As the United Nations (UN) recently celebrated its 75th anniversary in October, 2020 has come to a long-awaited close, and 2021 seems to promise a new dawn rising upon the international legal order and its garden of institutions. The hope of a return to normalcy appears certain with multiple COVID-19 vaccines nearing release, and with the United States (US) welcoming its 46th President – who expresses an unequivocal intention to steer his administration back to productive engagement with international allies and institutions. However, 2021 already has had a rocky start, with the recent chaos at the US Capitol casting doubt on the prospect of leaving the darkness in 2020 behind. These rays of hope must therefore not be mistaken for a heralding of a shadowless future: the division and cynicism rampant within the US is likely to remain mirrored in streams of international backlash against the current multilateral international order.
This article appeals for a reconsideration of current approaches to optimism and cynicism towards the international legal order. While it echoes calls from eminent academic voices to reject cynicism, it stresses that optimism must still resist complacency and an inadvertent dismissal of legitimate concerns. The article suggests that this brand of practical optimism may start from better ‘gardening’ of sorts – which invests in both maintaining and improving the system while adapting it to new seasons through engaging critics and adopting healthy introspection.
Peering into the domestic mirror: drawing parallels with international cynicism
The rude shock from this year’s exit poll-defying vote margin has barely secured the removal of the 45th US president, and not only reemphasises a deep political divide in the US but also stresses growing political cynicism across the nation. While similar observations may be made across other states, even within transnational blocs like NATO and the EU, both problems are glaringly eminent on multiple fronts in an international context, manifesting in a growing backlash against the international order. The international community is beginning to split on human rights, with China leading a ‘Like-Minded Group’ of states at the Human Rights Council and pushing for a redefined conceptualisation of Human Rights norms possessing ‘Chinese characteristics’ with individual rights and freedoms displaced by deference to economic development. Elsewhere, continuing gross human rights abuses are met either with marginal international intervention or symbolic finger-wagging; perhaps revealing a strong hesitance by states to sacrifice key diplomatic ties necessary for the longevity of valued economic deals. It is therefore unsurprising that cynicism surrounding the international order has been given a fertile field to blossom in. This cynicism has grown beyond casual attempts at a humorous critique of its ineffectiveness by questioning the appropriateness of falsely dignifying international law with its legal title. Echoes of this are not only voiced by kibitzers and can be found outside North America: in public criticisms of the order’s headliner institutions and its disappointment with its lack of general effectiveness during the global pandemic, alongside suggestions of a retreat from international cooperation and towards self-reliance.
Dissecting the imperfections of optimism
In defending the current international order, eminent academics have sought to reject cynicism and justify continued optimism; reminding cynics that current cracks in the system are far from existential, that criticism remains nested within a consistent pattern of productive international cooperation, and contemporary institutional critiques are a distraction from the more fundamental problem of inertia among individual state governments. A panellist at a 2019 workshop hosted by Australian National University on the backlash buttressed his defense of the UN’s regulation of international peace and security by invoking Eric Suy’s comment on the state of UN peacekeeping in the 1970s – les chiens aboient, mais la caravane passe – the dogs bark but the caravan passes. The implication of Suy’s comment was that in the absence of novel threats to the UN in its regulatory approach to peace and security, we must move on. Similarly, UN officials have often responded to bald critiques of the ineffectiveness of international law by analogizing its failures to speeding offenses, with both international law and domestic traffic laws retaining their longevity and continued effectiveness despite relatively minor infractions.
In tandem with a dearth of academic attention specifically addressing this cynicism, these comments seem to demonstrate an imperfect position of disinterest and disparagement and risk thinly papering over widening cracks threatening the system and glossing over legitimate grievances. While the analogies do express valid points, allowing ‘minor infractions’ to pass unaddressed may only fuel cynicism further. This may cause the system to retain its structural integrity but have its foundations risk an eventual buckling with its pillars being slowly undermined: Wilful inaction facing the many imperfections plaguing various states’ human rights records may breathe life into accusations that the universality of human rights, among other pillars of the international system, is merely a mirage.
Returning back to the domestic mirror – if US politics may be both cause for concern and confidence in moving forward, it should also host instruction for us in tending to the international garden. This dismissal of cynicism appears eerily familiar to the faux pas committed by then-presidential nominee Hillary Clinton who, speaking at a 2016 fundraiser, recognised that half of Trump supporters were ‘desperate for change’ while expressing her self-admitted ‘grossly generalistic’ view of the other half as ‘the basket of deplorables’. While a consideration of whether this blunder cost her the presidency is unproductive, it inevitably reinforced the narrative of a purposive disenfranchisement of working-class conservatives by the political establishment while reemphasising the US’ political divide.
Similarly, dismissing cynics as abrasive and current challenges as cyclical features of history may risk creating other uncomfortable consequences. Choosing blissful ignorance and rejection over engagement may advance a much-needed optimism that remains infinitely preferable to fatalism. However, this may inevitably prevent the realization of a brighter future by precluding recognition of both the cynic as an unwon zealot and barks from benign wolves as actual snarls from hungry wolves ready to maul the international caravan. Promoting such optimism also risks perpetuating another sort of cynicism which, in unintentionally over-promoting back-patting, insulates the system against healthy skepticism and deflects the measured introspection vital to ensuring the order’s continued evolution.
Moving forward: an appeal for better gardening of the international order
Moving forward, this piece affirms the current defenses of the international order but seeks to improve upon it by echoing Voltaire’s response to a satirized version of glibly-expressed optimism at the end of Candide: Cela est bien dit … mais il faut cultiver notre jardin – Well said … but we ought to cultivate our garden. Tending to the garden that is the international legal order invariably requires us to choose healthy optimism over an absolute cynicism. However, this healthy optimism should seek instruction from Dr David Malone’s pragmatic optimism, and Martti Koskenniemi’s reflections on cynicism in his 2018 TMC Asser Lecture. In navigating through the familiar squalls and headwinds which continue to buffet the garden, it is imperative that we adopt a pragmatic optimism that also admits that the garden is and will always be impossibly far from being Edenic, and that sunlight alone is often a poor herbicide for our garden. This brand of optimism must firmly reject any fatalism which accepts all current flaws and threats as necessarily cyclical features of history and must attempt to better tend to the garden by progressively mending existing cracks instead of painting over them.
While it is beyond the scope of this brief post to nominate a leader for this approach, I hope that we, as people interested in defending the current system, may begin this pushback. We should begin to recognise that our pursuit for truth in upholding our visions of the order may not only run parallel to but also converge with a similar pursuit by cynics. We should then adopt their legitimate concerns in improving the order while engaging with and convincing the cynics in joining us to productively tend to the garden. It is high time for us to reshape the narrative from defense to nurturing gardening: one that seeks purposely to invest in both maintaining and improving the system while adapting it to new seasons, while cautiously refraining from misdirected attempts to eliminate the spread of blight. Lastly, this gardening may also lean on an old adage in espousing a pragmatic and inclusive optimism – Darkness makes the light shine.
Daniel Kang is a recent graduate from the Australian National University with a First-Class Honours in Law, and is currently undertaking a research apprenticeship with the National University of Singapore’s Centre for International Law.