Turbulent Times for the International Rule of Law: A Reply

Note from the Editors:  This post concludes our first EJIL:Talk! Contributing Editors’ Debate, where our distinguished Contributing Editors lent 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 (Wednesday’s post here), and Lorna McGregor (yesterday’s post here) for thought-provoking responses throughout this past week’s Debate.

I am grateful for the thoughtful comments this week by Lorna McGregor, Monica Hakimi and Christian Tams on my initial post. It is first worth noting that all three colleagues use in the headlines of their comments the notion of ‘turbulent times’ respectively ‘decline and crisis’ which indicates, at least in my view, that there is at least a certain intuition (as Christian Tams put it) that the international legal order (to use yet another maritime metaphor) currently has to navigate through heavy weather. This in and of itself seems to warrant the research agenda I have tried to lay out in my initial post.

Yet, while to some extent the comments have, at least partially, focused on what approaches or strategies are appropriate to eventually overcome any alleged ‘decline’ in the international rule of law, I continue to believe that the foremost question is, first, as to whether we indeed, if so to what extent, and in which areas of international law in particular, we currently face such decline.

In that regard I fully share the almost obvious position that any such determination requires much more research than what can even be hinted at in a short blog contribution like the one I have written. As a matter of fact such analysis must be nuanced (what areas of international are most concerned and why), multifaceted, interdisciplinary, and must focus, inter alia, on challenges for institutions that form the cornerstone of modern international law such as international organizations (providing for fora for interstate cooperation and the regulation of problems of international concern) and international courts and tribunals (providing for legally binding third party dispute settlement of international disputes).

Yet, it is certainly a truism that a mere quantitative approach does not suffice since, to paraphrase the example used by Christian Tams, one single withdrawal from the Rome Statute would probably at least be a more relevant sign than ten withdrawals from the 1968 Vienna Convention on Road Signs and Signals (as important the latter is for the daily routine of cross-boundary traffic). In particular, as part of a more qualitative approach, one needs to have a look whether the current perceived ‘turbulences’ have also by now reached the more fundamental layers of international law, i.e. meta-rules such as the ones on sources, State responsibility, State immunity, treaty interpretation, or res judicata effect of international court decisions must be abided by the parties involved, to name but a few, the general acceptance of which is indispensable for a functioning international legal system.

In my post at the start of this week, I had hinted as 1990 (and beyond) as a possible starting point for any analysis of a possible decline of the international rule of law. I did so since it is almost a truism that in the period thereafter a vast number of significant developments took place that many colleagues perceived as a significant ‘thickening’ of international law eventually even amount to, as I said, constitualization of international law. It is worth noting in passing that none of my colleagues seem to have questioned that this latter scholarly analysis of the post-1990 developments was mainly a Western European/ North American (if at all) discourse. I agree that the fundamental question indeed now seems to be whether we simply moving back to the pre-1990 era (with the then existing perceived limitations of international law), or whether instead we see something more fundamental. Put otherwise, is to provide but one example, e.g. the non-appearance by China and the Russian Federation in international judicial proceedings simply a mere repetition (by some other major powers) of the US non-appearing in the merits phase of the Nicaragua case – or is it more fundamental in nature.

I agree (and could not agree more as a matter of fact) with the statement by Lorna McGregor that one of the major – if not the major – current and essential problems international law is facing is to be seen in the (increasing?) lack of implementation of existing standards. Yet, it seems to me that – despite the adoption of OPCAT in 2002 (with by now not more than approximately 50 % of the ratifications of CAT anyhow) – not much steps have been taken let’s say in the  last ten years to further improve supervisory mechanism to make sure States abide by their obligations incumbent upon them under international law, the almost complete stagnation in the number of contracting parties of the Rome Statute since 2010/2011 (after an astounding start) being a particularly pertinent example at hand.

I tend to agree with the perception that it might very well be that it is not the least domestic politics that determine the approach States are taking vis-à-vis international law, with the ensign ‘backlash’ on the international legal order. Yet, what is striking that, it seems to me, an increasing number of States seem to be willing to disregard international law in order to cater for ‘domestic consumption, and that a cost-benefit analysis does not (or no longer) induce them to abide by international law, their domestic ‘audience’ notwithstanding. I doubt, however, whether non-State actors can under such circumstances (continue to) exercise a significant influence on the further development of international law. The recent processes in the field of international humanitarian law which unlike former processes (such as the customary law study or the ‘Direct Participation in Hostilities’ study undertaken by the ICRC) are almost exclusively State-driven (and which have not brought about any significant results anyhow) – these are relevant examples at hand.

Finally, let me conclude with some ideas as to the discursive character of international law. For one, it is noteworthy that there is a certain tendency to simply not engage anymore with international law. It suffices to note that while the United States have used military force against Syria in 2017 after the use of chemical weapons by Syrian armed forces (or their allies) without even making an attempt to justify such behavior under international law, and France has announced that it might follow suit. Besides, can it really be argued that the simple and obvious disregard of rules of international law is nothing but a mere contestation enabling conflict and further development? Mutatis mutandis, to provide an example from domestic law, that would mean that a pure and simple disregard by the Trump administration of US Federal Court decisions finding its entry ban to be unconstitutional, would have constituted nothing but a ‘healthy conflict’ between the various branches of government. I assume that everybody would have perceived such behavior of constituting a clear sign of a major constitutional crisis. Yet, at the same time, it is said that in international law, a parallel development of e.g. several State parties of the Rome Statute blatantly disobeying legal binding decision of the ICC, by which whatever their content they are formally bound, is perceived as fostering am ongoing dialogue on what the right interpretation of, in the case at hand, Arts. 27 and 98 of the Rome Statute is. I submit that this puts into question, as Hermann Mosler once put it so eloquently, the character of ‘[t]he International Society as a Legal Community’. This holds true, I submit, however, not only with regard to those norms of international law, then existence of which have been determined by international courts or tribunals, but also to rules which have been generally accepted, but which now seem to no longer be beyond contestation. Put otherwise (and I admit somewhat bluntly), can the claim that waterboarding did not amount to torture under both customary and applicable treaty law really be said to constitute nothing but a valid contestation of a certain interpretation of international law – or rather an obvious violation of the said norm? Unfortunately, the danger cannot be discarded that we face an ever increasing number of such ‘contestations’ by an increasing number of States, and a decreasing number of States willing and able to label them what they are – with the ensuing effect that the international community currently faces a decline of the international rule of law.

Yet, it remains to be see whether, to come back to the Bob Dylan metaphor I have used in my original post, we really have to ‘admit that the waters around us have grown’ and whether accordingly we indeed have to ‘accept that soon international law will be drenched to the bone’ – or rather not.