19 Nov Symposium: The Steadfastness of International Law
[Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He was previously a Professor of Law at Duke University and a Fellow of Jesus College, Oxford.]
Jutta Brunnée has always shaped my thinking on international law. I was a student in one of her very first classes and have been reading her scholarship ever since. In the spirit of ongoing dialogue, I offer three thoughts on her recent speech to the Canadian Council of International Law.
First, the international legal system has always responded to major shifts in the identity, character, and priorities of powerful states. The German diplomat-scholar Wilhelm Grewe divided the history of international law into periods of hegemonic dominance, from Holland in the 17th century to the United States after the Cold War. Grewe’s analysis was Eurocentric, statist, and materialist in its understanding of power, but seen from the vantage point of 2018, his thesis – that the international legal system evolves with the rise and fall of powerful states – is almost indisputable. Today, the most interesting questions would seem to concern the inherent resistance of rules to change, and whether this resistance can provide stability during political upheavals—including by smoothening the transition to new rules when the political changes are long-lasting.
Second, power is a relative concept. A state can remain powerful vis-à-vis a neighbor even if it is declining, and especially if the neighbor is declining more rapidly. At this moment in history, China and India are rising, and Russia, Japan and the European Union are struggling to retain their power. Meanwhile, the United States is declining—not so much materially, since the US economy and military remain strong, but because of a failure to understand soft power. Instead of building trust through long-term cooperation, which provides benefits to all partners through diffuse reciprocity, Donald Trump and his advisors regard international relations as a series of discrete time-limited contests. Seen through this ill-informed and ahistorical lens, the United States has neither friends nor allies.
It remains an open question whether the rejection of soft power on the part of the most important democracy will damage international law and perhaps most critically international human rights. One can certainly hope that the idea of human rights is too potent to be squeezed back into the bottle of history, and some support for this hope can be found in the prohibition on torture, where widespread denial and concealment are the tribute that vice pays to virtue and therefore strengthen the rule even when it is violated. George W. Bush sought to define the prohibition on torture out of existence, and failed.
Third, the dwindling number of liberal democratic states face a dilemma involving their dependence on an increasingly illiberal and unreliable United States, and the opportunity to reduce this dependence through stronger relations with a decidedly illiberal and increasingly demanding China. The choice, increasingly, seems to be between the frying pan and the fire. But there is another option, which involves liberal democratic states working much more closely and concertedly together. In doing so, they might have to refuse some economic opportunities, but the point of democracy and human rights is that some things – not having the secret police knocking on your door – are worth more than money.
All of which brings me to Carl Schmitt, who Professor Brunnée bravely mentions. My response is not to argue that the apologists for Donald Trump are substantially different from apologists for Adolf Hitler. Rather, my response is rather that major challenges to international law are hardly new; they arise on a periodic basis, just as hegemonic powers rise and fall. And sometimes, they involve benign actors. At the same time that Schmitt was advancing his ideas in Germany, an English academic named E.H. Carr was splitting the academic discipline of international law in two with his book The Twenty Years’ Crisis. Students of Carr and other realist international relations scholars have been setting the foreign policies of governments ever since, to the consternation of international lawyers.
My main point is this: International relations are always changing, and the roles of cooperation and law are always contested. Although current developments might favor the realists and anti-globalists, ideas matter, and some ideas – such as international human rights – have incredible resiliency. Although these are difficult days, international law will continue to serve humanity through some combination of old and new rules. International lawyers can help to shape the transition by insisting on the long-term benefits of trust and cooperation expressed through rules, and by speaking truth to power—as Jutta Brunnée has so brilliantly done.