While the Russian attack on Ukraine marks a turning point in international relations, it is not the main reason for the need to reconsider this order and the principles that should guide it in the future. Those reasons lie beyond the war; they are deeper and wider. They include the decline of power in the West in relation to the East, both materially and ideationally. The rise of China is notably much more important in that regard than the position of Russia. Shifts in relative power have led to a change in kind, from a hegemonic order to a multipolar constellation. Past rivalries of the Cold War are then instructive, as well as the institutional developments that ensured coexistence and facilitated cooperation. Still, the times are different, now marked by the concentration of private power and marred by the crises of social and climate justice. Those are the conditions and the opportunities to which principles for the future international order need to respond.
1․ Strengthen the International Court of Justice, Not Only the Security Council
Writing during World War II, the great Austrian jurist Hans Kelsen asked: “International Peace—By Court or Government?” His answer was clear: governments should not serve as judges in their own cause, and peace must be secured by a strong court. But his words were not heeded. The United Nations Charter instead vested the Security Council with the “primary responsibility for the maintenance of international peace and security.” That is where the permanent members—China, France, Russia, the United Kingdom, and the United States—institutionalized their power and influence, together with the possibility to veto any decisions.
The Council continues to stand in the limelight today, together with its veto powers and the impossibility of condemning Russia. As early as the Korean War of the 1950s, the United States sought to circumvent the Soviet veto in the Council and turned to the General Assembly, marshalling the “Uniting for Peace” Resolution. It did so again in 2022, with an overwhelming majority that did condemn Russia. But neither the Council nor the Assembly are the right places to determine—as Kelsen knew—what is illegal in the first place. A peaceful order requires the commitment of powerful countries to the International Court of Justice. Otherwise, the instrumentalization of law by the powers that be—the rule by law—will be more common than the rule of law.