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The Future of International Law in an Authoritarian World

Published on June 3, 2019        Author: 

In this short review essay, I would like to offer some thoughts on the future of international law in an increasingly authoritarian world. Even for a discipline which loves a crisis, these are perhaps challenging times. The liberal cosmopolitan project of global governance through international law and multilateral institutions has, at the very least, hit a bump in the road. There is a widespread sense that a change in direction is likely. It is a reasonable time to reflect on questions such as: is international law in trouble? How concerned should we be at attempts to revise the international system? And what might a more authoritarian version of international law look like?

In reflecting on the questions I’d like to offer my readings of three scholars I’ve recently found thought-provoking. These are personal reflections and interpretations, not an effort to capture every nuance of their work. Nonetheless, each has had an impact on my thinking.

  1. Shirley Scott, “The Decline of International Law as a Normative Ideal

In this piece, Scott contrasts her view of international law with what she considers the dangers in the turn to speaking about a “rules-based order”. Scott sees the project of international law as historically containing a commitment to several major principles.

First, the principle that law is politically neutral: a conception that law stands aside from politics, and creates a level playing field for state actors, to engage and to argue with each other. This principle includes the idea of formal sovereign equality.

Second, a commitment to peace through law: the idea that law contains within it the potential for objective dispute settlement, and that this is a contribution to world peace.

Third, that international law requires compliance: that compliance with your obligations is compulsory, not optional. (Pacta sunt servanda.)

Fourth, critically, the idea that “it is possible to distinguish objectively between legal and illegal action”. This she calls the legal/illegal dichotomy.

Fifth, the principle that, international law in its own self-conception embodies the idea that law precedes policy. That is, that law is something that already exists, and it exists before policy choices are made. It is available, its content can be ascertained, and law should therefore guide policy choices.

Finally, she sees in international law a claim that it has comprehensive coverage: the idea that all problems can be dealt with through law.

Now, Scott regards general belief in these half a dozen propositions to have been useful to international order. And she holds that to be the case irrespective of whether these principles were ever wholly true. That is, if by and large states agree to conduct international relations as if these principles were true, the world is a safer and more stable place.  This obviously relates to her work on international law as an ideology. Such an ideology will favour the powerful and will reinforce the status quo. But it can be acceptable to others if the system it underpins delivers enough benefits to other states. And Scott’s claim is that historically, post-World War Two, the US-led international legal order has done that.

Scott sees a number of dangers in the shift to talking in terms of “the rules based order” or, worse yet, “a rules based order”. She has several claims here. The first is that while the post-World War II international legal system may have been US-dominated, it did leave room for and provide benefits to others. Second, she’s concerned that “the rules-based international order” is simply too vague a term when compared with international law. Crucially, “international law contains a whole host of checks and balances built into the system”. International law is proceduralized in a way that a collection of primary rules is not, or not if “those rules could … be made up by whoever has the power to do so, and they could be changed as frequently as the most powerful wishes.” The virtue of international law is its secondary rules, its rules of rule-making, which make it more (and more stable) than the alternative.

So what accounts for the shift in the use of language and possible underlying decline in belief in international law? Scott points to two possibilities. The first is that the invasion of Iraq in 2003 dealt a devastating blow to the authority and legitimacy of international law, and international law has been in decline ever since. While this has, perhaps, a certain emotional appeal to those of us who suffered through that period as professional international lawyers, it may hang too much on one episode.

Second, she advances a different or supplementary thesis, which lies in the changing global distribution of power. International law is a system based on compromises. But those compromises were unequal and favoured the strong, particularly the United States. With shifting power in a multipolar world, rising states are no longer prepared to accept “unequal” treaties or or a system of international law that appears to disproportionately benefit the last remaining superpower.

On this second possibility, it is obvious that China is increasingly unhappy with major multilateral treaty systems, such as the UN Convention on the Law of the Sea, which were negotiated at a time when it was weaker.

In summary, we might think that Scott’s account of international law is historically optimistic, but is pessimistic about the prospects for international law going forward.

  1. Monica Hakimi, “Constructing an International Community

Hakimi paints a different picture of international law. She starts by claiming that international law is normally seen as the work of an “international community” which shares certain “common precepts” but which is held back from achieving more by conflict. On this view, rational action in the common interest is normal, conflict is the (unfortunately common) exception.

Her alternative vision is one in which states broadly agree there is a need for a common project of global governance, but disagree “about its [precise] contours”. While all accept the need for a system of governance covering the use of force, regulation of nuclear weapons, human rights, the uses of the ocean, etc, states will disagree about what systems of governance dealing with these questions should look like.

Hakimi’s case is that the process of arguing with each other – of interacting with each other – can create a community. This is true even if some issues remain unresolved, with no satisfactory compromise reached. The conversation, as it were, is the community and participating in the conversation changes the participants.

She also sees a particular type of meaning in debate over the content of peremptory norms (jus cogens). Debate over the limits of these principles are, on her account, ethical arguments about “the proper balance between state and individual interests”. Peremptory norms affirm the existence of a community by asking: “Who belongs to this community? Who may act on its behalf to sanction specific conduct? Which norms are central to its identity” and how should they be protected?

In sum, she sees debate about the international order and what it should or should not govern as productive. “Friction is not inherently an impediment to—and is often an ingredient for— friendly and stable relationships.”

More than this there are different, overlapping and cross-cutting international communities which deal with different issues. (My adversary on military issues might be an ally in trade or environmental negotiations, etc.) “Quite a bit of research suggests that having continuous, crisscrossing conflicts helps stabilize loosely structured societies.” The process of continual negotiation, adjustment and balancing maintains and fosters stability.

Hakimi thus suggest that conflict and friction is not inherently a bad thing. Conflict is often productive: struggle over the nature of global governance builds structures, but that process of structure-building is never finished. So long as we all continue to work on the project, however, there is a productive and useful sense that we are all in this together.

At first glance her account of international law might seem quite pessimistic (conflict is endemic) but it finishes in an optimistic place (continuous struggle is normal and may force continuous adjustments which are – in the end – stabilizing). This might give cause for hope that the present moment is less exceptional and challenging than it might seem.

  1. Tom Ginsburg, “Democracies and International Law: The Trials of Liberalism” (2019 Hersch Lauterpacht Memorial Lectures, Part 3)

I’d like now to turn to a final perspective, one which tackles the possibility of an authoritarian international law head on.

In his recent Lauterpacht lectures, Ginsburg argues that international law has historically been shaped by democracies: democracies are much more likely to use international law and to sign and participate in treaties. Part of his underlying research method, then, is to construct a set of binaries or dyads examining: when democracies use international law in interacting with other democracies; when authoritarian states use international law in interacting with other authoritarian states; and when and how is international law used when in a relationship between a democracy and an authoritarian state.

The most interesting part of the lecture is, for me, when he asks, “if current trends continue, what might international law look like?” He notes that soon the majority of world GDP will be being produced outside democracies: the balance of world power is shifting outside democracies and we can’t presume that democracies will continue to have a disproportionate say in the making of international law and in the running of the international legal system.

Looking at these developments, Ginsburg predicts a return to the classic Westphalian state. If you look at what authoritarian governments are interested in doing at the level of international organisation, they form security organizations or they form sovereignty-reinforcing groups. (In the latter category, one could think of ASEAN at the time of its formation.) Integration projects are sovereignty eroding. A return to the classic Westphalian state and looser forms of international institutions are therefore far more in their interests than further integration.

His argument then, is that an “Eastphalian” world of Asian dominated international law would in fact look very classically Westphalian: strong on sovereignty with individual human rights as very much a second-order priority, and featuring limited international institutions and limited integration. In this context, he directs our attention to China’s Shanghai Cooperation Organization. It has produced several treaties but remains institutionally week. It’s largely a forum for executive governments to meet and to discuss issues of mutual interest, particularly the “three evils” of terrorism, separatism, and extremism.

Ginsburg concludes that a future international law shaped by authoritarian governments is likely to be strongly focused on executive governments, and will be strong on sovereignty and weak on institutions. But he sees it as, nonetheless, having a focus on effective systems of trade, finance and investment law. Authoritarian governments are increasingly integrated into world trade and global economic flows. You don’t find many now trying to be completely self-sufficient. If one thinks of Chinese priorities, the One Belt One Road initiative will ultimately require a trade, finance and investment law framework to succeed.

Otherwise, though, he sees China as advocating a different international system. In particular, he sees China pushing for a revival of principles of shared gain and amity. (Ideas having roots in the decolonization movements of the 1950s and the Bandung Conference.) A Chinese system of international law will favour consultation over binding dispute settlement, and will have an emphasis on principles over rules. (I mean this in the broadly Dworkinian sense of principles providing general guidance about how things should be done, whereas rules in their ideal form provide a clear yes or no answer.)

Ginsburg also sees in a more authoritarian international realm a stalling of institution building and predicts that China may work to undermine regional organizations. For example, ASEAN takes decisions by consensus, so any one state can block an initiative, and China has effectively bought Cambodia’s vote. This has blocked ASEAN from taking a collective stance on the South China Sea question. Similarly, he points the fact that Hungary has blocked anti-China resolutions within the EU. Thus, a weakness he points to is that a strong emphasis on sovereign equality inside regional organizations can be used against them by wealthy outside actors, at least where those organizations operate by consensus, and every member state has a veto.

Finally, he sees a focus on mutual dialogue, rather than binding dispute settlement under law as creating a “hub and spoke model” in which a strong power like China is at an advantage in bilateral negotiations. An unacceptable feature of multilateralism is that it can, at least on occasion, allow small and weak states to bargain collectively and extract concessions together which would be impossible separately.

Ginsburg finishes on a slightly optimistic note. Might there actually be a virtue in a large power which does not wish to enforce its ideology on others? One thing that can be said about China, is that there is no a Chinese model of government capable of being exported. China’s system is very much about consequence of its particular history, party-state model and economy. It can’t be reproduced in other states, and China isn’t particularly interested in making other states more like China. What it is interested in is making the world safe for China. Liberal hegemony hasn’t always played out that well, with its humanitarian interventions and regime-change exercises. So might an authoritarian international system actually lead to a more peaceful world?

Conclusions

In drawing the threads together, my starting point is Scott’s thesis that a changing global distribution of power is having fundamental impacts upon the international legal system and international law’s self-conception. In this context, as Scott points out, it is surprising that the principal beneficiary of the present order – the United States – is doing so much to undermine it. This goes well beyond the Trump administration to neo-con and neo-realist scholars who have made a project of cutting international law down to size. When the UK realised its global power had peaked, it had at least the sense to attempt to bake certain of its privileges into the new system (a permanent seat on the Security Council being the obvious example). A new international law moulded to a more authoritarian world is likely to be much thinner on some of Scott’s principles. A presumption that compulsory legal dispute settlement is of benefit to world peace is likely to go by the way, as is international law as a comprehensive system containing numerous rules which can give a clear cut legal/illegal answer.

Nonetheless, Hakimi opens the door to seeing the contestation of international law as not entirely a bad thing. Asking the question – as any attempt to reorient international law to principles of sovereignty and non-intervention does – “Which norms are central to the identity of this legal community?” affirms that international law is still very much in the picture. A struggle over the shape, content and values of the international legal system may produce a new system – but its basic legal character will likely remain intact.

As Ginsburg points out, the tide may be going out on liberal cosmopolitan institution building. It is hard to see many more States joining the peak expression of that order, the International Criminal Court, for example. China will be a decisive actor in any new international legal order and its priorities are clear. Trade and investment law will still have a place. Regional organizations with a strong institutional structure are generally not in its interests. Multilateralism and binding dispute settlement are out, hub-and-spoke dialogue are in. That said, state sovereignty and non-intervention would be high priorities and – while interference in democratic processes by authoritarian states is clearly a current concern – “making the world safe for China” is a very different proposition from China seeing itself as a global hegemon.

International law may change, but international lawyers will still be in work. One can add new layers to international law, or dilute existing principles, or attempt to open spaces where norm-entrepreneurship is possible, but international law is remains an accretive structure. It is easier to add to it than subtract from it, and it is certainly easier to adjust its direction of travel than overthrow it entirely.

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