This article offers a brief review of the forces that have contributed to the contemporary impasse in the formation of new international law and institutions. It identifies areas where development of the law of armed conflict would provide great benefits, yet where current international conditions render formal legal agreements highly unlikely. It then considers how to advance desirable projects nonetheless. In the absence of effective formal international law-making, jurists face a choice. One approach, which I call inspirational, is to propose idealized legal systems based on claims of justice and practicality. Much published work over the last decade seems to take this path. The hope is that the ideas will inspire and thus lead relevant actors to adopt the systems at a time when the obstacles to international agreements recede. The other approach, which I call entrepreneurial and describe here, involves leading States acting as “norm entrepreneurs”. They can propound and in practice adhere to norms with the intention of inducing other States to follow. The entrepreneurial approach entails a State engaging in a practice that it hopes others will emulate, while the inspirational involves an appeal to the international community as a whole, including significant non-State actors.
Paul B. Stephan, The Crisis in International Law and the Path Forward for International Humanitarian Law, 104 International Review of the Red Cross 2077–2096 (2022).