In a recent ESIL Reflection, Başak Çali addresses the sufficiency of the standard view on the form and justification of the authority of international law against some of the key critical challenges: effectiveness, democratic legitimacy, and domination. Çali’s argument is that “the relaxed view of consent as well as a commitment to neutrality embedded in the standard view are able to respond to most external critiques”, but the either/or account of authority is the weak point in the standard conceptualization. This is because it strengthens the projection of international law as a source of domination, when in fact, attention to the details and practice of international law reveals that it often leaves considerable space for autonomous action by states.
In this post, I attempt to shed further light on some of Çali’s main arguments. I comment on Çali’s focus on international law as a whole; the treatment of the issue from the perspective of all states; and the proposal for a new set of classifications to order the form of international law’s authority.
The Authority of International Law as a Whole
I agree with Çali, it is important for theorizing on the authority of international law – the explanation for its ‘right to rule’ – to be empirically informed. I wonder, though, about the readiness of Çali to accept the standard, long-serving consent explanation as still sufficient. Could this be due to Çali’s focus on explaining the authority of international law as a whole? Might an initial sector specific analysis of practice lead to greater interest in the presentation of consent as sufficient?
Fischer-Lescano and Teubner have described how in a globalized world, international law forms part of sectoral systems (technology, health, environment etc), which “create a sphere for themselves in which they are free to intensify their own rationality [giving rise to autonomous system dynamics] without regard to other social systems”. One does not need to fully subscribe to this conceptualization of the global order to recognize that – with a focus on practice – there could be variations in the explanation for the authority of international law from sector to sector. For a sector such as human rights, there are powerful moral and political arguments, based on the human status, which help to justify the creation of the law and also appear to affect the practice of the law (Teitel 2011). Çali seeks to avoid recourse to content in the explanation for the law’s authority, but there are also differences in the processes by which international law is created across sectors. Does the role of a democratic body such as the Parliamentary Assembly of the Council of Europe in the creation and promotion of human rights treaties contribute to the authority of these instruments?
In addressing international law as a whole, Çali provides a lowest common denominator account of the authority of international law, covering only the features that apply to all law and all states. The risk with this approach is that we will often only have a partial picture of why international law is authoritative. Perhaps this is part of the cost of a general account. Still, before we accept the standard view as sufficient, there is a need for more, sustained study of the authority of international law within sectors. This can allow for the idiosyncrasies of the sectors to be identified, assessed, and synthesized into a comprehensive general account of the authority of international law.
The Authority of International Law for All States
On a similar point, Çali addresses international law from the perspective of all states. This removes considerations that can distinguish the way states interact with international law, such as regime type, from the final account. On regime type, Teitel’s view is that international law has a particular role in times of transition, preserving “the ordinary understanding of the rule of law as settled law” whilst also enabling transformation. In addition, Simmons has argued that the impact of international human rights treaties tends to be greatest not in stable democracies, or autocracies, but in transitional democracies. Taken together, these studies hint at the potential for a particular understanding of the authority of international law to be in operation in transitional regimes. Commencing from a regime type categorization could facilitate deeper study of how states relate to international law. It could reveal new factors in the explanation for authority that may or may not be shared more broadly amongst all states.
Accounts of the authority of international law ordered on domestic regime type could also enable a sharper defence when challenges arise. Çali raises the point, when defending international law from the democratic legitimacy challenge, that it is “well known that most interpreters have developed judge-made doctrines of deference to democratic decision makers”. This point is most accurate as a reference to the authority contest occurring amongst democratic states and international legal institutions. This contest includes judges finding that certain international human rights laws permit greater discretion for the state in instances of democratic decision-making. This is a feature of the practice of international law that is not applicable to all states. It might also be too content-dependent for Çali to consider it for a place in a general account of the authority of international law. Still, it might help to explain why the relevant law is treated as authoritative by the target states.
Ordering the Form of International Law’s Authority
The advantages of a narrower framing of the authority question also extend to Çali’s call for a move from the either/or classification to a relative reading of the form of authority. It is problematic, as Çali addresses, to talk about the authority of international law as such, when there is so much diversity in the nature of the norms. Nonetheless, when international law as a whole is in focus, it remains a challenge to provide useful classifications of the different forms of authority. I wonder whether Çali’s three-way – strong, weak, rebuttable duties – classification is sufficient to capture the existing levels of variety. In particular, is too much work required of the third category? This seems to be the catch all account for norms that either do not specify clear action (strong), or leave almost total discretion (weak). Çali specifies it in the following way: “Rebuttable duties are those that state authorities can set aside when they are able to show that an equally important other duty is preventing them from performing it”.
In order to avoid being over or under inclusive, law with universal scope is often crafted in such a way as to allow the law’s meaning to be determined by the context, including its relation to other applicable norms (Koskenniemi 2007). Accordingly, Çali’s third category is likely to be heavily populated. There can, though, be considerable variety in the nature of the candidate norms. In the Reflection, Çali highlights a duty to respect the right to privacy as subject, in certain circumstances, to rebuttal by the duty to protect freedom of expression. In her book, the example is given of the prohibition on the use of force as subject to rebuttal through the law of self-defence. In both instances, there is a degree of displacement of one norm by the other but the nature of the demands placed on states appear different. The limitation of human rights requires a balancing of interests, which affords states considerable discretion in the framing and assessment. The law of self-defence sets thresholds, which although a matter of appreciation, are to be reached rather than balanced by the state. This difference in the way in which the two sets of laws place duties on states is lost when both norms are placed in the rebuttable duty classification. An ordering of norm types within specific sectors, such as collective security, could help to bring into focus the similarities and differences across sectors that could allow for more accurate classifications at the general level.
In sum, it is important for debates on the authority of international law to be informed by the study of practice. There is, however, room for disagreement on how to frame and interpret relevant practice. Çali’s Reflection and recent book make important headway. I hope there will be further research, gathering, framing and examining practices at the domestic and international levels, working towards a comprehensive conceptualization of international law’s authority; this might well require a more radical reassessment of the standard disciplinary account than that called for by Çali.
I am grateful to Professor Geir Ulfstein for his help in finalizing this contribution.