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Conferences and Workshops
"What Type of International Law?"
Interdisciplinary Conference of the Berlin Potsdam KFG Research Group
“The International Rule of Law – Rise or Decline?”
What Type of International Law?
Potsdam, 26 – 28 September 2019
Conference Report by Konrad Neugebauer
Do we see another type of international law emerging? This question will constitute the focus of the Research Group for the next four years and it was the topic of the kick-off conference for this coming funding period. The conference took place in Potsdam from September 26 - 28, 2019.
The speakers, among them current and former fellows of the Research Group, elaborated on potential structural changes that international law is currently undergoing, reflected on trends and developed their thoughts on the possible future ramifications of such trends for the structure of international law. Have developments towards multilateralism, universalism, and a community-based thickening of the international legal order definitively come to an end? What shapes the type of international law that we will be confronted with in the future? Is the emerging international law likely to be more resilient than the present one? Would we consider potential new international law to be normatively desirable at all – and how would we assess this? Is it likely that international law will be underpinned by the international organizations that we currently have, or could the backlash against some of them cause a decay of their current structure? At the conference, speakers and participants engaged with these issues from the perspectives of international relations, international law, history, and political philosophy.
In an initial public panel discussion, Andreas Zimmermann, together with Jutta Brunnée, Barbara Koremenos, and Campbell McLachlan, opened the conference by addressing the issues of community, institutionalization, and multilateralism. Jutta Brunnée pointed out that despite the recalibration of the international legal order after the optimism of the 1990s, at least the interactional law – the features of legality that emerge from practice – had proven surprisingly resilient. While the resilience of a legal system depended, according to her, on its capacity to change, she identified profound shifts in global power dynamics as major drivers of change. Besides the rise of major non-western powers, these dynamics also originated from within the West itself. She diagnosed a cultural backlash fueled, but not initially caused by, the rise of populist leaders. What is more, she found that income inequality, leading to material insecurity, had opened the minds of people to authoritarian structures. She considered international law to be complicit in globalization and submitted that the West’s own hypocrisy over the past two decades has helped corrode it. Therefore, she concluded, the rule of law has been perceived as a threat by some rather than an achievement. Barbara Koremenos reflected on the question whether international law was being increasingly shaped by ad hoc arrangements or by institutionalized regimes. She reiterated the argument that procedural provisions, as well as institutions, are crucial for the implementation and for the functioning of the international legal order. As to procedural provisions, she examined the example of termination periods for international treaties and their effect on States’ readiness to bind themselves to treaties, and on institutionalization more generally. She found that some flexibility would help to lower the threshold for States to engage in binding agreements. Campbell McLachlan accentuated those aspects of international law that represent a functioning system. Rather than being a utopia, he argued, international law is proving resilient every day in the form of States’ ongoing engagement in multilateral legal work. According to him, international politics and the law are not antitheses, since the authority of international law is located precisely where it intersects with politics.
He recalled that international law was influenced and driven by a plethora of external factors such as societal processes or changes in public agenda-setting, as demonstrated by the topic of climate change. From law alone, he stated, we should not expect too much. Law as such, and the rule of law more specifically, are only prerequisites of any orderly transformation. Above all, international law requires the durability and reliability of engagement between states. He concluded by quoting the diagnosis of the former Prime Minister of New Zealand, who had deemed the failure of the League of Nations to have been one of a moral nature, rather than one having its cause in a lack of institutional rules. In the following discussion, reference was made to potential parallels with the 1930s, when the narrative was similar to today’s: that change was probably happening, but that it was not in fact fundamental in nature, and that international law within the framework of the League of Nations was working just fine – before the opposite turned out to be the case.
Andreas Zimmermann formally opened the conference the next day with a panel on General Aspects of the research question. Jutta Brunnée spoke about ‘Community or Sovereignty?’. She recalled that at the Opening Conference of the Research Group in 2016, its title ‘Rise or Decline?’ had been branded by some as an incarnation of German ‘Angst’ – before the events of the past three years shook the multilateralism that had been part and parcel of the international legal and political order. For today, she diagnosed a return of the law of mere coexistence, an inherent change in the ‘fabric’ of international law rather than international law itself, and increasing challenges to the notion of legal community. Meanwhile, what is branded as ‘lawfare’ would entangle international law in global political dynamics and be used to call out international law as elitist and cosmopolitan. She asserted that the international rule of law depended on the rule of law at the national level, that the backlash of the 1990s was ongoing, that the traditional understanding of sovereignty experienced a revival, but that international lawyers should still promote values to be shared rather than merely a thin layer of operational international law. Campbell McLachlan presented on ‘Unity or Diversity?’. He made the case for a modern form of multilateralism which builds unity from diversity on both a judicial and an institutional level. International law is and always has been diverse by design and even messy at times, but constantly works to reinforce itself, he said. Pointing towards the fact that the development of international law had always been premised upon diversity just as much as on unity, he argued in favor of a resurgent role of the State. Law reform, he emphasised, provided an alternative between the absolute destruction and the unchanged existence of international law, and must and will therefore be achieved. Its basis, however, could only consist in the durability of legal engagements of States beyond different political regimes and patterns of power. He identified general principles of law as an exemplary, yet underestimated, source of unity. The discussion showed once more that no agreed-upon understanding exists of what liberalism, elitism, and cosmopolitism were, and what role they played in the development of international law, especially since the 1990s. Yet, whether or not international law can or should be deemed an aristocratic discourse does not help in countering the ever-adapting narratives of populist governments and their cherry-picking approaches towards using the law for their purposes.
The ensuing presentation by Eyal Benvenisti on ‘Multilateralism or Bilateralism?’ dealt with trends moving away from multilateralism towards bilateralism. According to his analysis, the United States-led multilateralism is in decline, opening up a great potential for China to become the new hegemon. China, however, was not yet mature enough to assume this role. Both States would prefer bilateral engagements in order to maximize their leverage vis-à-vis others. The separate negotiations of TPP and TTIP showed that the United States pursued a strategy of divide and rule, while it was similarly China’s tactics to preferably conclude bilateral legal instruments as part of its Belt and Road Initiative. Both States have, according to Benvenisti, no interest in multilateralism as it does not strengthen their cause. He therefore argued that less powerful actors needed to improve their use of the strength of diversity, as well as the means of cooperation provided by international law. In her talk on ‘Ad hoc arrangements versus institutionalized regimes?’, Barbara Koremenos argued for the need of strong institutionalized regimes in order to counterbalance challenges to international law stemming from domestic governments. While pointing out that institutionalization by no means implied inflexibility, she examined flexibility mechanisms in international law which had a potential stabilizing effect if appropriately designed. At the same time, according to her, flexibility mechanisms in international legal instruments could underpin the non-trivial change of contested norms. The observation of a trend away from multilateralism by a newly evolving hegemon was challenged in the following discussion. The terminology employed therein and perspectives taken by international relations and international law scholars alike have, however, underlined how genuine interdisciplinarity is increasingly shaping this debate.
Mary Ellen O’Connell spoke about ‘The role of the United States’ in the following part of the conference on actors and their role in the development of international law. She distinguished between three epochs of US contributions to international law – from being its net beneficiary as a small and less powerful country between the 1770s and the 1870s, towards being a shaper of international law in the following one hundred years, though ultimately relinquishing leadership and becoming a net detractor of international law since the 1970s. She argued that the United States will not assume a leading role in the development of international law in the decades to come, as she observed a collapse of knowledge and teaching of international law in law schools throughout the United States. Further reasons are, in her analysis, the still prevailing realism in US foreign policy and the missed chance to take a leading role in finding global solutions to climate change. Regarding ‘The role of China’, Congyan Cai outlined the current efforts of China following the program of the Communist Party to become more influential and visible in international relations and international law. He reiterated the widespread criticism of western double standards and coupled it with the Chinese government’s understanding of being both a taker and complier of international law. He expressed the view that China was ready and willing to uphold its authority. Referencing the Chinese role in WTO reform, he pointed towards China’s efforts of becoming an active and independent change promoter.
Prabhakar Singh then elaborated on ‘The role of the Global South’ in general, and India in particular. He stressed the importance of the process of decolonization for the global South in finding its role in international law development. Carving out the special role of India as being non-aligned with the former colonial powers and yet positioning itself as a cosmopolitan and progressive power, he advocated for other former colonies to do the same. He observed a revival of patterns of legal reasoning in dispute settlement among States that used to be colonies, resembling those made by former colonial powers warding off the interests of their colonies, for instance when it comes to the South China Sea dispute. ‘The role of Europe’ was then sketched out by Paolo Palchetti, who exemplarily focused on multilateralism and migration. While observing continuous support for international judicial dispute settlement, he described Europe as newly multipolar and diagnosed multilateralism to be partly fading away. When it comes to migration, the various policies of European States towards the Global Compact, the ‘deal’ between the EU and Turkey, or search and rescue operations in the Mediterranean have demonstrated, he submitted, that the rules-based order and commitments among European States thereto are currently not as strong as they used to be. He considered a common line of understanding of how international law should be applied within domestic legal systems as a critical contribution to international law development Europe could make. Comparing these contributions to the development of international law, it was criticized by discussants that China hypocritically points at western double-standards, while pursuing its leadership agenda with similar hegemonic means and reasoning, for instance on the African continent. Discussants furthermore took on the structures behind what seems to be truly international on the surface, and pointed out the relevance of deconstructing hegemonic power structures and of constructivist perspectives for a more concise understanding of a possibly emerging new type of international law.
The conference then moved on towards currently significant areas of reference. Alina Miron looked at the field of peace and security. With a view to the Charter-based legal order, she observed severe challenges to the prohibition of the use of force, as well as of other coercive measures short of force, leading to almost non-contested legal exceptionalism and the rise of unilateralism undermining the Security Council without however newly evolving norms. Robert Howse, regarding international trade law, recalled that its main features rooted in the lessons learned from the 1930s until 1945. Today, however, the WTO regime faced mainly a two-stranded division: between those who want to go further down the capitalist road of globalization as we know it, on one hand, and those wanting to go back to the past, on the other. As to Alexander Proelß, the law of the sea is one of the least challenged issue areas. Recalling the achievements of UNCLOS as a coherent and comprehensive regime with compulsory dispute settlement, he considered its elements of underlying hierarchy key to non-deviation from core obligations. For the future, he identified the need to safeguard the current framework as crucial for the development of this field, despite new technologies such as geo-engineering. Human rights law and its enforcement had never not been challenged, and were deeply political, said Ingrid Wuerth. While not only not thickening international law, she submitted, human rights law had always struggled with a perceived lack of authority, being caught in a broken-windows-doom loop as accountability for human rights violations formed the exception rather than the rule. She therefore made the case for a renewal of classic international law elements instead, a thickening of peace as the value underlying international law, and breaks on the furtherance of human rights law. Laurence Boisson de Chazournes, on international environmental law, said it stood unprepared to counter climate change. While new ways of law-making evolved with dynamic and innovative means, they were facing a fragmented field of law and, among States, a lack of appetite for new international environmental treaties. She suggested that a combination of hard and soft law, as in the Paris agreement, were key to having more actors involved – not the momentum built up by young people’s movements. Shedding light on the role of migration law, Irini Papanicolopulu concluded this section of the conference. She asserted that true regulation of migration beyond the rules for refugees within the ambit of the 1951 Convention was needed, would form part and parcel of global development, and could help overcome the fact that, in practice, not all humans are equal.
Heike Krieger concluded by making the case for not overburdening international law and stabilizing, or even reducing expectations from it. While politics by design were the prerequisite of law, international law had widely been perceived as a substitute for what has broken apart on a political level in recent years. International law, she argued, cannot assume this role, as the law can only provide a framework and instruments for politics. The initial research question of ‘Rise or Decline?’ had moved on towards the question of the possible future structure of international law. Thus, looking at the type of international law that we may currently see emerge, and at how normatively desirable it will be, she noted that only a holistic, systemic perspective would help understand the fragmented processes which are taking place. In doing so, international relations scholarship allowed to comprehend change processes of norms, of their authority, and of compliance thereto, in particular with a view to the multipolar global order we are facing.
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