn’t ChatGPT also be used to create a contemporary adaptation of Carl Schmitt’s “Großraumordnung mit Interventionsverbot für raumfremde Mächte” (Kiel lecture of April 1, 1939 [Link p.13]; 4th edition 1941) as an authoritative reference point? In contrast, even the more imaginative among the scientists present found the idea of resurrecting him from DNA traces too far-fetched. But why shouldn’t what will happen to mammoths, saber-toothed tigers, and velociraptors also become reality for the visionaries of an empire-led order?

Washington Is Not Athens – or Is It?

But just as Carl Schmitt was forced to witness the apocalyptic downfall of his Nazi hegemony only a few years later, so too might the orange-haired “Caesar in the White House” meet the same fate, more realistic voices warned. They cited the timeless Melian Dialogue, in which Athens is reminded that one day it, too, might be compelled to invoke international law. Namely, if America were to find itself in the unexpected position of the weaker party in a new world order and were now, in turn, to defend itself against the alleged “might makes right.” Thus, in the long, unfinished history of interventions and empires, even the currently martial and proud U.S. could end up on the uncomfortable side of geopolitics.

A panelist from Kansas, however, reassured the audience: We are no longer in Athens. To avoid such historical ironies, better planning alone is needed, explained the representative of the Institute for Counterinsurgency in Security Studies (ICISS) with the composure of a seasoned strategist. Following the model of the “Board of Peace”, a loosely coupled, decentralized association of stably monocratically led institutions could take preventive action. In addition to the body responsible for global security, the ICISS is already considering a monitoring council, composed equally of non-experts (working title: Board of Cluelessness & Clairvoyants), headed by an IT specialist who could sound the alarm early on should unrest stir in “pacified” provinces. The ideal candidate for such a position would be obvious.

In the conference’s canon, “America First” was consistently conceived in spatial terms. It became abundantly clear that the masterminds behind “Project 2025” and the Heritage Foundation had long before Greenland, Venezuela, or Iran focused their attention on the abolition of an international legal order denounced as “woke.” Now a semi-public alternative is taking shape; the bolder among the AFAIL proponents are already dreaming of its imminent publication – with open access for MAGA supporters (“Make Open Access Great Again,” as one participant suggested) – and full implementation in terms of power politics. After all, the path from the notoriously sluggish bureaucracies of the UN to a modern order through an internationalized DOGE could easily be paved – provided the political will exists. Now, all that remained was to convince the President himself of the usefulness of this approach. Just the thought of presenting AFAIL to Donald Trump (fortunately, he likes capital letters) electrified the room. If Waindell has his way, it is already certain that international law will not be able to compete with America.