I. Introduction
Since about 2008, the rise of autocracy and corresponding decline of democracy has been a key trend in international affairs. Freedom House reports that, as of 2022, “some 38 percent of the global population live in Not Free countries, the highest proportion since 1997. Only about 20 percent now live in Free countries.”Footnote 1 The growth of Chinese power is one of several factors contributing to these trends. Democratic decay affects the international legal order because, as Tom Ginsburg has convincingly argued, growing Chinese power and the spread of authoritarian governance are pushing international law in the direction of “authoritarian international law.”Footnote 2
The United States has led the world in creating a liberal international order since World War II. (For the purpose of this Essay, a “liberal” order is one based on a normative commitment to democracy, human rights, the rule of law, and limited government.) Despite the growth of authoritarian international law, can that liberal order survive? To answer that question, it is helpful to distinguish among global law, regional law, and plurilateral international law. Since World War II, the most important international institutions have been either regional (e.g., the European Union and the Economic Community of West African States) or global (e.g., the United Nations and the World Trade Organization). Several plurilateral institutions exist (e.g., the Organisation for Economic Co-operation and Development), but they have played at most a secondary role in the creation and enforcement of international law.
We assume that regional international law in Europe will continue to reflect liberal values. However, the rise of authoritarian international law poses a significant threat to the continued vitality of liberal international law at the global level. To counter that threat effectively, the United States will need to collaborate with other liberal democracies, including those outside Europe, to develop new plurilateral institutions and treaties to create a “liberal plurilateral order.” In fact, this Essay demonstrates that states are currently planting the seeds of a future liberal plurilateral order in their response to Russian aggression and atrocities in Ukraine.
States’ responses to the war in Ukraine reinforce a point that was evident previously: most autocratic states do not support a liberal international order, rooted in a principled commitment to democracy, human rights, and the rule of law. Opposition from powerful autocracies, especially China and Russia, makes it increasingly unrealistic to try to maintain a global liberal order. However, state responses to Russian aggression demonstrate that liberal democracies from every continent are cooperating informally to uphold a plurilateral international order that is consistent with liberal values. In the longer term, a liberal plurilateral order will be more effective if it is codified in the form of new treaties and institutions. Thus, the war in Ukraine highlights the need for new plurilateral treaties and institutions to facilitate cooperation among liberal democracies from Asia, Africa, Europe, and the Americas. Such treaties and institutions could potentially reshape international law to help stem the rising tide of autocracy that has gained momentum over the past ten to fifteen years.
The remainder of this Essay proceeds in three parts. Part II analyzes state responses to the war in Ukraine, showing that liberal democracies have responded very differently from autocratic states. Part III focuses on international humanitarian law (IHL). International humanitarian law comprises a key element of the liberal international order and the rule of law because it limits excessive force by states (and others) and protects civilians.Footnote 3 This Part shows that liberal democracies, joined in many cases by hybrid states (those that are neither democratic nor autocratic), are fighting to defend IHL norms and develop new accountability mechanisms to respond to Russian war crimes. Part IV suggests pathways for building on the current processes of informal collaboration to create new plurilateral treaties and institutions to develop a liberal, plurilateral order.
II. The Response to Russian Aggression
Analysis of states’ responses to Russia's invasion of Ukraine demonstrates that liberal democracies behave differently from autocracies in the international arena. We divide UN member states into three groups: liberal democracies, autocracies, and hybrid states. Liberal democracies are states that score .6 or better on the V-Dem liberal democracy index.Footnote 4 Autocracies are states that score below .3. States that score between .3 and .6 are hybrid states. Twenty-one UN member states are not included in the V-Dem index. We use Freedom House data to classify those states.Footnote 5 Overall, the 193 UN member states include sixty-six liberal democracies, seventy-five autocracies, and fifty-two hybrid states.Footnote 6
The UN General Assembly (UNGA) held two key votes in response to Russia's invasion of Ukraine. On March 2, 2022, the UNGA voted to condemn Russian aggression, with 141 states in favor and only five opposed.Footnote 7 Then, on April 7, the UNGA voted to suspend Russia's membership in the UN Human Rights Council due to “violations and abuses of human rights and violations of international humanitarian law.”Footnote 8 Ninety-three states voted in favor of the resolution; twenty-four voted against.Footnote 9
The following table demonstrates that there is a strong correlation between the classification of states by regime type and their votes on the UN resolutions. Liberal democracies voted unanimously to condemn Russia's invasion of Ukraine. Fifty-eight of sixty-six liberal democracies (88 percent) voted to suspend Russia from the Human Rights Council. In contrast, fewer than half of UN autocratic states voted to condemn Russian aggression. Among autocratic states, “no” votes on the Human Rights Council resolution exceeded “yes” votes by a margin of almost two-to-one.
Votes in UN General AssemblyFootnote 10
The UN Human Rights Council includes forty-seven member states: thirteen liberal democracies, nineteen autocracies (including Russia), and fifteen hybrid states. On March 4, 2022, the Council voted to establish a commission of inquiry (COI) to investigate “violations and abuses of human rights and violations of international humanitarian law, and related crimes” committed by Russia.Footnote 11 The voting pattern in the Human Rights Council was similar to the voting pattern for the first UNGA resolution. Ninety-two percent of liberal democracies (12/13) and 73 percent of hybrid states (11/15) voted in favor of the COI. Only 47 percent of autocracies (9/19) voted in favor. Only two states voted against the resolution: Eritrea and Russia. Both are autocracies.
Analysis of economic sanctions against Russia reinforces the point that liberal democracies responded to Russian aggression very differently than autocracies did. According to the Peterson Institute for International Economics, forty states (thirty-nine UN members plus Taiwan) have imposed sanctions on Russia in response to the Ukraine invasion.Footnote 12 Not surprisingly, none of the UN's seventy-five autocratic states imposed sanctions. In contrast, thirty-five liberal democracies and five hybrid states have imposed economic sanctions.Footnote 13 Thus, slightly more than half of the world's liberal democracies have collaborated to impose sanctions in response to Russian aggression. Perhaps more importantly, almost every liberal democracy with significant economic power has joined the sanctions coalition. Specifically, eighteen of the world's twenty wealthiest liberal democracies—all except Israel and Argentina—have imposed sanctions on Russia. Collectively, those eighteen countries account for more than fifty percent of global gross domestic product (GDP).Footnote 14
The forty states that are members of the sanctions coalition are mostly European.Footnote 15 However, the coalition also includes six states from the Asia-Pacific region (Australia, Japan, New Zealand, Singapore, South Korea, and Taiwan) and two states from North America (the United States and Canada). The sanctions coalition does not include any states from Africa or Latin America.
Skeptics may argue that states’ votes in the United Nations provide weak evidence of a commitment to liberal internationalism because UN votes are essentially cost-free. The same cannot be said, however, with respect to economic sanctions. European members of the sanctions coalition, in particular, have already incurred significant economic costs by blocking purchases of Russian oil. There is a significant risk that many Europeans could freeze this winter if Russian President Vladimir Putin blocks their access to Russian gas.Footnote 16 It is debatable whether states have chosen to incur those costs to uphold the principle of non-aggression (which is not really a liberal norm) or to uphold core IHL principles (which are properly viewed as liberal norms).Footnote 17 We believe that states’ willingness to incur the costs associated with economic sanctions manifest a principled commitment to both IHL and non-aggression. Indeed, the fact that the vast majority of states imposing sanctions on Russia are liberal democracies, combined with the fact that no autocratic states have chosen to impose sanctions, strongly suggests that the decision to impose sanctions is linked to a principled commitment to the liberal norms embodied in IHL.
III. International Humanitarian Law and the Emerging Liberal Plurilateral Order
IHL is a cornerstone of the liberal international order. Forged out of the tragedy of warfare in the nineteenth and twentieth centuries, when states agreed to limit their use of force to curb the excesses that manifested in two global conflicts, IHL seeks to balance military necessity with protection of civilians. Its core tenets are enshrined in the four Geneva Conventions of 1949,Footnote 18 the two Additional Protocols,Footnote 19 and customary international law. Well-established international institutions have played a key role in interpreting and implementing this body of law. World leaders and international organizations have emphasized that respect for IHL, which includes obligations to impose accountability for violations, is central to the rule of lawFootnote 20 and the “rules-based [international] order.”Footnote 21
Russia's brutal tactics in the war in Ukraine are putting IHL, and the liberal values this body of law reflects, to the test. Multiple contemporary forces have already placed IHL under strain.Footnote 22 Yet the fact that IHL has weathered some of these challenges suggests it may well survive even Russia's flagrant violations in Ukraine. This Part examines two encouraging developments in the Russia-Ukraine context: (1) broad embrace of IHL norms by non-autocratic states; and (2) strong support for IHL accountability processes, also by non-autocratic states. In each case, the involvement of a worldwide coalition of liberal democracies and hybrid states is striking, and may indicate that IHL is a domain where the seeds of a new liberal plurilateral order are taking root.
A. Norms
The resilience of IHL has emerged in the strong statements of world leaders condemning Russian violations. From international organization leaders, to non-autocratic governments around the world, to prominent civil society voices, a large swath of the international community has excoriated Russia for its numerous IHL violations in Ukraine. Indeed, when Russian forces bombed maternity hospitals and schools or executed civilians in the streets, public outrage grew so strong that it kindled a growing interest in IHL among the public at large in many countries, garnering extensive media coverage in liberal democracies and hybrid states.
Condemnation of Russia's IHL violations extends well beyond the European region and includes large numbers of liberal democracies and hybrid states, even as authoritarian countries have remained silent or tacitly supported Russian aggression. For example, Japan's Chief Cabinet Secretary, Hirokazu Matsuno, called Russia's suspected massacre of civilians near Kyiv a “serious violation of international humanitarian law” and a “war crime.”Footnote 23 The transition team of the new South Korean President, Yoon Seok-yul, “strongly condemn[ed]” Russia's alleged massacre of civilians in Bucha and described it as “an act against humanity and a clear violation of international law.”Footnote 24 Officials from Australia,Footnote 25 Canada, and New Zealand have made similar statements,Footnote 26 as have government leaders from the Marshall Islands and Colombia.Footnote 27 Moreover, as discussed in Part II, the votes in the United Nations, along with sanctions decisions, demonstrate that liberal democracies (and hybrid states) are much more likely than autocratic states to condemn IHL violations and impose costly sanctions. Collectively, these statements and actions reflect strong support for IHL as a cornerstone of the international legal order, embraced by liberal democracies and hybrid states around the globe (but not by autocratic states).
B. IHL Accountability Processes
The war in Ukraine has also revealed the strength of IHL accountability processes, spawning a multi-layered array of investigative and prosecutorial efforts, including the COI discussed above. Perhaps the most significant international institution pursuing accountability for Russian atrocities in Ukraine is the International Criminal Court (ICC). Although Ukraine is not a party to the Rome Statute,Footnote 28 the ICC has jurisdiction over international crimes committed on Ukrainian territory because Ukraine issued declarations accepting the court's jurisdiction.Footnote 29 Almost immediately after Russia's invasion, ICC Chief Prosecutor Karim Khan announced that he would seek authorization to open an investigation.Footnote 30 A referral from forty-three states parties soon followed,Footnote 31 and the prosecutor promptly initiated an investigation into war crimes, crimes against humanity, and genocide in Ukraine.Footnote 32
Significantly, states supporting the ICC investigation include not only European states, but also other liberal democracies from around the world. Non-European liberal democracies joining the referral include Australia, Canada, Chile, Costa Rica, Japan, and New Zealand.Footnote 33 Colombia, a hybrid state, also signed.Footnote 34 Significantly, no autocratic states joined the referral. It is also striking that the United States, a liberal democracy not party to the Rome statute and therefore unable to join the referral, has nevertheless welcomed the investigation.Footnote 35 The U.S. position is notable because the United States faces domestic legislative restrictions on certain forms of support for the ICC.Footnote 36 Indeed, the U.S. Congress is considering multiple bills that would loosen such restrictions.Footnote 37
In addition, the Organization for Security and Cooperation in Europe (OSCE) launched an investigation into war crimes and other atrocities in Ukraine following the Russian invasion.Footnote 38 Initiated pursuant to the “Moscow Mechanism,” the investigation has already yielded a report that “found clear patterns of IHL violations by the Russian forces in their conduct of hostilities.”Footnote 39 The European Union has also pledged to support an investigation into war crimes in Ukraine.Footnote 40 Notably, twenty-three of the twenty-seven 27 EU member states are liberal democracies. Although the OSCE includes some autocratic states, the vast majority of OSCE members are either liberal democracies or hybrid states.
Perhaps the swiftest-moving accountability processes for war crimes in Ukraine have been domestic. As with other accountability initiatives, liberal democracies are leading the way. As of this writing, Ukraine has convicted three Russian soldiers of “violating the laws and customs of war.”Footnote 41 According to the Ukrainian prosecutor general, tens of thousands of investigators are spreading out throughout the country to gather evidence of war crimes and other atrocities.Footnote 42 The office receives between two hundred to three hundred new war crimes cases each day, a total of 15,000 so far, and has identified eighty individual suspects.Footnote 43
Multiple countries—all liberal democracies or hybrid states, not autocratic states—along with several multinational bodies, have offered support to Ukraine's domestic prosecutorial efforts. For example, France, Lithuania, the Netherlands,Footnote 44 and the United KingdomFootnote 45 have sent investigators to Ukraine. The Council of Europe has supported such domestic efforts by establishing an expert advisor group and training prosecutors.Footnote 46 Latvia, Estonia, Slovakia, the Czech Republic, Poland, the United States, and the United Kingdom, along with the EU and the ICC, have formed a joint investigative initiative to fund and support Ukrainian investigations, share evidence, and coordinate investigative efforts.Footnote 47 The initiative includes a cohort of senior war crimes prosecutors, investigators, military analysts, forensic specialists, and other experts who are advising Ukraine's prosecutor general, as well as mobile justice teams.Footnote 48 Beyond Europe, states supporting investigative efforts include the United States, Australia,Footnote 49 the Marshall Islands,Footnote 50 Colombia,Footnote 51 and South Korea.Footnote 52
Finally, at least eighteen other countries, none of which are autocracies, have started their own criminal investigations into war crimes perpetrated in Ukraine.Footnote 53 For example, relying on principles of universal jurisdiction, Germany has opened a “structural” investigation into war crimes in Ukraine, and two former ministers have lodged a formal complaint against thirty-three Russian officials.Footnote 54 Poland, where thousands of refugees are sheltering, has similarly initiated domestic criminal investigations and has already gathered “significant testimonies,” video, and photographic evidence.Footnote 55 Spain and Sweden have also initiated domestic criminal investigations of war crimes in Ukraine.Footnote 56 Beyond Europe, Canada has initiated a “national structural investigation into allegations of war crimes and crimes against humanity committed in Ukraine.”Footnote 57 In the United States, Russian atrocities in Ukraine have spurred a bipartisan effort to expand U.S. war crimes jurisdiction, opening the door to domestic prosecutions.Footnote 58
Russia's blatant atrocities in Ukraine present a challenge to the liberal international order. So far, the strong response across the international community is not only an encouraging sign of IHL's durability, but also suggests the potential for a new alignment around liberal democracies and hybrid states. The overwhelming majority of non-authoritarian states, along with international organizations and many private actors, have reaffirmed their commitment to IHL norms and values and supported an enormous, multilevel effort to investigate and prosecute Russian atrocities. Moreover, the commitment to defend and enforce IHL norms can be found broadly among liberal democracies and hybrid states around the globe, transcending regional groupings and reflecting shared values. In contrast, the evidence from the Ukraine war shows that autocratic states are not willing to defend or enforce the liberal norms embodied in IHL. This alignment suggests that, in the domain of IHL, we can see the seeds of a new liberal plurilateral order.
IV. The Future Architecture of the International Legal Order
Parts II and III show that state responses to Russia's invasion of Ukraine have begun to sow the seeds of a liberal plurilateral order. Part IV contends that, for a liberal plurilateral order to flourish, more formal cooperation among liberal democracies is required, and liberal democracies—joined by hybrid states in some cases—must begin to create new plurilateral treaties and institutions.
A. The Case for New Plurilateral Treaties and Institutions
For the past decade, China and Russia have been nurturing the growth of new international institutions, such as the Shanghai Cooperation Organization, that are committed to the development of authoritarian international law.Footnote 59 Those institutions contribute to the worldwide rise of autocracy and the corresponding decline of democracy.Footnote 60 Liberal democracies have a shared interest in resisting democratic decline and the continued development of authoritarian international law. Effective resistance requires more formalized cooperation among liberal democracies, in the form of new plurilateral treaties and institutions, particularly in two areas: reducing vulnerability to economic coercion, and building an information ecosystem consistent with liberal, democratic values.
Russia has exploited European dependence on Russian oil and gas as a tool of economic coercion to advance its objectives in Ukraine.Footnote 61 A Chinese invasion of Taiwan would trigger massive supply chain problems because several industries are highly dependent on Taiwanese manufacturers of critical computer chips.Footnote 62 These examples illustrate the danger that ensues when liberal democracies become overly dependent on powerful autocratic states—especially Russia and China—for critical materials and supplies.
It is neither realistic nor desirable to eliminate economic interdependence with China and Russia. However, compelling geopolitical considerations support a partial decoupling to reduce supply chain vulnerability in areas of strategic significance. Australia, India, and Japan recently introduced a “Resilient Supply Chain Initiative” (RSCI) to allay concerns about “security risks associated with production networks significantly embedded in, or connected to, China.”Footnote 63 The RSCI is a useful first step, but broader plurilateral cooperation is necessary to internalize supply chains within and among liberal democracies, and to reduce their vulnerability to Chinese and Russian economic coercion. A new plurilateral trade agreement linking democracies from Asia, Europe, Africa,Footnote 64 and the AmericasFootnote 65 could help preserve efficiency gains associated with international trade, while also reducing dependence on China and Russia for strategically important materials and equipment.
Information and communications technology (ICT) is another important area requiring plurilateral cooperation among liberal democracies. Russia and China have both developed sophisticated, socio-technical models of information management that emphasize surveillance and censorship.Footnote 66 Both countries are using modern information technology to spread misinformation about the war in Ukraine to global audiences in Asia, Africa, and Latin America.Footnote 67 More broadly, Russia exploits modern information technology to subvert democratic governance in existing democraciesFootnote 68 and China exploits ICT to spread so-called “digital authoritarianism” to hybrid and autocratic states.Footnote 69 Although it is impossible to prove causation, there are reasons to believe that Chinese and Russian propaganda about the Ukraine war may have induced some states to abstain or vote against key UN resolutions.Footnote 70
The United States and EU recently agreed “to develop a common analytical framework for identifying foreign information manipulation and interference.”Footnote 71 The goal is laudable, but the approach is flawed, because it represents a regional solution to a global problem. Chinese and Russian information warfare threatens democracies around the world, not just in Europe and North America. An effective response—designed to protect existing democracies and inhibit the use of ICT to spread digital authoritarianism—requires cooperation among leading democracies from Asia, Europe, Africa, and the Americas.
No existing international institution has the right membership and substantive focus to facilitate plurilateral cooperation among liberal democracies in the areas of information technology and supply chain resilience. Accordingly, leading democracies should establish new plurilateral treaties and/or institutions that bring together liberal democracies from different regions to reduce states’ vulnerability to Chinese and Russian economic coercion and to fight back against Chinese and Russian information warfare.
B. Obstacles to a Liberal, Plurilateral Order
Creation of a liberal plurilateral order that includes states from Asia, Africa, and Latin America—as well as Europe and North America—will not be possible without strong, effective U.S. leadership. However, even with strong U.S. leadership, it is questionable whether other states will follow. President Trump's foreign policy was overtly hostile to liberal democratic values, prompting a sharp decline in the level of trust in U.S. leadership globally.Footnote 72 Moreover, the United States itself experienced significant democratic decline, as measured by both the V-Dem liberal democracy indexFootnote 73 and Freedom House's “Freedom in the World” database.Footnote 74 The risk that U.S. voters will reelect Donald Trump in 2024 is well known to leaders of other liberal democracies. “Why should we enter into new agreements with the United States?” they might ask, given that the next President Trump may simply repudiate those agreements.
On the other hand, it is far too early to write the obituary for liberal internationalism. When historians write the history of this decade, Biden's “Summit for Democracy,” convened in December 2021,Footnote 75 may ultimately be seen as a critical step toward a new liberal plurilateral order. Authoritarian international law has clearly made significant gains over the past decade, but liberal international law could still stage a comeback. States have planted the seeds of a liberal plurilateral order in their responses to the war in Ukraine. Only time will tell whether those seeds receive the water and sunlight they need to grow into a mature liberal plurilateral order.