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…