Keynote Speech Part II: Challenging International Law: What’s New?

Keynote Speech Part II: 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.] 

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

By far the most destabilizing challenges to international law and multilateralism come from the United States.[i] Since the inauguration of President Donald J. Trump, the US government has adopted an increasingly unilateralist, transactional posture. This posture is well captured by the third of my opening quotes, which, as you may have guessed, comes from (at the time) members of the Trump Administration, H.R. McMaster and Gary Cohn, in a May 2017 op-ed in the Wall Street Journal.[ii]

A growing series of actions, including the administration’s recent moves towards “trade wars” with other major economies,[iii] the refusal to sign on to the traditional G7 Summit communiqué,[iv] the withdrawal from the UN Human Rights Council,[v] the promised withdrawal from the Paris climate agreement,[vi] and the push for withdrawal from treaties that provide for dispute settlement by international tribunals,[vii] highlights that the US administration – even if not the United States as a whole (it is important here to recall Harold Koh’s observations about the internal struggle in the US) – has turned against multilateralism, and perhaps international law.

To be sure, some of the challenges currently emanating from the United States do focus on the substance of international law. Disconcertingly, however, the norms that are being targeted include fundamental precepts of international law, such as the rights of refugees from conflict zones, the prohibition on torture, the prohibition on the use of force, or the rules of the world trading system.[viii]

What is more, the sense that assumptions about globally shared norms may have been overly optimistic is heightented by the fact that the same questioning of what one might have thought were robust norms occurs within relatively homogenous Western societies. Over the last year, norms around gender equality, violence against women, LGBT rights, or racial tolerance, to name but a few, have been challenged or have begun to erode within many Western democracies.[ix]

But it does not end there. Challenges are being posed not only to particular norms, or to multilateralism. We are seeing increasingly open and pointed challenges to the very idea of international law, and to the principles that animate the idea of an international rule of law. And, again, what is troubling is that the apparent backlash against the rule of law is focused not only on international law. It coincides with the increasingly cavalier or even dismissive fashion in which some leading politicians in Western democracies undermine the checks and balances of domestic law.[x] Indeed, we recently got a taste of this right here in Ontario, when the newly elected Premier threatened to invoke the notwithstanding clause to override a judicial decision. Why, asked the Premier, should the views of unelected judges prevail over those of the elected representatives of the people?[xi] In front of an audience of lawyers, I will let that question speak for itself.

The upshot is that challenges to international law are not merely a matter of souring on multilateralism, or a new spin on old concerns about international law’s legitimacy or democracy deficits.[xii] Rather, international law is getting caught up in what seem to be broader patterns of disdain for the ideals of the rule of law – generality, equality before the law, even-handedness of its application, and subjection of government to law.

Obviously, these are ideals that even domestic law does not always fully realize and where international law has been rightly criticized for falling far short. But that is not the complaint of the new challengers. Instead, the complaint is that the pursuit of these rule of law ideals stands in the way of the preferred policies of a sovereign state (in the case of international law), or of the “elected representatives of the people” (in the case of domestic law).

Here we arrive at what makes these new challenges to international law so dangerous, and so difficult to counter: they are wrapped up in and fuelled by broader social and political dynamics in Western states. Specifically, the backlash against international law is fuelled in part by economic concerns, including the uneven distribution of the fruits of globalization, valid concerns that have boosted the political fortunes of self-styled “populist” leaders.

Political scientists Ronald Inglehart and Pippa Norris have closely examined this rise of populist leaders. Based on extensive surveys and historical evidence, they show that people who take material security for granted are more open to new ideas and more tolerant of outgroups. Conversely, a sense of material insecurity makes people less tolerant of others and more likely to line up behind authoritarian leaders who purport to defend ingroup security against outsiders.[xiii]

Western post-World War II societies evolved accordingly.[xiv] The backlash against “post-material values” like freedom of expression, gender equality, environmental protection or tolerance of foreigners – and the rule of law, I would add – is not new. But, show Inglehart and Norris, the sense of stagnation and insecurity among growing segments of Western populations has powered the rise of populist parties and self-declared “strong” (read authoritarian) leaders.[xv] We can see this playing out in more and more countries in the West.

The rising inequality of income distribution and economic gains is a global phenomenon. Branko Milanovic’s famous “elephant graph” illustrated that, although most of the world’s population made income gains between 1988 and 2008, the largest total gains were made by people living in emerging economies (recall my earlier comments about the rise of new powers) (the “body” of the elephant), and the greatest absolute gains fell to the ultra-rich in Western states (the “trunk”).[xvi] Indeed, a recent, more comprehensive study suggests that the “body” of the elephant has flattened out, with fewer gains for the vast majority of people, and 27% of total income gain between 1980 and 2016 accruing to the top 1% of income earners (the “trunk” has become a long neck).[xvii] Whereas income inequality in Western industrial societies declined for most of the 20^th century, it has been rising steeply since 1970.[xviii] Inglehart and Norris warn that these phenomena – income inequality and economic insecurity – will only increase as the AI revolution begins to erode jobs for highly trained professionals.[xix]

Am I still giving the right keynote, you might be wondering at this point. Well, I am, because these developments are closely connected to the recent backlash against international law in parts of the Western world. International law is perceived to be implicated in the globalization and migration crises that growing segments of Western societies believe accounts for their economic plight. But, as I have tried to suggest, the problem goes much deeper. It is that more and more people are prepared to put their faith in populism and perceived strong leadership, while the rule of law is seen as an obstacle rather than a protector. I venture to say that, to the extent the legality is an expression of liberal ideals and pluralism, it is coming to be negatively associated with the “post-material” values of the perceived “elite.”

This brings me back to my earlier question … is there anything new? Well, not entirely.

This is Part 2 of the Keynote Speech.  Part 2 was published on November 15, and Part III will be published on November 19.

[i] See Andrew Hurrell, “Beyond the BRICS: Power, Pluralism, and the Future of Global Order,” (2018) 32 Ethics & International Affairs 89, at 91.

[ii] H.R. McMaster & Gary D. Cohn, “America First Doesn’t Mean America Alone,” The Wall Street Journal (May 30, 2017).

[iii] Peter S. Goodman et al., “Just the Fear of a Trade War Is Straining the Global Economy,” The New York Times (June 16, 2018).

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

[v] Editorial, “Trump walks away from the U.N. Human Rights Council — and rewards the oppressors,” The Washington Post (June 20, 2018).

[vi] Adam Vaughn, “Ban Ki-moon: US has caused serious damage to Paris climate efforts,” The Guardian (March 5, 2018).

[vii] See Chimène Keitner, “What Are the Consequences of the Trump Administration’s Recent Treaty Withdrawals?” Just Security (Oct. 17, 2018), at https://www.justsecurity.org/61101/consequences-trump-administrations-treaty-withdrawals/.

[viii] See Madeleine Albright, “Will We Stop Trump Before It’s Too Late?” The New York Times (Apr. 6, 2018); Jonathan Havercroft, et al., “Donald Trump as global constitutional breaching experiment,” (2018) 7 Global Constitutionalism 1; James Bacchus, Might Unmakes right: The American Assualt on the Rule of Law in World Trade, CIGI Papers No. 173 (May 2018), at https://www.cigionline.org/sites/default/files/documents/Paper%20no.173.pdf.

[ix] See e.g. Leonardo Bursztyn, Georgy Egorov & Stefano Fiorin, “From Extreme to Mainstream: How Social Norms Unravel,” NBER Working Paper No. 23415 (May 2017), at http://www.nber.org/papers/w23415 (focusing on Donald Trunp’s impact on norms in the United States).

[x] See Albright, supra, note 30.

[xi] See Richard Moon, “Doug Ford’s use of the notwithstanding clause reduces democracy to majority rule,” CBC News (Sept. 13, 2018), at https://www.cbc.ca/news/opinion/doug-ford-notwithstanding-1.4821302.

[xii] On the latter, see e.g. Jed Rubenfeld, “Unilateralism and Constitutionalism,” (2004) 79 NYU Law Review 1971; Matthias Kumm, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis,” (2004) 15 European Journal of International Law 907; John O. McGinnis and Ilya Somin, “Should International Law Be Part of Our Law?” (2007) 59 Stanford Law Review 1175.

[xiii] See Robert F. Inglehart & Pippa Norris, “Trump and the Populist Authoritarian Parties: The Silent Revolution in Reverse,” (2017) 15 Perspectives on Politics 443.

[xiv] Ibid., at 444.

[xv] Ibid., at 445-447.

[xvi] See Branko Milanovic, Global Inequality (Cambridge, MA: Harvard University Press, 2016).

[xvii] Justin Sandefur, “Chart of the Week #1: Is the Elephant Graph Flattening Out?” (Jan. 24, 2018), at https://www.cgdev.org/blog/chart-week-1-elephant-graph-flattening-out.

[xviii] Thomas Piketty, Capital in the Twenty-First Century (Cambridge, MA: Harvard University Press, 2014).

[xix] Inglehart & Norris, supra note 35, at 450.