Maritime order versus continental anarchy

International (public) law is not law, yet it refers to something real.

Law and order is a very redolent phrase. Each element works off the other. Law is ordering. A certain amount of order is necessary to have law.

Social order matters for human flourishing, for we are an ultra-social species, we cooperate with non-kin at a level not matched by any other species. We are part of the social conquest of the Earth. We belong to that very small fraction of species that have mastered cooperation and who, collectively, make up about half of animal biomass.

We evolved into being an ultra-social species—none of our near relative species are, which is why there are billions of us and thousands of them—because we are bipedal tool-using predators. We evolved highly cooperative subsistence and reproduction strategies enabling us to rear the most biologically-expensive children in the biosphere. In many ways, we are what raising our children has made us.

This meant that we developed mechanisms that generate and support our ultra-sociality. These include prestige and propriety as currencies of cooperation; normative capacity to generate robust shared expectations; language to communicate and cooperate; notions of the divine and a sense of the sacred to manage group cohesion and the self-consciousness that comes with language.

From these mechanisms—and our interactions using them—we also developed law. By law I mean:

a bounded mechanism for generating proscriptions and prescriptions, with penalties and other remedies, that generates and manages expectations.

I say bounded mechanism because part of what makes law, law, is that it comes from, and includes, an identified structure of authority—of habituated or presumptive deference—that generates, interprets and enforces the law.

Law looks a lot like morality. It has you cannot do this, and sometimes you must do this as morality has thou shalt not and thou shalt.

This looking-a-lot-like leads folk to over-theorise the connection between law and morality. There is no inherent connection. Whatever the acknowledged authority issues—according to the correct forms—as law is law. It is good if the law is not evil or immoral but being evil or immoral does not make it not law.

A key difference between law and morality is that law comes with penalties and other remedies. Breaking the law has identified consequences with attached enforcement mechanisms. That makes it—when operating—a very powerful mechanism for managing expectations and social interactions, a very powerful social ordering mechanism.

States have laws because social interactions have to be sufficiently structured—even managed—to create the peace and good order that enables states to regularly extract revenue. A certain level of law is thereby required for the state to exist. (No law is required for anarchy to exist.)

In Islam and in Brahmin civilisation, much of the law was provided by or through religious authorities. Such law invokes divine authority via revelation, and a sense of the sacred, to generate deference and limit actions. US law is distinctive within the common law world in that it has a touch of divine authority in inherent rights and there is a sacralisation of the Constitution itself.

Natural law theory is an attempt to ground law in morality, or at least build morality into law. It requires that morality is somehow embedded in the universe: typically by a beneficent Creator. The less one knows about biology and evolution, the more plausible natural law theory is.

Even with the use of revelation and sacredness by Sharia and by Brahmin law, the state remained central to enforcement in both civilisations. There is far more order—in scale and complexity—in state polities than in stateless societies.

Law, and its domestic enforcement, is an existential issue for any state, as it has to have enough ordered authority to extract revenue. When such patterns of deference by its agents and subjects collapses, so does it.

The ordering role of the state is a serious matter. It was the development of chiefdoms—and particularly states—that stopped the savage harrowing of male lineages that followed the development of farming and pastoralism. Authorities emerged in various human societies with a powerful interest in protecting-folk-so-as-to-tax-them—and in having them breed new taxpayers—rather than just killing them and taking their women, as “self-help”, no higher-political-authority, kin-groups did.

It is very clear in the history of riverine Asia, that when the dominant local state collapsed, some level of population collapse then followed. Ironically, it was often the population growth due to the imposition of an ordered peace that stressed the state into collapse: by pressure on resources shrinking farming niches making taxes more burdensome; by generating more bandits, outlaws and angrily disaffected than the system could handle.

While how successfully a law is enforced in any particular instance can vary, having a mechanism or mechanisms of enforcement is inherent to making law, law. If there are no penalties or remedies it is not law. Folk may call it law, but that is a pretence, a misnomer. It is something else pretending to be law, that is like that which operates within a polity. It does not have the ordering capacity of actual law.

The Bombardment of Bomarsund, Antoine Léon Morel-Fatio, 1853, Wikimedia commons.

What folk call international (public) law is not law.¹ There are no inherent penalties or other remedies. There is no enforcing nor issuing authority. There is no entity for which its existence is necessary. In that sense, international (public) law does not exist.

Well, it does not exist as law, but it is clear that folk are referring to something. When folk talk of the rules-based-international order, they are not referring to nothing.

They are referring to a set of (small ‘c’) conventions that countries use to generate expectations so as to manage behaviour in the international arena. By convention I mean:

actions people do in particular ways because other people do so, such as fashion or language: what we can reasonably call descriptive norms.

Such conventions, along with customs and social norms, are ways people respond to various constraints. By custom I mean:

things people recurrently do because they work for them that are not dependent on the actions or expectations of others, though they may generate expectations or have a signalling role.

When folk refer to customary law, they mean “the way we have always done things, back to time immemorial”. By social norms I mean:

injunctions to act as expected, with sanctions being expected to be imposed if those expectations are not fulfilled.

Conventions and social norms are how folk mutually coordinate their responses to various constraints by aligning expectations. They tend to shift in response to changes in constraints.

Conventions can evolve, they can emerge out of social interactions, or they can be big ‘C’ Conventions: things states explicitly sign up to. Treaties are typically specific agreements between specific countries. Big ‘C’ Conventions are more general negotiated agreements that are open to countries to sign up to.

They are all mechanisms for generating and managing expectations. Despite attempts to elevate the United Nations, there is no over-arching authority that issues international public law nor any authority that enforces it. There is no global structure that states show habituated or presumptive deference to, except deference that is revocable in a way that is not true of agents within the ambit of state authority.

The UN Statute establishing the International Court of Justice is admirably clear on the sources of international law:

Article 38

1.The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states ;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations ;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bond, if the parties agree thereto.

Article 59 simply makes clear that the Court is a mediating body:

Article 59

The decision of the Court has no binding force except between the parties and in respect of that particular case.

A 1969 decision of the Court in a case between the Federal Republic of Germany, Denmark and the Netherlands about fishing boundaries discusses how international law can evolve.

It is convenient for states to have a mediating body to resolve disputes. Part of the process of the English Crown establishing its common law courts presided over by royal judges—somewhat in competition with manorial courts—was the baronage found royal courts useful to arbitrate their disputes. Though they did insist, via Magna Carta, that they could only be convicted by a jury of their peers, because, well, outsiders might not understand. More to the point, it balanced off the power of the king’s judge(s).

To arbitrate disputes, and generate the convergence in expectations that enables mutually useful interactions, is central to law. But these things can happen without there being law. For the trouble comes when we consider the nature of the entities notionally covered by such rules and engaging in such arbitrated mediation.

States are armed entities that coercively extract revenue. If they are independent states, there is no equivalent armed authority that forces deference on them. States can choose to delegate decision-making. This is most obviously so in the “pooled sovereignty” of the EU. But states can also un-choose to do so, as the UK did with Brexit.

The rules-based international order is a range of treaties, conventions and common practices that seek to manage interactions between countries, and other players, in the international arena.

Following along with its emergent and agreed elements generates expectations about future behaviour. So does not doing so. It is an expectations and feedback system. But it is not a structure of habituated or presumptive deference that can enforce its authority. It is not order-enforcing law. It is order-encouraging rules.

The maritime order

As a structure of rules, the rules-based system is a creation of the maritime order. That is, it arises from there being oceans and seas that people can navigate across but states and others cannot occupy and control in the way they can land. That it is far cheaper to move things by water than by land—due to far lower friction—means that, over time, more and more trade has gone by sea. This generates a realm of positive-sum, gains-from-trade, interactions.

Since folk have been doing this for millennia, a range of useful principles have grown up to manage interactions, and expectations about the same. This is international customary law. It is a combination of what states do, and what they accept as some obligation to do (opinio juris).

This is how conventions emerge. Folk do what seems to work. If enough folk do it, or do sufficiently similar things, it converges on being generally recognised as this is what we do. This is how customary law arises; how folk in non-state societies converge on using some good as currency; how languages emerge and evolve; how property gets acknowledged without, or even against, formal legal recognition.²

It is easier to do positive-sum interactions if everyone agrees on some basic rules for the space none of them control, or extra-territorial interactions of any kind. Hence so much of international customary law is about maritime matters and so fits well with the maritime order.

Dr Sarah (“Sally”) Paine outlines the dynamics of the maritime order in various lectures, such as her 2022 George C. Marshall Lecture.

Maritime states seek to engage in such positive-sum interactions. It is very much in their interests to create and maintain a system that enables such positive-sum interactions to occur. The more commercial their societies, the more that is true.

Hence the investment in a rules-based international order, in a system that manages expectations so as to allow and expand such positive-sum interactions.

Calling it international law is a way of upgrading the robustness of those expectations, of attempting to anchor them in some (notional) grand authority. It is an understandable inflation, but a false one.

There is also a more toxic reason to engage in such inflation. That is to try to use the alleged authority of international law as a weapon against local law and local decisions, against local choices, including local democratic choices. One of the problems with international organisations—especially the UN—is that their lack of accountability makes them excellent mechanisms for laundering (often terrible) ideas (because unaccountable) and giving them a false patina of authority.

If international law is law—so like the law inside a polity—and it is normal in law that the law of the territorially-encompassing authority overrules, within its realm of legal competence, that of encompassed, subordinate authorities, then “clearly” international law should override national law. Except that is not how it works. Authority within polities is patently of a different order than any putative authority beyond them.

The wish to stop states acting against the positive-sum maritime order can, unfortunately, easily slide into much less admirable manoeuvres. These are typically grounded in grand moral purposes. They represent an attempt to use grand moral purposes to evade inconvenient constraints—such as the inconvenient constraint of getting democratic endorsement for whatever grand idea folk are pushing.

Calling it international law can serve this purpose. Calling things what they are not tends to be either a case of sloppy thinking or a form of grift (or both). Using a pretence of being law to evade or frustrate democratic accountability is a grift.

Sloppy thinking is to think that international public law is somehow self-enforcing. It has no enforcement mechanisms. States may choose to sanction states that break the rules, whether agreed or emergent, of the maritime order. The rhetoric of international law can be useful for such statecraft. But such actions are a decision of statecraft. They are in no sense an automatic or inherent enforcement mechanism built into the structure of the maritime order specifically, or the international order more generally.

We can see this very clearly in the response to Russia’s February 2022 invasion of Ukraine. Various countries either individually, or via processes of negotiation, imposed various sanctions on Russia. Lots of countries did not. These were decisions of statecraft all the way down. There were no inherent enforcement mechanisms because there is no habituated or presumptive deference that is intrinsic to having law.

Yes, lots of states want to keep the maritime order, the international rules-based order, going. They benefit greatly from its positive-sum interactions and they want to minimise threats, including existential threats, to it, to them and theirs. This is how the international rules-based order emerged.

But none of this makes international (public) law actually law. It makes it a system of conventions, and Conventions, that generates and manages expectations. It is very useful. It is profoundly beneficial. But it has no automatic authority. It has no inherent enforcement mechanism. It emerges from what states decide to do, or not.

Continental anarchy

Especially as there are states who do not wish to bind themselves by those expectations. For there is very much an alternative order to the maritime one. It is the anarchy of continental powers engaging in continental strategies. Once again, Dr Paine is an excellent guide.

This is a zero-sum or negative-sum world of seizing and holding territory, where neighbours are threats and keeping them as weak and divided as possible is good strategy. A world where genocide has been a recurrent reality, as homogenising one’s population—and destroying alternative structures of authority, connection and loyalty—makes it is easier to control and hold territory.

It is also why John Mearsheimer’s analysis rings so false. He is trying to sell continental anarchy to polities that really do not work that way and do not benefit from trying to do so. He has a point about liberal internationalist arrogance, but he way over sells it.

There is a simple term for a state that crushes or subordinates other states. We call it an empire. The Holocaust took place in a realm of destroyed states precisely because folk were stripped of the ordering protection of states: either by their state being destroyed or by being forcibly moved into the region of destroyed states.

We can see the perspectives of continental anarchy being played out in Putin’s invasion of Ukraine. We can see it being played out particularly virulently by the Iranian regime in the Middle East. It is also the perspective of the regime in North Korea and of Xi’s China—for instance, with its wolf-warrior diplomacy.

Israel seeks support from the maritime order, but lives in a region of intense continental anarchy. This creates a major informational warfare problem for it, Though, if the Iranians overthrow their mullahs, the region may move more towards the maritime order than it already has.

Putin’s Russia is behaving like every Muscovite autocracy since the C15th. Putin’s world-view is very much that of the continental Power. Indeed, specifically of an autocratic, continental Power.

India is an intermediate case, playing in both worlds; suspended between the maritime order—as an increasingly commercial, peninsular democracy—and the continental world of contested borders, having fought wars against Pakistan and China. India has conspicuously not engaged in the sanctions regime of the maritime order against Russia over its invasion of Ukraine.

CCP China is a profoundly conflicted case. Since 1978, no country has benefited more from the rules-based maritime order than China. Yet the People’s Republic of China is very much a continental country—indeed empire—that occupied East Turkestan and Tibet and has fought border wars against India, the former Soviet Union, and Vietnam.

Moreover, the CCP clearly both resents, and feels threatened by, the US-dominated maritime order. For that order is dominated by commercial democracies. The CCP’s suppression of Hong Kong was a continental-control aversion to liberal commercialism.

Taiwan’s democratic liberal commercialism operating within Chinese civilisation—and flowing from China’s Civil War alternative to the CCP—is even more threatening, hence the ongoing preparations to invade it. That post-1978 mainland China looks far more like Chiang Kai-shek’s vision than Mao Zedong’s makes the sting worse.

Continental-strategy autocracies regularly choose dominion over positive-sum interactions, even if it involves huge negative-sum costs. They choose continental anarchy over maritime order. Of course, if a state has a choice to go either way—as Japan did in the 1930s—forcing them out of the maritime order is not a good look.

The tension between the various continental Powers pursuing the anarchy of continental strategies, and the US-led commercial maritime order, is the major geopolitical divide of our time. It also displays how the rules of the maritime order are emergent ways of managing expectations but are very clearly not law. There is no authority that enforces them, no authority that overrides the decisions of state-actors, of statecraft.

H.L.A. Hart is correct when he says what international law is most like is municipal law, law by and within a state. But states apply laws to agents that are not states and there is no global thing that “stands over” states the way states “stand over” their own territories and the agents therein or therefrom. Not even the rules-based maritime order does so.

The commercial democracies may, and do, support that order. They may seek to maintain it. They may use the measures of statecraft to do so. It is an emergent order of rules to manage expectations. It has great value. None of this makes it law.

References

P. W. Anderson, ‘More is Different,’ Science, New Series, Vol. 177, No. 4047. (Aug. 4, 1972), 393-396. https://cse-robotics.engr.tamu.edu/dshell/cs689/papers/anderson72more_is_different.pdf

Cristina Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms, Cambridge University Press, 2006.

Cristina Bicchieri, Norms in the Wild: How to Diagnose, Measure and Change Social Norms, Oxford University Press, 2017.

Barry Bogin, Jared Bragg, Christopher Kuzawa, ‘Humans are not cooperative breeders but practice biocultural reproduction,’ Annals of Human Biology, 2014 Jul-Aug; 41(4): 368-80. https://www.researchgate.net/publication/263130566_Humans_are_not_cooperative_breeders_but_practice_biocultural_reproduction

Carl von Clausewitz, Michael Howard & Peter Paret (trans.), On War, Princeton University Press, [1832] 1976, 1984.

Michael J. R. Crawford, An Expressive Theory of Possession, Hart Publishing, 2020.

Chris D. Frith, ‘The role of metacognition in human social interactions,’ Philosophical Transactions of the Royal Society B, 2012, 367, 2213–2223. https://pmc.ncbi.nlm.nih.gov/articles/PMC3385688/

Herbert Gintis, Carel van Schaik, and Christopher Boehm, ‘Zoon Politikon: The Evolutionary Origins of Human Political Systems’, Current Anthropology, Volume 56, Number 3, June 2015, 327-353. https://pubmed.ncbi.nlm.nih.gov/29581024/

Jonathan Haidt and Jesse Graham, ‘Planet of the Durkheimians, Where Community, Authority, and Sacredness are Foundations of Morality,’ December 11, 2006. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=980844

H.L.A. Hart, The Concept of Law, Oxford University Press, 1961.

Erik P. Hoel, Larissa Albantakis, and Giulio Tononi, ‘Quantifying causal emergence shows that macro can beat micro,’ PNAS, December 3, 2013, vol. 110, no. 49, 19790–19795. https://www.pnas.org/doi/10.1073/pnas.1314922110

Monika Karmin, et al., ‘A recent bottleneck of Y chromosome diversity coincides with a global change in culture,’ Genome Resources, 2015 Apr;25(4):459-66. https://pmc.ncbi.nlm.nih.gov/articles/PMC4381518/

Victor Lieberman, Strange Parallels, Southeast Asia in Global Context, c.800–1830: Part I, Integration on the Mainland, Cambridge University Press, [2003] 2010.

C. O’Madagain, M. Tomasello, ‘Shared intentionality, reason-giving and the evolution of human culture,’ Philosophical Transactions of the Royal Society B, 2021, 377: 20200320. https://www.researchgate.net/publication/357000359_Shared_intentionality_reason-giving_and_the_evolution_of_human_culture

Alfred Thayer Mahan, The Influence of Sea Power on History: 1660-1805, Bison Books, [1890] 1980.

Benjamin G. Purzyckia and Richard Sosis, ‘The extended religious phenotype and the adaptive coupling of ritual and belief,’ Israel Journal of Ecology & Evolution, 2013, Vol. 59, No. 2, 99–108. https://www.researchgate.net/publication/259582160_The_Extended_Religious_Phenotype_and_the_Adaptive_Coupling_of_Ritual_and_Belief

Peter J. Richerson, and Robert Boyd, ‘The evolution of human ultra-sociality,’ in Irenäus Eibl-Eibesfeldt and Frank K. Salter (eds.), Indoctrinability, ideology, and warfare: Evolutionary perspectives, Berghahn, 1998, 71-95. https://www.researchgate.net/publication/2314563_The_Evolution_of_Human_Ultra-sociality

Richard Sosis and Candace Alcorta, ‘Signaling, Solidarity, and the Sacred: The Evolution of Religious Behavior,’ Evolutionary Anthropology, 12:264–274 (2003). https://websites.umich.edu/~satran/PoliSci06/Wk3-2ReligionA-GeneralSosis&Alcorta.pdf

Will Storr, The Status Game: On Social Position And How We Use It, HarperCollins, 2022.

Edward Peter Stringham, Private Governance: Creating Order in Economic and Social Life, Oxford University Press, 2015.

Jordan E. Theriault, Liane Young, Lisa Feldman Barrett, ‘The sense of should: A biologically-based framework for modeling social pressure’, Physics of Life Reviews, Volume 36, March 2021, 100-136. https://pubmed.ncbi.nlm.nih.gov/32008953/

Jessica C. Thompson, Susana Carvalho, Curtis W. Marean, and Zeresenay Alemseged, ‘Origins of the Human Predatory Pattern: The Transition to Large-Animal Exploitation by Early Hominins,’ Current Anthropology, Volume 60, Number 1, February 2019. https://ora.ox.ac.uk/objects/uuid:da2850f1-f415-4130-9d35-8ed23fdd6b89/files/r2b88qc185

Michael Tomasello, ‘The ultra-social animal,’ European Journal of Social Psychology, 2014, 44, 187–194. https://www.researchgate.net/publication/261567999_The_ultra-social_animal

Tian Chen Zeng, Alan J. Aw & Marcus W. Feldman, ‘Cultural hitchhiking and competition between patrilineal kin groups explain the post-Neolithic Y-chromosome bottleneck,’ Nature Communications, 2018, 9:2077. https://www.nature.com/articles/s41467-018-04375-6

1. International private law does come with remedies. So it is law. This essay is about international public law which, as is explained above, is not law because it does not come with remedies as states are very different things than firms and other private agents.

2. The most dramatic recent example is the take-off of commerce in China after 1978, yet private property and commerce was not legally recognised until 2004.