By Allan Rosas
This blog post is published to honour the career of Professor Elina Pirjatanniemi. See more here.
Even a cursory look at today’s international news, media analyses or academic writings will bring up expressions such as “might makes right” (rather than “right makes might”) or the dismemberment of a “rule-based order” or of the “rule of law”. President Trump’s recent statement, according to which he (and supposedly, then, the United States) is bound by nothing else except his own morality (which judging from his public statements, does not bode well for humanity), provides an alarming example of statements negating the binding force of public international law. US Defence Secretary Pete Hegseth (now being rebranded as “Secretary of War”) could not have been more explicit in stating that US defence policy is nowadays based on the idea of “maximum lethality”, rather than “tepid legality”.
As the Russian war of aggression against Ukraine and the various military actions and campaigns in the Middle East demonstrate, we are witnessing not only malicious words but also hostile deeds. Not only is the prohibition of the use of force being ignored on an almost world-wide scale but the same can be said of the laws and customs of war (ius in bello). Particularly worrisome are the repeated attacks against the civilian population and civilian objects. These attacks are usually explained as “collateral damage”. The fate of the civilian population in places such as Ukraine, Gaza and Lebanon is a clear indication of a disregard for the principle of proportionality – and sometimes one cannot avoid the impression of a zest for killing and maiming civilians and/or destroying their homes. The fragile nature of international and even regional human rights law is there for everyone to see.
That said, and without trying in any way to downplay what is both in perception and real action appalling – and, in fact, criminal – behaviour, let us not forget that this is not the first time the relevance of international law is called into question – be it that the willingness to disregard those norms is now particularly flagrant. To take the prohibition of the use of force as illustrative material, we should be reminded of the armed actions, inter alia, by the Soviet Union/Russia in Hungary (1956), Czechoslovakia (1968), Afghanistan (1979-1989), Georgia (2008 -), Syria (2015-2024) and Ukraine (2014 -), those of the US in Vietnam (1965-1973), Iraq (2003-2011) and many Latin American countries, the 9/11 attack against the US and the ensuing US and NATO intervention in Afghanistan (2001-2021) and the almost permanent state of armed conflict in the Middle East. On the African continent, and to some extent in Asia too, wars have erupted at almost regular intervals.
Also in less belligerent contexts, the international legal system often gives proof of its fragility. I would in fact argue that at the universal level, there has never been a rule of law in the true sense of the world. It seems to me that this concept should be reserved for legal systems endowed with a norm hierarchy upheld by a compulsory independent dispute settlement system and mechanisms for implementation and enforcement. To function properly, the international system should nevertheless be a rule-based order. Even this admonition seems often to land on deaf ears. Yet, even during the present dark age, most international norms are arguably followed most of the time. Ships are sailing (forget for a moment the Persian Gulf and the Hormuz strait!), airplanes are flying, goods are circulating, ambassadors are presenting their credentials, international organisations and international courts and arbitration bodies carry out their tasks. These activities largely take place more or less in conformity with international norms. The level of compliance is certainly not ideal, not even satisfactory, but public international law, with all its weaknesses, is still with us. I would add, it is here to stay.
The message is this: Let us not despair and indulge in alarmism. Let us build on what is still there and let us not take for granted that the attacks against a rule-based order, ruthless as they may be, will always prevail. Judging from the past, better days are in waiting. And if, in a worst-case scenario, even the fragments of a universal rule-based order cannot be saved, let us defend what is possible defending, at a regional or multi-regional level, at the very least.
A Finnish president, J-K. Paasikivi, used to say: “the recognition of the facts is the beginning of all wisdom”. The facts we should acknowledge include the inherent weakness of the international legal system. A systemic division of powers is wanting and the creation, application, interpretation, implementation and enforcement of international law rest largely with the States (including, although perhaps to a lesser degree, the EU).
At the same time, we must live with the fact that many States look at international law through the lens of their own interests and own constitutional and legal system. When I studied law, the textbook in public international law was Erik Castrén’s Suomen kansainvälinen oikeus [“The international law of Finland”]. I found the title somewhat puzzling. How can international law be Finland’s law? Yet, Castrén had a point. States often see international law binding on themselves as a continuation and part of their own constitutional system. If they do not see international norms in that way, they may see them rather as undue interference into their internal affairs, in which case their proneness to respect those norms will decrease.
In the present climate, it is often assumed that we are back to a markedly state-centred system, with independent and sovereign States in the predominant driving seat. There is, of course, some truth to such a view. That said, interdependence is not dead. A naval blockade of the Strait of Hormuz causes international alarm of a world-wide economic crisis. The US bombing campaign against Iran was considered by some as legitimate because of the Iranian mass killings of its own population, the ‘sovereignty’ and ‘independence’ of Iran notwithstanding. Iran’s armed forces and their proxies are not present on Iranian soil only. Under various denominations (Hizbollah, Houthis, Iraqi militias, etc), they carry out armed actions in territories (rather than States) outside Iran. States are still there but at the same time they are (perhaps even increasingly) entangled in a web consisting also of non-state actors of various kinds.
While we are faced with a mixed bag of actors, activities, statements and norms we should not lose sight of the fact that there are still some universal norms which are generally perceived as legally binding. And regionally, there may be more room for a rule-based order. National (including EU) law remains relevant also for public international purposes. The EU could more forcefully take the lead in a quest for multilateralism and a rule-based approach. However, the lack of a clearly federal structure akin to that of the US constitutes an impediment for such a development. Yet something could be achieved on this front, be it tepidly and incrementally. In the EU we must trust.
Allan Rosas is Visiting Professor, University of Bologna (2026), College of Europe and Global School of Law of Catolica University Lisbon. Armfelt Professor of Law (1981-1996) and Director of the Institute for Human Rights (1985-1995) at the Åbo Akademi University, Director and later Deputy Director-General of the Legal Service of the European Commission (1995-2002), Judge at the European Court of Justice (2002-2019).