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After the crisis comes international law

Annual Review Article 2020

The International Court of Justice in The Hague

The immediate setback to international cooperation in connection with the current coronavirus pandemic has already led to linear projections of imminent deglobalisation. Yet, global crises have historically been the pivot for building up international institutions and international law. As a rule of thumb, and through complicated historical learning processes, crises and serious setbacks lead to international institutionalisation of common regulations and law.

By Mikael Rask Madsen, professor, PhD, iCourts, Center for International Courts, University of Copenhagen

When the COVID-19 virus hit first China and then the rest of the world, the political reaction was immediate entrenchment behind the bulwarks of the nation state. Borders were closed, and citizens travelling abroad were summoned home at once. 

The key defining characteristics of globalisation – the free movement of people, goods, capital and services – were significantly reduced, and in record time. This also affected the international community and international law, which in certain respects was de facto put on standby. 

Even Europe, the place in the world where transnational and supranational cooperation is most advanced, was no exception. Vital decisions – from safeguarding supplies of personal protective equipment (PPE) to strategic planning – were primarily taken by national authorities and only to a limited extent coordinated at European level. 

The lack of European coordination was one thing; the fact that certain countries also chose to suspend their European obligations altogether was something else entirely. 

A number of countries, by and large all the former Soviet republics and members of the Eastern bloc, urged the Council of Europe to suspend the European Convention on Human Rights in their countries pursuant to Article 15 ECHR on derogation in time of emergency. 

In other words, in Albania, Armenia, Estonia, Georgia, Latvia, Moldova, North Macedonia, Romania, San Marino and Serbia, containment of the COVID-19 virus was viewed as a public emergency that threatened “the life of the nation,” and therefore justified suspension of the common European protection of human rights in these countries. 

There was a sense of legal and political cooperation painstakingly built over decades, being dismantled. However, this is not the first time this has happened. The Second World War dealt the final blow to the incipient international community organised around the League of Nations. 

The Cold War subsequently undermined many legal initiatives under the auspices of the UN. And numerous other crises have seriously challenged the international legal order: from the fight against terrorism to financial crises, which, at the same time, are examples of situations that clearly demonstrate the need for close international cooperation if they are to be handled effectively.

The key defining characteristics of globalisation – the free movement of people, goods, capital and services – were significantly reduced, and in record time. 

Emerged and re-emerged  

There is another side to the story, however. Paradoxically, the international order has been renegotiated and has gained renewed momentum in connection with global crises. 

Systematic research into initiatives to establish international courts since the start of the 20th century show that, with few exceptions, the modern international legal system emerged, re-emerged and gained renewed impetus in the aftermath of global crises. 

Furthermore, the research shows that the primary effect of crises is a will to change, and hence to implement ideas that typically flourish in intervening periods in intellectual debate but are only realised when there is a burning platform.

Systematic research into initiatives to establish international courts since the start of the 20th century show that, with few exceptions, the modern international legal system emerged, re-emerged and gained renewed impetus in the aftermath of global crises

The world’s first international court, the Permanent Court of International Justice, emerged in the wake of a humanitarian catastrophe in the form of the First World War. 

Located in The Hague and known as the World Court, it was a surprising success in the inter-war period, settling a number of international conflicts, including the Eastern Greenland Case between Denmark and Norway. However, the process leading to the Second World War and the war itself undermined first the League of Nations and eventually the World Court. 

The United Nations (UN) and the International Court of Justice (ICJ) came into being immediately after the Second World War, as a response to the horror of the war and as a result of a need for global cooperation. 

The ICJ was in many respects a continuation of the World Court, while the UN sought to remedy some of the most obvious shortcomings of the League of Nations and lay a stronger foundation for global cooperation. 

The UN project was underpinned by the establishment, among other things, of the Bretton Woods global monetary system, the Marshall Plan for US economic aid to Europe and the General Agreement on Tariffs and Trades (GATT) governing free trade. 

The EU and the Council of Europe also came into being in the immediate post-war period. The legal apparatus, launched in both Brussels and Strasbourg, was however only new to a limited degree. 

It was the willingness to implement the existing legal and political ideas – largely born of the horrors of the war – that was the actual breakthrough. It was this that created the EU’s supranational legal and political systems and a common framework for protecting the fundamental human rights under the auspices of the Council of Europe and the European Convention on Human Rights. 

STAY CURIOUS: Global problems require global solutions

Crises recur – time and again

The next wave of international institutions emerged after the end of the Cold War. My field of research discerned a large number of new international courts coming into being within a short period across the world, particularly under the auspices of regional organisations seeking to imitate the institutions of the EU and the Council of Europe. 

At global level, the GATT was relaunched by the World Trade Organization (WTO) with more effective legal institutions. Most emblematic of all, however, was the establishment of the International Criminal Court (ICC), which ended the impunity for war crimes, genocide and crimes against humanity that had characterised the Cold War.

In other words, there is a form of deep, almost organic dialectic between crises and international cooperation and law. 

One of the reasons why the international community seems to rise time and again like a phoenix from the ashes is the elementary functional need for international law and organisations to coordinate an increasingly integrated world. 

The current reversion to the nation state is not only remarkable but in many ways irrational, including with regard to tackling the COVID-19 virus effectively – something that requires both globally coordinated research and sharing of experiences concerning policies and PPE. The question is what we will see on the other side of the COVID-19 crisis.

COVID-19 causes reversion to nation states

Research in international law and institutions, and equivalent research within other fields, can essentially confirm that crises, and perhaps particularly the reactions to crises, recur time and again. Even ad absurdum. 

In other words, there is a form of deep, almost organic dialectic between crises and international cooperation and law. The destruction of international cooperation as a result of crises and how they are managed engenders a renewed will for international cooperation and realisation of new ideas. 

The current pandemic is in no sense directly comparable to the World Wars or the Cold War, but it would be a surprise if – when the dust has settled – the reaction to the crisis is a dismantling of globalisation. 

A number of countries will probably reconsider whether all production should be offshored, such that they are not even able to produce the simplest PPE themselves. But globalisation is only to a limited extent an issue of production; the free movement of people, ideas, services and capital is its true core. 

And for this to happen effectively, there is every likelihood of recourse to further expansion of international law and organisations. As has been seen so many times before.