Double Standards in International Law: Critical Reflections for an Academic Lens for Teaching and Research

[Jane Ezirigwe is a G.F Henderson Fellow at the Human Rights Research and Education Centre, University of Ottawa and an associate professor of law at the Nigerian Institute of Advanced Legal Studies]

Introduction 

Allegations of double standards frequently surface in multilateral forums, influencing debates on diverse issues, ranging from the Security Council’s role in maintaining international peace to the fairness of climate change obligations in the drafting of agreements like the Paris Accord. Such double standards, along with related notions like hypocrisy, whataboutism, tu quoque arguments, and other forms of inconsistency between rhetoric and practice, can erode the perceived fairness and legitimacy of international law.

Double standards in international law refer to the inconsistent application and enforcement of rules, norms, and principles by states or international bodies, often influenced by political interests, power dynamics, or strategic alliances. A prominent use of the term “double standard” is by the African Union in its critique of the International Criminal Court (ICC). In a resolution, the AU condemned the perceived bias in the disproportionate prosecution of African leaders and stressed the need for international justice to be conducted transparently and fairly, “to avoid any perception of double standard”, in conformity with the principles of international law, while expressing concern over the potential threat to “the rule of law” posed by selective enforcement.

On November 9th, 2024, the Human Rights Research and Education Centre at the University of Ottawa hosted a thought-provoking roundtable discussion on “International Law and Double Standards.” The event explored how double standards influence the practice, perception, and legitimacy of international law, as well as how the international legal system can reconcile its universalist principles with political interests and selective enforcement. Participants were invited to examine the impact of double standards on their respective fields, fostering a deeper, interdisciplinary understanding of these pressing issues.

As one of the participants, I have reflected on the proceedings, which have inspired me to advocate for academics to adopt the double standards concept as an additional lens in teaching and researching international law. While critical approaches like TWAIL have long highlighted these inconsistencies, integrating a focus on double standards in teaching and research can cultivate a heightened awareness among students and scholars. This, in turn, can drive the push for a fairer and more inclusive global legal order, ensuring that future practitioners are better equipped to challenge and navigate the complexities of international law.

The following reflections draw on the rich insights shared by scholars during the roundtable. Here, I highlight my key takeaways and offer my thoughts on how we can leverage the concept of double standards in international law to drive meaningful change moving forward.

Critical Questions on the Double Standard in International Law

Much of my reflection revolves around critical questions to consider when engaging with the topic of double standards in international law. I acknowledge that much of my thinking was shaped by the rich discussions we had.

Do ‘Double Standards’ Exist in International Law? 

Absolutely, and countless examples highlight this issue.

Intervention in Conflicts: Western leaders have been quick to condemn Russia’s aggression against Ukraine. The international community has rallied robust support for Ukraine, including economic sanctions against Russia and significant military aid. However, this stands in stark contrast to the international response to conflicts in regions like Syria, Yemen, or Ethiopia, where similar levels of humanitarian crises have not garnered the same level of international attention, intervention, or humanitarian aid. This disparity raises critical questions about the selective enforcement of the Responsibility to Protect (R2P) doctrine.

International Criminal Court (ICC) Investigations: Double standards are also evident in the realm of international justice. In 2020, the Office of the Prosecutor (OTP) chose not to investigate war crimes committed by UK forces in Iraq, despite acknowledging that these crimes had occurred. In 2021, the ICC further deprioritized an investigation into war crimes by US and Afghan forces in Afghanistan, citing viability and budget constraints. Yet, just six months later, the ICC launched its largest-ever investigation in Ukraine, with voluntary financial contributions from member states specifically earmarked for this investigation. While the urgency and importance of investigating Ukraine are undeniable, it highlights that the ICC’s budgetary excuses for inaction in cases such as Afghanistan or Nigeria are increasingly difficult to justify.

Business, Trade, and Economic Sanctions: The realm of business and trade is rife with glaring double standards, particularly in how economic policies are applied across different regions. For instance, the European Union bans the use of toxic pesticides within its borders, yet allows the export of these same pesticides to Africa, where they can be used in agriculture. Then, in a hypocritical twist, the EU rejects farm produce from African countries if those toxic pesticides have been used in production, effectively penalizing nations for practices that the EU itself sanctions in the form of exports.

Climate Change Policies: The issue of climate change is another arena where double standards are glaringly apparent. For years, developed nations have pressured African countries to abandon coal as a source of energy, urging them to transition to cleaner alternatives in the name of sustainability. However, with the onset of the Russian-Ukraine crisis and subsequent energy shortages, these same Western countries have reverted to using coal to address their immediate energy needs. This sudden shift in policy not only exposes a glaring hypocrisy but also underscores the unequal burden placed on developing nations to comply with stringent environmental standards, even when they have significantly lower historical emissions.

Asylum and Refugee Protection: In the realm of asylum and refugee protection, double standards are starkly evident in the differential treatment of refugees based on nationality, race, or perceived value. Many Western countries have implemented increasingly strict asylum policies, often citing security and economic concerns. However, there is a noticeable discrepancy in how these policies are applied, with preferential treatment given to certain groups. For example, refugees fleeing the war in Ukraine have been warmly welcomed and provided with expedited pathways to asylum, often bypassing the usual bureaucratic hurdles. This contrasts sharply with the treatment of refugees from Syria, Afghanistan, or African countries, who face lengthy processing times, detention, or outright denial of entry under similar circumstances.

This differential treatment highlights selective humanitarianism that aligns more with political and cultural affinities than with the principles of equality and non-discrimination that underpin international law.

Critique Beyond the West: It is important to acknowledge that the issue of double standards is not confined to Western nations alone. For instance, South Africa’s decision to approach the International Court of Justice (ICJ) over the situation in Gaza, which, regardless of the detailed legal merits, deserves recognition. This move has kept moral and political pressure on Israel and Western powers. However, South Africa’s conspicuous silence on the Ukraine conflict calls into question its consistency in applying international legal principles.

Double Standards as an Academic Lens

Double standards in international law serve as a crucial lens for academic inquiry, offering valuable insights into how legal principles are applied unevenly across different contexts and nations. These discrepancies expose the power imbalances inherent within the international legal system, illustrating how powerful states often manipulate international law to further their interests while evading the same level of scrutiny that is applied to weaker or less influential nations. By using double standards as an analytical tool, researchers can explore how these practices manifest across various domains, such as human rights, environmental law, and trade law, and critically assess how they impact the legitimacy and effectiveness of key international institutions like the United Nations and the International Criminal Court (ICC).

Studying double standards allows scholars to understand the legal dimensions as well as the broader political, economic, and social forces that sustain these inequalities. It opens up an interdisciplinary approach, bridging law, politics, sociology, and history to provide a more comprehensive understanding of how power dynamics shape international law. This exploration can reveal how historical legacies, economic inequalities, and social factors contribute to the persistence of double standards within the global system.

Incorporating case studies that highlight these discrepancies can significantly enhance critical thinking skills.

Conclusion 

Law has a complex and often contradictory relationship with the values it seeks to uphold. In practice, the law is deeply intertwined with power, which complicates its application and effectiveness. This piece has explored the various ways in which double standards emerge within international legal arguments, examining both the claims and evidence that highlight these inconsistencies.

The piece advocates for a constructive approach to addressing these discrepancies, one that focuses on reconstruction rather than destruction. Rather than abandoning the international legal system, the goal should be to reform it by uncovering and challenging the double standards that undermine its integrity. Legal scholars and other experts in international law have a crucial role to play in this process. By using their research and teaching, they can expose the inconsistencies in how law is applied and shift the ideological narratives that justify these double standards. This shift is essential to counter the dominant political interests that exploit international law for their own gain, ultimately working to the detriment of the system and its foundational values. Through these efforts, the international legal system can be reimagined and reformed, making it more equitable, just, and aligned with the ideals it purports to uphold.