Anne Orford

The TRIPS Agreement came into effect in 1995 as part of a broad new suite of trade agreements resulting from the Uruguay Round of multilateral negotiations that led to the creation of the WTO. The agreements were treated as a ‘single undertaking’. States had to sign up to all of them if they wanted to join the new organisation. On its own, the TRIPS Agreement was a strikingly bad deal for most states, especially in relation to the expanded patent regime it established.

By late last year, it seemed clear that decades of attempts to coax governments and business leaders into taking seriously the risks posed by the climate crisis were leading nowhere. Yet faced with the far more immediate threats posed by a global pandemic, states that for decades had been committed to neoliberal thinking have slowly begun to embrace such radically old-fashioned ideas as planning for the future, relying on scientific expertise, or calling on their constituents to make sacrifices in order to protect vulnerable members of society. Environmental campaigners and journalists have begun to document the effects that the shut-down of factories, cancellation of large conferences, postponement of sporting events, and limitations on freedom of movement have had on carbon emissions.  

For now, no one other than Donald Trump, Vladimir Putin and their impressively inscrutable translators knows for sure what happened in the gilded Hall of Mirrors at Finland’s Presidential Palace during the recent US-Russia summit. Yet from the moment that the two presidents emerged to address the waiting press corps, their statements and actions have created the sense that, rather than leaving the hall of mirrors themselves, they have dragged the rest of us into it with them. And as with any visit to a hall of mirrors, the experience of doubling and distortion can be confusing, disorienting and, at times, a little frightening.

An enraged President Trump, surrounded by uniformed military leaders, used the same press conference last week to condemn a raid on the office of his personal attorney, Michael Cohen, and announce that he was ‘making a decision as to what we do with respect to the horrible attack that was made near Damascus’. ‘In our world,’ Trump said, ‘we can’t let atrocities like we all witnessed’ happen, and ‘because of the power of our country – we’re able to stop it.’ That is the image, and the language, it will be necessary to keep in mind during the coming months if we are to understand the relationship between domestic crisis, foreign relations, the rule of law, military force, authoritarian populism and visual culture that is poised to reshape the international order.

Most international lawyers have said that the US missile strikes against the Shayrat airfield in Syria on Friday morning were unlawful. The UN Charter prohibits recourse to force except in self-defence or if authorised by the Security Council to maintain international peace and security. The airstrikes, undertaken unilaterally in response to a chemical weapons attack allegedly conducted by the Syrian government against Syrian civilians, do not appear to fall within the limited exceptions of collective security or self-defence. The US government has given no legal justification for its actions. Yet many US politicians, Western allies and liberal commentators have supported the airstrikes, seemingly untroubled by the implications of the Trump administration’s nonchalant disregard for international law.

Many aspects of the Libyan situation remain unclear: the scope of the mandate given to UN member states by Security Council Resolution 1973, the broader aims of the intervention, how many civilians have been killed and by whom, and who the rebels represent. One thing, however, seems clear: the international intervention is considered to be legal. International lawyers have agreed with the UK government’s advice that Security Council Resolution 1973 ‘provides a clear and unequivocal legal basis for the deployment of UK forces and military assets to achieve the resolution’s objectives’. Legal experts have been quick to suggest that Resolution 1973 gives authority for any action thought necessary not only to protect civilians, but to protect areas inhabited by civilians. The constraints imposed on Libyan forces are similarly radical and far-reaching, going well beyond the obligations imposed by general international law on governments responding to insurgencies. The resolution demands ‘the immediate establishment of a ceasefire and a complete end to violence’, and bans all flights in Libyan airspace unless their sole purpose is ‘humanitarian’. If the expansive authority granted to international forces and the novel obligations imposed on Libya by Resolution 1973 are sanctioned by international law, what kind of law is this? And does it deserve our fidelity?