We live in a dark time. Not so long ago we thought a new dawn had broken when the Cold War ended, bringing universal peace, general prosperity, worldwide connectivity, human rights, and the international rule of law. Instead, disillusion has overtaken us in the wake of shocks and abounding threats. We face uncivil politics, economic anxiety, and tribal conflict throughout the rich world. Authoritarian nationalists seem the coming thing around the world, rich and poor alike. Peace and prosperity do not. Many believers in the liberal international order now feel, like Marxists in the 1980s, that history has turned against them.
Consider the threats: under Trump the United States broke international as well as domestic norms and abandoned many commitments, few of which the Biden administration seems ready to restore; after Brexit the European Union shows further signs of unraveling; corrupt and brutal strongmen rule in important-if-not-rich countries such as until recently Brazil, China, Russia, and Turkey; and China’s international ambitions sow discord in both the rich world and the global South.Footnote 1 Populism in India means Hindu nationalism and new forms of suppression of opponents of the regime. A worldwide retreat from political and economic liberty has transformed the international landscape. Meanwhile we witness Russia’s second invasion of Ukraine and await China’s conquest of Taiwan, terrified of these prospects yet struggling to respond.
But wait, there’s more: technological innovation had promised to remake the world and liberate us all. Now it offers such dystopian prospects as the amplification of political dysfunction, unsustainable inequality, deep fakes, pervasive surveillance, and the erasure of privacy. The internet, rather than challenging dictators from the bottom up as people had hoped, became a means of wielding state power from the top down. The surveillance state took over just as more life moved online. Private internet firms do their own part to destroy privacy and safety in cyberspace. Liberty, representative democracy, and the rule of law seem in retreat everywhere in the cyber world.
Then COVID-19 came. The social isolation necessary for staunching contagion brought crazy theories and actions that shredded the social compact. The already intolerable wedge between haves and have-nots now looms even larger. Low-wage frontline workers bore more than their share of the disease’s toll, while poor children fell further behind their well-off peers when schools shut down. The scramble for vaccines made winners out of the tech-savvy and the well-connected while exposing the offline to greater risk of death and disease. Distrust of national public health authorities, whose blunders and mistakes at the start of the pandemic reflected the enormity of the challenge and the extent of the gaps in the knowledge needed, fed vaccine resistance and bizarre alternative medicines. Disruptive protests against lockdowns and mask and vaccine mandates erupted in Australia, Austria, Canada, France, and Germany, among other supposedly advanced and contented societies. Rejection of authority thwarts herd immunity in much of the world. China compounded the problem by combining unstainable lockdowns with exclusive reliance on its own subpar vaccine, ensuring that its vast population remains a reservoir to sustain the virus. North Korea, which simply closed its borders and did not avail itself of any vaccine, reinforces that reservoir.
This turmoil has deeply compromised the international rule of law. The decade after the Cold War ended saw international organizations (both global and regional) proliferate. National governments embraced new limits on their sovereignty to advance international projects for economic governance, the waging of war, and respect for human rights. Without new formal commitments, except in Europe, they accepted open migration as a norm. Civil society grew and prospered, clamoring for a role in making and applying international law at the expense of national governments. The World Wide Web and the explosion of connective devices spawned cyberspace. Visionaries saw this sphere as a place that could overtake nation states and host a new global community based on individual empowerment through connection and data.Footnote 2 It seemed that the new technology could mobilize the masses to oust authoritarians and hold the corrupt to account. As with migration, states responded to the internet revolution with an implicit global compact of laissez-faire.
The twenty-first century became the place where the hopes of the 1990s went to die. The 1990–91 Gulf War had seemed to give the UN Security Council an effective veto over major uses of armed force in international relations. The North Atlantic Treaty Organization (NATO) bombing of Serbia exposed that settlement’s shallow roots even before the new century began. The 9/11 attacks and the US response ‒ the unhappily named global war on terror as well as the coalition war on Iraq ‒ blew it up. The Orange, Rose, Cedar, and Tulip Revolutions in Ukraine, Georgia, Lebanon, and Kyrgyzstan seemed a new form of people’s power, undergirded by smartphones, but all they promised turned to ashes, as did the later Arab Spring. The return of the Taliban to Afghanistan brought an abrupt end to an especially costly and quixotic nation-building project and raised deep doubts about the prospects of others, Iraq in particular. The 2022 Russian invasion of Ukraine brought a nasty coda to these pacific hopes.
The 2008 world financial crisis shattered the rich world’s confidence in both global finance and advanced capitalism. In its wake, the center-left and center-right in Europe and the United States fell back in the face of onslaughts from both political extremes. International governance suffered directly. Targets of a surging anti-globalization movement included the World Trade Organization (WTO), set up in 1994 to promote and regulate trade; the International Monetary Fund (IMF, also known as the Fund) and regional financial institutions such as the European Central Bank (ECB), which imposed painful austerity on spendthrift governments; and international courts, whose judgments face scorn from prominent states in both the rich West and the revisionist South. Then came Trump, Brexit, the rise of national populist parties in much of Central and Eastern Europe, and a different kind of national-populist politics dominating Brazil, China, India, Mexico, the Philippines, Russia, and Turkey, as well as smaller states such as Venezuela. What these movements share is a hostility to the international status quo. Meanwhile, places where war and misery fester ‒ the Middle East and the Horn of Africa in particular ‒ got even worse as the new century rolled along.
Why International Law
Many people will wonder what these obviously bad developments have to do with the degradation of the international rule of law. Outside a hermetic world of specialists, most question the importance of international law generally. Among US legal academics, many, I suspect a majority, find it boring, the province of high-minded idealists too good for the world in which we live. I agree that many international lawyers too often get the causal arrow backwards, seeing international law as contributing to desired practices and institutions where it instead rests on them. Still, we can learn a lot about the world and its maladies by looking at international law.
First, international law serves as the canary in the coal mine, providing an early warning of threats to peace and prosperity. When a powerful state upends widely held views of international law and backs up its claims with consequential actions, as Germany did when it annexed Sudetenland in 1938 and Russia when it annexed Crimea in 2014, it puts the world on notice of new dangers independent of injury to the rule of law.
Second, the techniques and values of international law can work either as instruments to advance human cooperation for the good or as a means of eroding trust and social capital to the harm of humanity. International law provides a framework for setting expectations about the future. Fulfillment of those expectations inspires people to come together to tackle new challenges. Frustration pushes people toward disengagement or despair. Either way, international law matters.
The Knowledge Economy and the Road to Darkness
How did we get to this dark place, and how do we get out? At the heart of the story is the knowledge economy. It is that portion of economic activity that uses constantly evolving knowledge as a factor of production as well as economic activity that produces knowledge. Think of a cutting-edge civilian or military aircraft, a physical good the value of which depends mostly on the technological expertise and innovation used in its production and the knowledge (pilot training and data collection) it creates when put to work. Technological breakthroughs drove economic development throughout history, from the new grains that made cultivation and cities possible thousands of years ago to the use of steam power to drive the industrial revolution. What makes the knowledge economy different is the pace of technological change, requiring a steady stream of breakthroughs to spur production, as well as the growing share of knowledge in the economy’s products.
Over the last sixty years or so engineering feats from computers to semiconductors to lasers to massive data storage to coding breakthroughs transformed the way we work and live. The technological giants – Alphabet, Amazon, Apple, Facebook (now Meta), Tencent, Cisco, Huawei, Big Pharma, Boeing, Siemens, and their ilk – represent only the tip of the knowledge sector. This new way of making things and providing services – an economy where research, learning, and technological innovation add the most value – generates enormous wealth, betters the lives of billions, and raised hundreds of millions out of extreme poverty. Most recently, it gave us both remote communication – Zoom and other conferencing apps – to let the more fortunate of us keep doing our jobs and sustain a kind of connection with those we love during the pandemic, and ingenious mRNA vaccines that protect us from COVID 19.
I use the term “knowledge economy,” and not “globalization,” advisedly. I hated the g-word since it first appeared. It describes a cluster of effects, readily apparent over the last thirty or forty years, but doesn’t offer a coherent conception of its subject or an account as to why it matters. Globalization in some form has shaped the world since the mid-nineteenth century, when steam ships and telegraphs drove connectivity, free movement of goods and capital, and imperialism.Footnote 3 But while technological breakthroughs and knowledge gains brought economic change since the dawn of history, the knowledge economy is a new thing. In it, mind work does not simply contribute to meeting the world’s needs and wants, but dominates.
A focus on globalization, rather than the knowledge economy, also invokes different implicit assumptions about how change happens. Globalization refers to, among many things, the lowering of barriers to the movement of people and things around the world. This perspective suggests that globalization constitutes the outcome of particular public policy choices, often associated with laissez-faire ideology. The faces of globalization become, if only in caricature, Margaret Thatcher, Ronald Reagan, and Milton Friedman.Footnote 4 Centering the knowledge economy, by contrast, means looking at impersonal forces over which governments exercise only sporadic and often feckless influence. It takes heroes, villains, and ideology out of the story and instead looks at many people competing to adapt to a challenging world through new ways of doing things.
Foregrounding globalization is like talking about climate change (something we can observe) without taking into account emissions of carbon dioxide (something that brings about what we observe). Serious scholars use the term, and I appreciate their work.Footnote 5 This book, however, gets at the underlying economic, social, and political forces that remade our world. What observers see as an output (the present state of globalization) reflects an input (the knowledge economy), which we can analyze and understand, even if not completely.
The distinction is critical. Taking the knowledge economy as our subject allows us to focus on knowledge workers, its essential element. These people are good at producing, managing, and distributing knowledge, broadly conceived. At its core, the knowledge economy depends on talent, skills, and the many forms of intelligence. What it does not do is reward and elevate people who are, by the standards of the gifted, not similarly blessed. The contemporary politics that make our world dark reflect largely battles between the knowledge economy’s winners and losers.
Many observers, economists, philosophers, social scientists, legal academics, education theorists, and journalists alike, have explored the knowledge economy. I draw on their work throughout this book. Since the mid-2010s, political theorists and public intellectuals have grappled with the degradation of liberal-democratic politics and the growing threats to peace and prosperity as authoritarianism rises around the world. This book fits within that trend. It is, however, the first to connect the knowledge economy directly to our present discontents.
This new mode of production we call the knowledge economy brings us great things based on extraordinary scientific accomplishments and imaginative brilliance. It also fuels struggles around the world through its relentless production of inequality, dislocation, insecurity, and distrust. These are the unintended but profound consequences of an economy that aims to reward skill and talent above all else.
The knowledge economy’s paradoxical effects rest on the same factors that explain its success. Economists identify scalability and locality as the twin pillars of this mode of production. Both share an essential feature: developing knowledge through research, experiments, trial and error, and the odd breakthrough costs a lot, while passing on learned knowledge does not. Once people figure out how to profit from a new insight, whether physical, technical, social, or abstract, repeating the performance isn’t so hard. Think of a pharmacological breakthrough, like the COVID-19 vaccines we now rely on (to live normal lives). Discovery, development, and testing of the drugs cost billions of dollars. Making and shipping doses cost next to nothing. Thus scaling up the application of a particular bit of knowledge to an ever larger market almost always increases profits, overturning the physical world’s historic economic law of diminishing returns. Extraordinary profits result. This is scalability.
At the same time, useful knowledge grows fastest when knowledge workers have dense connections with their peers. Brainstorming, swapping insights and observations, and watching each other try and fail does a better job of producing more valuable knowledge (valuable in the economic sense, knowledge that directly affects the value of goods and services society offers to people) than isolation. Hence the knowledge economy leads to knowledge clusters. Silicon Valley is everyone’s favorite example, but many other densely populated communities do this as well. This is locality. Notwithstanding the experiments with telecommuting that the pandemic forced on us, in-person connectivity will continue to dominate this economy.
Knowledge is key to flourishing in today’s world. Yet not everyone can be a knowledge worker. Moving into the knowledge sector involves years of education, training, and experimenting, as well as hard-to-acquire skills such as focus, discipline, and tolerance for risk-taking. As one sector rises, others fall back. Workers who do not have the skills that the knowledge economy demands cannot swiftly remake themselves, and many have no hope of ever doing so. Losing ground and hope for themselves and their families, those the knowledge economy leaves behind embrace the politics of resentment and resistance.
The resulting anxiety and distrust have many targets ‒ political, cultural, and educational élites, migrants, local minorities (ethnic and sexual) ‒ but one is those international legal regimes that support the knowledge economy. Populists see international law as foreign and therefore suspect, dedicated to advancing the interests of the hated élites, and full of false promises. The WTO, the international financial institutions, and supranational structures such as the European Union, human rights treaties and courts, trade agreements and foreign investment protection regimes, and international and regional treaties protecting refugees and immigrants have taken hits over the last decade and seem on the verge of collapse.
Locality has a lot to do with these politics. Knowledge workers cluster because productivity relies on connection. The demands of knowledge productivity also mean buying a lot of day-to-day support so that knowledge workers can devote their time and energy to their well-rewarded jobs. Simple economics dictates that as the demand for less skilled work ‒ housekeeping, childcare, food services, transportation, building maintenance and construction, and the like ‒ goes up, either incumbent workers will get paid more (a price effect) or more workers will come to that market (a supply effect). Throughout the world, the supply effect seems to dominate the market for urban low-skill service providers, with immigration the delivery system.
Many migrants come to knowledge clusters, both knowledge workers who can capture the value of their skills through high compensation (whether material or moral) and service workers who do jobs that do not require much training or certification. The latter typically come from places with poor prospects, often profound rural poverty. We can see these two kinds of migration at work in places in the rich West such as New York, London, Silicon Valley (San Jose), Singapore, and Tokyo, as well as Bangalore, Mumbai, the Pearl River Delta (Guangzhou, Hong Kong, and Shenzhen), and Shanghai in the rising global South.
Locality has competitive and distributional consequences. The rise of an industry in a particular place tends to drive out less successful businesses. We thus find the losers from the knowledge economy living where the knowledge workers and the low-wage service workers who support them do not. This physical separation sharpens political disputes.
At the heart of this book is a conflict ‒ the battle for the future ‒ that will decide whether we endure lives of misery amid global disasters, or instead find ways of surviving the looming threats. The battle is a struggle between knowledge workers (who can market their skills globally), poor migrants (those who sustain knowledge workers, increasingly people from poor countries who flock across borders to great urban centers), and the despairing (people whose worked in the economic sectors that the knowledge economy superseded and find adapting, especially migrating domestically or internationally, hard). That struggle underlies most international controversies today and manifests itself, among other arenas, in fights over international law, including control of the internet, immigration, cross-border trade and investment, and ultimately the authority of most international institutions.
COVID-19 made all this worse. It drives inequality and social division. Knowledge workers benefit from technological workarounds that let them remain productive and, more importantly, well-paid. Meanwhile not just the elderly, but the poor and socially marginalized suffer. Already stressed parts of society, especially people of color and low-skill migrants living in crowded, multigenerational homes while working in urban service sectors, pay a terrible price in death and long-term morbidity. During the pandemic, the market value of tech companies skyrocketed, as did the fortunes of their owners. Lower-paid service providers too often lost their jobs, got sick, or died. School closures meant that their children lost what chances they might have had to vault into the knowledge class; privileged kids had online access, tutors, private schools, and dutiful parents to cushion the effects of the shutdown. Vaccine resistance, anti-masking, and quarantine violations sundered families and communities.
States met a borderless, global challenge – a real war against a merciless, impersonal pathogen – not by coming together, but rather with parochialism and lost trust. Revisionist states seeking to disrupt the international status quo, principally China and Russia, exploit the social media that quarantined people around the world look to as a substitute for normal human contact. They sow distrust in liberal democracy, established institutions, and fellow citizens with different backgrounds and beliefs.
Many people got to distrust and disillusionment without any outside help. International organizations, first and foremost the World Health Organization (WHO) and the WTO, failed to check the beggar-thy-neighbor policies of the rich world states, which hoarded personal protective equipment, tests, and vaccines that could contain the global threat. The failure of the West to meet the vaccine needs of the South, coupled with the distrust of many people in the South of the solutions offered, ensures the resilience of the virus and the ongoing vulnerability of humanity.
I do not argue that the knowledge economy dictates outcomes. Economic events create incentives that influence behavior, sometimes powerfully. These incentives compete with other forces that mold culture, societies, and institutions. A world driven crazy by COVID-19 is not one where the economic concept of rationality reigns supreme. This book shows that the knowledge economy has done much to shape the present world, not only to the good. My contribution is to connect that insight, not original with me, to the forces that overturned the ambitions of the immediate post-Cold War period and threaten our world today. I do not claim that this is the whole story, only that it is one that needs telling.
So there’s a lot not to like about the knowledge economy. Yet the world cannot simply walk away from it. As COVID-19 shows, knowledge and global cooperation are indispensable to overcoming great crises. The looming threat of climate change, somewhat forgotten during the immediate unrest, persists. Any response that sustains prosperity across the planet while lowering the carbon footprint, if such a way can be found, will depend on the knowledge economy. The world will need all the talents of its ablest people, effectively organized and motivated, to meet the challenges in the pipeline. However we bridge our widening social inequality, if we do so at all, sidelining of the very people whom we need to come up with solutions to our other deep problems cannot be the answer.
Yet it also seems clear that we cannot go back to the status quo ante. The liberal commitment to free movement of people, capital, goods, and services, as well as the aspiration to judge all states by the standards and values of the western liberal democracies, have, as maximalist projects, proved unsustainable. Deference to international bureaucracies and judiciaries has dissipated. The 1990s have left the building and won’t come back. International cooperation formalized as law must be redone if the international law project is to survive in any fashion.
The Plan of This Book
Two lenses, historical and economic, show us how we got here and, perhaps, how we can move on to something better. Part I of this book provides a broad narrative of events. The expansion and creation of international organizations took place in the aftermath of the fall of the Iron Curtain and the opening of historically autarkic economies around the world. This part explains how the ideas of liberal internationalism guided these steps. Challenges to the new regimes emerged early in the twenty-first century, first from terrorism and then through the world financial crisis. Confidence in the purposes and management of the international organizations eroded. A rising China became a strategic risk where it had been an essential economic partner. Cyberspace became a source of both misinformation and insecurity. Things first changed gradually, then all at once. This account concludes with a look at the many faces of national populism around the world and the ravages of the COVID-19 pandemic.
Part II of the book does political economy. Not myself trained as an economist or any other kind of social scientist, I take the path of legions of law professors who borrow from those fields based on a sense of what seems credible and consistent with observed evidence. Drawing on the research of these scholars, I unpack the knowledge economy and its international dimensions.
This part shows how economic dynamism driven by the search for more and better ways to do things underlies not only international economic liberalism but also commitments, at the international as well as national level, to free expression and nondiscrimination, including open cyberspace. It details the ways that the knowledge economy has a geographical, but not national, dimension, favoring urban knowledge clusters while spawning deindustrialization in national heartlands. It explores the chasm between residents of great global cities, both rich and poor, and people outside these cities that see marginalization and immiseration as their fate. This chasm fuels the dysfunctional politics in so many places in the West and the growing geopolitical tensions between West and South.
We also must consider the possibility that a knowledge economy enclosed within one large authoritarian country might enjoy better prospects than a system of globally distributed production and worldwide consumption held together by the institutions of liberal internationalism. We may be heading toward a second-best world of increasingly national markets supported by technological accomplishments that make managing an illiberal state easier. If international cooperation fails because of the deep conflicts that the knowledge economy spawns, advanced capitalism in one country might prevail. This is to say that the twenty-first century might be China’s.
The arguments found in this part do not rely on strict economic determinism. I share the taste of most contemporary historians, at least in the United States, for contingency and multicausal, complex stories. My point is simply that the students of the knowledge economy, mostly but not only economists, make a good case about its importance, growth, and structure. As such, the knowledge economy contributes to forces that shape, even though they do not compel, both individual behavior and political arrangements that end up expressed as law. I emphasize the knowledge economy in this book mostly because I think it is important, but also because most practitioners of international law and international relations do not know as much about it as they should. The knowledge economy is not everything, but, to paraphrase Vice President Biden’s exclamation when Congress adopted the Affordable Care Act, it’s a big deal.Footnote 6
Part III of this book brings the historical and political-economic perspectives to bear on the work of international law. The twenty-first century presents serious challenges to international legal regimes supporting peace and security, immigration, trade and investment, and law-based resolution of international disputes. Not only do important actors flout rules that we thought had rested on a broad state consensus, but they defy specific orders by international tribunals vested with the authority to issue them. The book takes a deep dive into these stories to show that they are not isolated incidents, but rather form a pattern. The backlash against liberal internationalism is about more than trade, investment, and migration. Rather, fights in these fields are part of a general struggle representing a broad rejection of the ambitions of the liberal international regime.
Part IV considers where the world is headed and the prospects for restructuring international law. It argues that risks of cataclysms even greater than COVID-19 loom before us, and that the world could find itself turned into a republic of misery and privation.Footnote 7 Global warming looks perilous, but let’s not overlook new wars and the spread of weapons of mass destruction, new pandemics, worldwide financial collapse, greater toxicity of cyberspace, and even more adept national-populist regimes that thrive on conflict and violence. Bleak futures seem all too evident. Perhaps we are doomed.
Giving up all hope, however, seems too cheap and easy. To hold back the potential catastrophes, political leaders and entrepreneurs as well as international lawyers must discover where international cooperation still makes sense. Part of the search for effective responses to the lurking global threats includes finding ways to restore confidence in organized responses to global problems. International law remains a useful tool for making these solutions work. Restoring a consensus in its favor will take time, however, and must proceed in modest steps. Smallball must replace visions. The extinction events might get here first, but we can’t go any faster.
I offer conjectures about how the smallball story might play out. Many of the existing international legal structures, I speculate, likely will retrench or disappear. In particular, the WTO, the European Union, the International Criminal Court (ICC), and the present investor-state dispute settlement (ISDS) regime may not survive in their present forms, if at all. There remain, however, projects where the benefits may be sufficiently great to overcome current obstacles. These include protecting cybersecurity and big data, safeguarding the integrity of the international financial system, resetting international economic law, restructuring investment protection without private litigation against states, and inducing multinational businesses to stay away from the greatest human rights atrocities. Rather than relying on international organizations, leadership of these projects will belong to one or a few states, acting as norm entrepreneurs herding other states toward acquiescence. It will be a long time before we return to the bureaucratic and structural experiments that sprang up in the aftermath of the Cold War.
Progress in these areas will not solve the big problems coming down the road ‒ global warming and the environmental cataclysms that result, new pandemics, growing inequality, the spread of weapons of mass destruction, and enduring regional conflicts. But enough experience with successful cooperation may restore the potential of international law to help out when states turn to these perils. These first steps only begin the process, but they are essential.
Turning Mark Antony on his head, I come here to praise international law, not to bury it. The knowledge economy’s obvious gains distracted us from its costs. We adapted international law to serve that economy without thinking about those whom these changes harmed. We have reaped the consequences in the populist backlash. Yet, I argue, the international law toolkit still contains valuable instruments for coping with the great challenges the world is throwing our way. The trick is in recognizing what hasn’t worked and finding new ways of using the tools that we have.
In a world increasingly drawn to crude categories as a substitute for patient and creative analysis, I feel a duty to declare my priors up-front. If nothing else, sketching an intellectual genealogy for this book will help readers decide whether it is worth their time to pay attention to it. I wish that people would not fall back on ideological labels as a substitute for work, but I also don’t want anyone to feel cheated.
Here I will describe my convictions, although I appreciate that others will want to show how I must be wrong about them. I do not pretend to be a philosopher or a political theorist and don’t intend to become one now. What follows is where I think I am coming from, speaking as a humble jobbing international lawyer who tries to tell good stories.
I believe that partisan politics as well as superficial use of the terms liberal and conservative represent a profoundly clunky way of thinking about law and policy, especially international law. In my youth I identified with the New Left and hung out with people aligned with the Black Panther Party. Later, I became a student of Soviet politics, economics, and ideology and worked briefly as a political analyst in the Central Intelligence Agency. I then moved into law. An interest in matters considered vital to national security provided a common thread throughout my career. At the same time, I became ever more mindful of how swiftly events can upend the assumptions on which these considerations rest. Through good fortune more than ability, I had the privilege of serving as an international lawyer in the Clinton, George W. Bush, Trump, and Biden administrations, as well as a consultant to the International Monetary Fund, the World Bank, and the Organisation for Economic Co-operation and Development. In every instance I never held positions of real authority but had a chance to watch government, both national and international, at work up-close.
I still harbor the values and ideals that inspired me in youth, except that I now believe millenarian expectations are dangerous rather than liberating. The confounding of my sense of a revolution in American society and culture at the end of the 1960s, followed by the even more violent crushing of my hopes for Russia at the end of the 1980s, taught me to suspect promises and prospects of radical change generally. I lack a commitment to either US political party or to the particular bundle of policy prescriptions defined as progressive or conservative. Accordingly, my narrative reflects a skeptical eye cast upon all political packages. I greatly admire my colleagues in government, gifted lawyers and experts whose judgment and public-mindedness amaze me. I stand in less awe of the politicians to whom they report.
My critique of the knowledge economy as a base and international law as a superstructure (with apologies to Marx, from whom I draw but do not follow) comes from inside liberal internationalism as I understand it. Deep humility coupled with an irresistible desire to improve on what we know and can do seem to me the heart of the liberal enterprise. Humility does not exclude unconventional, even audacious conjectures, but rather demand recognizing the difference between a hypothesis and an established fact. I have strong convictions, but all remain subject to overturning. Without confronting the data, carefully considering a full range of arguments, and pressing on in the face of great obstacles, we don’t get vaccines, the internet, or Paxlovid. Of course, without a deeply interconnected world we don’t get pandemics either, or at least not ones that take over our lives so quickly and completely.
The concept of liberal internationalism itself is problematic. Other terms, such as neoliberalism, cosmopolitanism, and globalism, confuse the picture and carry political valences that I want to avoid. Liberal internationalism, as I understand it, involves the application of the methods of liberalism ‒ free inquiry, radical skepticism, disentanglement from tribal loyalties, and an aspiration to advance human flourishing ‒ to projects that take into account as well as build interdependence among states and peoples of the world. My understanding of the concept, I hasten to say, does not conform to any school of international relations theory, whether rational interest, liberal institutionalism, or any other ism.
While acknowledging and trying to surmount liberal internationalism’s shortcomings, I reject any ideological orthodoxy that would shut down the process of open inquiry when it threatens some revealed truth. Maintaining that a person can’t ask certain questions or follow the evidence wherever it leads us prevents us from making the world less bad and fails to help the victims of injustice. I accordingly reject arguments that would limit attempts to learn from experiences of people around the globe just because their worlds seem different, weird, or even an affront to our most cherished values. Raised as I was as a Calvinist, my remaining tie to that faith is dutiful adherence to the path of Reverend Bayes, a Presbyterian minister and mathematician.Footnote 8
Questioning My Priors and the Possibilities of Liberalism
I accept attacks on liberal internationalism that highlight its hubris and emptiness. The first tends to come from the left, which shows how liberalism hides the misery and humiliation it inflicts.Footnote 9 The second comes more from the right, which argues that it cuts off people from a real sense of connection and common purpose.Footnote 10 What motivates this book is a wish to take these charges on board without abandoning the fundamental principles of discovery based on skeptical, compassionate, and courageous inquiry.
Internationalism for me is not a rejection of the nation state or an embrace of a cosmopolitan attitude for moral or aesthetic reasons. Rather, it is a recognition, I think unavoidable, of the nature of the contemporary world as deeply and variously interconnected. We cannot grapple with this world, either to ward off danger or to make it better, without accepting this essential reality. It does not follow, however, that this recognition makes more international law and international organizations the default preference. To the contrary, I will argue that in many cases, the best international norm is one of getting out of the way of states that apply innovative solutions to particular problems.
What this book seeks to do is to save liberal internationalism from itself. International law seems as good a place as any to face that challenge. International law, like any legal system, rests on beliefs about how the world works. It succeeds or fails based on how it uses its special techniques, reflecting those beliefs, to make people’s lives better or worse. The heart of this book’s argument is that a big part of the international law project of the late twentieth century came undone, but that liberal commitments demand that we try to learn from these failures and to do better. Accordingly, we should neither deny the blunders nor give up on using international law’s resources to help people around the world have better lives, if they are fit to the task.
Liberalism, a posture that tries to learn from as many ways of living together as possible, does not go well with triumphalism. It demands circumspection, a quality at odds with the contemporary world that rewards attention more than accomplishment. It comes with a sense of tragedy, an understanding that things often do not turn out as hoped. As this book considers, there may be no way out of the present mess or the ones still to come, and all we have left may be despair. The case for the liberal enterprise does not rest on historical inevitability, but rather on an intuition that, whatever its shortcomings, it remains the best way to make sense of and meet the challenges of a disordered world. This book proceeds in that spirit.