Symposium: How “New” Are the Current Challenges to International Law?

[Christian Marxsen is head of the Max Planck Research Group “Shades of Illegality in International Peace and Security Law” at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany.]

Jutta Brunnée has offered us a very sharp analysis of the current challenges to international law. While I largely subscribe to her argument, I would like to provide an additional perspective on the matter in terms of the newness of the situation we are currently facing. Professor Brunnée acknowledges that contestation and challenges to the law have always played an important role, but an important underlying supposition of her argument appears to be that the current challenges are indeed something extraordinary. So for example she argues that we are currently “at a cross-roads” and that the challenges we face have been a “rarity in modern history”. I would like to complement Professor Brunnée’s argument by focusing in particular on similarities to previous crises.

Indeed, the debate on the present crisis of international law somehow reminds me of discussions on the prohibition on the use of force, one of the most fundamental norms of post-World War II international law. In 1970, Thomas Franck assumed the death of the prohibition by asking: “who killed article 2(4)?”. Yet, as the prohibition on the use of force continued to live on, Thomas Franck could again proclaim the death of article 2(4) in view of the US intervention in Iraq in 2003. The point I would like to make is that it may well be always the current crisis that we perceive to be of extraordinary and dangerous nature. That is because we do not know yet what the consequences will be (and disasters are always a possibility). So what are the continuity dimensions of current challenges to international law?

First, liberal values – whose importance Jutta Brunnée emphasizes – have always been under pressure. During the Cold War this pressure was evident in the communist bloc in which the development of liberal ideas was prevented from the very outset as the 1968 Soviet intervention in Czechoslovakia perfectly illustrates. Likewise, Western states have continuously demonstrated their willingness to sacrifice liberal values as well as basic rules of international law where it seemed mandated by overriding political interests. Western support for dictatorships or for insurgents opposing democratically elected governments or illegal interventions of Western states that Professor Brunnée mentions speak to that point, as does the existence of places like the US-prison Guantanamo on Cuban territory.

My second point concerns the frequency of – as Jutta Brunnée puts it – “challenges to the very underpinnings of international law”. Professor Brunnée states that such challenges have been “not entirely unprecedented”. In fact, my diagnosis would be that they have been rather common throughout history and over the last decades. Even many of the disputes over the content of specific rules are in fact very much that: “challenges to the underpinnings of international law”. Jutta Brunnée herself, together with Stephen Toope, has recently made this point in an article dealing with the so called “unable or unwilling standard” that some states put forward to shape an extensive reading of self-defence. It is also true for attempts to establish a right to pre-emptive self-defence. Both standards would constitute a highly subjective exception allowing for the use of force. This exception, in turn, would essentially undermine the prohibition’s reach and therefore radically alter the existing structure. These examples illustrate that foundational challenges to the law are something quite common.

My third point concerns the way in which opposition to international rules or international law in general is articulated. Traditionally, most actors have opted for invoking legal rules even where they were blatantly violating them. While such cynical use was not beneficial to the robustness of international legal rules, it implicitly conferred the law its normative authority. “L’hypocrisie est un hommage que le vice rend à la vertu.” – as La Rochefoucauld put it. Yet – as Jutta Brunnée rightly points out – the US administration under Donald Trump has taken a different route by bluntly rejecting the very idea of multi-lateral cooperation and international law in general. While the rhetoric’s bluntness may indeed be new, prior US exceptionalism had also made sufficiently clear what the US government thought of generally applicable international legal rules where they were perceived to be disadvantageous to the United States.

Lastly, I agree with Professor Brunnée that non-Western positions in international law and legal debates will play a more significant role in the future. This, too, does not appear to be something really “new”, but rather a return to the old normal of the Cold War era in which third world states (supported also by socialist states) sought to challenge traditional Western dominance. Yet I concede that current global power shifts make today’s challenges more likely to succeed.

This is neither meant to deny the existence of the current crises, nor its severity. But maybe we must keep in mind that the existence of crises is unfortunately somehow “the normal state” in international affairs – even if hopes in the 1990s were that this crisis mode could be overcome. For me there is still hope that the current challenges will in fact not turn out to be – as Professor Brunnée states in her post – “somehow more corrosive, more dangerous than what we have seen in for some time”.