Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:
I have invited Jan Klabbers, member of our Scientific Advisory Board, to write a Guest Editorial for this issue of EJIL (Vol. 27 (2016) No. 3).
In the early 1990s, when many were dancing in the streets to celebrate the fall of the Berlin Wall and the long-awaited arrival of the end of history in the form of a liberal victory, historian Mark Mazower was working on a book that would caution some sobriety. The victory of liberalism, he wrote, had not been inevitable, nor due to its inner charms and attractions; it had, instead, been hard-won, locked in deadly battle with the forces of totalitarianism both on the left and the right. The fact that liberal democracy came out victorious owed as much to the failings, structural and strategic, of fascism and communism as to liberalism’s own virtues. If anything, so Mazower demonstrated, Europe has always been a rich and fertile soil for totalitarian movements; the fact that these were momentarily defeated should not result in too much complacency and self-congratulations about European values and all that.
Recent events demonstrate painfully just how correct Mazower’s assessment was. While communism remains largely dead and buried (unless one counts the surprise emergence of left-wing politicians in the UK and even the US as manifestations of a resurgence), Euro-fascism is clearly on the rise again. This is visible in Hungary and Poland, where the Rule of Law has been all but abandoned or, in an alternative narrative, cynically deployed so as to undermine itself. This is visible in much of the Balkans, with governments building fences and walls to keep out people fleeing persecution and destitution. This is visible in the streets of Finland, where self-appointed vigilantes patrol the streets at night in order to fight largely imaginary crimes, and find considerable encouragement in the speech by which the President inaugurated the parliamentary year in 2016. This is visible in Denmark, which enacts laws to strip poor people of their belongings so as to pay for being treated unkindly. This is visible in the streets of Germany and the Netherlands, with Pegida demonstrations demanding attention. This is visible in Ukraine, where the streets are filled with Russian militias. This is visible in the United Kingdom’s rediscovered isolationism mixed with delusions of grandeur. This is visible, in short, all over Europe: the triumph of liberal democracy is quickly giving way to the triumph of what can only be called some kind of fascism. And it is not limited to Europe, if the presidential campaigning in the US is anything to go by: who would have thought, even a few months ago, that a vulgar loudmouth such as Donald Trump, not hindered by any trait of common decency, would stand any chance of success?
So what do the international lawyers do? Well, we talk a lot. We talk about the responsibility to protect, which is great idea that, somehow, does not seem to include a responsibility to protect refugees, or poor people generally. We talk about globalization, which is a lot of fun for us and our peers (bankers, businessmen), jetting across the globe but, one suspects, is a lot less fun for the immigrants slaving away at building football stadiums in Qatar, or for nimble-fingered factory workers across South East Asia. We talk about human rights, especially about the rights of access to justice and the protection of property of wealthy businessmen rather than any putative rights of poor people not to be subject to austerity measures or lose the right to work – not even the right to a paid holiday that was still mentioned, with admirable optimism, in the Universal Declaration. We talk a great deal about investment protection and the expected benefits of megalomaniac trade agreements, under the happy slogan that ‘a lifting tide raises all boats’. Even if that were true for all parties to those agreements (which is debatable), it would come at the expense of third parties, not coincidentally perhaps the very same third parties whose citizens are now fleeing rampant poverty and destitution, if not outright violence. And we talk a lot about such institutions as the ICC, fighting the extreme manifestations of political crime without doing anything about either the underlying causes or the more mundane international crimes of human trafficking and slavery, or the arms trade. Oh wait, let me rephrase this: we did talk a little about the arms trade, on the occasion of the conclusion of the wonderful Arms Trade Treaty back in 2013. And just for the record: the treaty has actually entered into force (no, I had not noticed either). As so often, it will have to do without Russia, China, India and Pakistan, while the US and Israel are signatories but have not ratified. But fear not: much of Western Europe has joined, and the good news (truly wonderful, blissful news) is that even Andorra has signed, although it has yet to ratify. Soon the world will be a better place.
But perhaps it is a good thing that we are only talking, and not much more, for cynics might suggest that the law has little to offer. If clever Hungarians with decent legal training can use the Rule of Law so as to undermine the Rule of Law, then perhaps the lawyers cannot boast any special understanding of the good life. If Estonian prosecutors put novelist Kaur Kender on trial (and trial behind closed doors, in a wonderfully retrograde move that Stalin would surely admire) for having an imaginary character engage in pedophilia and thus accuse the novelist of child pornography, then either the law or the prosecutor is a bit unclear. And if Danish children’s rights activist Lisbeth Zornig can be accused of human trafficking for having given a ride to a family of Syrian refugees, with the law seemingly unable to distinguish between acts of compassion and acts of greed, then yes, maybe all that rests is silence. And yes, then maybe it is better that large numbers of international lawyers spend huge amounts of intellectual energy blogging about whether nasty individuals from nasty countries can perhaps, in the future, if caught, and if extradited, and if evidence can be gathered, and if complementarity can be overcome, and if the prosecutor has the required courage, whether such a nasty individual can maybe, perhaps, one day be prosecuted before the ICC. By contrast to trials behind closed doors and punishing empathy, this seems a fairly harmless parlour game. Still, Estonia and Denmark, lest we forget, are member states of the EU, that most wonderful of inventions ‘founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’ – the language stems from Article 2 of the Treaty on European Union, and if that were not enough, there are plenty of lofty human rights references elsewhere in the TEU – enough to make one wonder how the EU’s member states can condone trials behind closed doors (and about freedom of expression, for crying out loud) or punish their citizens for helping out the poor and dispossessed.
And then there is Brexit – the United Kingdom is intent on leaving the EU, for all the wrong reasons. I am writing this a few days after the British referendum, when everything (literally everything) is still wrapped in layers of uncertainty. It is still uncertain when – or actually even whether – the British government – or what’s left of it – will invoke Article 50 of the TEU. Since that has never happened before, it is uncertain what will happen when the UK does. It is uncertain how the EU and its leaders will respond, and whether the initial anger and vengeance noticeable after the referendum will give way to cooler and perhaps more accommodating heads. And it is uncertain whether other member states might be tempted to follow suit. Apparently, part of the French population is keen on leaving (the right-wing, xenophobic part), as is part of the Dutch population – or maybe it is just a few right-wing, xenophobic politicians who are keen on leaving, and keen on tapping into general misery and alienation with a view to gaining some populist brownie points and realizing their own personal ambitions. So things are a bit unclear, as is indicated also by the plunging of stock markets and the rush by Britons to acquire an additional EU nationality.
A couple of things though seem reasonably clear. One is, that including a withdrawal clause in a treaty such as the TEU is asking for trouble. Obviously, this is something the founding fathers of the League of Nations also found out, with Germany and Japan making a quick exit after their domestic ambitions were no longer deemed compatible with the simple ambition of the League to keep the peace. Such an exit can never be prohibited (and it would be wrong even to try), but including a withdrawal clause makes it all too tempting to actually withdraw. Here the law of the possible applies: if a facility is created, it will sooner or later be used – and often enough for all the wrong reasons. Those of us who have ever sat through a committee meeting that in advance was limited to two hours will know the feeling: reserve two hours for a meeting, and it will last the full two hours, even if the business can be done in 20 minutes.
What seems also reasonably clear is that Britain is unlikely to be better off as a result, by whatever standard. Economically it is difficult to think of this as progress, especially if Japanese companies relocate their manufacturing plants with a view to access to the internal market, and London’s financiers do the same. It will lose its influence on formal EU decision-making, and that influence is considerable – those who regularly attend EU working group meetings will confirm that the UK is quite effective in obstructing any proposal that interferes with neo-liberal market orthodoxies. Of course, it will retain its permanent seat on the Security Council, but one wonders whether this is not part of the UK’s problem: it constantly feeds the delusions of grandeur that are unmatched by any concrete achievements, in much the same way that North Korea’s possession of nuclear weapons may tempt it to try to punch above it weight (and no, the analogy is not accidental). And to make the spectacle even more compelling: if Brexit was Boris Johnson’s bid for national greatness, leading naturally to Tory leadership and a prime ministerial vacancy, to Churchill 2.0, then it has unraveled at unparalleled speed. Brexit would make some sense if the UK truly was more than a middling power, and could act so to preserve a balance of power on the continent and in the world at large – and one can only presume that this is the geopolitical fiction driving some Brexiteers, but fiction it is.
In the end, though, Brexit might be a blessing for the EU, which can no longer be held hostage to British whims and free market orthodoxies. While France and Germany have enough problems of their own, a shifting of the centre of gravity in their direction may help provide the impetus for a more democratic and, whisper it, more social European Union. It is problematic to draw all too facile lessons from history, but De Gaulle may have had a point when he refused British applications for EU membership in the 1960s precisely because he feared British accession would diffuse French-German leadership. Of course, the EU of 2016 is not the same animal that the UK joined in 1973, and perhaps too much has gone wrong to imagine that the EU might have another shot at reforming itself in more democratic and social directions. As someone once quipped: European integration is a great good – too bad it’s left to the EU. On the other hand, without the UK, the EU might have a better chance than ever at reforming itself.