Attempts to Civilize the Westphalian System

The two world wars of the 20th century were a glaring demonstration that the Westphalian system that had guided European affairs since the 17th century was inadequate for modern times. Not only had it failed to prevent genocidal crimes committed by states against civilians, but it also failed in its original objective of deterring or mitigating wars between sovereign states. The response, spearheaded by the Western powers, was to construct a new world order that addressed some shortcomings of the Westphalian system without, however, fundamentally modifying it. This neo-Westphalian system ushered in a period of relative peace comparable to that which marked the 19th century. The process of European integration, which was from the outset an essential part of the effort to go beyond the Westphalian system, was remarkably successful in reducing the risk of war on the Old Continent. The de-colonization process dramatically increased the number of sovereign states, endowed with inviolable borders and the right to self-determination. The proportion of countries with liberal democracies rose steadily from 1946 (8%) to 2010 (24%).^[1] International – and even, in some aspects, supranational – institutions, notably the United Nations and the other Bretton Woods institutions, promoting peace and socioeconomic development were established; human rights were enshrined in international law, beginning with the Universal Declaration of Human Rights; various international agreements such as the Geneva Convention, the Convention on Refugees, the Non-Proliferation Treaty or the Strategic Arms Limitation Treaty sought to circumscribe the horrors of war. In 2002, perhaps marking a high point in the development of international law, the International Criminal Court (ICC) was established with the aim of ending impunity for the most serious international crimes.^[2]

The post-World War II international order thus established and developed has been referred to in various ways. Here we use the label Rule-Based Order (RBO),^[3] generally preferred by US authorities over labels that make an explicit link with international law.

The RBO suited the United States, since it consolidated its position as the pre-eminent global power. The US provided the seat of the Bretton Woods institutions and had a leading role within them. The expansion of US political and economic influence was facilitated by the dismantlement of the great European empires. The RBO was also acceptable to the Soviet Union since the Westphalian principle of non-interference in the internal affairs of sovereign states allowed it to pursue Stalin’s policy of “construction of socialism in one country,”^[4] while the imposition of socialism in other countries was pursued by covert means. England and France – and, a fortiori, Germany and Japan – were in no position to oppose frontally the new, mostly velvet-gloved hegemon, although colonial reflexes, exemplified by events such as the 1956 Suez crisis and the Algerian war, did not die readily. Third-world and non-aligned countries found a modus vivendi within the RBO, often playing off Western interests against those of the Communist camp.

Using puppet regimes and client states,
the world powers were able to control
nominally sovereign states and deprive
their populations of their fundamental rights

In other respects, however, the RBO had many shortcomings. Most importantly, the principle of non-interference in the domestic affairs of sovereign states, which was largely preserved in the RBO, meant that only very limited external pressure was brought to bear on states perpetrating crimes against their own citizens. The Gulag system continues to function to this day in Russia and China. The dismantling of the Apartheid regime in South Africa owes more to internal opposition than to international pressure. In Nigeria, Timor-Leste, Cambodia and Rwanda, genocides raged while the “international community” looked on. In some respects, the RBO was more honoured in the breach than the observance. Using puppet regimes and client states, the world powers were able to control nominally sovereign states and deprive their populations of their fundamental rights. The US, under the Presidency of George W. Bush, led a hostile campaign against the ICC seeking to restrict the court’s ability to investigate crimes involving US personnel. Nevertheless, despite these flaws, the RBO represented a credible framework for the conduct and evaluation of international relations. Paraphrasing Arthur Koestler, it could be said that the RBO represents a half-truth, while the alternatives on offer constitute a total lie.

Brave New World Order

Today, the RBO is increasingly called into question. There are several mutually-reinforcing reasons for this.

First, the emergence of non-state actors that are not parties to international law – whether terrorist organizations or corporations whose wealth exceeds that of many countries – and transnational phenomena (globalization, migration, climate change) has reduced the relevance of the Westphalian system.

Second, disenchantment with domestic party politics has led to a perception of disenfranchisement in a growing portion of the electorate in many liberal democracies and stimulated the emergence of radical (far-left or far-right), populist or nihilist currents that have no allegiance to the RBO.

Third, and perhaps most significantly, following the dissolution of the Soviet Union, the balance of power – and benefits – under the RBO has shifted markedly in favour of the US. Even as this shift was contested by Moscow’s revanchist regime as well as several emerging powers, the Western powers, especially the United States, began to openly transgress and redefine the rules of a world order whose development they spearheaded. Regime change in Iraq (2003) and Libya (2011) was presented as an overhaul of the notion of the Westphalian system justified by humanitarian concerns (Responsibility to Protect)^[5] and the threat of weapons of mass destruction (WMDs)^[6] to provide a cover for an exercise in Realpolitik.

Recent years have witnessed an accelerated assault on the edifice of international law erected after the Second World War. Already during the first Trump presidency, the US withdrew from the Paris Agreement and the JCPOA,^[7] and threatened to disregard Article 5 of the North Atlantic Treaty in case of aggression on an underspending member state. In November 2024, Russia introduced changes to its nuclear doctrine, authorizing Russian armed forces to carry out nuclear strikes if the country is “attacked by a non-nuclear state supported by a nuclear power.” The second Trump presidency augurs even worse, with the US issuing declarations concerning taking control of the Panama Canal and Greenland by force, and calling into question Canadian sovereignty. On the third anniversary of Russia’s aggression against Ukraine, the US abandoned its defence of Ukraine’s territorial integrity, to which it had expressly committed itself in the 1994 Budapest Memorandum, and voted with Russia in the relevant UN Security Council resolution. It is clear that the United States no longer feels bound by any RBO. In the words of the EU High Representative for Foreign Affairs and Security Policy, “the free world needs a new leader.”

The Consequences of a Crumbling World Order for the Mediterranean Region

Nowhere are the consequences of these new dynamics more visible than in the Mediterranean region.

The Conflict in the Middle East

Following Hamas’s attack on Israel on 7 October, the Israeli Defense Forces (IDF) launched a full-scale assault on Gaza, one of the most densely populated areas in the world. The attacks, which received “unconditional support” from Western powers, including the US, UK and Germany, killed over 47,000 Gazans – almost half of whom were children – and displaced over 90% of Gaza’s population.^[8]

The response to this conflict within the UN system constitutes a bleak chronicle. In January 2024, the International Court of Justice (ICJ) warned of a “plausible” genocide being committed by Israel in Gaza and ordered “immediate and effective measures” to prevent this.^[9] However, Israel ignored these provisions and further escalated its campaign on Gaza. The US stated that this ruling would not affect its policy toward Gaza. In July 2024, the ICJ ruled again against Israel – this time on the legality of its occupation of the Palestinian land. The US challenged this ruling, citing concerns that it would “complicate efforts to resolve the conflict.” While the ICJ rulings are not legally binding, the UN Security Council (UNSC) resolutions are. The US used its veto power four times to block UNSC resolutions demanding a ceasefire in Gaza. France and the UK also vetoed some ceasefire resolutions. Finally, in March 2024, the UNSC passed a resolution demanding an immediate ceasefire in Gaza during Ramadan. This time, the US did not veto this resolution; however, it took an even more dangerous approach, undermining the legitimacy and authority of the council itself by asserting that the resolution was non-binding.

The obstruction of the work of the ICC gives an even starker picture of the decay of the RBO. In November 2024 the ICC issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his former Minister of Defence Yoav Gallant for alleged war crimes, including “starvation as a method of warfare,” and crimes against humanity such as murder and persecution (an arrest warrant against Hamas leader Diab Ibrahim al-Masri was also issued).^[10]

While most European countries expressed general support for the court’s decision and the rules-based order system, some opposed the decision or expressed hesitation to abide by it. Hungary’s Prime Minister Viktor Orban stated he would not implement the ICC’s decision and invited Netanyahu to visit the country. Poland adopted a resolution guaranteeing Netanyahu immunity if he chose to attend the commemorations for the 80th anniversary of the liberation of Auschwitz-Birkenau. France and Italy also stated that immunity would apply to Netanyahu and his former defence minister.

The US, in sharp contrast to the welcome it gave to the ICC’s arrest warrant against Vladimir Putin for alleged war crimes committed in Ukrainian territory, described the arrest warrants against Israeli officials as “outrageous” and openly sought to undermine the ICC. The US House of Representatives passed the “Illegitimate Court Counteraction Act” to sanction and impose visa restrictions on court staff, judges, and others who collaborate with the arrest warrant against Netanyahu, (the US Senate did not pass this bill). In February 2025, President Trump signed an executive order imposing economic sanctions and visa restrictions on ICC officials, their families and others who assist in ICC investigations of American citizens or allies, citing “illegitimate and baseless actions targeting America and our close ally Israel.”^[11]

Trump’s intention to permanently displace Palestinians in Gaza and prevent them from returning to their homeland is another manifestation of the new reality facing the RBO. The Geneva Conventions of 1949, a cornerstone of the post-World War II RBO, to which both the US and Israel are parties,^[12] explicitly prohibit (Article 49) individual or mass transfers from an occupied territory, regardless of the motives, and pursuing the line proposed by the US President^[13] would constitute a war crime or even genocide.

The Western Sahara

The Western Sahara’s (WS) right to self-determination is another issue on which the rule-based international order, which calls for it to be settled by referendum under the aegis of the United Nations, is called into question by its erstwhile proponents. For Morocco, international recognition of its sovereignty over the WS has become the overarching goal of its foreign policy.^[14] The United States aligned themselves with the Moroccan position in December 2020, in the context of the negotiations of the Abraham Accords. Emboldened by this development, Morocco has put pressure on the European Union (EU) and its Member States, using diplomatic and economic levers as well as the threat of permitting uncontrolled migration to European shores. In March 2022, the President of the Spanish Government wrote to King Mohammed VI stating that “Spain considers the Moroccan autonomy initiative, presented in 2007, as “the most serious, realistic and credible basis for the resolution of this dispute.” France followed suit in even less ambiguous terms, with the French President stating before the Moroccan parliament in October 2024 that, “the present and the future of the Western Sahara are inscribed in the frame of Moroccan sovereignty.” At the EU level, the issue came to a head in a case brought before the Court of Justice of the EU (CJEU), concerning the applicability to the WS of agreements concluded with Morocco. In October 2024, despite manoeuvres by the European Commission to demonstrate that the assent of the Sahrawi people had been obtained, the CJEU invalidated the applicability of the agreements to the WS^[15] – de facto confirming its view that Morocco does not hold sovereignty over the WS, and exposing the incoherence of the EU as a defender of a rule-based order.

Migration

The 1951 Convention on Refugees is a centrepiece of the RBO. However, the dramatic increase in human mobility in the last 70 years, coupled with growing wealth disparities and the proliferation of violent conflicts, has given rise to large-scale migratory flows. The public perception that migration is out of control, corresponds to neither an economic need nor to legitimate international obligations and results in poorly integrated migrant populations has made this a key political issue in nearly all Western countries and driven the rise of nationalist, isolationist and far-right views and parties.

This perception is not without basis. As regards the EU, in 2023, detected irregular border crossings to the EU (0.39 million) stood at nearly 10% of the net migration to the EU in that year (4.3 million). This tally of irregular border crossings does not include persons who enter legally into the EU with a Schengen visa and overstay the 90-day duration of their visa, thereby also being in an irregular situation. 40 years after the establishment of the Schengen area, the Entry-Exit System that would allow the number of visa overstayers to be determined is still not operational. Approximately 1.1 million asylum applications were lodged in the EU in 2023. Although nearly 50% of these applications were rejected, this matters little, because the rate of execution of return orders is extremely low (ca. 20%), so that some 90% of asylum seekers remain in the EU. Analogous figures feed concerns about migration in the United Kingdom and the United States.

Unless a more rigorous distinction between refugees and economic migrants is made, the processing of asylum applications accelerated and the rate of execution of return orders vastly increased, it seems inevitable that the Convention on Refugees will be suspended or at least the modalities of its implementation fundamentally revised. A number of steps have already been taken in this direction. Italy has sought to outsource the processing of some asylum applicants to detention centres in Albania. The United Kingdom has enacted legislation to deport irregular migrants to Rwanda, excluding them from the asylum system without possibility of appeal. US legislation already criminalizes harbouring or assisting irregular migrants; the Biden administration introduced a presumption of ineligibility for asylum for migrants “who do not avail themselves of a legal, safe and orderly pathway to the United States nor seek asylum or other protection in any country through which they travel;” and President-elect Trump has vowed to implement a massive deportation of irregular migrants.

Europe at the Crossroads

The consequences of abandoning international law in the management of relations between states, as the US is currently doing, can hardly be overestimated. The discreditation of diplomacy and multilateral institutions, the instability induced by shifting transactional alliances, the risk of conflicts spiralling out of control, the instrumentalization of phenomena such as migration for political ends and the legitimation of populism and repression in domestic politics are all in evidence.

The role of European states in this dissolution of international norms is ambiguous. They have been the architects of some of the signal achievements of a rule-based order grounded in international law; they are incoherent in the defence of this order and occasionally complicit in transgressions against it; and they are among the countries that stand to lose the most from a return to the law of the jungle.

In the Mediterranean, this ambiguity has exacerbated the mistrust of countries and people in the Middle East and North Africa toward the EU and its institutions. Despite being the only one of the economic blocks that is legitimately part of the Mediterranean region, its influence is waning, to the benefit of Russia and China.

The role of European states in this dissolution
of international norms is ambiguous. In the
Mediterranean, this ambiguity has exacerbated
the mistrust of countries and people in the Middle
East and North Africa toward the EU and its institutions

If it wishes to survive, let alone prosper, Europe must defend a rule-based international order more effectively. This will require European states to act in a more coordinated manner, which in turn implies the introduction of appropriate disciplining mechanisms within the EU. It will also demand more consistency in their support for international organizations and in their application of international law, including recognizing when international law needs to evolve in order to make it enforceable (for example, the Convention on Refugees).

Similarly, on the other side of the Mediterranean, Arab states must develop a unified regional peace plan that prioritizes ending the conflict in Palestine, strengthening regional governance, and enhancing the integration of international law into national and regional systems.

Numerous countries, in the Mediterranean region and beyond, reject the US-imposed, hegemonic (dis-)order. The return to a more predictable and equitable world order may therefore not be a quixotic enterprise, if a sufficient number of states come to the conclusion that the constraints such an order imposes upon them are outweighed by its benefits.

^[1] https://ourworldindata.org/democracy.

^[2] Most European countries – but not the US – ratified the ICC’s foundational convention.

^[3]  www.cambridge.org/core/services/aop-cambridge-core/content/view/7BEDE2312FDF9D6225E16988FD18BAF0/S0922156523000043a.pdf/the-choice-before-us-international-law-or-a-rules-based-international-order.pdf.

^[4] www.britannica.com/topic/socialism-in-one-country.

^[5] Tony Blair, reported in The Guardian, 5 March 2004

^[6] Henry A. Kissinger in “How a preemptive war could lead to a new international order.” The Washington Post, 11 August 2002.

^[7] https://en.wikipedia.org/wiki/Joint_Comprehensive_Plan_of_Action.

^[8] United Nations Office for the Coordination of Humanitarian Affairs (OCHA),Humanitarian Situation Update #259 | Gaza Strip, 30 January 2025, available at https://reliefweb.int/report/occupied-palestinian-territory/humanitarian-situation-update-259-gaza-strip-enarhe.

^[9] International Court of Justice, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Order of 26 January 2024.” available at www.icj-cij.org/node/203447.

^[10] International Criminal Court (ICC), Situation in the State of Palestine: ICC Pre-Trial Chamber I rejects the State of Israel’s challenges to jurisdiction and issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant, 21 November 2024, available at www.icc-cpi.int/news/situation-state-palestine-icc-pre-trial-chamber-i-rejects-state-israels-challenges.

^[11] Executive Order, Imposing Sanctions on the International Criminal Court, 6 February 2025, available at www.whitehouse.gov/presidential-actions/2025/02/imposing-sanctions-on-the-international-criminal-court/.

^[12] List of Parties, Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, available at https://treaties.un.org/pages/showdetails.aspx?objid=0800000280158b1a.

^[13] International Committee of the Red Cross (ICRC), Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Article 49, available at https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-49.

^[14] Speech of King Mohammed VI, 19 August 2022.

^[15] Judgment of the Court (Grand Chamber) of 4 October 2024. Available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:62021CJ0779.

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