The Ouroboros’ Paradoxical Dance: A battle of Human Nature and International Law

“Ouroboros was a fabulous snake, the encircling serpent, that swallowed its own tail. It represented an infantile thought of the human mind … Man’s heroic business was to conquer the reptile” (Garrett, 1926). The duality of mankind is exposed in the realm of international law as this concept tells a great story of humanity’s propensity for survival coming to life via the nature of the state, clashing with that very same desire manifesting itself in the form of an attempt to control. Ouroboros exemplifies human nature’s self-interest; particularly, how that need for security and betterment often comes at the cost of our ironic self-destruction. As international law attempts to wrangle states together for the common good of all of human civilization in our odyssey for peace, individual states themselves continue to dwell in neorealism, making international law’s search for global progress an improbable task.

“He adds an automatic, artificial member, responsive only to his contact, answerable only to his will, uncontrolled by nature, fabulous in its possibilities of strength, variation, and cunning” (Garrett, 1926). The fundamental value of the nation-state is sovereignty, allowing for each people to have an autonomous land of their own. This concept was set out by the Peace of Westphalia, refined by almost four centuries of cultural evolution and economic migration. Another international ideal that has stood a similar test of time, even vastly outdating our understanding of sovereignty is the practice of trade. From tribal bartering through mercantilist rival markets to high seas, state-sponsored piracy to today’s international commodity market brought on by hyper-globalization and reliant on the guiding of international law. As strong as statehood is today, many argue that interdependency is also more prevalent than ever as individual, sovereign states often-rely one each other to provide the needs of their citizenry as we move towards a fifth industrial revolution. Technological evolution and population explosions, along with increasing cultural integration means that states are now more complex than ever, requiring more intricate resource allocations. The needs of the individuals who make up the state, whether it be an elite few or multiple groups throughout society, show that “the form of the state has always been a consequence of human nature” (Brown, 2016). Indeed, it is undeniable that the nation-state itself is an extension of the human condition, imperfect by nature and desperate to survive. However, as the fourth generation of International Law continues to be modified and evolves to address global issues, how does the state interact with it; how does humanity’s yearning for survival reconcile with such a lofty structure?

“Now we are an industrial [world]; we consume more and more of our own and export enormous quantities … at mutual consent — that is to say, with His consent” (Garrett, 1926). In comparing International Law to that of domestic law, we see blaring disparities in their deliberations and resulting precedence. Domestic law itself is meant to be a governor of individual-to-individual behavior. This is legitimized through the citizenry of a state willing to agree to a social contract between them and the state authority, mandating said authority to provide security and peace in return for portions of the individual’s sovereignty. That liberty is converted into a system of punitive punishment, guided by the domestic laws of the land and enforced by the institutions of the state, namely the legislature, executive, judiciary and bureaucracy (which includes law enforcement). These laws serve as the source of the peace to be provided by the structures of the state, forging a cycle of sovereign-secession and legislatively-endorsed behavior. The most prolific critics to international law posit that it “was not law at all because it did not conform to their rigid tests of a rule laid down by a political superior to an inferior, that international law was not created by legislatures, and that hence in their judgment it constituted merely precepts of morality” (Borchard, 1940). This is seen as a stretch as it can be ascertained that the United Nations’ General Assembly acts as the legislature for the international community, creating international law via resolutions. However, when looking at critiques of international law in comparison to its domestic counterpart, what stands out is the matter of subjects, in this case being the states, being unwilling to forego sovereignty to buy into a similar agreement with international institutions as individuals’ long standing social contract with the state. This means that the focal point of international law’s credibility stands on the principle of consent.

Consent itself can be expressed by states via “signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession. In addition, it may be accomplished by any other means, if so agreed” (Shaw, 2003). In looking at the various official sources of international law, consent exists in many forms. For treaties, the Vienna Convention on Laws of Treaties (VCLT) sets out the aforementioned expressions of consent. Then there is Customary international Law (CIL) which is “non-consensual in the sense that a state can be bound by it even if it has not agreed to or accepted the rule” (Guzman, 2011). CIL itself is based on two principles. Firstly, a particular practice and/or behavior must be subscribed to by states generally, sufficiently in the international system (even though there has historically been significant debate on what “generally” and “sufficiently” entails). Secondly, there must be the existence of Opinio Juris which is a feeling of legal obligation exhibited by states in the conducting of the particular practice/behavior. “A rule of CIL is able to bind individual states that have not consented to it and that do not feel a sense of legal obligation if there is nonetheless a general sense of legal obligation among other states.” (Guzman, 2005). This sentiment is not far from the truth in the context of “stately peer pressure” forcing an acceptance of customs but it does contain paradoxical technical characteristics. The Persistent Objector Doctrine lays the argument that a failure of states to openly object to CIL is seen as an inferred consent. One Custom of International Law that has been violated regularly is the rule of non-refoulement, i.e., the return of asylum seekers to states where their lives may be in danger. Trinidad and Tobago’s deportation of Venezuelan economic migrants in November of 2020 was seen as a violation of this Customary International Law. Therefore, consent is still fundamental to CIL. Also forming the instruments of international law is the General Principles practiced by civilized nations. This is also a matter of law that is only recognized by virtue of states consenting and practicing said stipulated behaviors. One of these is the principle of good faith between parties (states) of a treaty. This principle, along with all others have been violated by states on numerous occasions. Due to this widespread reliance on consent, “a state’s legal obligations are overwhelmingly, some would say exclusively, based on its consent to be bound” as “this focus on consent offer maximal protection to individual states” (Guzman, 2011). Indeed, when international law’s fundamental need for consent crosses path with the concept of state sovereignty, more often than not the “supremacy of the state is expressed in the fact that any exceptions of the territorial supremacy are possible only with the consent of the state” (Gevorgyan). As a result of this, we have states being engendered by the aforementioned nature of humanity and its needs, to act in a direction that can be summarized as doing whatever it takes to survive and thrive.

International law itself is humanity’s greatest experiment in a search for peace, evident by its evolution over the last one hundred years being driven by global conflict and the blaring need to protect individuals within states and states themselves. “The fundamental purpose of all international law is to promote peace and world order … An obligation exists under international law that requires states to conduct themselves peacefully in all relations with other states, and there is a similar obligation to conduct relations toward their own people in a peaceful way, that is, to honor a human right to peace” (Sims, 2018). Ironically, the human condition’s need for security and to survive has translated into the international community’s persistence on developing international law. This international law has been extremely beneficial in the preservation of human rights and the facilitation of trade between states. We have built a truly global community of states that are willing to work with one another on various issues, particularly world-wide threats. However, when further inspection of the global community’s approach to a multitude of issues is conducted, we see a more nuanced and sinister underbelly. A duality of the human conditions which threatens to tear global prospects for peace apart. Those conditions that inspire international security via law yet control the actions of the nation-state, create dissonance in humanity’s goals, a complex betrayal of human nature, a being consuming Himself, if you may.

“You would think that when man had found a way to provide himself with artificial things in unlimited plenty and a way at the same time to spread the food supply evenly over the face of the earth, the gift of universal peace might follow. Never was the peace more frail” (Garrett, 1926). To further understand human natures’ Ouroboros-like self-destruction, there needs to be an analysis of international law’s attempts at addressing global issues. On the front of Climate Change, the international community has rallied in their prioritization of this issue as an emerging security threat. A truly global dilemma requiring multilateral action, the United Nations took the lead in creating a framework of behavior for states with the ultimate goal of curbing the manifestations of global warming. 1994 saw the implementation of the United Nations Framework Convention on Climate Change (UNFCCC). The purpose of this agreement, that has since been agreed to by 197 states globally, is to normalize systems of economic operation for states with the purpose of reducing global greenhouse gas (GHG) emissions. Great initiatives such as watchdogs for deforestation and treatment of marine life for states were established in this initial framework. However, it fell flat in going after the prime suspects of GHG emissions, industrialized nations as the “global temperature too has steadily increased from 0.25C above the pre-industrial era in the early 1990s to an increase of 1.1C in 2018” (ClimateChangeNews, 2019).

Then came the 1997 introduction of the Kyoto Protocol, meant to address the deficiencies of the initial UNFCCC by combating industrialization directly. This treaty also failed miserably as a myriad of issues of consent meant that its implementation period was delayed for eleven years until 2008. In addition to this, the Kyoto Protocol only commanded carbon emissions targets from less than forty states. Most states met their targets by abusing the Clean Development Mechanism as “Developed nations are able to earn carbon credits by investing in emissionsreduction projects under a scheme called Joint Implementation (JI), agreed under the 1997 Kyoto Protocol. A similar loophole previously allowed China to claim huge amounts of money under the Kyoto Protocol’s Clean Development Mechanism (CDM) … although a supervisory committee exists to monitor and prevent abuses of the scheme, it is up to nations hosting JI projects to decide to request their assistance” (Cooling Post, 2015). Also key to the failure of Kyoto, is the absence of China from the carbon emissions promises list, as they were rapidly becoming the most industrialized nation on the planet and thus, the largest emitter of carbon in the international community. Although Kyoto brought some reductions in carbon emissions globally, it was still far from successful, thus creating the mandate for the COP21 agreement also known as the Paris Accords.

What we have seen in the last three years since the ratification of the Paris Accords in 2017 is a myriad of issues of consent and ineffectiveness as the United States officially pulled out of the agreement in November 2020. Also key to note is that many states such as India and China gave carbon emission commitments in accordance with global 2030 goals but these commitments have shown to be nothing noble as most nations signed on with targets are already set to plateau at that level by 2030. “The Paris agreement laid out ambitious goals to limit the planet’s warming — world leaders knew they would be difficult to achieve. The deal called for finding ways to remain “well below” a rise of 2 degrees Celsius (3.6 degrees Fahrenheit) above pre-industrial levels, and if possible, not above 1.5 degrees Celsius (2.7 degrees Fahrenheit). A rise of about 1 degree Celsius already has occurred. But at the same time, the emissions-cutting pledges that countries brought to the table in Paris were nowhere near sufficient to meet such goals, which world leaders acknowledged at the time” (Dennis and Mooney, 2018). This means that the deal’s commitments itself are not strong enough to properly combat the specter of climate change.

The climate saga means that as the world believes that it is getting closer to escaping the fangs of the Serpent, it is actually beginning to consume its tail increasingly. Although we have seen awareness run through most of the international community and states generally being willing to sign on to deals, international law’s thrust for significant climate action has so far been lackluster, down to states’ unwillingness to forego their comfortable economic positions.

In assessing international law’s use in tackling global poverty, we see different behaviors in state-to-state and state-to-international organization relationships than of climate change. However, there remains fundamental currents of the nature of these entities that paint a similar outlook in context of this global issue. “Essentially, poverty refers to lacking enough resources to provide the necessities of life — food, clean water, shelter and clothing. But in today’s world, that can be extended to include access to health care, education and even transportation” (World Vision, 2020). The international community has seen a number of states raise awareness and create initiatives to relieve some effects of poverty but the nature of poverty now being recognized as truly a global situation means that a number of state-by-state solutions are required. This means that in the global fight against poverty, the United Nations has taken on the mantle of addressing this crisis for the last three decades.

Unlike the fight against climate change, the UN’s charge against poverty has enjoyed widespread consent as the General Assembly voted in heavy favor for resolution-establishment of the United Nations Decade for the Eradication of Poverty along with its second and third counterparts. The first framework operated between 1997 and 2006 and saw the establishment of World Solidarity Fund (WSF) along with the bolstering of the World Food Program (WFP), United Nations Development Program (UNDP) and the United Nations Economic and Social Council (UNESC). However, the operational direction of the initiatives during this period are ostracized for their two-dimensional focus on poverty, without any emphasis on the foundations of economic hardships in each individual state. “National strategies need to be broad and inclusive, and should adopt an integrated and holistic approach that can address poverty in all its dimensions: access to health services, education, food, productive employment and decent work and financial resources; gender equality; the empowerment and participation of all disadvantaged groups, including the poor, in the development process. Strategic lines of action include pragmatic fiscal policies and sound monetary policies that preserve macroeconomic stability while promoting public and private investment, employment creation and growth” (Poverty.uk).

The Second Decade for the Eradication of Poverty occurred between 2008 and 2017. Similar to its predecessor, the Second Decade saw further bolstering of the aforementioned sub organs, along with the adoption of Sustainable Development Goal #1: To reduce poverty. However, what this framework blatantly outlined was the trend of developed states to throw all responsibilities unto International Organizations while throwing money at the situation. In the UN’s executive report of the Second Decade they pleaded for “ All member States to continue their ambitious efforts to strive for more inclusive, equitable, balanced, stable and development-oriented sustainable socio economic approaches to overcoming poverty, and, in view of the negative impact of inequality, including gender inequality, on poverty, emphasizes the importance of structural transformation that leads to inclusive and sustainable industrialization for employment creation and poverty reduction, investing in sustainable agriculture, resilient infrastructure development and enhancing inter-connectivity and achieving access to energy, as well as promoting decent rural employment, improving access to quality education, promoting quality health care, including through the acceleration of transition towards equitable access to universal health coverage” (UN).

As poverty within the Third World requires radical economic reformation, something that is far from coming via Global North-dominated International Organizations such as the World Trade Organization (WTO). Having developing states play on the same economic level as more developed nations with decades and/or centuries more development is not an address to poverty but rather a conduit to further expand the divide between the North and South. This shows that most states are not truly intent on solving the issues of poverty in others as fundamentally, while poverty affects most of the developing world and as aforementioned required holistic economic overhaul, developed states continue to use to likes of the World Trade Organization, the International Monetary Fund and the World Bank to exploit these nations and maintain their relative gains from the international system.

Another critical global security threat that has seen international law being deployed against it is that of terrorism. A fundamental threat that is non-discriminant in nature whether it is a suicide bomb in New Delhi or planes crashing into towers in New York. Various conduits of international law have been deployed in the global fight against terror, such instruments that come to mind are the United Nations Convention to Prevent and Punish the Acts of Terrorism Taking The Form of Crimes Against Persons and Related Extortion That Are of International Significance and more recently, the Joint Comprehensive plan of Action between the West and Iran. Fundamentally, international law lacks the malleability to address individuals directly and there are further difficulties in applying international law to non-state actors, namely terrorist organizations. Jabhat Al Nusra or Nasar Al Sharia are not bonded in any way to subject themselves to international law nor international law itself can punish or regulate organizations of that nature in the first place. This means that the fight against terror relies on each, individual state and their use of legal personality to hold each other accountable for the greater good. The UN Security Council pleads that “all states should ‘afford one another the greatest measure of assistance’ in relation to criminal investigation of terrorist offences’’ (Greenwood, 2002).

As so firmly established, Ouroboros’ nature means that states are nowhere near guaranteed to conduct themselves in line with the greater good of security threats as many times, conflicting interests from within the state can lead to erratic action from the state itself on the international stage. The perfect example of this is Pakistan, a nation that has struggled with its identity in the global fight against terrorism, often acting as both a friend and foe to terrorist groups. The UN has witnessed “Pakistan’s persistent acquiescence to safe havens for the Afghan Taliban and its vicious Haqqani branch in Pakistan … Worse yet, Pakistan has provided direct military and intelligence aid to both groups, resulting in the deaths of U.S. soldiers, Afghan security personnel, and civilians, plus significant destabilization of Afghanistan” (Felbab-Brown, 2018). However, somehow, at the same time “Pakistan’s militant groups are often interlinked with those across the border in Afghanistan, so its progress at reining in terror is critical, particularly as Washington seeks to secure a deal with the Afghan Taliban to bring an end to the 18-year war, America’s longest military engagement” (Gannon, 2020). A state that has been battered by the internal tug and pull of variously interested groups, Pakistan has often had to play both sides of the field in conflict, many times being brought up for their transgressions by the institutions of international law.

The International Court of Justice (ICJ) is the closest thing present in the current international system that can act as a Judiciary. However, as there is no social contract between subjects and the institutions, being the state and these international bodies, then international law itself has no real route for legal enforcement, making the ICJ nothing more than an advisory board. “Firstly, the states in dispute have to agree to appear before it and be bound by its decisions. Second, advisory opinions are not binding anyway. Third, the court was not set up to hear criminal cases, such as the prosecution of war crimes. That has had to wait until now, with the establishment of the international criminal court. Fourth, the disputes it deals with have to be between states — individuals or groups can’t use the court to bring states to justice” (Berlins, 2004). In the case of Pakistan, nations such as the United States, France and India have carried them to the ICJ but of course, due to the Court acting as purely advisory, there has never been any convictions against Pakistan nor any real compelling by the Court to the state to overhaul their strategy.

In the case of the JCPOA and Iran, it was meant to be a warming of ties between the United States, the European Union and Iran after almost forty years of tension dating back to the Iranian Revolution of 1979. Iran, a known financier and supplier to groups such as Hezbollah, Jabhat al Nusra, the Bashar Al Assad regime amongst others (JVL). Dubbed the largest state sponsor of terror by the US, Iran’s powers and influence in the Middle East and North Africa were meant to be curbed with this Iran deal as temporarily denuclearized the nation in return for the lifting of significant sanctions and allowing for financial aid. However, the JCPOA resulted in the opposite as in “the two years and 10 months that the JCPOA has been in place, the Iranian government increased Iran’s military budget by 37 percent, provided the Bashar al-Assad regime of Syria with billions of dollars every year, supported terror groups such as Hamas and Hezbollah with nearly $1 billion combined and increased Iran’s stockpile of missiles” (Trainer, 2018).

International law in its current form- yearning for consent and unable to pierce the barrier of statehood- is remarkably and worryingly ineffective against terrorist activity.

“For a superseding condition the perfect pattern is represented in nature, where you see dissimilar organisms existing together in a state of symbiosis, one sustaining the other, vitally interdependent, yet He is exploiting the other” (Garrett, 1926). Although the issues of legal personality and state sovereignty dramatically hinder the potential for international law in its odyssey for peace, is has shown some versatility in its nature. If an individual state wishes not to place their constitution or other domestic laws in jeopardy with the accepting of a treaty then reservations are provided for in the VCLT. If there is a new prevailing view of how states should behave in the international community or at least within a region, then customary international law can be achieved quite easily and objected to with such ease, also. At the international legislature, being the UN General Assembly, all states- regardless of size and economic strength have the same level of vote, once you cover your ears and eyes and forget about the Security Council’s veto power. These characteristics do mean that international law can be melded into whatever it needs to be within reason to serve the purposes of the international community. However, this also does mean that it can be bent and reshaped into the image and likeness of the foreign policy interests of more powerful states, compromising the international structure altogether.

One example of this is the United States and the European Union utilizing soft power and the structure of the international commodity system they built to coerce Ghana into a WTO Rice Trading agreement in 2017 (Manu, 2016). This deal forces Ghanian domestic firms to not only compete with Chinese and American super exporters but also with Multinational Corporations who are given a green light to come into Ghana as per the liberal regulations of the deal; predictably, Ghanian rice is now dying. States who have had hundreds of years of Development as a head start have crafted most of the system of international law. Although the structure of the global community may not blatantly spell out favoritism, the toothless nature of international means that major states can act in almost any way according to their own interests and nature. This is further compelled by the fact that the ICJ is not actually a mechanism for the enforcement of international law. If international law as a concept is to progress to a point where it can indeed be a true force for international peace, then it must be able to penetrate the walls of the nation state.

A comprehensive reform of international instruments must be done, with every state willingly surrendering parcels of their sovereignty for the greater good. If that fundamental roadblock of consent can be circumvented then there must be an applied focus in legitimizing the enforcement capabilities of the International Court of Justice as much more than an advisory body but rather, a real court, that can deliver real convictions. Perhaps most importantly, if we are to continue to chase the neoliberal dream of equal platforms for all states in the international community then the veto powers of the united Nations Security Council must be abolished in order to achieve true voting equality.

“It cannot be supposed that nations will ever deliberately substitute an opportunity of gain in trade for the principle of mutualism. He will not allow it- as it is the antithesis of his existence. Those that have the advantage must fight for it to the end” (Garrett, 1926). The Great Serpent Ouroboros may perhaps be the closest we ever get to capturing the essence of this struggle between control and freedom, both being equally driven by man’s innate nature to do better for themselves and survive the storm that is existence. Fundamentally, the nature of humanity, being painted on the canvas of States’ behavior means that no matter how hard we try to impress neoliberal ideals, our own paradoxical nature will ensure that we continue to exist in a neorealist world.

The Ouroboros stands at that precarious line of reality and distortion, of peace and of chaos, with the power to wield in any direction, at devastating effect. Indeed, Ouroboros represents the frightening volatility and paradoxical predictability of human nature, as both seek to build and destroy, to heal and to wound, to protect and to punish. However, Ouroboros is known for its ability to shed its skin and transform into an entirely new creature in the face of evolving circumstances. Therefore, the question must beg, will human nature also be able to evolve in the shifting state of a new, globalized world or will it continue to be trapped in a prison of its own hubris, condemned to a vicious cycle of incompleteness?

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