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 Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (yesterday’s post here), and Lorna McGregor for thought-provoking responses throughout this week’s Debate.
In a thought-provoking post, Andreas Zimmerman traces the ‘(increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such’. In his conclusion, he focuses on the role of scholars which he frames as a ‘vocation … to carefully analyse to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it’. He proposes that ‘at least for the time being, [the role of scholars] is to carefully analyse, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its content’. He argues that ‘[i]t is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest’.
In the constraints of this short blog, I focus on the argument made by Zimmerman that scholars should desist from ‘aspiring to further ‘improve’ [the] content’ of the international rule of law. In the first part of this post, I note that scholars and practitioners often make arguments against the creation of new treaties. On their face, these arguments appear to support a focus on ‘the rules to be applied’. However, they are usually (but not always) made on pragmatic grounds of what is politically and strategically possible and there are many examples of the adoption of new treaties to fill gaps and for other purposes such as enforcement. This is particularly the case during ‘turbulent times’. Moreover, I suggest that it is difficult to draw a clear distinction between ‘the actual rules to be applied’ and ‘improvements’ to them as the application of existing norms typically involves elaboration and a thickening of international law. I therefore ask whether a distinction between application and improvement inadvertently risks stifling the role of international law in ‘turbulent times’ and undermining its expressive function.
I then question whether aspirations to ‘improve’ the content of the international rule of law are in any case a central cause of backlash. This is a key determinant to whether such ‘aspirations’ should be curbed in scholarship. Drawing on the burgeoning literature on compliance and implementation of international law, I suggest that the reasons states disregard and challenge international law are complex and varied and scholarship needs to work within this complexity, particularly from a multi and interdisciplinary perspective, if it is to effectively protect the international rule of law.
Distinguishing between the rules to be applied and their improvement
During ‘turbulent times’, it is common for scholars and practitioners to caution against the pursuit of new treaties. The reasons for such caution are manifold (see Evans discussing debates on a treaty on freedom of religion or belief and McAdam discussing proposals for a climate change displacement treaty). They can be a response to the reality that during ‘turbulent times’, the reaffirmation of existing international rules becomes a principal objective. One of the most acute and persisting examples of this point is the multi-layered efforts to ensure that the absolute prohibition of torture was upheld in the years following 9/11. Moreover, as I have written about in this blog and elsewhere, implementation of existing standards is a key priority for international law. Where implementation rates are low or a culture of impunity exists, some may have concerns that the introduction of further norms may only exacerbate an existing problem. The point is also often made that in pursuing new treaties, states may roll back on established international law, thus resulting in regression rather than progression. Others worry that proposals for new treaties may imply a gap in the regulatory framework (for example, see Milanovic discussing a ‘Geneva Convention to the Internet’ which he argues implies that the ‘existing legal framework is incapable of meaningfully regulating surveillance practices’). Finally, commentators raise issues about the time and resource spent on attempts to develop new law, if it is unlikely to come to fruition.
However, arguments against pursuing new treaties are typically (but not always, for example see Posner) drawn on pragmatic grounds. This does not necessarily imply normative opposition to the adoption of new norms but rather reflects political and strategic readings of whether the conditions exist for the adoption of new legal instruments (see Finnemore and Sikkink). In this respect, it is important to bear in mind that while ‘turbulent times’ can limit the appetite for the adoption of new norms, history also demonstrates that much of the international rule of law has been the direct result of such a context (see Alston). As Evans points out, ‘the construction of adequate normative frameworks always takes place in the shadow of states’ propensity to violate the very rights that they are being asked to establish and adhere to … unless there is perceived to be a problem, then there will be no motivation to address it’. Moreover, there are key differences between whether ‘improvements’ relate to the establishment of ‘new’ norms (gap-filling) or whether they have other objectives (see, for example, Donnelly’s typology of four types of international human rights law regimes as declaratory, promotional, implementation and enforcement and the range of ways in which these are achieved).
In any case, it is questionable whether it is possible or desirable to draw a broad distinction between the law ‘as it is’ and ‘improvements’ to it. The difficulty of drawing such a line arises in the everyday task of interpreting the terms of legislation or treaties which are necessarily general and top-level and their application in all contexts challenging to foresee. It is even more pronounced in ‘turbulent times’ as they often throw up new problems or challenges that have not yet been answered by international law and potentially require new approaches.
Take, for example, the contemporary nature of armed conflicts. These have not only resulted in the reaffirmation of well-established principles of international law, such as the prohibition of torture, in the face of significant backlash by certain states, but they have also required analysis of the scope and application of international law in new areas. Thus, detention during non-international armed conflict has and continues to generate significant scholarship on the sources of international law to authorise detention, the length of detention and the nature of safeguards to challenge detention as well as requiring interrogation of the relationship between international human rights law and international humanitarian law. Resolving these issues does not require ‘new’ law, but instead requires efforts to determine how existing legal regimes interact and how they are applied to emerging situations.
On the one hand, one might say that when faced with new contexts and new challenges, the task is simply to apply existing international law. However, in areas of uncertainty, it might also be argued that all attempts to articulate the law ‘as it is’ – even positivist approaches – are fused with a certain normativity. In this sense, the exercise of identifying and interpreting international law to new challenges is a more dynamic and complicated process that involves an element of development and growth. This is recognised by Dame Rosalyn Higgins who points out in her seminal text that ‘the very determination of specific disputes, and the provision of specific advice, does develop international law’ (see also, Boyle and Chinkin and Johnstone).
A further example of the challenges of separating application from improvement is the adoption of new instruments and processes to address supervisory and enforcement gaps such as the Optional Protocol to the UN Convention against Torture and the establishment of the Sub-Committee on the Prevention of Torture (SPT). On the one hand, this could be narrowly described as implementation of the ‘actual rules to be applied’ but in reality, it has thickened and developed the international rule of law through the functioning of the SPT as well as substantively through the obligation to prevent torture and other ill-treatment as well as on arbitrary detention. As Evans argues, ‘[o]ne of the great benefits of the preventive approach is that it is not tied to formal legal obligations: it looks beyond them and considers what might be done to further the enjoyment of a right, the exact contours of which may not be delineated with as much precision as one might wish’ (discussing OPCAT as well as making a proposal for a similar instrument on freedom of religion or belief).
Thus, even if the process is presented as one of application of the current rules, in addressing new situations and contexts, its content is simultaneously improved, thus making an analysis of the law ‘as it is’ and its improvement inseparable. On this view, one might characterise ‘turbulent times’ as moments of expansion and the thickening of the international rule of law and it would be expected for scholarship to be part of mapping, analysing and responding to that process (Gilbert and Rüsch, ‘Rule of Law and UN Interoperability’ forthcoming 30 International Journal of Refugee Law 2018). Focusing on the ‘rules to be applied’ might have the unintended consequence of undercutting efforts to effectively protect the international rule of law during turbulent times rather than safeguarding it.
Are efforts to improve the rule of law the cause of backlash?
Even if it was possible to isolate ‘improvements’ to the international rule of law, a further consideration in determining whether scholars should resist focusing on such ‘improvements’ is whether ‘improvements’ lie at the heart of backlash. In this respect, it is still unclear that ‘improvements’ are the central cause of disregard and challenge or that the focus of scholars on the ‘rules to be applied’ would effectively convince dissenting states to buy back into the system.
Certain applications and approaches of international institutions have been criticised by states on the basis of overreaching, interfering in their domestic affairs or adopting evolutive interpretations of the law. However, while arguments of overextension are often thrown into the mix of critiques of international legal institutions, studies suggest that such claims may sometimes be overblown or a guise for political undercurrents and that the reasons underpinning backlash and compliance are much more varied and multifactorial. For example, in a recent conference organised by Professor Marten Breuer and the University of Konstanz, participants determined that the ‘claim that the ECtHR had overstepped the boundaries of justified evolutive interpretation’ only featured as one reason by states for non-compliance with Court judgments, with the other eight reflecting more political motivations. Commentators emphasise that backlash tends to be driven by macro domestic politics (which can lead to inter-state contagion as demonstrated by the failure to implement the prisoner-voting cases in the UK, then motivating a similar response in Russia (see Leach and Donald)) rather than legal critiques alone. Indeed, scholars have noted that backlash against the international rule of law often results from objections to legal interpretations (even well-established and previously uncontroversial) that do not fit with the particular local politics and the self-identity of a state rather than jurisprudence that might be framed as pushing at the edges (see for example, Zoe Jay’s analysis of the UK’s failure to implement Hirst, the prisoner-voting decision). This can be aggravated further by fractures within a state structure which can contribute to non-compliance, thus challenging the idea of the state as a unified monolith, as commentators such as Donald have observed.
If this is the case, then it is also possible that changes in domestic politics, dynamics within a state, and the role of other social actors (see Cavallaro and Brewer) may result in support swinging back within the state to the international rule of law and highlights the risk of trying to respond to particular states’ views at particular moments in time. Further, backlash by some states can sharpen and trigger a counter-movement by other states and non-state actors in support of the international rule of law. This can include the emergence of new supporters and leaders of international law within states and beyond. Jensen points to moments in history in which smaller states have turned the course of history and garnered support for the international rule of law in the face of challenge. The support of Senegal and Botswana for the ICC following South Africa’s withdrawal provides another contemporary example. It can also result in new forums for the interpretation and application of international law, including national courts and parliaments and the championing of the international rule of law by other actors beyond states or by multi-stakeholder groupings (see Gilbert and Rüsch above). Thus, focusing on the law ‘as it is’ as a means to meet the concerns of certain states could undermine the value placed in the international rule of law by other states.
Without suggesting endless norm-proliferation, ‘turbulent times’ are often the points at which international law needs to develop and expand and scholars need to be part of the debate and discourse on how that should happen, which includes, but is not limited to, determinations of the law to be applied. Further, as we have seen within the rich but still emerging scholarship on compliance and implementation, much of this needs to take place in an interdisciplinary way in order to both diagnose the problem and have a vision for how the international rule of law can most effectively be developed. As others, such as Alston, have argued, challenges to the international rule of law also require the forging of new communities and supporters that may in turn shape the position of states.