What Remains of Law Against War

What Remains of Law Against War

The law against war appears to be dead. Russia’s attempt to conquer Ukraine in 2022 is the most serious breach of the prohibition on the use of force since it was codified in the United Nations Charter in 1945. Violations in the Middle East, Africa, and elsewhere are plain. Under the theory of legal positivism, such widespread and serious breaches can lead to the disappearance of once viable law. The prohibition on force, however, is no mere positive law rule. It is a peremptory norm of natural law, which does not shrink or disappear. This article analyzes how the enduring law against war came to be so disrespected and how that disrespect can be reversed. Two causes of decline stand out. With the end of the Cold War, the United States and democratic allies began promoting an alternative system of international law known as the “Western International Rule Based Order” or “RBIO.” The RBIO is a two-tiered system that purports to allow members privileges, including the right to use force at will with only the thinnest veneer of legal support. The Global South sees the RBIO as a blatant double-standard. In addition, RBIO legal justifications are based on manipulating positive law. They ignore the fact that peremptory norms are natural law. These features of the RBIO have served to progressively weaken the law’s “pull to compliance” for all states. Applying social science research on “norm death” points to a remedy. It involves influential states modeling obedience to authentic law, law that includes the principle of sovereign equality and the natural law norm against war. These are tumultuous times made more uncertain by the emergence of AI. The enduring natural law against war provides an indispensable anchor of stability and normativity.

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