Editorial #49: Why a Quest for International Law?

The festive season of December provided a little break from reality: Love Actually. (Yes, in many aspects the film did not age well!) Hugh Grant is Prime Minister, and, when he is not busy working on his wave, he charmingly reminds the audience that a different world is possible. Whenever international lawyers “get gloomy with the state of the world”, we seem to ask how we can remedy the situation. What is our distinct contribution? What is our task? And, after all, why continue our quest for international law?

A Love Actually Approach to International Law?

Oh Love Actually! Who does not indulge in reminiscing about the press conference standoff? The US President, disagreeable as ever, declares that his Administration has seized what it came to claim while its special relationship with the UK “is still very special.” Enter Hugh Grant:

“I love that word ‘relationship’. Covers all manner of sins, doesn’t it? I fear that this has become a bad relationship; a relationship based on the President taking exactly what he wants and casually ignoring all those things that really matter to, erm… Britain. We may be a small country, but we’re a great one, too. The country of Shakespeare, Churchill, the Beatles, Sean Connery, Harry Potter. David Beckham’s right foot. David Beckham’s left foot, come to that. And a friend who bullies us is no longer a friend. And since bullies only respond to strength, from now onward I will be prepared to be much stronger. And the President should be prepared for that.”

Arriving in January, I have slipped back into my well-trained routine. I read the news. I turn to official statements of Heads of State or Government. I feel my hopes for some sort of reassurance shatter – and I realise Richard Curtis does not script reality. The British Prime Minister, this time Keir Starmer, was asked whether he condemns the US attacks on Venezuela, and offered this: “I always say and believe we should all uphold international law. But I think at this stage, a fast-moving situation, let’s establish the facts, and take it from there.” Other leaders, most visibly the German Chancellor (“The legal assessment of the U.S. intervention is complex and requires careful consideration.”) and the Greek Prime Minister (“This is not the time to comment on the legality of the recent actions.”), appear to have a hard time living up to the Grantian ideal of a politician (see also Milena Sterio’s assessment here).

Between Hope and Despair

In preparing this contribution, I went through older Editorials of my fellow Editors. Many evoked a sense of hope and despair. I could very much align myself with this mood entering the new year. Take Jasmin Wachau’s Editorial #25: “The new year has just begun, and one ends up wondering if 2023 will be any different than the previous years. The world continues to be in a crisis mode (…).” Or see Isabel Lischewski’s and Daniela Rau’s Editorial #34: “On the grand scale of humanity, a good thing you could say about 2023 is that it is over – if only that meant that there were realistic hopes of less horrors for 2024. However, such fatalism is not what we are about here: Because doing international law requires the hope that things could be different – a Fool’s Hope perhaps, as Gandalf might call it.” Or Hendrik Simon’s Editorial #40: “Perhaps one would hope that the end of the year would bring optimism for the new year. However, the situation at the end of 2024 is depressing, especially with regard to international law and the so-called rules-based international order.” Read also the opening line of Miriam Nomanni’s Editorial #42: “Dearest gentle reader, I’m sorry to be the one to convey the message, but this was only January, not all of 2025.” And do also consult Aurelio Corneo’s Editorial #47 on escaping realities: “Thinking about international law nowadays strongly evokes the ideas of utopia and dystopia in my head. In a world poised to become dystopia, progressive imaginations about international law seem more utopian than ever.”

Reading these Editorials, I could not help but think of Thomas Franck’s The Power of Legitimacy among Nations. In the book’s first chapter, Franck offers a response to realists’ perspective on international law, recounting how the US Navy refrained from establishing a naval blockade in the Persian Gulf in 1988 despite having the full power to enforce their will. Franck then reminds the reader of the historical dimension of realists’ disinterest in international law. In Prolegomena to the Law of War and Peace, Hugo Grotius observes the following:

“[I]n our day, as in former times, there is no lack of men who view this branch of law [meaning the law of nations] with contempt as having no reality outside of an empty name. On the lips of men quite generally is the saying of Euphemus, which Thucydides quotes, that in the case of a king or imperial [*4*] city nothing is unjust which is expedient. Of like implication is the statement that for those whom fortune favors might makes right, and that the administration of a state cannot be carried on without injustice.” (pp3-4)

In short, we might say that both Franck and Grotius agree that law continues to play a role despite the realists of the world and the “periodic recurrence” of their “cynicism” (Franck, p7). It might not be “particularly dignified or newsworthy” to borrow Curtis’ words again, but nevertheless international law will persist. In fact, Antonios Tzanakopoulos rightly brought to attention that the question is not whether international law as a system will remain. Rather, the battle is fought over the norms within the system.

What Do We Do Now?

So, what is an international lawyer ought to do? In the interwar period, there was a belief that “[i]t is ultimately the duty of public international lawyers to educate the general public” as Thomas Skouteris pointed out (p836). In a similar vein my colleagues Lischewski and Rau gain hope by “providing an open and diverse platform to the international law community”. Simon urges us to identify “double standards in the assessment of breaches of the law”. Nomanni calls on scholars and practitioners to “defend the institutional integrity of the international bodies and courts” as an act of resilience. Wachau demands turning “words into deeds”. Moving forward, Corneo invites us to spur “imagination about what could be”. To this list one might add the “pessimistic opportunist”. Tzanakopoulos mediates hope and despair with this figure, defending basic norms, such as the prohibition of the use of force, and employing the tools of international law “to alleviate some suffering” and to make “corrective interventions in the existing structure” where possible (pp22-23). This moves beyond merely reveling in “a good crisis”; it raises structural questions.

Would a Love Actually Approach complement our toolbox? The chief legal adviser to the Crown, Lord Richard Hermer, dampened such expectations with respect to the UK Government. The most recent controversy around Greenland, however, may show that Richard Curtis and his Grantian Prime Minister have not been entirely of the mark. I will leave this debate to another Editorial, and, in the meantime, think of Heathrow Airport…