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Turbulent Times for the International Rule of Law: A Reply

Published on March 9, 2018        Author: 
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Note from the Editors:  This post concludes our first EJIL:Talk! Contributing Editors’ Debate, where our distinguished Contributing Editors lent their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (Wednesday’s post here), and Lorna McGregor (yesterday’s post here) for thought-provoking responses throughout this past week’s Debate.

I am grateful for the thoughtful comments this week by Lorna McGregor, Monica Hakimi and Christian Tams on my initial post. It is first worth noting that all three colleagues use in the headlines of their comments the notion of ‘turbulent times’ respectively ‘decline and crisis’ which indicates, at least in my view, that there is at least a certain intuition (as Christian Tams put it) that the international legal order (to use yet another maritime metaphor) currently has to navigate through heavy weather. This in and of itself seems to warrant the research agenda I have tried to lay out in my initial post.

Yet, while to some extent the comments have, at least partially, focused on what approaches or strategies are appropriate to eventually overcome any alleged ‘decline’ in the international rule of law, I continue to believe that the foremost question is, first, as to whether we indeed, if so to what extent, and in which areas of international law in particular, we currently face such decline.

In that regard I fully share the almost obvious position that any such determination requires much more research than what can even be hinted at in a short blog contribution like the one I have written. As a matter of fact such analysis must be nuanced (what areas of international are most concerned and why), multifaceted, interdisciplinary, and must focus, inter alia, on challenges for institutions that form the cornerstone of modern international law such as international organizations (providing for fora for interstate cooperation and the regulation of problems of international concern) and international courts and tribunals (providing for legally binding third party dispute settlement of international disputes).

Yet, it is certainly a truism that a mere quantitative approach does not suffice since, to paraphrase the example used by Christian Tams, one single withdrawal from the Rome Statute would probably at least be a more relevant sign than ten withdrawals from the 1968 Vienna Convention on Road Signs and Signals (as important the latter is for the daily routine of cross-boundary traffic). In particular, as part of a more qualitative approach, one needs to have a look whether the current perceived ‘turbulences’ have also by now reached the more fundamental layers of international law, i.e. meta-rules such as the ones on sources, State responsibility, State immunity, treaty interpretation, or res judicata effect of international court decisions must be abided by the parties involved, to name but a few, the general acceptance of which is indispensable for a functioning international legal system. Read the rest of this entry…

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The Thickening of the International Rule of Law in ‘Turbulent’ Times

Published on March 8, 2018        Author: 
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Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (yesterday’s post here), and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In a thought-provoking post, Andreas Zimmerman traces the ‘(increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such’. In his conclusion, he focuses on the role of scholars which he frames as a ‘vocation … to carefully analyse to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it’. He proposes that ‘at least for the time being, [the role of scholars] is to carefully analyse, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its content’. He argues that ‘[i]t is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest’.

In the constraints of this short blog, I focus on the argument made by Zimmerman that scholars should desist from ‘aspiring to further ‘improve’ [the] content’ of the international rule of law. In the first part of this post, I note that scholars and practitioners often make arguments against the creation of new treaties. On their face, these arguments appear to support a focus on ‘the rules to be applied’. However, they are usually (but not always) made on pragmatic grounds of what is politically and strategically possible and there are many examples of the adoption of new treaties to fill gaps and for other purposes such as enforcement. This is particularly the case during ‘turbulent times’. Moreover, I suggest that it is difficult to draw a clear distinction between ‘the actual rules to be applied’ and ‘improvements’ to them as the application of existing norms typically involves elaboration and a thickening of international law. I therefore ask whether a distinction between application and improvement inadvertently risks stifling the role of international law in ‘turbulent times’ and undermining its expressive function.

I then question whether aspirations to ‘improve’ the content of the international rule of law are in any case a central cause of backlash. This is a key determinant to whether such ‘aspirations’ should be curbed in scholarship. Drawing on the burgeoning literature on compliance and implementation of international law, I suggest that the reasons states disregard and challenge international law are complex and varied and scholarship needs to work within this complexity, particularly from a multi and interdisciplinary perspective, if it is to effectively protect the international rule of law.

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Decline and crisis: a plea for better metaphors and criteria

Published on March 7, 2018        Author: 
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Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s introductory post offers an intriguing mix of grand theme and technical detail. It certainly prompted me to reflect on changes both great and small, and their impact on international law. Unlike Monica Hakimi, I have no issue with the thrust of Andreas’ argument; I notably share the feeling that (if I read his opening Dylan quote correctly) animated his post: “the waters around us seem to have grown”.  Perhaps more than Andreas, I remain uncertain whether that feeling is well-founded. More particularly, I wonder how much of our current talk about crises, dark times, disorder & contestation, new isolationism is just noise, perhaps even a reflex. (Ours is a ‘discipline of crisis’ after all; we “revel” in a good one, as Hilary Charlesworth noted perceptively two decades ago.) And how much is based on real, measurable changes in what Andreas refers to as “the social fabric of international law”, or its role in international relations.  It is to this question that my comments in the following are directed. They are an attempt to take the debate further, and they seek to do so by making two pleas: a plea for better metaphors, and a plea for criteria as we discuss ‘International Law in Dark Times’. Read the rest of this entry…

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International Law in “Turbulent Times,” Part II

Published on March 6, 2018        Author: 
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Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In my previous post, I argued that international law does not foster cooperation at the expense of conflict. It fosters both simultaneously. It helps the participants overcome their differences and achieve a shared agenda, while helping them have and sharpen their disputes. The two kinds of interactions are symbiotic, not antithetical, so the fact that international law cannot stop global actors from inflaming or continuing to have a conflict is not good evidence of its weakness or decline; international law itself enables such interactions. Below, I take my argument a step farther. I claim that the conflicts that are had through international law are not just something to grin and bear; they are often quite productive for the legal project. I then return to the central question that Andreas posed: how might we assess whether international law is in decline?

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International Law in “Turbulent Times,” Part I

Published on March 6, 2018        Author: 
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Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s interesting post raises foundational questions about international law’s role in the global order. In suggesting that international law is in decline, he assumes a particular vision of what international law does or should do, and thus of how we might evaluate its decay. The vision seems familiar. Many contend that the role of international law is to help global actors curb their disputes and promote their common interests, policies, or values. Of course, these actors will at times disagree. But according to this view, conflicts—normative disputes that manifest in materially relevant ways—are impediments to international law or problems for international law to overcome. They detract from or betray the limits of international law, at least insofar as they persist without final or authoritative resolution.

For example, Andreas suggests that states’ noncompliance with judicial decisions is evidence of international law’s weakness or decline. It shows that international law cannot effectively or legitimately resolve a dispute that is impeding the realization of the prescribed (and presumably shared) agenda. He thus ends his post by arguing that, “in turbulent times,” like the current one, international lawyers and legal scholars ought to insist that the law be applied as it is, and ought not push it in more contentious, value-laden directions that would further destabilize it.

Below and in a follow-up post, I draw on two of my recent articles to explain why that vision for international law is flawed. I then use this analysis to bring into sharper focus one of the principal challenges that international law now confronts.

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Times Are Changing – and What About the International Rule of Law Then?

Published on March 5, 2018        Author: 
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Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

 

Come gather around people, wherever you roam
And admit that the waters around you have grown
And accept it that soon you’ll be drenched to the bone
If your time to you is worth savin’
Then you better start swimmin’ or you’ll sink like a stone
For the times they are a-changin’

Bob Dylan, The Times They Are Changing, 1964

In 2013, I, as a member of a group of Berlin-Potsdam-based international law scholars, together with colleagues from political science, applied for major funding for what we considered an evolving and growing research question in international law, namely whether the international legal order is facing a significant structural change, which we referred to as a possible ‘Rise or Decline of the International Rule of Law’. What we could not and did not expect (or in order to be cynical: did not hope for) was that major political developments such as, to name but a few, inter alia, the crisis in Ukraine; the election of US President Trump (as to effects on international law thereof see here) and his ensuing political steps such as the termination of US participation in the Paris Agreement to provide but one example; or the growing critique vis-à-vis the International Criminal Court, and other developments we have witnessed in recent years would prove that indeed this is a valid research question to be asked.

What is even more striking is that a significant number of academic events that have recently taken place such as a seminar on ‘International Law in a Dark Time’, a workshop on “International Organizations in Crisis? Rising Authority and Perceptions of Decline”, a conference on a “New International Order in an Isolationist World”, the 2018 ESIL Research Forum on ‘International Law in Times of Disorder and Contestation’ follow a similar, or at last closely related, research agenda. That clearly indicates that the debate as to the rise or decline of the international rule of law is in itself also on the rise, rather than in decline.

It is this setting that provides the background for this EJIL Talk contribution, in which I will set out some of my own ideas underlying this research focus, albeit obviously only with a broad brush, and hence also in a more general fashion, to arouse discussion. Read the rest of this entry…

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