Populist Governments and International Law: A Rejoinder to Paul Blokker and Marcela Prieto Rudolphy

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I am grateful to Paul Blokker and Marcela Prieto Rudolphy for their thoughtful replies to my article on “Populist Governments and International Law”. In that article, I inquire into the question as to how populist governments contribute with their argumentative strategies and governmental practices to current perceptions of a crisis of and related shifts in the international legal order. Identifying such shifts poses methodological challenges. To address these challenges, I have relied on a formal conception of populism, focussed on some of the basic rules and structures of the international legal order and used the heuristic tool of ideal types to assess populist governments’ stance to international law. In particular, the criticism by Marcela Prieto Rudolphy takes an issue with my approach and thereby reflects three wide-spread strands of doubt about how to evaluate structural shifts: a too high level of abstraction of categories applied, the claim that the international law does (no longer) represent a unified object of observation and the use of ideal types as a heuristic instrument.

Prieto Rudolphy doubts that it is fruitful to reflect upon “a populist approach to international law” and, instead, advocates to examine “populist approaches to this and that area of international law”. First, she is sceptical whether the analytical category of populism as such is useful, if it does not take into account the specific understanding of “the people” on which different emanations of populism are said to rely. She assumes that these different understandings will lead to “a range of positions” which cannot be reconciled in one analytical category. She emphasises that turning to “the underlying ideologies” (e.g. left-wing vs. right-wing populism) “would be a welcome change”. Paul Blokker agrees with her in that “varieties of populism need to be taken into account”. While it may well be a valuable contribution to analyse the approach of specific populist governments to specific branches of international law, I disagree with the exclusiveness of Prieto Rudolphy’s claim, not least because evaluating structural shifts in the international legal order requires a multitude of different methodological approaches.

The criticism raises the question as to the appropriate level of abstraction of any analytical category that seeks to contribute to an evaluation of shifting structures. Looking into “populist approaches into this and that area of international law” simply entails the risk of not seeing the wood for the trees. An exclusive focus on specific understandings of “the people” or national ideologies and certain policy fields risks to overlook the connecting dots.

Prieto Rudolphy herself evokes the risk of populist coalitions aiming to erode international institutions. Searching for patterns in populist governments’ practices and argumentative strategies helps to identify on what grounds and to what extent such coalitions may be formed. In contrast, relying on well-established ideological categories risks to take comfort in old securities and to simply assess future developments in terms of past experiences. However, if the assumption is right that the global power shifts we are currently witnessing contribute to a restructuring of the international legal order, it becomes necessary to delineate different analytical categories than those we have employed in the past. Sticking to more traditional categories, such as Latin American left-wing ideologies vs. European right-wing ideologies, may obscure the picture. In as much as power centres shift, interests in and alliances for changing international legal rules and institutions may shift. Populism in a formal understanding is such a category that allows to group very different actors, even with prima facie diverging national interests and ideological backgrounds, which still pursue some parallel strategies. It may seem counterintuitive to put the US, Venezuela, Hungary and Turkey into one category but – for the time being – governments of these states share common approaches to some of the foundational norms and structures of international law.

In particular, a shift in the understanding or prioritization of such basic rules is a strong indication for a more fundamental shift in the international legal order. However, Prieto Rudolphy disputes that it is sensible to inquire into the direction that “international law in general” will take. Since she holds that “international law is, in many ways, a fragmented regime” she doubts that the generalist perspective will work out. Apparently, to inquiry into the direction into which international law as a coherent legal system moves resists modern theories of fragmentation which split up international law into various regimes and deconstruct the idea of such a coherent system (Krieger/Nolte). However, such an approach should not go as far as to deny that even the specific branches of international law are still based on and linked to foundational rules of a substantive and procedural nature, including those on actors and sources. The practices into which I have looked relate to such structural rules.

One example concerns the policy of withdrawals or threats of withdrawals. Prieto Rudolphy assumes that a focus on the different branches of international law would show that the “ordinary life of international law, which deals with postal and telephone conventions” is of “little concern to populists”. However, President Trump’s notice of the US intention to withdraw from the Universal Postal Union (UPU) led to a reform of postal rates which were considered to favour China. A threat of withdrawal as an instrument to overcome a standstill within international organisations or to promote certain national interests may work across different regimes and institutions of international law, including UPU, NAFTA, or NATO. Likewise, efforts to limit the space for activities of the often transnationally organised civil society affect different branches of international law and the role of non-governmental organisations therein. My article shows that right-wing as well as left-wing populist governments have used comparable legal instruments with comparable intentions to control activities of transnational NGOs within their states.

A third important example of a practice which structurally affects the international legal order across different branches concerns the relation between national and international law. As Paul Blokker argues in his reply, efforts to offer a “form of counter-constitutionalism” are common to populist governments and movements in Europe and Latin America and across the political spectrum. This often includes efforts to “rebalance the relation between domestic constitutional and international law”. Indeed, an important example for this observation concerns the party programme of the Freedom Party of Austria (FPÖ) which intends to subject Austria’s international legal obligations to an explicit national interest reservation: “Accepting and fulfilling international obligations may not be to the detriment of the Austrian population.” In cases where compliance with international law is detrimental to the interests of the Austrian population, international law would be dispensed with. Such a claim goes against interpretative principles which, for example, require judges to apply an interpretation that allows to bring national law in line with international legal obligations of the state. For analysing these practices, Paul Blokker’s reply offers an important insight by highlighting the constituent dimension in populism and its claim to realize popular sovereignty.

While Prieto Rudolphy disputes the usefulness of thinking about international law in terms of contrasting ideal types, Paul Blokker suggests to develop the argument about “shifting imaginaries of the law further” by more “stressing the essentially contested nature of the progressive international system”. In my article, I have used the distinction between international law as a law of co-ordination and international law as a law of co-operation to describe the move that international law has made since 1945 and again after 1990. The distinction goes back to Wolfgang Friedmann’s book “ The changing structure of international law” and has, inter alia, been further developed by Georges Abi-Saab. Prieto Rudolphy objects to relying on these types for assessing the role of populist governments because she thinks that this move is:

“mostly the reflection of a desire rather than an accurate description of either the development of international law or a radical change in legal technique.”

The term “law of co-operation” is an ideal type (Max Weber). Ideal types are constructs for ordering and conceiving social phenomena by emphasizing their dominant aspects and thereby, in part, idealizing them. Thus, they are not intended to work as accurate descriptions of “reality” but as heuristic instruments or yardsticks for distinguishing, analysing, and assessing social phenomena. They provide a foil against which change can be identified by emphasising and contrasting their essential characteristics.

Obviously, international law has never fully complied with either of the ideal types and elements of both can be found across international law. Likewise, neither on an academic nor on a political level was this “collective understanding” of international law ever uncontested. But the use of the ideal type of a law of cooperation to describe the move that international law has made was a dominant perception starting in the 1960ies and intensifying throughout the 1990ies. Some authors even advocated for more far-reaching ideal types, in particular theories of constitutionalization to which Paul Blokker refers. To see the ideal type of a law of cooperation as “an emerging, yet still fragile, trend” – as Prieto Rudolphy does – may or may not prove right in the future. However – for the time being – her view means to anachronistically reinterpret the dominant perceptions of the move that international law has made after 1990 and thereby to blur the historical foil against which to assess change.

Whether a new type of international law may currently be emerging is an open question that needs further research. In my article, I have argued that populist governments promote a concept of international law as a law of coordination and aim to reduce international law to an instrument for furthering national interests. The importance of this argument does not lie in opposing co-operative and coordinative ways of regulating international law as Prieto Rudolphy reads my argument. The decisive argument refers to the degree to which concepts of an international community organized around substantive common values are pursued. As Georges Abi-Saab has stressed, the position that international law assumes between both ideal types “denotes the degree of intensity of the sense of community prevailing among the members of international society” at any given moment in time. Thus, I agree with Prieto Rudolphy that a serious challenge for international law lies in:

“the rise of ethnic and cultural pluralism – both within nation-states and globally – … [which] makes consensus on shared values even more difficult.”

Identifying indications for a return to a law of coordination may thus only be a piece of the puzzle. Her suggestion that we must prioritize solving collective action problems – that “we … have a problem in need of a solution” – already seems to sketch out elements of a new type of international law. This type may be primarily problem- or output-oriented with actors that strive to keep a high degree of economic connectivity but at the same time reject a strong sense of community and shared values on the international level. In such an understanding, international law is a management tool for collective action problems and connectivity without shared values. Whether such a type of international law would be a viable one remains to be seen.

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Kishor Dere says

January 28, 2020

It is a thought-provoking and enriching discourse among scholars of international law. Populism can certainly have various definitions. An important point is that populism too contributes, at least occasionally, to long overdue reforms and changes in international legal order. Status quoists, however, tend to dismiss all demands for reforms as populism or even as mobocracy. Populism is here to stay and we have to see its utility in handling crisis and overcoming challenges posed by rigidity, nostalgia and inertia of the beneficiaries of the existing system. He/she who sups with devil must have a long spoon. Yet, let us not hesitate to give the devil of populism its due if it helps change the international legal order for better.