The crisis of international law.

• Author: Trachtman, Joel P.
• Position: International Law in Crisis

Observers of international law have criticized the Westphalian paradigm for nearly a century. The Westphalian paradigm has become less useful, both as a general way to order the world, and as a general way to understand the world. Functional adaptation has already begun to re-order the worm inconsistently with the Westphalian paradigm. The European Union is only the most obvious example. But this reordering has been impeded by the continued use of the Westphalian paradigm to understand the world. Indeed, the exceptions to the Westphalian paradigm have been multiplying for the past 100 years, and the movement toward an international law of cooperation that Wolfgang Friedmann documented in 1964 in The Changing Structure of International Law has accelerated and intensified the exceptions to the Westphalian paradigm so much that it no longer satisfies the test of Occam's Razor. This is the central crisis in international law. A simpler paradigm, one admitting far fewer exceptions, is the functionalist paradigm, which accepts that the state is contingent, and that international law tends to constrain, indeed, to mold, the state based on functional efficiency. This essay elaborates a functionalist paradigm that understands the sovereignty of states in utilitarian, and contingent, terms.

1. WHAT CRISIS? II. THE WESTPHALIAN PARADIGM AND THE MULTIPLICATION OF EXCEPTIONS III. THE SOCIAL SCIENCE FUNCTIONALIST PARADIGM IV. CONCLUSION: WORLDVIEW IMPLICATIONS OF SOCIAL SCIENCE FUNCTIONALISM I. WHAT CRISIS?

   Perhaps we use the term "crisis" too readily, in a kind of collective anxiety that disaster is just around the corner. It is true that disaster--in the form of war, disease, environmental degradation, financial catastrophe, and trade war--is always just around the corner. But that is a constant condition. So what is the crisis today?

   An appropriate definition of "crisis" is that it is "a stage in a sequence of events at which the trend of all future events, especially for better or for worse, is determined." (1) In this sense, a crisis is a juncture between paths--one for better, one for worse. But the choice of paths at this moment is not just at the level of policy choice on issues such as war, disease, and the environment. Rather, it is a choice of paths about the role of international law in our lives. We can choose to continue to use a Westphalian paradigm that assumes that the state is the exclusive source of authority, that assumes and institutionalizes a weak form of international law, and that fails to provide tools to address our most pressing international problems, or we can choose a more scientific and open-minded functionalist paradigm.

   We are in the midst of a Kuhnian scientific revolution in international law, in which the existing paradigm has grown increasingly unable to explain what we do, or to give us the tools to devise solutions to our problems. (2) A scientific revolution occurs, according to Kuhn, when scientists encounter too many anomalies that cannot be explained by the accepted paradigm. (3) The number of anomalies to the Westphalian paradigm has multiplied in the past century, and the existing paradigm has too many exceptions. There is a new paradigm which can accommodate all the existing exceptions and that can provide a framework for analysis that allows us to see where additional international law and organization would be useful, and also where it would not. This new paradigm, described below, might be labeled "social science functionalism." In this sense, our crisis is an intellectual or theoretical crisis, but it has important real world effects. The paradigm, according to Kuhn, is not just a theory, but the entire worldview that it entails.

   In this brief exposition, (4) I describe the existing paradigm, explain what I see as the growing pressure on this paradigm and the multiplication of exceptions, propose a social science functionalist paradigm, and explain the worldview implications of functionalism.

2. THE WESTPHALIAN PARADIGM AND THE MULTIPLICATION OF EXCEPTIONS

   The Westphalian paradigm is still the dominant paradigm in international law. It posits that international law is weak, and that the state is strong. Under the Westphalian paradigm, state sovereignty is the dominant concept, and it excludes the possibility of international legal authority. (5) Rather, under the Westphalian paradigm, international law is a weak force that can play only an interstitial role. (6)

   One of the corollaries of the Westphalian paradigm is the consent-based system of international lawmaking. (7) Unlike in national government systems, there is no possibility to bind holdouts. The inability to bind holdouts makes it more difficult to reach agreement to provide international public goods, and to address international externalities, especially under circumstances of asymmetry. By asymmetry, I mean circumstances in which the overall value of an international legal rule is significantly greater for one state proposed to be party than for another. For example, while many states will be hurt by global warming, there are some states that would not be harmed, or would benefit. Without the possibility to bind holdouts, presumably accepted by each state in a kind of "constitutional moment" in exchange for other states agreeing to do likewise, it is difficult to create effective international legal rules and organizations. Examples of areas in which these rules and organizations may be required include international environmental protection, international public health, trade and international financial regulation.

   A second corollary of the Westphalian paradigm, related to the first, is weak enforcement of international law. (8) In fact, we might characterize this corollary as a requirement of subsequent consent to actually have a state's conduct controlled by a legal rule that attained initial consent--that entered into force--at an earlier time. The broader rule that includes both corollaries is one of continuous state autonomy--both at the time of entry into international law and at the time of its application or enforcement. (9) The result of this second corollary is to make international law an unreliable system, unable to address real international cooperation problems because states are unable to commit to obligations. In fact, a growing stream of international legal scholarship, recently evidenced by work of Curt Bradley and Mitu Gulati, (10) seeks to accentuate the Westphalian paradigm by arguing for the need for continuing consent to the binding effect of international law. Other scholars, such as Eric Posner, simply argue that international law is incapable of having the power to cause compliance. (11) Note that this corollary actually denies states an important power: the power to bind themselves contractually to cooperate with other states. By doing so, it artificially impedes desirable cooperation.

   So, the Westphalian paradigm, under both of its corollaries, impedes or prevents cooperation by states to address international cooperation problems. This was not as serious a problem when fewer international cooperation problems existed, but as we move from the "law of coexistence" to the "law of cooperation," this problem has grown more serious. Just a century ago, none of the major new categories of international law-addressing trade, investment, finance, monetary policy, environment, health, human rights, and cybersecurity--were very significant. There were good reasons--functional reasons--why they were not. There simply were few international concerns raised by these types of issues.

   As Wolfgang Friedmann explained in his classic 1964 work, The Changing Structure of International Law, "the principal preoccupation of the classical international law, as formulated by Grotius and the other founders, was the formalization, and the establishment of generally acceptable rules of conduct in international diplomacy." (12) This was the international law of coexistence, and it also included the regulation of war, which developed into the main concern. (13) These were rules about the method by which states would interact, and about their use of force, and while states interacted in various ways, they did not contract significantly over other matters. But as Friedmann explained, the changing demands of international society produced demand for additional types of international law. (14)

   Two major types of change have made the role of the international law of cooperation more important. First, with industrialization, including technological change, urbanization, and the development of modern economies, the state has found it useful to intervene domestically in a variety of regulatory contexts. (15) This is the rise of the regulatory or interventionist state. Second, with globalization, these interventions and the...