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"How to Assess the Role of Intl. Law in Today's Changing Global Order?"
Opening Conference of the Berlin Potsdam Research Group
"How to Assess the Role of International Law in Today's Changing Global Order?"
Berlin, 15 – 16 April 2016
Report by Felix Lange
Over the past few years, events like the Ukrainean crisis, the Syrian civil war, the South China Sea dispute and Brexit have dominated the international political debate. Such events seem to be symptoms of more general developments in international politics which may ultimately affect international law. Against this background, the Kollegforschergruppe (KFG) on the "International Rule of Law - Rise or Decline?" held its Opening Conference in Berlin on 14- 16 April 2016. The conveners Heike Krieger (Freie Universität Berlin), Georg Nolte (Humboldt Universität Berlin) and Andreas Zimmermann (Universität Potsdam) had invited renowned speakers and commentators to address the question "How to Assess the Role of International Law in Today's Changing Global Order?".
The theme of the possible ramifications of current political transformations on the international legal order was taken up in the Inaugural Thomas Franck International Law Debate at Humboldt Universität. The KFG devoted this debate (and an ongoing lecture series) to the late Berlin-born scholar Thomas Franck of New York University. Andrew Hurrell (University of Oxford), George Abi Saab (The Graduate Institute Geneva) and Georg Nolte discussed crisis symptoms of the current global order and their implications for international law. Two questions in particular informed their remarks: Do we still observe an increasing juridification of international relations based on a universal understanding of values? Or are we, on the contrary, facing tendencies towards an informalization or even an erosion of international legal norms? While Abi-Saab remarked that today's developments were probably part of the long-term genesis of international law between progress and slow-down, Hurrell cautioned against the dangers of "presentism" and thereby against overemphasizing current signs of crisis. Nolte stressed that the research group does not aim at constructing a "decline story" of international law, but that they are equally interested in "rise".
Heike Krieger welcomed the participants the next day at Freie Universität Berlin and outlined the research agenda of the KFG. She defined the term "International Rule of Law" as the contemporary state of international law as it has developed since 1990. Referring to the expansive practice of the UN Security Council, the conclusion of the WTO and FCCC treaties, as well as to the growing importance of human rights, of international adjudication and of non-state actors, she argued that since 1990 "another layer" has been added to international law. According to Krieger, this "advance" or "move" has now come under pressure. As one of several examples, she pointed to the unusual, manifest lack of compliance in humanitarian law and to the recent unsuccessful efforts of the ICRC at the International Conference of the Red Cross and Red Crescent to introduce a meaningful compliance mechanism and to assimilate the standards for detention in international and non-international armed conflicts. She suggested that the adopted resolutions rather strengthened state-driven processes and even sidelined the ICRC. In conclusion, Krieger formulated the main question of the research project: "Can we observe lasting structural changes in the way law is operating as a framework for international relations?"
Over the next two days, ten speakers and ten commentators provided the ground for further discussion in five sessions on historical perspectives (1), system-oriented perspectives (2), actor-centered perspectives (3), the direction of international law (4) and justice and legitimacy (5). All participants engaged with the issue of transformation of the international legal order.
The first session on historical approaches explored changes of international law and international legal scholarship over time. Felix Lange (KFG) adopted a long-term perspective and interpreted the evolution of international law since the Peace of Westphalia as a story of rise disrupted by violence. Over the years, the European international law was applied to more and more areas and subjects, while often the development was triggered by major wars like the Thirty Years' War, the Napoleonic Wars and the First and Second World War. Lange described how the gunboat diplomacy of the 19th century and decolonization of the 20th century led to a rise of the number of actors from a few European states to more than 150 states at the end of the Cold War. Furthermore, the industrial revolution and globalization promoted an increasing institutionalization in more and more areas since the 19th century and allowed for the recognition of international organizations as subjects after 1945. Also, international law became more value-laden, with its humanitarian beginnings at the end of the 19th century and human rights treaties after 1945. However, this "progress" of international law only took place when large-scale wars had shown, that the international system had to be restructured.
Focusing more on the development of international legal scholarship, Jochen von Bernstorff
(Universität Tübingen) addressed possible lessons from the fate of the rule of law-project in the 1920s. Von Bernstorff stressed that many European international lawyers like Hans Kelsen and Hersch Lauterpacht demanded compulsory jurisdiction, a strong global institution securing world peace based on international law and sovereign equality for all states. He underlined that the UN had by no means fulfilled these hopes: the International Court of Justice has no compulsory jurisdiction, almost no legal limits exist for the measures of the Security Council, and the veto-right of the P-5 institutionalized inequality. Even after 1989, when a global consensus on human rights, multilateralism and free market economy seemed to emerge, great power unilateralism and informal coalitions of the willing soon dominated international politics. In conclusion, von Bernstorff argued that today the rule of law-project must keep two challenges in mind. According to the determinist challenge, hegemonic states create legal rules, which permit them to depict their particular economic or political interests as universal laws. According to the political challenge, the rule of law-project can be deconstructed into a "continuous semantic and inherently political struggle over the meaning of international legal rules."
In the session on system-oriented perspectives, Jeffrey Dunoff (Temple University) took a step back and analysed the methodological question how one could assess changes in the effectiveness of international law. He offered an approach to compliance as an indicator for the state of international law. Dunoff pointed to the challenges for the concept of compliance. Given the indeterminacy of international law and the imprecision of some human rights indicators, he thought that it would be hard to find reliable data on violations of international law. Furthermore, private or domestic actors would sometimes regard international law as a benchmark, which was an effect the focus on compliance would overlook. He also mentioned potentially useful effects of non-compliance stressing that customary international law can only evolve by violation. He nonetheless maintained that an analysis of compliance would be worthwhile if one kept the "compliance trilemma" in mind which consisted of the three "international rule of law"-goals widespread participation, ambitious legal norms, and high rates of compliance. Of those, only two could be reached at the same time. For instance, human rights treaties would show high ambition and high participation, but low compliance. In contrast, the ICAO rules on English-language speakers in flight control centers would come with high participation and high compliance, but low ambition. Bilateral nuclear arms control would reflect high ambition and high compliance, but low participation. Hence, high rates of compliance might come with tradeoffs. Therefore, standing alone, compliance would be no accurate proxy for the state of international law, but rather be an important component of a broader analysis.
Moving from methodological to more substantive issues, Jutta Brunnée (University of Toronto) explored the current systemic transformations in the field of international environmental law. Brunnée demonstrated how solving the collective action problem relating to climate change is particularly challenging because of the broad range of actors contributing to global warming. She then argued that even though customary international law can provide some "meta-principles" which strengthen predictability, it cannot proactively guide legal interactions between 190 states and does not give voice to "community interests" and the views of NGOs. Furthermore, soft law might have advantages over formally binding regimes because it adapts faster and invites for more participation by various actors, but only becomes particularly effective when linked with formal treaties. Hence, multilateral treaties have become the most important tool to tackle complex environmental issues. These treaties often introduce procedural measures like information exchange and scientific assessment processes, and provide for law making processes within the regime as well as compliance mechanisms. Moreover, the environmental treaties would also enable NGOs to become involved in the debates. In conclusion, Brunnée remarked that in contrast to the alleged "softening" of international environmental law, the 2015 Paris Agreement on climate change seemed to reflect a rise of the international rule of law rather than a decline because climate change might be best addressed with "a resilient and predictable framework for the long-term interaction".
The third session dealt with the question how new actors shaped and changed the international legal system. William Burke-White (University of Pennsylvania) made the argument that the rise of the BRICS states has transformed international politics from a unipolar system to a "multihub system". Burke-White put forward that today power would be "diffuse", "disaggregated" and "asymmetrically distributed". More and more states would have sufficient power to influence global and regional politics. Also, states would have diverging relative advantages in different power areas, because military, economic and soft power distribution would not run in parallel. Moreover, power asymmetries would develop in issue specific areas. In this "multihub system", far more states could act as leaders and drive international legal processes, because these processes are shifted from the global level to separate and flexible subsystems on a more regional level. Burke-White went on to stress that in this more pluralist order, rising powers like China and Russia would advocate a Westphalian understanding of absolute sovereignty, whereas Brazil and India would propagate that international institutions have to represent them as major powers. Also, China,
Brazil and India would prefer a state-controlled economy over a free-market economy. These preferences of rising powers would contribute to a gradual turning away from an international law shaped by the United States and Europe, which is focused on the individual.
From a more prescriptive angle, Jean d'Aspremont (University of Manchester) then suggested to take a fresh look at the concept of non-state actors. D'Aspremont underlined that the scholarship on non-state actors had reached a climax in the post-Cold War period, while recently the attention for this topic has waned. Looking back at the debate after 1990, he stressed that the scholarship turned on whether non-state actors are bound by international law and how they can take part in law-making processes. Thereby, scholars produced a "pluralized image of international law" rejecting the previous state-centric focus. At the same time, the notion of non-state actors excluded those actors from the center of international law and pushed them to the periphery. Against this background, d'Aspremont argued that distinction between states and non-state actors should be replaced by the notion of "argumentative units" in order to assess the quality of international law. International law should be understood as an argumentative practice in which "argumentative units" shaped international law by arguing about persuasiveness and authority. For these units, it would not matter whether they are affiliated with the state or not. In conclusion, d'Aspremont stressed that if one regarded international law as an argumentative practice, one could not talk of strengthening or weakening international law, because legal argumentation would be "omnipresent" and "continued" anyway.
The fourth session focused on the theme of current shifts in the structure of international law. Jan Wouters (Katholieke Universiteit Leuven) claimed that formal international law is facing a period of stagnation. On the basis of a quantitative approach, Wouters explained that in the decade between 2000 and 2010 only 20 new multilateral treaties were deposited with the UN Secretary General, whereas between 1950 and 2000 the number of multilateral treaties per decade had been about 35. According to him, "informal international lawmaking" involving new actors, new processes, and new outputs has partially replaced the formal structure in fields like finance, health, internet regulation and the environment. As reasons for this "turn to informality", Wouters referred to the saturation with existing treaties and the rising reluctance of states to subject themselves to binding instruments. Also, he stressed the emergence of a new network and increasingly complex knowledge society, in which various different states and non-state actors cooperate across borders via informal means. Wouters went on to argue that, just like formal law, informal mechanisms must be held accountable to all affected parties. He proposed that a concept of "thick stakeholder consensus" should impose limits on authors, processes and output of informal mechanisms. He stressed that this concept might even be normatively superior to the "thin state consent"-model of traditional international law.
Following Wouter's stagnation account, Tiyanjana Maluwa (Penn State University) addressed the question whether the contestation of values by actors from the periphery confirms or erodes fundamental legal norms. Maluwa first defined global values as enduring beliefs that reflect a global consensus. Citing the philosopher Kwame Anthony Appiah, Maluwa emphasized that a global conversation is needed to detect globally shared values. In international law, non-derogable erga omnes and jus cogens norms would incorporate such values. However, there also might exist some human rights which have to be regarded as value-based fundamental norms, even though the jus cogens character is controversial. Focusing on examples from Africa, Maluwa then suggested that contestations from the periphery have not been about the existence of fundamental norms but about their application in particular situations. For instance, the African scepticism towards the ICC would not stem from a rejection of international criminal law per se, but from the perception of a selective targeting of the African continent by the court. Moreover, in some cases, like the incorporation of the concept of humanitarian intervention in Art. 4h Constitutive Act of the African Union, contestations actually contributed to the evolution of international law. Hence, he concluded that these contestations from the periphery provided a confirmation rather than an erosion of globally shared values and norms.
The last session was dedicated to questions of justice and legitimacy. Instead of looking at past or current changes, Eyal Benvenisti (University of Cambridge/Tel Aviv University) provided a future-oriented, prescriptive perspective. He argued that international law could and should contribute to creating the framework for a meaningful political debate about global justice. Benvenisti demonstrated that the philosophical debate about global justice is not often linked to international law. This would be misleading, because current international law would contribute to global injustice and thus there would be a moral duty to improve the situation. He claimed that by deciding on the possibility of citizens to exit their respective countries and by organizing decision-making along state frontiers, international law would limit the ability of citizens to take part in public decisions about wealth redistribution. For instance, while international law would restrict the freedom of movement of national citizens, multinational companies could evade political boundaries and tax obligations. Also, weaker states (and their voters) would have limited discretion to articulate their preferences, because they needed to follow the lead of a few powerful states and institutions. This would change, if actors implemented the duty of "other-regardingness" which obliges states to give and receive information from affected parties, to conduct transparent processes, to weigh the interests of others and to give reasons for decisions. Benvenisti also claimed that national and international courts would be particularly fit to give voice to these duties and thereby transform global institutions.
The conference concluded with a general discussion of the research agenda of the group. Some participants questioned the understanding of "the International Rule of Law" as contemporary international law in its development since 1990. Others wondered whether "1990" was a convincing reference point for the project, while some perceived it as a helpful frame. Regarding the question whether we are experiencing a rise or a decline of the international rule of law, some commentators critically asked whether the notion of a structural crisis might be too pessimistic or whether the concern for international law might stem from an overly optimistic belief in the rule of law. Other participants embraced the idea that international law was stagnating or changing because of transforming power structures. All in all, most participants seemed to share the feeling that we are living in an age of rather intense global transformations. The conference should have been a contribution to the debate on how these global transformations affect international law.