Andrew Cheatham
The alternative is a further fracturing of the global community in a way that prevents collective action and increases the risk of catastrophic outcomes from the multiple overlapping threats facing humanity. Therefore, there is an urgent need for further conversations about how, or if, international legal and institutional frameworks will adapt to the shifting norms and influences of today’s multipolar world. International positivist law can provide tools for how to negotiate the new rules.
What is Positivist Law?
Legal positivism derived from 18th and 19th century utilitarian philosophies as a way of seeing law as a conscious tool for human civilization, distinct from emergent, highly diverse, and ever-evolving cultural norms. Twentieth century philosophers like John Rawls argued that in pluralistic societies rules should not be based on any single theory of how to live a “good life.” Positivist legal theories are described as "scientific” or “economic” in their diagnostic and prescriptive approaches. However, positivist theorists are not blind to the individual and cultural biases and values embedded in laws and the frameworks that structure institutions. The analysis makes a point of parsing what “is” from what “ought” to be as way of focusing on the function of law.
As calls for reform of the rules-based order mount, positivism is a tool — already used by international lawyers — that can be used to assess and adapt the laws and frameworks that structure the current multilateral system.
Disorder on the Rise
We have seen some recent signals that rules-based cooperation is still a viable means of overcoming transnational challenges, like the deal U.N. delegates reached in early March on protecting marine biodiversity in the high seas. But, overall there is a trend of intensifying great power politics and protectionist policies hindering collective action. The Economist recently argued that the United States, “once the world’s loudest advocate of free trade and open economies,” has adopted protectionist policies causing other countries to mimic their approach. IMF Managing Director Kristalina Georgieva has warned that if nations continue along a path of division, they could be “sleepwalking into a world that is poorer and less secure,” noting how global economic interdependence has reaped decades of benefits that would be threatened by the re-emergence of “regional bloc-style” alignments.
The unique problems of our day have been presented in alarming terms by arms control expert Christopher Ford, who contrasts the two-party Cold War-era arms control negotiations with today, when nuclear states are more numerous, diverse and interconnected in a wider range of “politico-military circumstances.” Game theory models shed light on some of the risks of pure power politics and breakdown in the international order that can lead to collective action crises. Commentators have referred to the circumstances as “multipolar traps,” where competition causes individual parties to sacrifice values to maximize other opportunities, leading to negative feedback loops for the entire group of actors involved. In the case of international politics, psychoanalytical literature provides insights into how this manifests at the scale of states and can result in nuclear proliferation and even catastrophic violence.
So how do these theories and ideas translate to today’s geopolitics? The rising “security dilemma” in Asia is case in point. International relations scholars use the term security dilemma to refer to situations where the actions of one state, even if they’re intended as defensive measures, result in actions by another state that ultimately decrease the security of the first state that acted. While the United States builds alliances like the QUAD and expands its presence in the South China Sea in a bid to counter China, Beijing is building up its military and deepening its ties with Russia, another U.S. adversary. These negative feedback loops result in further destabilization.
To shift the trajectory away from a 21st century Hobbesian “war of all against all,” there must be good faith engagement with legitimate grievances like those shared prominently at this year’s Munich Security Conference. At this predominantly European-U.S. affair, Global South representatives reiterated calls for reform of the existing multilateral architecture, noting they were not at the table at its creation and that it fails to deliver on their priorities. In the years ahead, we will continue to see more clarion calls like this to renegotiate the deeply interconnected ecosystem of structural, procedural and substantive rules for inter-state cooperation.
Rethinking Rule of Law
Earlier this year, members of the U.N. Security Council (UNSC) held a meeting on the “Rule of Law Among Nations.” While country representatives voiced broad support for rule of law principles in general, many took issue with how it has been conceptualized and enforced for several decades. Russia and China have both increasingly demurred the so-called “rules-based order,” which in their view was imposed on the international community by Western hegemons during the 20th century.
For its part, Russia proclaimed at the UNSC meeting that these Western-made rules were part of “systems that divvy up [s]tates into the goodies and the baddies.” India’s representative notably took no issue with the “rules-based order” per se, but underscored that the international system should be free of coercion and based on respect for sovereignty, territorial integrity and the peaceful resolution of disputes. She went on to call for the reform of international institutions — including those charged with maintaining peace and security, an obvious reference to the UNSC. Egypt’s representative criticized state efforts to impose norms that do not enjoy international consensus, and called for equitable African representation at the council as one way to redress the historic injustices inflicted upon Africa.
Statements like these are certainly motivated by numerous political calculations and are not always consistent, good-faith, principled or nuanced arguments that could open serious conversations over reform. As permanent members of the Security Council, China and Russia often instrumentalize multilateral bodies to project and protect their own interests. They deploy obvious obstructionist tactics to block actions to address the atrocities and other attacks perpetrated against Uyghurs and Ukrainians, for example.
There are many examples where China and Russia have leveraged their influence inside the United Nations to stymie civilian rule in Myanmar and impede delivery of humanitarian assistance in Syria. India’s representative’s comments about sovereignty and territorial integrity must be considered alongside its growing economic relationship with Moscow, with Russian imports increasing “five times to $32.9 billion” between April and December 2022, a clear rejection of U.S.-led sanctions in response to Russia’s undeniable war of aggression. Moreover, Egyptian comments could be viewed as a cynical authoritarian tactic for deploying cultural relativism to justify its repressive state that clearly violates widely held human rights norms and values. Still, allegations of outsized Western influence over the design and execution of the international system cannot be denied.
The Rules-based Order and Positivism
When not spoken of pejoratively, the rules-based order typically refers to the laws, norms and institutions that make up the liberal international order, which was largely based on liberal Western social, economic and democratic principles. Dutch jurist Hugo Grotius, considered “the father of international law,” applied his natural law theories to what was then referred to as jus gentium, or the law of nations, during the 17th-century period of instability and global competition that he was living through. Grotius published widely on subjects such as the laws of war and maritime neutrality, and in so doing greatly advanced the rules of international cooperation with lasting effect. The natural law foundations of these international frameworks are drawn from sacred spiritual and religious tenets of moral absolutes deeply rooted in Western civilization — drawn from Greek and Roman philosophers like Aristotle and Cicero and adapted by Christian jurists like Thomas Aquinas, among others.
While the Grotian natural law origins remain embedded in legal systems all over the world, international law has evolved considerably in the centuries since. Today, positivism is said to be the lingua franca of international lawyers. Writing during the upheavals of World War I, positivist jurist Lassa Oppenheim described the “science of law” as a key component of future international law. He described impartial modes of assessing the state of the law and providing, among other things, support for proposals for what the law should be as a technology for the future — the principle of de lege ferende.
Positivism has strong connections with utilitarian moral philosophies that fundamentally called for the separation between what law is and what law ought to be. In other words, positivists call for descriptive, or positive, assessments about what the law is to assess its validity and viability — they do not make normative prescriptions about what the law should be. Skirting facile assertions that there is no such thing as international law, we can say that what it is consists of the consensual arrangements between sovereign states.
Positivism can provide a vehicle for negotiating and reforming the terms of global integration and cooperation. It provides an analytical framework that recognizes the diversity of cultural norms and values but sets aside Euro-centric notions or “divine” or otherwise metaphysical moral “truths” that heavily influenced the natural law origins of contemporary international law. Some widely agreed core elements of classic international positivism provide that: (1) international law is connected to the will of states; (2) law is generated through the formal sources of international law, which form the foundation of a self-contained unified legal system; and (3) law should be disassociated from non-legal factors (such as natural reason, moral principles and political ideology) to secure its objectivity and determinacy. It asks, what is the law? How did the law emerge? Is it ultimately for fit for achieving a functioning, pluralistic society?
Lawyers will of course disagree with each other about these principles — and there is much debate over the reality of international law — but they can provide the ground rules for negotiating amendments to existing treaties or new agreements altogether. These well known legal parameters — when tightly combined with principled, good-faith diplomacy — provide a constructive way to respond to the criticisms from non-Western states. Using positivist approaches, already deployed in existing multilateral bodies, policymakers can pursue inclusive ways to reform international law and institutions within the existing architecture. In a world of shifting and more diffuse state power, as well as new global challenges that require urgent complex collective action, change is necessary. The perpetuation of the status quo alternatives would be too dire. States can use this positivist approach to renegotiate binding treaties and establish new laws and norms within the U.N. system, like international legal bodies.
Can the U.S. Lead the Reform Process?
The United States should boldly embrace efforts to reform the multilateral system. The U.S. Annual Threat Assessment is clear: “China has the capability to directly attempt to alter the rules-based global order … as a near-peer competitor that is increasingly pushing to change global norms and potentially threatening its neighbors.” The United States should defend the most fundamental norms and institutions that helped provide a sense of order for almost 80 years, and it should lead conversations on how to adopt new rules and adapt old ones in a way that fits our challenging times.
This week the Biden administration is co-hosting the second Summit for Democracy along with the Costa Rica, the Netherlands, Zambia, and South Korea. A key point the administration is conveying is that it will support movements around the world aiming to build and reinforce democracies underpinned by the rule of law and the will of the governed. In addition to sharing the spotlight with four partners, the administration invited eight countries that were not included in the 2021 summit — six of which are strategic partners from the Global South.
Throughout the three days of events in Washington and around the world, one message is clear — whether it’s in defense of international humanitarian and human rights norms, effective governance, public-private partnerships, or collective action for new global challenges — the United States is advocating for shared understandings and commitments to rules and systems for a community of likeminded states.
The moral implications of prioritizing the “rights” of the individual over the collective often illuminate cultural and political divisions. However, regulating commitments and swearing of oaths and testimony are more universal concepts and have been shown to have entered independently around the world in Roman, Chinese, Indian and Mesopotamian legal systems. These rules around trust and the power of commitments form the meeting of the minds and the basics of contracting, which are also key to the philosophy of positivist international law. With this in mind, agreements should be made and upheld in good faith, always bearing in mind the consequences of disorder.
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