In a recent ESIL Reflection, Başak Çali addresses the sufficiency of the standard view on the form and justification of the authority of international law against some of the key critical challenges: effectiveness, democratic legitimacy, and domination. Çali’s argument is that “the relaxed view of consent as well as a commitment to neutrality embedded in the standard view are able to respond to most external critiques”, but the either/or account of authority is the weak point in the standard conceptualization. This is because it strengthens the projection of international law as a source of domination, when in fact, attention to the details and practice of international law reveals that it often leaves considerable space for autonomous action by states.
In this post, I attempt to shed further light on some of Çali’s main arguments. I comment on Çali’s focus on international law as a whole; the treatment of the issue from the perspective of all states; and the proposal for a new set of classifications to order the form of international law’s authority.
The Authority of International Law as a Whole
I agree with Çali, it is important for theorizing on the authority of international law – the explanation for its ‘right to rule’ – to be empirically informed. I wonder, though, about the readiness of Çali to accept the standard, long-serving consent explanation as still sufficient. Could this be due to Çali’s focus on explaining the authority of international law as a whole? Might an initial sector specific analysis of practice lead to greater interest in the presentation of consent as sufficient? Read the rest of this entry…