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To make sense of the migration-related jurisprudence of the European Court of Human Rights (ECtHR), scholars tend to identify a certain logic, story or direction in which the case law develops. My point here is not that a certain narrative is correct or another is wrong. Instead, I want to draw attention to the fact that, as Janna Wessels and Jürgen Bast have recently shown, there are three competing narratives, and that it is important to be aware of these – not only, but especially for actors engaged in strategic litigation.

The story that is mostly told goes as follows: For asylum seekers and refugees, Strasbourg is no longer the safe haven it long appeared to be. As the very basic rights of persons on the move – including their right to life – are increasingly threatened by European states, it is no longer a matter of course to turn towards the ECtHR for relief. The ECtHR’s latest decisions, most recently SS et al v Italy, have disappointed those who had placed all their bets on Strasbourg. Based on this narrative, human rights lawyers, NGOs and scholars supporting strategic litigation might no longer regard Strasbourg as the first, obvious and most promising option. UN Treaty Bodies and other ‘soft courts’ are increasingly seen as valid alternatives.

Yet, it is essential to not give in to resignation, and especially, to not give up on the ECtHR. As Europe’s legislation becomes more and more restrictive, it is more important than ever to remind legislators, administrative authorities and courts of the limits set by human rights. And, potentials of UN Treaty Bodies notwithstanding, the ECtHR remains one central place for doing so. Considering that those fighting for an increased closure of Europe rely on very powerful narratives, have strong unification mechanisms and increasingly engage in strategic litigation, too, those fighting for a European migration policy that respects human rights have, in fact, no real alternative to keeping up the work. But continuing to rely on litigation before the ECtHR as one important tool in the struggle for a more humane European migration policy requires the belief that this strategy is not in vain. Keeping up the work requires hope.

The Importance of Narratives for Human Rights Litigation

Placing hope in the ECtHR, in turn, requires hopeful narratives. The stories we tell frame our ideas and influence the decisions we make. For instance, if one believes that the ECtHR is a forum in decline where migrants’ rights are no longer effectively protected, or even that the court has never truly advanced migrants’ rights, one will most likely make different decisions than if one believes that the court remains a central place, maybe even the central place, for promoting migrants’ rights and that it should be strengthened in this role. The connection between narratives on the one hand and law and policy on the other hand is vivid and complex. Obviously, law and policy frame narratives. But it is also the other way round: narratives frame law and policy. It matters which narratives we internalise because this will make a difference for our decisions.

While this holds true for decision-making in very different contexts and for persons in very different capacities, including scholars, judges, policy makers and participants in the public discussion, I focus here on strategic litigators. Two reasons justify this choice. First, strategic litigation plays a central role in the context of migration and asylum law. Nearly all landmark judgements of the past decades were supported by strategic litigators. Given the precarious situation of people on the move, especially when their human rights are violated at borders, given the lack of funding and the difficulties of proof in this context, bringing a case to the ECtHR de facto requires professional support from NGOs and legal scholars. Second, I observe increasing frustration among strategic litigators. While this frustration is understandable, it seems critical to prevent resignation or hard internal fractions which could eventually weaken the camp of those defending the rights of people on the move. Criticising the ECtHR is certainly important – but it is not sufficient. Hopeful perspective, and narratives that unify different fractions of strategic litigators, are essential.

Thinking about narratives, the notion as such requires brief clarification. Two notions deserve mention here. The first is borrowed from literary studies and is accordingly rather narrow. A narrative in this sense is defined as the act of telling a story in court, e.g. witness testimony or judicial fact-finding. The second and broader notion was developed by scholarship on transitional justice. A narrative in this sense is defined as a story which a society tells itself and other societies. For the purpose of the present contribution, I work with this broader notion of narrative and apply it to the context of the professional community following the ECtHR’s migration-related case law. Accordingly, I understand here as a narrative those stories that the professional community constructs to make sense of the ECtHR’s case law; these stories are told to other members of the professional community, to non-professionals and the media, thus informing public opinion.

Narrative 1: A Communitarian Turn

The currently prevalent narrative on the ECtHR’s migration-related case law in the context of migration was mentioned already. I call it here the ‘narrative of a communitarian turn’ (Janna Wessels and Jürgen Bast, in their recent paper cited above, call it the ‘endpoint narrative’). According to this view, the past decades were characterised by a gradual expansion of migrants’ rights (for a sensible critique of this narrative see the contribution by Dana Schmalz in this symposium). A line is drawn from the case of Soering decided in 1989 where the Court for the first time established that Art. 3 of the Convention entails a prohibition of refoulement, to the case of M.S.S. in 2011 where the Court expanded this prohibition to intra-EU constellations, and further to the case of Hirsi of 2012 where the Court held that jurisdiction can also be established on the high seas.

The case of N.D. and N.T., decided in 2020, where the Court removed certain constellations at land borders from the prohibition of collective expulsion, is usually identified as a turning point. Since then, proponents of this narrative argue, the case law has developed in a different direction, giving governments more leeway and increasingly restricting the rights of migrants. This decline in the case law is seen as confirmed by the decision in M.N. and others v Belgium, decided in 2020, where the court held that the refusal of visa at embassies does not violate the Convention; and most recently by the decision in S.S. and others v Italy, decided in May this year, where the court found a lack of jurisdiction and dismissed the case as inadmissible.

It seems that most legal scholars currently work with this narrative of a communitarian turn. Opinions on this decline in the case law, however, vary.  Some focus on a critique of the ‘backsliding’ on the protection of migrants’ rights as such. Others focus on a critique of the so-called overreach hypothesis i.e. the idea that the earlier expansive interpretation of migrants’ rights has contributed to the following backlash. Yet others understand the provisional endpoint of dynamic human rights jurisprudence as the politically inevitable consequence of the past decades, and explicitly call for more ‘flexibility’ on the part of governments (as Daniel Thym in his contribution to this symposium).

The narrative of a communitarian turn is prevalent not only in scholarship, but in practice, and especially in human rights litigation, too. Many actors engaging in human rights litigation are frustrated, perceive their work as increasingly pointless or even regard litigation before the ECtHR as a test of their hypothesis that it upholds ‘legal black holes’. This puts strategic litigators in an extremely difficult position. They work with a narrative that takes their hopes away. No wonder that this often feels like tilting at windmills.

While this frustration is not new, and perhaps not avoidable, it is crucial to not lose sight of all the cases in which human rights are upheld before the ECtHR. The narrative of a communitarian turn is built around landmark cases and, as such, comes with the risk of overlooking the everyday victories. In fact, a large number of cases, including interim measures, are successful. Very often, it is the ECtHR which reminds and obliges European states, especially EU member states, to respect the human rights of people on the move.

Narrative 2: A Still Colonial Court

The second narrative is that of a ‘still colonial court’. In a nutshell, proponents of this narrative argue that there has never been true progress (accordingly, Janna Wessels and Jürgen Bast call it the ‘no-progress narrative’). One straight line is drawn from Soering of 1989 to S.S. and others of 2025. Unlike in the first narrative, N.D. and N.T. is not seen as a turning point, but only as the point where the formerly hidden lack of progress became more visible. Remarkably, a very early version of this narrative is based on a comparison of the jurisprudence of the ECtHR to that of the Inter-American Court, finding that the European court has always shown comparatively much deference to governments. More recently, this narrative is, on the one hand, supported by the observation of so-called ‘maritime legal blackholes’, i.e. spaces of not only de facto but de jure rightlessness, where migrants are deprived of their right to have rights. On the other hand, decolonial and anti-racist theories – even more fundamental decolonial critiques of the foundations of international migration law notwithstanding – argue that the ECtHR’s judgments remain marked by Europe’s colonial past and that the court has failed to truly recognise humans from other regions as equals.

While the ‘narrative of a still colonial court’ is adopted by a much smaller community than the first one, it is increasingly present, especially among legal scholars, practitioners and NGOs who identify as critical. As NGOs increasingly acknowledge the importance of representing within their staff the persons they work for – and, I am convinced, rightly so – anti-racist and decolonial perspectives are increasingly present among human rights litigators, too.

As a consequence, human rights litigators are faced with a difficult struggle: they work with laws and courts, especially the ECHR and the ECtHR, the structure of which they sharply criticise. This struggle is difficult, of course, but it is not new. Decolonial human rights scholars have thought this through. It is possible to find hope and to continue the struggle for rights of ‘the oppressed’ by relying on the language of ‘the oppressors’. A critique of the conceptual basis of human rights, including their history, their doctrinal and institutional structures, is compatible with the acknowledgement that, in practice, human rights remain one of the most important strategies for emancipation from colonial structures.

Narrative 3: Humanrightization  

The third narrative is that of ‘humanrightization’ as established by the MeDiMi research group. This narrative is the most recent and has, until now, not received as much attention as the former two. Yet, it is particularly appealing because it acknowledges the ups and downs in the case law but at the same time sees the ECtHR as a central forum for advancing migrants’ rights. In short, proponents of this narrative argue that the earlier jurisprudence since Soering must be seen as nothing less than a revolution, as Janna Wessels and Jürgen Bast have put it, because it, for the first time, allowed migrants to formulate their claims in the language of human rights. Seen from this perspective, the decline since N.D. and N.T. is not fundamental – the revolutionary achievement is not unsettled. The key point is that the claims of migrants can be articulated in the language of human rights. For this narrative, the outcome of individual cases is not the most important. Instead, the most important is that ‘migration control is no longer purely within the discretion of states’, i.e. the humanrightization of migration matters as such – which so far remains. Not even the worst losses before the ECtHR question the historical achievement that people on the move can rely on human rights.

Humanrightization is a narrative that has the potential to fuel hope, despite and because of all the darkness in current European migration policies. It supports an attitude of ‘keep calm and carry on’, even when a landmark case is lost. The narrative of humanrightization advances the view that a certain back and forth is probably unavoidable. This does not mean to not criticise the ECtHR when it betrays its own doctrinal principles: criticism, and when needed in fundamental terms, must remain essential. But for strategic litigators to keep up their work, zooming out and adopting the perspective of humanrightization might be a useful additional tool: it could help dealing with backward steps in the case law without losing hope for a step forward in the next case.

Giving Up on the ECtHR is No Option

If the professional community tells the story that Strasbourg, the place that has long been seen as the beacon of human rights, is backing down, there is a true risk that this might become a self-fulfilling prophecy. Actors engaged in strategic litigation and like-minded scholars should be careful which stories they spread. Otherwise, they risk losing hope themselves, lowering their efforts before the ECtHR – and thus, in the mid-term, involuntarily reinforcing a tendency they oppose. While the impression that the ECtHR has given in to the political interest of European states is certainly very justifiable, we should be careful to not fall into the trap of telling a story which we then make true.

Despite all deficiencies in the migration-related jurisprudence of the ECtHR, despite the court’s doctrinal acrobatics to come to results that can be accepted by politically strong European states, despite its colonial history, despite its structural insufficiencies, and despite all stories of backlash – the ECtHR remains one of the most meaningful institutional achievements of post-World-War II Europe, and it is a fairly resilient one. When recent case law from Strasbourg does not meet justified expectations, when it is doctrinally weak and lacks political courage or perpetuates coloniality, we must name this – of course. At the same time, human rights defenders must not lose faith in their work. Giving up on Strasbourg would only play into the hands of those who want to weaken the rights of people on the move, and ultimately weaken the European human rights system altogether. In the current political context, looking for sparks of hope has become utterly necessary.

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On 13 February, the High Court of England and Wales ruled that the UK government’s decision to proscribe Palestine Action did not follow the government’s own policy and was contrary to the rights to freedom of expression and assembly (Articles 10 and 11 of the ECHR). The decision is not cast in sweeping terms and does not challenge the legal regime that empowers the Home Secretary to proscribe an organisation. Instead, the ruling is focused on the specific decision to proscribe Palestine Action in light of the circumstances of the case and the available evidence. The ruling is nonetheless significant and provides a warning against the expansive use of proscription powers.

Alan Greene’s post in this blog explains the role of soft law in the court’s decision. The focus here is on the complex free speech issues that arise when an organisation pursues a direct action campaign involving criminal damage, but only a small part of that activity falls within the broad legal definition of terrorism (according to the court). The case highlights how proscription, a sweeping power “designed to ensure that an organisation ceases to exist”, significantly affects the rights of people outside the organisation. Given the breadth of the restriction, the court came to the right conclusion and provided an important safeguard for free speech and protest rights.

Background

To provide some background, the Terrorism Act 2000 grants a power to the Home Secretary to proscribe organisations that are “concerned with terrorism” (which extends to those that promote or encourage terrorism). Terrorism is defined as an action or the threat of action which is “designed to influence the government” or an international governmental organisation, or “to intimidate the public or a section of the public”. To fall within the definition, the action or threat must be “made for the purpose of advancing a political, religious, racial or ideological cause”. The action also has to fall within a list provided in the legislation, which includes “serious violence against a person” and “serious damage to property”.

Given the broad definition under the Terrorism Act, the government cannot proscribe every organisation that it deems to be concerned with terrorism. As the court made clear, once the “concerned with terrorism” threshold is passed, the government has a discretion to proscribe. The discretion is to be used proportionately and should normally be reserved for the most grave risks.

The threshold of violence

Where an organisation does engage in activities that fall within the legal definition of terrorism, a challenge to a proscription decision based on the ECHR raises some complex questions. As is well established, the ECHR protects the right to peaceful protest. While that covers some forms of disruptive activity and direct action, the Strasbourg Court has ruled that violent actions and activities with the purpose of destroying the Convention rights of others fall outside of the scope of protection. For this reason, if an organisation is primarily “concerned with terrorism”, then it seems that much of its activity will normally fall outside the scope of the rights to freedom of expression (Articles 10 ECHR) and freedom of assembly (Article 11 ECHR).

In its judgment on Palestine Action, the court found it untenable to describe the organisation as non-violent. The court also rejected the argument that Palestine Action was engaged in a campaign of civil disobedience, and stated that it was “not engaged in any exercise of persuasion, or at least not the type of persuasion that is consistent with democratic values and the rule of law” (para 23). In coming to these conclusions, the court noted that it had limited information about the structure and organisation of Palestine Action. However, the court looked at the organisation’s publications, including the “Underground Manual” that had been published on its website, which (the court found) “encourages its members and others who align with it to plan and cause damage to property” (para 25). At the same time, the court also noted that a “very small number of its actions have amounted to terrorist action within the definition at section 1(1) of the 2000 Act” (para 138).

The breadth of proscription

A decision to proscribe does not narrowly target those activities that involve or encourage serious criminal damage (or any other terrorist action). Once an order is made, the Terrorism Act 2000 provides that it is a criminal offence not just to belong to a proscribed organisation, but also to express an opinion or belief that is supportive of a proscribed organisation. Under s 13 of the Act, a person also commits an offence if they wear, carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The court found the order engaged the right to peaceful protest of those who wanted to peacefully express support for the aims of Palestine Action, such as those wanting “to stop genocide and other atrocity crimes by causing disruption to corporate actors who aid, abet, facilitate and profit from those crimes” (para 115). Those making such statements of support did not incite violence or encourage terrorism, and were not excluded from ECHR protection.

When assessing the impact on expression rights, the court placed weight on the potential chilling effect, noting that the heavy penalties meant that “it is reasonable to expect people to be risk averse, to adjust their behaviour and to avoid doing things that run any significant risk that they might commit any of those criminal offences” (para 121). The court therefore had to consider not just the speech which the letter of the law criminalises, but the extent to which reasonable people self-censor. The extent of any self-censorship is difficult to know, but the risk is greater where the law is cast in broad terms and the sanctions are severe. In such circumstances, the desire to avoid the risk of sanction results in the voluntary suppression of speech that would not violate the law if tested in court. Along such lines, the court noted the evidence from organisations that felt inhibited from campaigning against the proscription order, for fear that they would be understood to express support for Palestine Action (para 123).

A vehicle for expression

The court expressed scepticism towards some of the free speech arguments advanced by the claimants. For example, the court explained that proscription does not stop people from expressing support for Palestine, from criticising the government of Israel, or from engaging in protests targeted at companies supplying military equipment (para 117). That is surely correct and the order does not directly restrict support for the underlying cause. The court was nonetheless right to find a significant interference with the Convention rights. While that may seem self-evident, the proscription of an organisation restricts various ways a person can express their views. In particular, it stops the organisation from providing a vehicle for expression, including for those outside of its membership.

Expressing support for an organisation is both a shorthand way to communicate a set of views and to align oneself with a particular outlook or orientation without having detailed knowledge of the issues. Both points are relevant in the case Palestine Action, which claims that it aims “to take direct action against Israel’s arms trade in Britain and to stop the complicity of corporate actors in atrocity crimes” (para 16). By displaying a sign with a slogan expressing support for the organisation, the speaker uses a shorthand way to publicly endorse those aims. The value to the speaker is not just that the slogan is concise, but that it allows them to take a position even if they do not know the specifics about companies supplying equipment to the Israel Defence Force. Such a person may choose to express support for an organisation that does know about such issues and tries to do something about them.

The loss of the shorthand form of expression will be a factor in any case where an organisation is proscribed. If a person expresses support for a neo-Nazi organisation, they align themselves with a particular outlook. In such a case, the loss of the shorthand is less problematic, as the expression of neo-Nazi ideology is likely to fall outside the protection of the ECHR. Similarly, where terrorist activities are a defining feature of an organisation, then support for the organisation may be taken to be a shorthand way of advocating terrorism. The position is different where a small part of the organisation’s activities falls within the legal definition of terrorism. In such circumstances, the expression of support is more plausibly an endorsement of the organisation’s ideological position (which is protected under the ECHR) than of any terrorist methods. The point is not decisive against proscription, but shows that proscription entails a loss of speech rights even if people are still free to speak in favour of a particular cause or viewpoint.

Error and proportionality

The court seemed unpersuaded by the risk of the law being applied in error (such as to those expressing support for Palestine, as opposed to the proscribed organisation). The court referred to the police guidance which aimed to avoid such errors (cited at para 119). The court also thought the risk of error should reduce over time as the terms of the order become better understood. In my view, such a conclusion may be optimistic. The law itself is couched in broad terms, which criminalise the expression of “an opinion or belief that is supportive of a proscribed organisation” (subject to a mens rea of recklessness). The way an opinion can be supportive may be subtle and open to interpretation. The broad terms of the law do not provide a bright line and pose a risk of overbroad application.

While the court did not accept all the arguments advanced by the claimants, it did accept that proscription was a very significant restriction of Article 10 and 11 rights. The court set that against the fact that only a “very small number” of the organisation’s actions amounted to terrorist action. The court therefore concluded the “nature and scale” of the group’s activities, in so far as they were terrorist activities, had not yet reached a “level, scale and persistence” that would justify proscription and its far-reaching consequences.

The wider effects

The decision raises the usual questions about the role of the court in overseeing sensitive questions relating to security. On this point, it is important to remember the limited political checks. The proscription order was considered by Parliament alongside the proscription of two other organisations in a very short space of time. While the decision had its political supporters, critics saw it as a political majority restricting speech and protest on a matter of public importance. By reviewing the decision without being subject to the intense political pressures or tight time constraints, the courts provided an important safeguard for political rights.

The ruling will also generate further debate about whether the government should have an additional intermediate power to proscribe without criminalising expressions of support for the organisation. While such a power would appear to be more proportionate, the risk is that a government may be more willing to exercise an intermediate power in relation to a wider range of organisations that do not meet the threshold for full proscription. More generally, if the purpose of proscription is to ensure an organisation ceases to exist (a type of death penalty for organisations), then it is hard to see how intermediate measures would be effective. The point here is not that less restrictive measures always fail, but that proscription is a drastic measure of last resort and should be used in exceptional cases.

The government has been granted permission to appeal the ruling, and the proscription order remains in place – so the episode is not over. So far, it appears that the decision to proscribe has backfired. Palestine Action has become better known and has been a focal point in the debates about Israel, Gaza and the British government’s response. The perception that the law is being used in an oppressive way may have generated sympathy from people who do not endorse Palestine Action’s activities.

These practical effects, along with the court’s ruling, should also put a brake on any momentum towards the more extensive use of proscription powers. The proscription of Palestine Action was seen to be a first step in using the power in relation to direct action groups, which would set a precedent for proscription to be applied to a wider range of organisations. The experience with Palestine Action provides an important warning that such steps carry legal and political risks.

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The old, cherished post-war international legal order no longer exists. The stakes were clear even before the recent, blatantly illegal attack on Iran led by the United States and Israel. After attacking Venezuela in January, Donald Trump freely admitted that he was only interested in his own morality, not international law. Interestingly, he added that it depended on how one defined international law. He revealed his understanding shortly afterwards at the World Economic Forum in Davos, where he founded the Trump Board of Peace: an undisguised rival event to the United Nations, led by Trump in a personal capacity in the style of a golf club. Although the statutes pay lip service to international law, what this means is, as Trump said, a matter of definition. Meanwhile, Secretary of State Marco Rubio has doubled down by framing the US approach as part of a civilizational struggle at the Munich Security Conference.

Mark Carney and – for sure – Emmanuel Macron articulated the antithesis to Trump in Davos. Both professed their commitment to a multilateral, rules-based order, placing predictability above high-handedness. Carney provided the more honest assessment: alluding to Vaclav Havel, he admitted that international law to date had been based on a collective lie – international law had never applied equally to everyone, but everyone had covered up the bluff because they had also benefited from it. This could not continue.

Trump/Rubio and Carney/Macron represent opposing visions: an international law based on the great powers versus an international law based on – more or less – equal states and citizens. Each vision has a history that can provide insight into the conditions for their success.

International law of empires

Trump’s approach to international law has its precursors in the international law of the great powers and colonialism. It served empires to stake out their spheres of influence. Whether it was the Portuguese and Spanish in the 15th century, the Monroe Doctrine, or the European states at the Berlin Conference in 1884: this international law was built on inequality. the Europeans refused to recognize the Native Americans, African and Pacific peoples as sovereigns of equal right. Their political communities were ignored, their territories declared no man’s land that could be appropriated under any pretext.

However, the international law of empires could only flourish because it rested on, and entrenched, social inequality. Only few segments of society benefited from colonial expansion: rulers, colonial companies, plantation owners. In contrast, indentured labourers, who had migrated from Europe, often lived under conditions akin to those of slaves. Colonial expansion often stalled internal development. It had the advantage of cementing inequality in the mother country and thereby also the existing social order. At the same time, it provided a valve for social inequality, whether through the armed forces, emigration, or the supply of colonial consumer goods like sugar.

With rising living standards and declining inequality, this international law lost traction. At the end of the “long” 19th century, colonial wars came under the critical scrutiny of an increasingly democratic public. This is also evident in the literature on international law. Authors from the comparatively democratic France were more prepared to recognize the sovereign rights of colonized peoples. In the US civil war, industrial workers pushed for the abolition of slavery, as this form of production undermined the value of labour as a whole.

International law of equals

This equalization and democratization gradually gave rise to the vision of a universal, egalitarian international legal order in the first half of the 20th century. It was characterized by a move to international institutions. These institutions were the antithesis of the nationalism of the previous period and the catastrophe of the Holocaust. They were intended to curb international conflicts via cooperation. The new temples of bureaucratic rationality should bring prosperity to broad segments of the population. One of the driving forces behind these institutions was US President Franklin D. Roosevelt, who had rendered outstanding services to social equality in the United States – whether through the New Deal or through his proclamation of the Four Freedoms, including Freedom from Want. The expansion of the welfare state after the Second World War dealt the death blow to 19th-century colonialism. Scarce funds were needed for purposes other than the oppression of the colonized.

However, post-war international law was never entirely egalitarian, as Mark Carney is absolutely right to point out. While political power was redistributed in the wake of decolonization, the leading industrialized nations did not relinquish their economic and military control. The Cold War complicated change; even the Soviet Union only sided with the decolonized states to the extent that it served its interests. In many respects, the international law of equals remained illusory. The stark factual differences between the centre and the periphery could not be overcome.

International law of authoritarian oligarchs

This imbalance has now worsened to such an extent that the US is openly abandoning the international law of equals in favour of an international legal order based on great powers and spheres of influence. Trump is not at the beginning of this development. Rather, this goes back several decades and is deeply entangled with social inequalities. Roughly speaking, the international law of equality came under pressure to the same extent that social inequality rose in the US – which, according to recent research, is a decisive factor in the rise of authoritarian forces worldwide. The rise in inequality can be attributed to the shift towards neoliberalism since Reagan. Although Western corporations benefited from global supply chains, the industrialized countries paid for this with the decline of industrial society. Tax cuts for high incomes under Bush Junior exacerbated the situation. This development created a reservoir of people from the socially stagnating middle classes who could meet the army’s needs for multiple wars. Growing inequality also reshaped the political system: an increasingly Republican-leaning Supreme Court removed barriers to oligarchy such as restrictions for campaign donations. The emergence of social media was able to provide a temporary counterbalance and propel a newcomer like Barak Obama to power. But even social media is now in the hands of a few super-rich individuals who have a symbiotic relationship with Trump and use political power for their own economic gain – and vice versa.

This oligarchy is now aligning global politics with its own interests. This includes control of natural resources, be they rare earths or fossil fuels, which remain crucial for the US energy supply and geoeconomic power – after all, the development and production of non-fossil energy technology have been left to China. Even if oil production in Venezuela may not be economically viable today, the oligarchy cannot allow the world’s largest oil reserves to remain outside its control; or Russia with its considerable resources to disappear into the Chinese sphere of influence; or Iran to destabilize an oil region.

Anything that weakens Europe or Canada and keeps them dependent on America is also good, because Europe, so far, with its regulated market, adherence to a vision of a middle-class society of equals, and trust in international institutions, represents the antithesis of the authoritarian oligarchy. Hence, the Greenland issue is not just about security or resources; Trump’s ambitions can also be read as a rejection of the European way of life, of the model of social and global equality. For the US government, Europeans no longer have a seat at the negotiating table, as they did at the Berlin Conference in 1884. At best, they find themselves on the map on the wall that others are slicing up. European leaders seem to accept their fate: reactions to the recent Iran attack by the United Kingdom, France, and Germany no longer invoke the UN Charter, but lay the blame on Iran. Mark Carney ridiculed his Davos statement by endorsing the attack.

A new international law of equals?

Is there an alternative to the new great politics of the USA? After all the disappointments, is there a future for an international law of equals that consists in more than channelling moral outrage? If at all, then only if the conceptual focus is placed on social equality, both domestically and globally. The answer to the oligarchies’ power politics must be an international law that serves to create middle-class societies with a high degree of social equality, which will then be able to cooperate peacefully. Social equality often correlates with a democratic form of government and can protect it sustainably against authoritarian temptations. However, calling for an international law of democracies is likely to be met with scepticism in the Global South, as democracy has all too often served as a pretext for hegemonic interventions. This would dilute the message of global equality. The “rules-based order”, on the other hand, lacks any sensorium for substantive equality.

However, to be effective, the international law of equals would need a power basis. Although China is more restrained than the US in political, military and legal terms, it has articulated its preference for a world of hegemonic spheres of influence, and social inequality is on the rise. What options remain for a bloc of states beyond these two spheres that does not want to end up as powerless as the non-aligned states during the Cold War?

First of all, there are quite a few countries that could be standard-bearers of a new international law of equals. In addition to Europe and the remnants of the North Atlantic hemisphere, if they are willing to free themselves from American control, important Latin American countries such as Mexico, Colombia and Brazil come to mind; East and South Asian countries including Japan, South Korea, Indonesia and India; and African states including South Africa, Nigeria, or Ghana. Taken together, these states have vastly more economic, political, and military power than the non-aligned states during the Cold War. Even the great powers are too economically interconnected to ignore such an alliance of states under the banner of an international law of equals.

Political unity is likely to be difficult to achieve in such a constellation in many cases, but under external pressure, even the impossible might materialize. The EU’s development over the last crisis decade may serve as an illustration. The envisaged constellation would also be more homogeneous than previous North-South alliances. After all, despite persisting imbalances, global inequality has decreased as inequality within (industrial) societies has increased. This also increases the chances of overcoming previous North-South asymmetries. For international law based on equality can only succeed if this equality is realized – formally and materially – among states and among people. This will require Europe to make some tough concessions. However, it is likely to be far more attractive than creeping colonization by autocrats and oligarchs.

A new international law of equals therefore depends largely on our willingness to act and cooperate for global prosperity. Decades of sovereign debt crises at the expense of the poorest must become a thing of the past, as must economic dependencies or export surpluses at the expense of others and nature. However, this does not necessarily mean a decline in living standards for the population in developed countries. On the contrary, Germany’s export surplus was facilitated by wage restraint. Reparations for past actions will also have to be discussed, whether they concern climate damage or the consequences of colonialism. Compensation does not have to be limited to payments but can also take the form of international agreements that take international law for equals seriously.

Finally, the international law of equals is likely to wield considerable soft power. To quote Gramsci, it may become a hegemonic idea enjoying widespread support. The autocratic regimes that make up Trump’s Board of Peace benefit from the fear of decline that inequality triggers. They lure their followers with the promise of protecting their material and cultural privileges. This is unlikely to last long if autocratic regimes simultaneously drive the erosion of social equality to extremes. At some point, even the last Trumpists will realize that they are not among the privileged few and that one cannot eat culture wars. Then the prospect of a society of equals could shake autocratic governments to their core. Zohran Mamdani has shown in New York how a message of equality can succeed. The international law of equals extends this promise into the supranational sphere: social equality requires and promotes global equality, and vice versa. Equality thus becomes an effective means not only against authoritarianism, but also against great power politics. Europe has the potential to participate in an international law of equal people and equal states – or to give standing ovations to Rubio.

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