International Law in “Turbulent Times,” Part I

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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.

International Law Enables Conflict

The problem with the vision that I just articulated is that it assumes that conflict detracts from or pulls in the opposite direction of international law—that conflict must be defused or resolved in order for international law to serve its functions. In fact (and as I argued here), international law itself enables conflict. This claim is not as radical as it might appear. A prominent school of thought already defines international law as an argumentative practice. International law establishes a set of ground rules—texts, processes, methods, sources of authority, and so on—that structure cross-border interactions. These interactions can be congenial; the participants can use international law to identify and work toward common aims. But they can also use it to compete and disagree with one another.

I have built on that school of thought to advance three points that are relevant here. First, international law does not just channel the conflicts that would occur in its absence. It affirmatively enables conflict. Having shared ground rules helps the participants identify and crystallize their areas of disagreement. It gives them normative material with which to condemn particular situations as problematic and justify responding antagonistically. It establishes mechanisms to communicate their discontent. And it creates incentives for them to fight by promising material or normative support if they prevail. In all of these ways, international law provides the tools and sometimes the reasons for global actors to disagree. It facilitates and even fuels their conflicts.

Second, although international law is an argumentative practice, the conflicts that it enables are not only discursive or confined to legal arenas. Law is a social phenomenon that shapes how people experience the material world. Global actors use international law to foster real-world collaborations, but they also use it to foster real-world conflicts—conflicts that play out through, for example, economic restrictions, deteriorated diplomatic relationships, and the like. To say that international law enables conflict is to say that it sometimes contributes to these things happening in the world.

Third, the conflicts that occur through international law are not necessarily evidence of its weakness or dysfunction. Rather, such conflict is symbiotic with the very forms of cooperation that many international lawyers prize. Even as international law helps the participants achieve their shared ends and reconcile their differences, it also helps them have and sharpen their disputes. The two kind of interactions are interdependent because the legal mechanisms for both are the same, and the more global actors work together on a governance project, the more reasons and occasions they have to disagree about different facets of the project.

My debate with Dan Bodansky, as part of a symposium on one of my articles, helps flesh out these points. Dan used as his example the Montreal Protocol on Substances that Deplete the Ozone Layer. He argued that describing the Protocol as conflict-enabling is misleading because the Protocol clearly “establishes a cooperative regime to promote states’ common interest in preserving the stratospheric ozone layer.” This is exactly the logic that I am resisting. It assumes that conflict is antithetical to and detracts from the common interest—that the Protocol either enables conflict or promotes the preservation of the ozone layer. According to Dan, the fact that the Protocol does the latter makes the claim that it does the former misleading. In my view, Dan’s logic is itself misleading. The Protocol clearly enables not cooperation at the expense of conflict but both kinds of interactions simultaneously. Indeed, Dan himself concedes that the Protocol “might be understood as enabling conflict, by using ambiguous terms that permit different interpretations and by authorizing parties to use trade measures against non-participating states.” That is essentially my point. The Protocol helps the parties reach a mutually beneficial goal, and it gives them new grounds and reasons to disagree. For example, it entitles them to argue over its application and to contest behavior that now constitutes a breach. The key point is that enabling conflict is an integral part of, not inherently antithetical to, regulation through international law.

Some readers might intuit that any legal arrangement would be stronger still if the participants managed to avoid or defuse a dispute than if they allowed it to get inflamed or persist without substantive resolution. That intuition reflects the same, flawed logic. Because conflict is part of any social order, its absence is more likely to reflect the participants’ disengagement from or subordination through the enterprise than their strong and unified commitment to it. This is especially true in international law. The actors who participate in international law are extremely diverse, so they are bound to have different, sometimes incompatible views on how best to achieve specific policy goals or balance the competing considerations that are at stake. As such, a protracted or irresolvable dispute might show not that an arrangement is weak or decaying but that it is robust—that because the participants are all so committed to it, they are willing to expend the energy to fight hard about what it requires in specific contexts.

The WTO offers a compelling example. Historically, the two most active proponents of the WTO have been the United States and the European Union. These two actors have used WTO law to cooperate in ways that deeply and broadly affected their national economies. They have also routinely used WTO law to disagree. The United States and the European Union have been the most frequent litigants at the WTO, and many of the most heated and protracted WTO disputes have been between them. They have used WTO law both to cooperate deeply and to conflict sharply. Again, cooperation and conflict go hand-in-hand; it is wrong to assume that their conflicts are impediments to their cooperation or to international legal regulation more generally.

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Apples says

March 6, 2018

Professor Hakimi,

I think your point about conflict reflecting engagement with and the health of international law is reasonable. I have the following comment::

A conflict is useful if the disagreement between the parties involved relates to the same issue and allows them all to reach a higher/better understanding of the situtation than what was possible in the absence of a conflict. Not all conflicts in the international sphere are aimed at this. Taking the current logjam of judicial appointments at the WTO AB as an example, on paper, the US and the others seem to disagree about certain discrete procedural and substantive aspects of the AB's functioning. With the US not offering any solutions or agreeing to the way forward, however, it seems reasonable to conclude that the US is not interested in actually improving the system, but just wants to scuttle it (for domestic political reasons). In such a situation, it seems to me that a conflict, almost in bad faith, can have existential, and not just incremental, implications. The point is that a conflict may generally indicate the health of a system, yes, but it must still be a conflict in good faith, with an active desire to reach a higher understanding through disagreement.