Times Are Changing – and What About the International Rule of Law Then?

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Come gather around people, wherever you roam
And admit that the waters around you have grown
And accept it that soon you’ll be drenched to the bone
If your time to you is worth savin’
Then you better start swimmin’ or you’ll sink like a stone
For the times they are a-changin’

Bob Dylan, The Times They Are Changing, 1964

In 2013, I, as a member of a group of Berlin-Potsdam-based international law scholars, together with colleagues from political science, applied for major funding for what we considered an evolving and growing research question in international law, namely whether the international legal order is facing a significant structural change, which we referred to as a possible ‘Rise or Decline of the International Rule of Law’. What we could not and did not expect (or in order to be cynical: did not hope for) was that major political developments such as, to name but a few, inter alia, the crisis in Ukraine; the election of US President Trump (as to effects on international law thereof see here) and his ensuing political steps such as the termination of US participation in the Paris Agreement to provide but one example; or the growing critique vis-à-vis the International Criminal Court, and other developments we have witnessed in recent years would prove that indeed this is a valid research question to be asked.

What is even more striking is that a significant number of academic events that have recently taken place such as a seminar on ‘International Law in a Dark Time’, a workshop on “International Organizations in Crisis? Rising Authority and Perceptions of Decline”, a conference on a “New International Order in an Isolationist World”, the 2018 ESIL Research Forum on ‘International Law in Times of Disorder and Contestation’ follow a similar, or at last closely related, research agenda. That clearly indicates that the debate as to the rise or decline of the international rule of law is in itself also on the rise, rather than in decline.

It is this setting that provides the background for this EJIL Talk contribution, in which I will set out some of my own ideas underlying this research focus, albeit obviously only with a broad brush, and hence also in a more general fashion, to arouse discussion.

Setting the scene: 1990 and beyond

One can seriously doubt whether the international legal order, given its inherently decentralized character and its manifold actors organized in a horizontal manner (namely first and foremost the approximately 193 plus States) may know ‘constitutional’ or ‘Grotian moments’ where international law is, almost by a sudden, shifting. Rather, the international legal system should be perceived as an oil tanker. Even once it is decided (and by whom anyhow?) that a change in its direction ought to take place, it still takes time, patience and a broad consensus within the international community at large, for such change to happen. To provide but one example the holding by the ICTY in Tadic (paras. 96 et seq.)  became a turning point in international criminal law once it was endorsed by the States negotiating, and later ratifying, the Rome Statute.

Notwithstanding, during the post-1990 years the World had witnessed an ongoing and almost obvious process whereby the international legal order shifted towards a more robust, more elaborated and more efficient system of legally binding norms (rather than mere political ‘expectations’). This development extended to both, pre-existing, almost traditional, areas of international law as well as to somewhat more recent areas of international law. Thus, on the one hand, the system of collective security provided for by the UN Charter started to also work in practice, while in the field of human rights the European Court of Human Rights (ECtHR) became a court exercising compulsory jurisdiction over 47 member States of the Council of Europe. On the other hand, international environmental law, international trade law or international criminal law either saw the development of new substantive rules, or the creation of new organizations to enforce those rules.

At the same time, these developments came with, or brought about, at least in Europe but also in North America, a widened scholarly perception as to the very fundamental characteristics of the international legal order. In particular, the roles of non-State actors (such as international organizations rather than merely their member States) in the creation, interpretation and enforcement of international law have fundamentally increased. Accordingly, the argument went that the international legal order had lost (or was in the process of losing) its inherently State-centered character. It was further argued that it might have even moved towards a system akin to a domestic constitutional system.

It is striking, however, that this perception was not shared by (indeed not even reflected in the work of) large parts of non-European international law scholarship. Even more important, it was neither reflected in State practice. Rather, States continued to be concerned with the daily work of applying (or not), further developing and enforcing specific rules of international law.

Back to Square One?

At least by now, this prevailing euphoria among international law scholars as to the ever (almost endless) increasing effectiveness, value-orientation, and substantive enlargement of the scope of international law) seems to have come to an end. I submit that this new (or rather old?) perception is warranted by a realistic analysis of the international order as it is currently developing.

At the same time, one must also consider whether any such developments take place across the board, or whether instead they concern only certain, specific areas of substantive international law, certain institutions only, or whether, finally, they also extend to the set of meta-rules such as e.g. the law of treaties, the law of State responsibility, or the rules on how customary law develops. Put otherwise: are the most prominent political developments mentioned in the beginning merely the tip of an iceberg being the symptom of an overall ‘melting’ of the social fabric of international law? Or are they rather exceptions that confirm that still, as of today, the famous phrase of 99 % of all States abiding by 99 % of all rules of international law still holds true, and will hold true in the years to come? And if the latter were the case, will these be still the same rules, enshrining the same values and concepts, and being enforced by the same institutions?

Once more, there is no clear ‘cut-off’ date and no alleged ‘contra-constitutional’ Grotian moment that could be identified as the point where the oil tanker of international law might have started to change its course again. Indeed, it might very well be that one can only ex post facto determine that, as of today and seen in retrospective, the development of the international legal system had once again started turning around. Still, I submit that recent individual developments mentioned above (as well as a significant number of more such signals), as well as more structural changes, such as the expanding role of the People’s Republic of China within the international legal system, indicate that such a turning maneuver is currently taking place. This may be seen as a development back towards a more traditional, State-centered and sovereignty-based system of international law, as it was perceived in the years predating 1990, and the changes that had since then taking place. This raises the ensuing issue then, as to the roles of institutions, international tribunals, as well as legal scholars in the development and application of international law.

Current role of international courts and tribunals

Ever since the 1990s, international courts and tribunals have played an important and increasing role in both, enforcing, but also in further developing, international law. This impact extended to both, international law generally, but also to ‘their’ respective treaty regimes. Prominent examples come from the field of human rights (with the ECtHR, but also the Inter-American Court of Human Rights being pertinent examples at hand), but also from international criminal law (with the dynamic jurisprudence of the ICTY being of particular relevance). Yet, those and other judicial institutions are currently facing a somewhat uphill battle with some contracting parties no longer implementing (at least some) of their decisions.

One example, obviously, is the ECHR. There, the United Kingdom has not been implementing for years the Hirst line of judgments by the ECtHR on voting rights of inmates. The same holds true for Bosnia and Herzegovina not implementing the Sejdic-Finci judgment, and finally and most recently, also for the Russian Constitutional Court, when denying enforcement of the Yukos judgment of the ECtHR, such judgment allegedly violating the Russian constitution (for a debate see here). It seems that it is quite possible, to say the least, that more contracting parties of the ECHR might follow suit.

As far as the ICC is concerned, there is obviously a whole set of contracting parties of the Rome Statute not surrendering Sudanese President Al Bashir in violation of their obligation to do so. They do so despite decisions of the ICC which are legally binding upon them regardless of how these States perceive the legal situation. Finally, we have also seen China (see here) and the Russian Federation (see here) first not participating in arbitral proceedings, and later not implementing arbitral awards under Annex VII UNCLOS (and previously Russia neither implementing an ITLOS order on provisional measures, see here).

Further analysis will be needed to evaluate whether (and if so to what extent and why) more technical dispute settlement mechanisms such as the WTO DSU, and, albeit to a lesser extent, also the system of investment arbitrations, have been less exposed to formal contestations of their role, the increasing critical political debate surrounding the latter notwithstanding.

By way of reaction to the above contestations by some of its contracting parties, the ECtHR seems to have granted contracting parties more leeway in applying the ECHR. This holds true at least when it comes to socially sensitive issues such as freedom of religion, as confirmed by the ECtHR’s recent ‘burkha judgments’ (see here and here). It must be also noted, however, that such deference to contracting parties of the ECHR does not extend (yet?) to other similarly politically controversial areas such as migration control, the recent N.D. and N.T. v. Spain judgment being the latest proof thereof. The recent Grand Chamber judgment in the case of Burmych and Others v. Ukraine further demonstrates that the Court is willing to pass the ball back into the field of the Committee of Ministers (and thus to a political rather than a legal solution of the matter), in case of a structural unwillingness of a given contracting party to implement the ECtHR’s judgments.

This development might also raise a more fundamental question as to the dynamic interpretation of the ECHR (and other human rights instruments) as constituting ‘living instruments’. In the past, this concept, which was meant to consider social realities within contracting parties, served to further enlarge the human rights guarantees, as compared to the standard envisaged in 1950. One wonders whether instead, the said concept might not also conceptually serve to limit such guarantees provided the prevailing social ‘understandings’ in the majority of (or a significant number of ?) contracting parties move in such a way.

It is also worth noting that, as far as the ICC is concerned, a recent decision of one of its Pre-Trial Chambers. Without any need to decide the matter, while (rightly) denying President Al-Bashir immunity as an acting Head of State given that the situation in Darfur had been referred to the ICC by the Security Council, the chamber found that, absent such a Security Council referral the ICC “may not, in principle, (…) request a State Party to arrest and surrender the Head of State of a State not party to the Statute.” (see here) The ICC thus, somewhat akin to the ECtHR, attempted to already do ex ante and without any concrete need, to avoid a future collision course with a certain number of contracting parties which might be unwilling to cooperate with the Court where there is not even an underlying Security Council action.

Finally, the ICJ’s current decisions in the various cases brought by the Marshall Islands, and related to the politically sensitive issue of nuclear disarmament, rejecting the various applications for lack of a dispute (for a discussion of the Court’s judgments see here), can also be perceived as avoiding ‘problematic’ issues. At least, this more subtle, ‘technical’ and fact–specific solution chosen by the ICJ provides the Court with significantly more maneuvering space when it comes to future cases than any substantive decision.

What is brought out by these few examples alone is that there is a current tendency among international courts and tribunals to take a transformation in its surrounding ‘legal space’ into account when deciding whether they should act more cautiously, or whether they should continue to be at the forefront of the development of international law. Under prevailing circumstances, it might very well be appropriate for them, in order not to endanger their legitimacy, to not move ahead too fast. Besides, the International Court of Justice, representing the overall international community at large might, unlike regional courts such as the ECtHR or those representing a still unfortunately limited number of contracting parties such as the ICC, be best placed to set the pace for any future normative developments. The well-known controversy between the ICTY and the ICJ as to the standard of attribution of acts under Art. 8 ILC Articles on State Responsibility (see here (para. 115), here (paras. 98 et seq.) and here (paras. 403 et seq.)) obviously come to one’s mind in that regard. Another example relates to the ICJ’s somewhat cautious and careful approach in the field of reservations to treaties. Its step-by-step approach is somewhat contrary to the ILC’s ambitious approach contained in its ‘Guidelines on Reservations to Treaties’. Generally speaking, the ICJ might thus in the years to come serve even more than ever as a necessary ‘neutralizing’ element balancing forward–looking and backward-leaning trends within the international community at large.

Role of scholars

Given these current political circumstances and developments what might then be, to paraphrase Savigny, the vocation of our age for international legal scholarship. I submit that, first and foremost, a detailed and detached, open-minded analysis of the ongoing development described above has to take place in order to ascertain whether indeed a rise or rather a decline of the international rule of law is in the process of taking place. This must be done (and can be done, I submit) without any preconceived a priori results.

In a second step, one must then evaluate the further consequences, if at all, of such a development. Indeed, it is these two steps that form the very core of the research project I am involved in. It is only once those two steps have been undertaken that one can then consider what might be possible strategies by States, and other actors, to counter such a possible decline of the international rule of law.

This task might have become somewhat more difficult by the fact that over the years international law scholars on the one hand, and international lawyers practicing international law on the other, have become somewhat used to living in two separate worlds. Put otherwise, diplomats, legal advisers of international organizations or of States, international judges or counsel advising States or appearing on their behalf in various fora on the one hand, and scholars of international law on the other have started speaking ‘different languages’. That has happened to an extent that parts of such scholarship have become irrelevant for those practicing (and thus applying in concreto) international law. That in turn has led to a decrease in the interaction between these two groups, and hence also to a decrease in the impact legal scholarship has on international law generally. This gap might widen if, indeed, a decline in international law can be discerned.

Besides, third, not infrequently the admittedly nebulous boundary between the existing international lex lata, and lex ferenda had become somewhat blurred in legal scholarship. One possible example might be the claim that, as of today, the death penalty is prohibited as a matter of universal (rather than regional) customary law. Such far-reaching propositions, not well-founded in State practice, or in the subsequent practice of States (as contracting parties of a given treaty regime), once again limit the ‘impact’ of such scholarship on the actual application of the relevant rules of international law in a given context, and in understanding what the current challenges to international law are.

Finally, fourth, not infrequently formal arguments such as the need to insist on uniform State practice, on abiding by rules on treaty amendments, or on the obligation to implement a judgment of an international court or tribunal regardless of its legitimacy, are set aside by relying on more general considerations of what a more value-based international legal order ought to be. Relevant examples one might refer to are the Assembly of State Parties’ activation of the ICC’s jurisdiction on the crime of aggression, as well as the debate surrounding the implementation and enforcement of the ICJ’s 2012 judgment in the State immunity case (Germany v. Italy).

Notably in ‘turbulent times’, such as the ones the international legal order is currently undergoing, where there is an (increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such, it is the vocation of scholars of international law to carefully analyze to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it. The best way to do so, however, at least for the time being, is to carefully analyze, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its contents. It is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest.

In that sense, it might be said that at least in that regard times have not been changing given the intrinsically ‘weak’ character of international law. As a matter of fact, ever since international law came about it was always dependent on the will of States not only to further develop the international legal system, but, first and foremost, to apply and enforce it, the development of other enforcement mechanisms notwithstanding.