Kolleg-Forschergruppe „The International Rule of Law – Rise or Decline?“
The Research Group brings together international lawyers and political scientists from five institutions in the Berlin-Brandenburg region: Freie Universität Berlin, Hertie School of Governance, Humboldt Universität zu Berlin, Universität Potsdam and Social Science Research Center Berlin (Wissenschaftszentrum Berlin). An important pillar of the Research Group consists of the fellow programme for international researchers who visit the Research Group for periods up to two years. Individual research projects pursued benefit from dense interdisciplinary exchanges among senior scholars, practitioners, postdoctoral fellows and doctoral students from diverse academic backgrounds.
The Research Group examines the role of international law in a changing global order. Can we, under the current significantly changing conditions, still observe an increasing juridification of international relations based on a universal understanding of values, or are we, to the contrary, rather facing a tendency towards an informalization or a reformalization of international law, or even an erosion of international legal norms? Would it be appropriate to revisit classical elements of international law in order to react to structural changes, which may give rise to a more polycentric or non-polar world order? Or are we simply observing a slump in the development towards an international rule of law based on a universal understanding of values?
Juridification and the international rule of law
Traditionally, international law was conceived as an important, yet feeble, element of international relations. However, after the end of the Soviet Union, international law went through a period in which its very structure was subject to profound change. Liberal-democratic principles gained traction and provided new impulses in various areas of international law: international security regimes rooted in international law, in particular the Charter system of collective security, increased in practical relevance, not least because ethnic-nationalist conflicts were understood to constitute challenges, which had to be tackled with new means. This included, among others, expanded UN peace missions, far-reaching measures of the UN Security Council based on a more comprehensive concept of peace, as well as the establishment of international criminal courts. Even NATO’s military intervention in the Kosovo conflict was regarded by many as another sign for the advancement of a more value-based understanding of international law embracing a general concept of ‘Responsibility to Protect’. Also, since the early 1990es, the world economic order has seen a boost of juridification oriented towards free markets: the WTO was established in 1995; bilateral investment treaties were on the rise and investment protection arbitrations expanded significantly.
A modern concept of the “rule of law” aptly characterizes this process towards an ever denser net of international legal norms since 1990. In contrast to the concept of “constitutionalization”, the term “rule of law” does not, however, impose a certain direction of the overall process, but nevertheless leaves room for moving beyond past classical “international law”. The concept “rule of law” emphasizes the notion of compliance with international legal norms more strongly and refers to a more dense idea of law, more comparable to the way it is understood in domestic legal orders. Another advantage of the concept of the rule of law is that it is used in both, international law, and in political science, and is recognized as a guiding principle at the UN level. It encompasses the advancement of rule-of-law structures in inter-state relations (“rule of law at the international level”), on a national level (“rule of law at the national level”), and on the level of international organizations (“rule of law at the institutional level”). In the United Nations and its special organizations, the concept has become an integral, though somewhat contested, part of their work ever since the General Assembly’s World Summit Outcome Document of 2005.
For some time now, however, developments have emerged that cast doubt on the idea of a global rule of law based on values – if not as a whole, at least in part and sometimes. These developments not only include specific inter-state crises, like in Ukraine, or maritime territorial disputes in East and Southeast Asia, which display a renewed thinking in terms of geopolitical contestations. Likewise, dramatic non-international conflicts with international repercussions, such as in the Middle East (Iraq, Syria, and Libya) and Africa (Mali, South-Sudan) or new manifestations of hybrid long-time conflicts (Palestine, Congo) pose questions that challenge the role of international law and its development.
At the same time, attempts of States and other actors to tackle pressing international challenges by creating new international legal rules and regimes seem to meet with increasing difficulties. In the area of climate protection, the Copenhagen and Cancun Accords (2009 and 2010) are cases in point. One can also sometimes observe that existing institutions and structures of the international community are circumvented by the use of informal structures and fora of international cooperation, such as the cooperation within the framework of the G20 and between the economically emerging states of the BRICS. The prioritization of common action in ad-hoc alliances (“coalitions of the willing”) and summit diplomacy outside the context of established international organizations (G 7/8/20, BRICS) is sometimes held to be responsible for a possible “stagnation in international law”.
Such developments and individual crises can be connected to general changes: a weakening of the hegemonic position of the US is discussed, and a move from a unipolar world to a multi- or even a non-polar world order is asserted. While scholarly international law discourse is nonetheless marked by the idea of replacing the category of national sovereignty with States’ responsibility towards the international community at large, there are by now voices that predict a weakening of this process. This could lead to national interests becoming paramount again – a “back to the future”. Such a process would have repercussions on approaches, which have perceived international law as a “law of the world population” and which predict a continuing juridification of the international legal order.
The Research Group seeks to analyse and assess the described processes of change in international law. Through an interdisciplinary approach, it aims to look past individual symptoms and monocausal models. This requires that perspectives from political science are taken into account, in particular concerning the theory and practice of international relations. Interdisciplinary dialogue can reveal diverging perceptions, and this dialogue can also serve to determine the relative importance of individual tendencies as regards the future of international law as a central normative order governing international relations. Such a dialogue would allow the question concerning fundamental changes in international law to be asked, without overestimating the importance of certain highly visible symptoms of crisis.
The analysis of these developments and tensions in international law can be undertaken on different levels of abstraction. Disciplines other than international law tend to produce macro-analyses, in political science, for example, in the form of new paradigms (“non-polar world”), or historically oriented approaches in the form of a new epoch paradigm (“post-cold-war period”). International law scholars themselves often tend to focus either on a micro-analysis of certain critical events or conflicts and special norm analyses, or on macro-analyses (“constitutionalization”, “fragmentation”, “pluralisation”), which neglect the importance of concrete shifts or symptomatic events in international relations. Empirical social sciences, in turn, question the given assumptions and test models, but they tend not to evaluate phenomena normatively.
The Research Group aims at an assessment on a middle (meso) level of abstraction: current developments in international relations will be explored from the different angles of international law, political science and also from a historical perspective. Comparing these angles will then enable the Research Group to formulate an informed diagnosis about possible factual and normative lines of development of the international legal order. This will take place from three different research perspectives, which the Research Group refers to as Values (1.), Structures (2.) and Institutions (3.).
The idea of a legal order presupposes a minimal set of common, legally recognized values. In particular, significant strands of political science have perceived a juridification of the global protection of human rights, which had made significant advances in the 1990s, as evidence of a general development towards a value-based international order. The equivalent idea in legal discourse is that international law developed from a formal order, which was value-neutral, towards a more value-based order, designed to serve individuals. Such macro-analyses, however, tended to neglect decisions and processes, in which such values are either disputed or rejected. Shifts in emphasis, like they occur in the jurisprudence of international courts, but also in modified State practice and political prioritization, are not always taken sufficiently into account. The Research Group will approach the identification of such an order by putting special emphasis on such shifts.
From its perspective “Values”, the Research Group will investigate to what extent counter movements against the international rule of law have questioned the achieved acquis of values in international law, and which actors take part in this process. Is the alleged process of juridification based on values continuing or may one observe that legally protected values are seriously questioned and possibly undermined? Are different, opposite values advanced, is the protection of values by international law rejected as a whole or is the dissent directed only at certain forms of their legal-institutional enforcement? Is it necessary to again build international law on more formal legal concepts?
The Research Group will evaluate whether certain premises of the modern international rule of law need to be reassessed. Are recent challenges a sign for a continuing growth of international law, or rather for the emergence of a paradigm in which sovereignty, non-intervention and state-controlled economy are once again emphasized more than human rights, democracy and free trade? Although it will not be possible to give a general answer to this question, it is nevertheless important to identify changes in emphasis for the discourse and the self-conception of states and other actors of the international system.
The articulation and rebalancing of principles of international law, in particular by the UN Charter or in the Declaration on Friendly Relations, is a means for determining the contemporary state and role of public international law. Assessing the sources of international law also contributes to the diagnosis of its current state: Whereas the codification movement of the twentieth century wanted to replace customary international law by treaty law, today one must ask whether the perceived stagnation in the conclusion, ratification and amendment of treaties does not, on the contrary, lead treaty law to be “overgrown” by custom-like practices, informal instruments and commentaries of varying authority. In order to determine the current and future role of international law it is, first and foremost, important to know where, why, and if so to what extent which form of regulation is practiced. It should then also be clarified whether a lack of treaty norms can be compensated by informal instruments or general principles of law. In this context the Research Group will also examine the importance of classical international legal norms and rules, the applicability of which is, in an altered context, no longer certain, but which some actors carefully amend and reinforce in paralegal processes.
The Group will also assess whether informal forms of law creation and enforcement are based on a need for accelerated law-making on the global level, on the need to take into account or circumvent national democratic processes or on the easier production of consensus in substance. Informality may also mask dissent in substance, which becomes apparent in times of greater tension and would have repercussions on international law.
In recent years, institutions beyond the State, in particular, international organizations and international courts and tribunals, have been perceived as critical elements in fostering the enforcement of international law and the international rule of law more generally. The Research Group will consider and analyze whether this perception continues to be a valid one in light of a quite dramatically changed international environment.
The Research Group will consider the current and future role of dispute settlement institutions, as well as that of international criminal courts within the international legal system. Has the perceived juridification of international relations already reached its peak – or has it even passed its culmination point? Are we thus facing a trend ‘backwards’ towards more ‘traditional’ State-oriented dispute settlement methods, such as negotiations? Are States becoming more reluctant to actively participate in international proceedings, and do they even start to challenge the legitimacy of international courts, even those the jurisdiction of which they had previously accepted? And what role will and can the ICC play in fostering the international rule of law in light of the challenges it is currently facing?
The Research Group will also consider comparable developments concerning international organizations, which may hint at similar challenges when it comes to the international rule of law. In particular, the Research Group will focus on the protection of individual rights vis-à-vis acts of international organizations, as well as on the question, whether international organizations abide by their own internal rules, those two issues being two particularly pertinent current examples at hand for the role international organizations may play when it comes to the international rule of law.
The Research Group will thus analyze, under this research perspective, which role international courts and tribunals and international organizations might play in the future international legal system. Will their role become more limited in coping with less important and merely technical issues only, while the more fundamental issues will again be solved by States themselves? Will international courts and international organizations themselves take this into account and become more sovereignty-oriented and State-centered?