Challenging International Law: What’s New?

[Jutta Brunnée is Professor of Law and Metcalf Chair in Environmental Law, Faculty of Law, University of Toronto. This essay is based on a keynote presentation given at the annual conference of the Canadian Council on International Law in Ottawa, on November 2, 2018. It draws in part on Jutta Brunnée, “Multilateralism in Crisis,” forthcoming in American Society of International Law, Proceedings of the 112^th Annual Meeting (2018)]. 

Canadian Council on International Law (Ottawa, November 2, 2018)  

[T]he international events of the last few years […] cannot be passed in silence by the international lawyer, […].

[T]here is a genuine desire, on the part of international lawyers, to leave politics alone. Unfortunately, politics have not left international law alone.

Given the social and political situation today, which the international lawyer is powerless to alter, the continued fiction of universal validity of all rules can only do harm to the progress of International Law. […] Such growth as is possible in the world of today, will be that of partial, not of universal law.

***

We need to use the United Nations Security Council and believe that preserving law and order in today’s complex and turbulent world is one of the few ways to keep international relations from sliding into chaos. The law is still the law, and we must follow it whether we like it or not. Under current international law, force is permitted only in self-defence or by the decision of the Security Council. Anything else is unacceptable under the United Nations Charter and would constitute an act of aggression.

***

The world is not a ‘global community’ but an arena where nations, non-governmental actors and businesses engage and compete for advantage.

I will keep you guessing for now as to the authors of these passages. The quotes raise different concerns and they stem from different historical periods. But all three highlight serious challenges to international law and to the aspiration of a global rule of law, however imperfect and difficult to realize it may be.

In response to the question posed in the title of my remarks, one might be inclined to say that there is nothing new. Plus ça change – international law has always been challenged, in all kinds of ways by all kinds of actors. And international lawyers have always been fretting about the flaws and weaknesses of their field.

But we probably all sense that there is something new going on, that the challenges to international law we are witnessing today are somehow more corrosive, more dangerous than what we have seen in for some time. And so, what I want to do in my remarks today is to explore this terrain by placing the current challenges to international law in a larger historical, social and political context.

I build this exploration on the proposition that, in order for an international legal order to exist, it must provide universally, or perhaps somewhat less ambitiously put, generally applicable principles of conduct and interaction. These principles include those that define what counts as “law” in the first place, and that enable as well as discipline argumentation and justification that is “legal” in nature. Elsewhere, in my work with Stephen Toope, I have elaborated on what I consider to be the distinctive – and constitutive – traits of law and legal interaction. We have come to think of international law as “interactional law.”[i]

This perspective highlights that the traits of legality (generality being one of them) – and so the international legal order – have emerged from and are maintained by practice. The same is true for particular norms or rules within the legal order. That means that making, maintaining, defending and changing international law is a collective process, today with many different participants, including states, IOs, individuals, NGOs, and courts.

Interactional law is surprisingly resilient and many actors can defend and strengthen it. But when norms come to be widely challenged and when they are no longer effectively defended, they will change, or decay. The same is true for the principles and understandings that underpin international law itself. I want to suggest that the former type of change is inherent, even necessary, in law. The stability and resilience of a legal system depend on its capacity to change, even if that change is often incremental and existing rules may prove hard to displace.[ii]

We may not always like the changes that are brought about, or we may even be concerned about new rules and norms that are being promoted. But, to date, we have also known that we can rely on the constraints inherent in legality and legal interaction to resist certain types of changes – much as Harold Koh outlined in his remarks. Professor Koh seemed fundamentally optimistic about the power of what he calls “transnational legal process.”[iii] Yet, he too acknowledged that we may be at a cross-roads, witnessing “a deeply consequential struggle between competing visions of world order.”[iv]

I agree. What worries me is that we are witnessing not merely fights around particular rules and institutions, but sustained challenges to the very underpinnings of international law. That is not entirely unprecedented (I will return to this point), but it is something that has been a rarity in modern history.

Since the beginning of the 20^th century, the substance of international law, notably in its assertion of universal values, has been hotly contested. That is hardly surprising, seeing as the world changed significantly over this period of time, and seeing as there was – and is – much to contest.

Examples abound, but suffice it to highlight only a few:

• The emergence of a fundamentally different state following the Bolshevist revolution in Russia in 1917. The Soviet Union, for a period of time, denied that any common values could exist as between it and capitalist states.[v]
• The experience of two world wars and the instantiation of the legal prohibition on the use of force.[vi]
• Decolonization and rise of states from the “periphery,” and the attendant challenges (and changes) to a purportedly universal legal order that in fact was Eurocentric and exclusionary, as early-twentieth century conceptions of civilization, statehood, or recognition make so plain.[vii]
• The rise of human beings as subjects of international law, and attendant changes to rights and obligations conceived in terms of international law.[viii]

And yet, notwithstanding pointed attacks on the substance or operation of international law, the basic underpinnings of a universal conception of law (as opposed to specific norms) have remained largely unchallenged.[ix] However imperfectly, they have provided space for contestation and have served to accommodate, and preserve, a measure of diversity and pluralism. In this context, the importance of generality, and of a shared notion of legality, lies not only in providing a platform for the elaboration of common purposes, but perhaps most of all in enabling and guiding ordered interaction in their absence, or even in the event of conflict.[x]

Multilateralism has been the dominant modus operandi of the post-World War II international order.[xi] At the current juncture, however, both multilateralism and the international legal order seem to be under siege. Why are things coming to a head now?

To some extent, the current dynamics might be understood as a recalibration after the (perhaps inflated) optimism of the early 1990s. In that sense, we are witnessing a reckoning with undue assumptions about common purposes, common values, and shared norms. It may also be the case that, the more forcefully that multilateralism was deployed in the name of Western liberal internationalism, the more tenuous it became over time. At any rate, history did not end with the fall of the Berlin Wall.[xii]

The upswing of multilateralism and international law-making in the late 1980s and early 1990s may well have been the high point of what was achievable, because the shared ground on which to build was much more limited and more fragile than it seemed.[xiii] Historical grievances have continued to simmer in large parts of the world regarding the preferences and inequities baked into both multilateralism and international law.[xiv]

These fractures and frailties may not have been apparent (or were overlooked) as long as Western states, and notably the United States, were able to shape and drive the international agenda, as they had done since the end of World War II. After all, in reconstructing the post-war international order, the United States actively promoted global governance on the basis of international law and multilateralism: in international security through the United Nations and NATO, in trade through the GATT (and later the adoption of the WTO Agreements), and in countless other contexts, such as environment, health, or migration, seeking to build multilateral institutions around its preferred general organizing principles.[xv]

The diversification of international society – both through the emergence of new states with vastly different needs, capacities, priorities and outlooks, and through the rise of business and civil society actors and terrorist networks – posed a series of challenges to this agenda. Still, although these changes prompted efforts to adapt and develop international law in response, until recently, it nonetheless was business more or less as usual in international affairs.

So, what has changed? Why is the international order at a cross-roads now? In my view, the current crisis is fuelled by the confluence of two major dynamics.[xvi]

First, we are witnessing the rise of major regional or even global powers outside of the West – China, India, Iran, Saudi Arabia and Turkey among them, along with a resurgent (or at least increasingly aggressive) Russia. A major dimension of the power shift is economic, reflected in the rise of the “E7” – the seven major emerging economies (China, India, Brazil, Mexico, Russia, Indonesia and Turkey), but especially China and India.[xvii] Other shifts focus specifically on international law. Thus, Russia is seeking to promote a “post-Western world order,”[xviii] while China prefers the more neutral label “new world order.”[xix] Labels aside, China and Russia agree on the core features of their desired order. In a 2016 joint declaration on the “promotion of international law,”[xx] the two countries articulated a thin conception, focused on the UN Charter and emphasizing sovereignty-based principles like non-intervention or state immunity. In a sense, the goal is a return to a law of co-existence,[xxi] stripped of liberal internationalism and its emphasis on human rights.

But it is the second of the two dynamics I flagged that worries me most. For the starkest challenges to international law are coming from within the West. Notwithstanding the fact that, by and large, Western countries have been shapers and beneficiaries of the existing international order, a backlash has erupted in many Western states against the perceived reach and intrusiveness of international law and institutions.[xxii]

This is Part 1 of the Keynote Speech.  Part 2 will be published on November 15, and Part III will be published on November 19.

[i] Jutta Brunnée & Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account (Cambridge: Cambridge University Press, 2010).

[ii] See Roscoe Pound, Interpretations of Legal History (New York: The MacMillan Company, 1923), 1 (famously observing that the “[l]aw must be stable and yet it cannot stand still.”).

[iii] See Harold Hongju Koh, “Transnational Legal Process” (1996) 75 Nebraska Law Review 181; The Trump Administration and International Law (Oxford: Oxford University Press, 2018).

[iv] Harold Hongju Koh, “Trump vs. International Law: He’s Not Winning,” Opinio Juris (Oct. 2, 2018), at https://opiniojuris.org/2018/10/02/trump-vs-international-law-hes-not-winning/ (referring to a struggle “between an admittedly imperfect, but adequately functioning, Kantian vision of a law-governed international society and a more cynical, Orwellian vision of global governance dominated by realist, great-power spheres of influence”).

[v] Lauri Mälksoo, Russian Approaches to International Law (Oxford: Oxford University Press, 2015) 227.

[vi] Oona Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (New York: Simon & Schuster, 2017).

[vii] See e.g. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004); Arnulf Becker-Lorca, Mestizo International Law: A Global Intellectual History 1842-1933 (Oxford: Oxford University Press, 2014); Yasuaki Onuma, International Law in a Transcivilizational World (Cambridge: Cambridge University Press, 2017).

[viii] See e.g. Kate Parlett, The Individual in the International Legal System: Continuity and Change in International Law (Cambridge: Cambridge University Press, 2011).

[ix] See Jutta Brunnée, “Völkerrechtskritik: Gestern und Heute (Critiques of International Law: Then and Now),” in Nina Dethloff, et al., eds., Rückblick nach 100 Jahren und Ausblick – Migrationsbewegungen, Berichte der Deutschen Gesellschaft für Völkerrecht (Proceedings of the German Society of International Law), Vol. 49 (München: C.F. Müller, 2018) 167.

[x] See Monica Hakimi, “The Work of International Law,” (2017) 58 Harvard International Law Journal 1.

[xi] See John Ruggie, “Multilateralism: the anatomy of an institution,” (1992) 46 International Organization 526.

[xii] See Francis Fukuyama, The End of History and the Last Man (1992) (arguing that the end of the Cold War also brought an “end of history,” in the sense of a universalization of Western liberal democracy).

[xiii] But see United Nations, “Opening statement and global update of human rights concerns by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein at 38th session of the Human Rights Council,” (June 18, 2018) (rejecting the notion that universal human rights were merely “picked from a Western imagination” and cautioning against “attack on the multilateral system and its rules, including most especially international human rights law”), at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23206&LangID=E.

[xiv] See Jutta Brunnée,”Onuma, Yasuaki, International Law in a Transcivilizational World (Book Review),” (2018) 59 Harvard International Law Journal 431.

[xv] See Ruggie, supra note 11, at 586-593.

[xvi] But see Harlan G. Cohen, “Multilateralism’s Life Cycle,” (2018) 112 American Journal of International Law 47-66 (arguing that a range of cyclical factors help explain multilateralism’s current decline).

[xvii] See e.g. Kishore Mahbubani, Has the West Lost It? A Provocation (London: Allen Lane, 2018), 3-10, 25 (suggesting that, in economic terms, Western dominance is an aberration and that China and India are poised to re-assume their previous positions as the world’s largest economies, with other emerging economies to claim the lion’s share of global economic growth).

[xviii] See Lizzie Dearden, “Russia’s foreign minister calls for ‘post-West world order’ in speech to global leaders,” The Independent (Feb. 18, 2017).

[xix] Zheping Huang, “Chinese President Xi JinPing has vowed to lead the ‘new world order’,” Quartz (Feb. 22, 2017), at https://qz.com/916382/chinese-president-xi-jinping-has-vowed-to-lead-the-new-world-order/.

[xx] The Ministry of Foreign Affairs of the Russian Federation, The Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law (June 25, 2016), at http://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2331698 (Russia-China Declaration).

[xxi] See Wolfgang Friedmann, The changing structure of international law (New York: Columbia University Press, 1964).

[xxii] See Eric Posner, “Liberal Internationalism and the Populist Backlash,” U of Chicago, Public Law Working Paper No. 606 (Jan. 14, 2017), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2898357.