International Law in “Turbulent Times,” Part II

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?

International Legal Conflict Is Often Productive

Consider three ways in which conflict can be valuable to any international legal project. First and as others have recognized, conflict is often an ingredient for further cooperation. In other words, an intense or prolonged conflict can enhance, rather than reduce, the likelihood that the participants will find and then support particular legal norms. An example is the dispute between Iran and the United States over Iran’s nuclear program. Before agreeing to the nuclear deal, the two states used international law for years to disagree. For example, the United States worked hard to obtain Security Council resolutions that created new nonproliferation obligations for Iran and either permitted or required sanctions for Iran’s noncompliance. The United States then used those resolutions to justify intensifying the dispute—by pressuring other states to impose more severe economic restrictions on Iran. This extended and at times heated conflict was not a perversion of or sideshow to international law. It was for a long time the reason that certain states engaged with international law. And it was critical to the process of clarifying where the participants stood and what terms they would accept. Iran and the United States used international law to reconcile their differences only after they used it to challenge and compete with each other.

Second, even when a dispute lacks substantive resolution, facilitating it gives the participants a way to air grievances that might otherwise fester or erupt in more virulent ways. The Iran nuclear deal is again instructive. Had the United States and Iran not reached a deal, their dispute through international law still would have stalled and released much of the steam behind the stated, more deleterious alternative: a military conflict. By helping the United States and Iran have and sharpen their dispute, international law also helped them channel their energy through the IAEA and UN Security Council, and release tensions that could easily have expressed themselves in more destructive ways. Note that international law will have had this effect, even if the nuclear deal now unravels. The appetite for a military conflict was largely appeased.

Third, as I argue in this piece, a protracted legal conflict can itself be a unifying force. It can help bind global actors together around a governance project. This idea might seem counterintuitive, but it is not new. When disparate actors persistently disagree about which legal standards apply to their group, or about who defines or enforces those standards for the group, they at least take for granted that they are a governed group—that they participate together in a shared governance project. One might prefer for them to coalesce through their commonalities. But if they have little in common and relatively few other reasons to interact on an issue, their legal conflicts will be a large part of what binds them together on an issue. In other words, the alternative to having such conflicts is not for them to experience a drastic uptick in social unity. It is for them to be less integrated and more disengaged from the joint enterprise. That alternative would be worse for any effort to regulate their behavior through international law. At least when they use international law to disagree, they concede that an issue is a matter of common concern, rather than within the exclusive purview of individual states. In addition, they can be pressed to articulate the considerations that are or ought to be at stake in their exercise of public power and to subject their conduct to external scrutiny and debate.

Assessing Whether International Law Is in Decline

I begin to explore some of the implications of my argument in my articles. For now, let me underscore that a protracted or irresolvable legal dispute—even one that involves a state’s persistent noncompliance—is not by itself evidence of international law’s weakness or decline. At most, it shows that states are using international law less to solidify an area of agreement and more to have a dispute.

Indeed, in the face of heightened normative divisions, the thing that would really evince the decay of international law is an absence of international legal conflict. It would suggest that global actors are choosing to sideline or disengage from the enterprise. This was precisely my concern shortly after President Trump took office: that he would be indifferent, if not openly antagonistic, toward the whole project of international law. He seems to be. Under him, the United States has initiated its withdrawal from the Paris Agreement, called into question longstanding security and economic agreements, declined to publicly explain or justify its new drone policy, denied that human rights promotion is an element of U.S. foreign policy, suggested that it might be a first-user of nuclear weapons, withdrawn from UNESCO and the UN Global Compact on Migration, and had a State Department that is in disarray and with little internal standing. The problem, then, is not that U.S. compliance rates have dropped precipitously. (See Ingrid Wuerth’s piece on this point.) The problem is that the United States increasingly seems checked out of international law and to be denying its normative relevance to U.S. governance decisions. That problem is evident in other countries, too, but it is particularly pronounced for the United States because the United States has long played such an outsized role in the international legal order.

For global actors who still see significant value in regulating human behavior through international law, the answer is not (as Andreas suggests) simply to insist that it be followed and to avoid pushing it in contentious directions. That approach would not be responsive to the current moment. The answer is to find ways for global actors to use international law in order to disagree about the aspects of it that are now so contentious—to use international law to communicate their evident discontent and fight about what to do with it. Because conflict is symbiotic with cooperation, such disagreements could help the participants find new, more stable common ground. But even if it does not, it would reinforce that which they already still share and help keep them engaged in the joint enterprise.