Keynote Speech Part III: 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) Part I can be found here and Part II, here.] 

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

I have suggested that the main challenges to international law over the last century or so have focused on particular norms or regimes. But there is a precedent for a full-scale attack on its legality: Germany during the decline of the Weimar Republic, the world economic crisis, and the rise of fascism. Sadly, certain aspects of the disdain for the rule of law today align with critiques articulated in Germany at the time, perhaps most enduringly by one of the leading political theorists of the right – Carl Schmitt.[i]

At the heart of Schmitt’s political and legal theory was the notion of popular sovereignty – the inherent sovereignty of a homogenous people, whose power stands outside of the legal order and cannot be constrained by law.[ii] From the necessary political unity of the people Schmitt derived the distinction that animated his conception of politics: true politics was the struggle between “friend” and “enemy.”[iii] There was no middle ground, no room for compromise.[iv]

For Schmitt, then, liberalism was fatally flawed because its inherent pluralism (wrongly) assumed that nobody could be an “enemy.” The checks and balances of constitutionalism and a liberal rule of law were equally wrong, as they were threats to popular sovereignty.[v] Indeed, as David Dyzenhaus has shown, Schmitt considered legalism to be but an elaborate disguise of liberalism’s politics by a stance of neutrality that, in fact, seeks to suppress all those who would be in conflict with it.[vi] Ultimately, Schmitt saw liberalism as doomed – as bound to “deteriorate into a self-subverting commitment to substanceless form.”[vii]

As for international law – it was not only a conduit for victorious Allied powers at the time to legalize territorial gains and establish a permanent system of global control,[viii] it was an impossibility. Why? Quite simply because there was no global political community and so there could be no sovereign who could legitimate law. Purported universal international law was a tool used by powerful states, hiding its politics behind a façade of neutrality and pluralism.[ix] At best, there could be “spheres of influence” in which states with similar political outlooks might have legal relations and fight common enemies.[x] And so, the quote with which I began my remarks is not a bemoaning of international law’s dire, fragmented state today, but stems from an article published in 1938, by the German-American international law scholar Wolfgang Friedmann.[xi]

But let me return to the present, and to Donald Trump’s take on international law. Although it seems safe to assume that he has never even heard of Carl Schmitt, the impulses that underlie his positions resonate with the chords struck by Schmitt at the time, and with Germany’s contemporaneous stance towards international law.

That said, it is important to note also that undercutting the international rule of law predates President Trump. Major Western powers have long been hypocritical in their application of international law and, ironically, much in the way Schmitt criticized, in pursuing their own policy goals in the name of universality.[xii] The perhaps most obvious example is Western interventionism abroad, asserting rights to fight rogue states or terror networks, or to avert atrocities and human rights abuses. Suffice it to mention only the NATO boming of Kosovo in 1999 (under President Clinton), the 2003 intervention in Iraq (under President G.W. Bush), or the overstepping of Security Council authority in Libya in 2011 (under President Obama).

All of these interventions were backed by other key Western states, and all were illegal, however justified (or “legitimate”) many may have thought they were. This brings me to the final quote, which is not from a Western international lawyer complaining about “rogue state” behaviour. It is taken from a 2013 op-ed in the New York Times, authored by none other than Vladimir Putin, in the context of Obama’s “red line” musings about intervening in Syria to stop the use of chemical weapons.[xiii]

The dismay with the Western à-la-carte approach to international law that informed the op-ed, found explicit expression in the aforementioned 2016 Russia-China joint declaration on international law:

The Russian Federation and the People’s Republic of China share the view that good faith implementation of generally recognized principles and rules of international law excludes the practice of double standards or imposition by some States of their will on other States (…).[xiv]

And in September 2018, Russian Foreign Minister Lavrov, in remarks on international law before the UN General Assembly, noted among other things that:

Our Western colleagues seek to replace the rule of law in international affairs with some “rules-based order.” These rules, which are made up as political expediency dictates, are a clear case of double standards.[xv]

Far be it from me to suggest that Putin’s Russia has been a good faith actor when it comes to international law. Yet, it is difficult to deny that, at the very least, a pattern of Western hypocrisy has helped weaken international law and has served to invite other states to follow suit.[xvi] And, compared to its predecessors, the Trump Administration’s approach to international law is of another order altogether. Its repeated attacks are openly dismissive, without being tempered by general support for international law and multilateralism. Its actions are deeply corrosive of international law. For recent illustrations of this corrosive effect, suffice it to point only to the egregious events in the Saudi embassy in Istanbul, and to the crisis surrounding the use of the Novichok nerve agent in the attempted assassination of a former Russian spy in the UK back in March. The British government and allied countries rightly responded forcefully. But it is also worth recalling the Russian ambassador’s response:

We can’t take British words for granted. (…) The U.K. has a bad record of violating international law and misleading the international community, which includes invading Yugoslavia, Iraq and Libya under false pretexts, and supporting the coup d’état in Ukraine.[xvii]

Where does this all leave us?

If in fact the United States is wavering in its long-standing commitment to the international rule of law, as many observers fear and as the broader patterns that I have traced strongly suggest,[xviii] this turn would be momentous. It would mean that, for the first time since World War II, a major state would challenge not only the content of specific legal norms and regimes, but the very foundations of an international rule of law – the aforementioned principles of legality that allow for a thin but universal conception of international law.[xix] There would be bitter irony in the fact that the major state in question is the very state that, for all its failings, led the world in building and maintaining the post-war international order.

The historical significance and the future implications of these developments are not lost on other Western leaders. France’s President signaled his intention to step into the global leadership gap,^[xx] notably on climate change.^[xxi] The German Foreign Minister, shortly after the US President’s unprecedented refusal to endorse the June 2018 G7 Summit communiqué,[xxii] laid out a detailed vision for a “Europe United” as an answer to “America First.”[xxiii] On the same day, the Canadian Minister of Global Affairs delivered a major foreign policy speech to underscore the importance of the “rules-based international order and the postwar institutions built to maintain it.”[xxiv]

It is as yet uncertain whether these efforts to rally support for multilateralism and international law will suffice to prevent the unraveling of the global order. Equally uncertain is to what extent non-Western states, notably China, will be partners in maintaining the “rules-based international order” about which they have declared themselves to be increasingly suspicious.

What is more, Western would-be defenders of the existing international order are increasingly besieged at home. The populist dynamics that I have described are at play in virtually all Western states, including in France, Germany and even here in Canada. To my mind, international law’s fate is very much tied to the fate of liberal-democratic politics and a commitment to the rule of law at home.

I want to leave you with three final thoughts.

First, one way or another, we are witnessing a transformation of the global order. Assuming that multilateralism and international law prevail in some form, I suspect that the world will be moving to a leaner order, increasingly anchored in norms that are promoted and shaped, or at least co-shaped, by leading non-Western states. That seems likely, perhaps unavoidable, given the shifts I sketched. And we in the “West” must be prepared, and recognize that there is an opportunity here. As a growing body of scholarship rightly urges, international law must do better in reflecting globally shared norms.[xxv] If the current crisis prompts a shift to an international order built around such norms, it might end up strengthening both the reach and the influence of international law.

Second, I return to Wolfgang Friedmann, who in 1938 saw little scope for universal international law and thought that international law could at best be a “law of co-existence” between compatible states. But twenty-five years later, in his famous book on the Changing Structure of International Law, he diagnosed the emergence of a multi-layered international “law of cooperation.”[xxvi] So, there is hope!

Third, as international lawyers we must do what we can to ensure that it will not take twenty-five years to revitalize international law. Among other things, that requires coming out of our bubble and illuminate international law’s importance for those who do not come to conferences like this, or who doubt its value or bona fides.

Recall that international law is a collective practice, a project that depends on, and is fundamentally shaped by, constant effort. And so, ultimately, I agree with Harold Koh. As scholars, teachers, students, and practitioners of international law, and as citizens, we all are called upon to do the hard work of defending and developing international law. Let’s rise to the challenge.

This is Part 3 of the Keynote Speech. Part 2 was published on November 15, and Part 1 on November 13.

[i] Schmitt’s lasting impact is aptly reflected by a recent 900-page strong volume dedicated to his thought and legacy: Jens Meierhenrich & Oliver Simons, eds., The Oxford Handbook of Carl Schmitt (Oxford: Oxford University Press, 2016).

[ii] David Dyzenhaus, “Kelsen, Heller and Schmitt: Paradigms of Sovereignty Thought,” (2015) 16 Theoretical Inquiries in Law 337, at 340.

[iii] David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Cambridge: Cambridge University Press, 1997), at 41.

[iv] Ibid.

[v] Dyzenhaus, supra note 43.

[vi] Ibid., at 39.

[vii] Dyzenhaus, supra note 44, at 60.

[viii] Carl Schmitt, Völkerrechtliche Großraumordnung mit Interventionsverbot für raumfremde Mächte: Ein Beitrag zum Reichsbegriff des Völkerrechts (Berlin: Duncker & Humblot, 1941; 3rd ed. 2009), at 34.

[ix] Carl Schmitt, Positionen und Begriffe im Kampf mit Weimar – Genf – Versailles 1923-1939 (Berlin: Duncker & Humblot, 1940; 4th ed. 2014), at 82.

[x] Wolfgang Friedmann, “The Disintegration of European Civilization and the Future of International Law – Some Observations on the Social Foundations of International Law,” (1938) Modern Law Review 194, at 198.

[xi] Friedmann, ibid., at 194, 213.

[xii] These patterns and parallels are among the reasons why Schmitt has come to be frequently invoked by contemporary thinkers on the left. See e.g. S. Torben Bech Dyrberg, “The leftist fascination with Schmitt and the esoteric quality of ‘the political’,” (2009) 35 Philosophy & Social Criticism 649; Robert Howse, “Schmitt, Schmitteanism and Contemporary International Legal Theory,” in: Anne Orford & Florian Hoffman, eds., The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016) 212.

[xiii] Vladimir V. Putin, “A Plea for Caution from Russia,” The New York Times (Sept. 11, 2013).

[xiv] Russia-China Declaration, supra note 20, at para. 6.

[xv] Foreign Minister Sergey Lavrov’s remarks at the 73rd session of the UN General Assembly, New York (Sept. 28, 2018), at https://rusemb.org.uk/fnapr/6664.

[xvi]See Christian Marxen, “International Law in Crisis: Russia’s Struggle for Recognition,” (2015) 58 German Yearbook of International Law 11, at 27-46 (offering a detailed analysis of Russia’s concerns and increasingly assertive resistance of Western dominance).

[xvii] See Paul Dallison, “Russian ambassador: UK has a bad record of violating international law,” politico (March 22, 2018), at https://www.politico.eu/article/russian-ambassador-alexander-yakovenko-uk-has-a-bad-record-of-violating-international-law/.

[xviii] See Albright, supra, note 30; Havercroft et al., supra, note 30; Jutta Brunnée & Stephen J. Toope, “Whither the rule of law?” The [Toronto] Globe & Mail (Apr. 14, 2017).

[xix] See Jutta Brunnée & Stephen J. Toope, “Interactional Legal Theory, the International Rule of Law, and Global Constitutionalism,” in Anthony Lang & Antje Wiener, eds., Handbook of Global Constitutionalism (Cheltenham: Edward Elgar, 2017) 170.

[xx] Josh Lowe, “Who is more Powerful? France Can Take Leadership Role as America Retreats, Say Organizers of New Forum,” Newsweek (Aug. 2, 2017).

[xxi] James McAuley, “France’s Macron takes lead in climate change battle, with the U.S. absent,” The Washington Post (Dec. 12, 2017).

[xxii] Michael D. Shear and Catherine Porter, Trump Refuses to Sign G-7 Statement and Calls Trudeau ‘Weak’, The New York Times (June 9, 2018).

[xxiii] Germany – Federal Foreign Office, Speech by Foreign Minister Heiko Maas: Courage to Stand Up for Europe – #EuropeUnited (June 13, 2018), at https://www.auswaertiges-amt.de/en/newsroom/news/maas-europeunited/2106528.

[xxiv] Government of Canada, Address by Minister Freeland when receiving Foreign Policy’s Diplomat of the Year Award (June 13, 2018), at https://www.canada.ca/en/global-affairs/news/2018/06/address-by-minister-freeland-when-receiving-foreign-policys-diplomat-of-the-year-award.html.

[xxv] Mälksoo, supra note 5; Onuma, supra note 7; Anthea Roberts, Is International Law International? (Oxford: Oxford University Press, 2017). And see Alonso Gurmendi, “State Practice regarding Self-Defence against Non-State Actors: An Incomplete Picture,” Opinio Juris (Oct. 17, 2018), at https://opiniojuris.org/2018/10/17/state-practice-regarding-self-defence-against-non-state-actors-an-incomplete-picture/ (highlighting the challenges faced by organizations like the International Law Association in assessing state practice and opinio juris from around the world).

[xxvi] Friedmann, supra note 21.