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"Decline or Transformation? Norm Change and Values in International Law"
Interdisciplinary Workshop of the Berlin Potsdam Research Group
“The International Rule of Law – Rise or Decline?”
Berlin, 24 – 25 November 2017
Report by Simon Blätgen
To what extent have counter movements against seemingly solid international norms and institutions questioned the achieved acquis of values in international law? Is the 1990s- trend of value-based juridification eroding? Is what we currently observe an outright rejection of value protection through international law or is the dissent directed only at certain forms of their legal-institutional enforcement? How resilient are existing international norms? Does the legal character of a norm make it more resistant to change?
It is a set of most challenging questions that the value-perspective of the Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?” is asking. The Workshop “Decline or Transformation? Norm Change and Values in International Law” was an important stepping stone in developing answers to them. Andrea Liese and Heike Krieger set out to create a fruitful dialogue between the disciplines of international relations and international law, to use synergies in answering questions that none of the disciplines could answer alone.
“We truly believe that we benefit from putting the best cards of each discipline on the table.”
With these words, Andrea Liese opened two days of intensive work. She invited a diverse group of scholars, composed equally of international lawyers and international relation scholars, to “stimulate debate, sharpen our toolboxes and widen our empirical knowledge”.
The workshop began with two conceptual and methodological panels: First, Erika de Wet discussed ius cogens as a legal embodiment of fundamental values of the legal order and demonstrated the legitimacy challenges stemming from it. Shirley Scott commenting on Erika de Wet’s contribution, discussed the role of the law and its values in relation to (state) power. The legal institutionalisation would speak to the preparedness to uphold a norm even when it doesn’t appear to be in the own strategic interest. Together, they framed the workshop’s main thread ‘How international legal norms, non-legal norms and values are related’.
Then Thomas Kleinlein and Wayne Sandholtz took on the question of ‘How to conceptualize and evaluate change of norms and values in the international legal order?’. Kleinlein discussed the role of interpretative communities in handling norm change legally and pointed out that we “cannot simply equate normative strength and stability”. Sandholtz, referring to the metaphor of a frog unaware of being in increasingly boiling water, asked whether “Winter is coming?”, as norms are coming under stress from non-compliance and from challenges to their underlying validity. On a more hopeful note, he pointed to the important role of legal institutionalisation for norm defenders to draw upon and the fact that international norms and institutions serve real interests, and as those norms are challenged, those who benefit from them should be expected to defend them.
In the second phase, the 50 academics attending split in 3x2 parallel sessions, comparing cases of potential norm change across different issue areas, selected to cover different degrees of legalization and norm age as well as areas where the priorization of the underlying values has apparently been shifting over time.
In Panel 1, the ‘Contested norms and cultural conflicts in development aid’ were the central issue. Helmut Breitmeier focussed on the consideration of sustainability in the global regime complex for food and the norm concepts of food security, nutrition security, food safety and food sovereignty and the interplay between different norm entrepreneurs. Peter-Tobias Stoll presented a specific case study on genetically modified organism (GMOs) and the tension between the ‘precautionary approach’ and a ‘science-based approach’ that translates into a tension between the legal regimes on environment and development on the one hand and trade on the other.
Panel 2 analysed if we witness a ‘contesting of the nuclear taboo?’. Nina Tannenwald presented the “de facto norm against the first use of nuclear weapons” as a case for analysing normative contestation. While the taboo is widely shared in the international community, it is implicitly contested by certain nuclear doctrines. She argued that contestations might increase with the conclusion of the Nuclear Weapon Ban Treaty, but that the treaty will likely have political effects even in nuclear-armed states that did not, and will not, sign it. Mirko Sossai started from the observation that the formalist international lawyer’s unease with constructivist theories of norm evolution limited international legal scholarship’s engagement with the concept of ‘nuclear taboo’. He argued that the issue of the legality of nuclear weapons is an interesting challenge to the approach in international legal scholarship that seeks to consider prevailing values and their relevance to the legal system and to explain the dynamic nature of international law within the realm of a positivist conception.
The human rights oriented Panel 3, discussed whether ‘the prohibition of torture is eroding?’. Max Lesch and Lisbeth Zimmermann, argued that the prohibition of torture is globally neither rising nor declining, but that its robustness remains rather constant – albeit on a rather low level. They submitted that crises of international law do have the potential to have productive effects and there is first evidence that this is what we observe regarding the U.S. war on terror. Vera Rusinova painted a very different picture and insisted on an erosion of the prohibition of torture. As eroding forces she identified a shift of values that has made more restrictions of freedom more acceptable in the interest of fighting terrorisms. She posited a real risk of the ethics underlying the anti-torture norm being reduced to a matter of preference.
“It’s crucial to understand the puzzle of symbolic compliance and façade policies”
Who contests women’s rights norms, why and with what success? These questions guided Panel 4 on ‘International women's rights: contestation, translation, universalization?’.
Conny Roggeband presented women’s rights as a case in point to analyse how norms progressing in the 1990s have come under pressure by transnational counter-movements. She pointed to an apparent correlation with the “hollowing and backsliding democracies”, and backlashes against the alleged “imposition” of global norms. Analytically, she insisted on differentiating the content and character of norms, the preconditions of the area and to compare actor dynamics. She posited that “its crucial to understand the puzzle of symbolic compliance and façade policies”: Reluctant or oppositional governments do not necessarily (have to) withdraw from conventions or change laws to transform policies into dead letters. Christopher McCrudden presented on the use of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by domestic courts and identified aspects of the domestic functions of international human rights treaties as significant, such as international human rights law being only partly internationally-directed, that domestic courts seldom appear to be acting as ‘agents’ of international human rights law, and that ‘human dignity’ acts as an important meta-principle. He emphasized the importance of embracing contestation, judicial institutions, and social activism in theorizing human rights.
Panel 5 covered the challenging question ‘The ICC - between the internationalized fight against impunity and focus on sovereignty?’.
Adam Bower sees the International Criminal Court (ICC) as a focal point for the development of a global norm of anti- impunity and criminal accountability. Sovereignty and accountability should not be regarded as irreconcilable values, but rather ideational resources that actors draw upon to frame, justify, and adjudicate their policies, with competing prioritizations driving the discourse. He concluded that there is no universal agreement on the content of an anti-impunity norm, but that most contestation takes place through international law. This reliance on legal practices could serve to reinforce an international rule of law, even as specific features are in dispute. Malcolm Jorgensen presented a case study of ideological values and normative evolution regarding the US opposition to Article 12(2)(a) of the ICC statute concerning delegated jurisdiction. Against the backdrop of different conceptions of US foreign policy, he argued that the contestation surrounding the ICC exemplifies the nature of the rule of international law, which due to ideological lines cannot be a static end state for normative order. He submitted that the current ICC Afghanistan investigation demonstrates the process of legal norms evolving toward less contested outcomes, while remaining bounded by the constraints of ideological values. This commitment to legal institutions even when contesting he sees as evidence for the rule of law.
Panel 6 took on the challenging issue ‘The prohibition on the use of force and its justifications: plus ça change?’.
Theresa Reinold theorized changes in the area of military interventions, seeing them as evidence of a profound transformation in the international legal system. She argued that the emergence of dissonance within a legal system – or vis-a-vis its political environment – is a driver of normative change, with the system striving to reduce dissonance. Taking self-defense as an example, she demonstrated that the broadening of the rules governing the use of force was due to a perceived incoherence between the law before 9/11 and the political imperative of effectively combating terrorism. André de Hoogh, alluding to the legal complexities, sees the avoidance of war and forceful territorial changes as the value underlying the prohibition of the use of force. To him, the reaction of the international community against the annexation of Crimea by Russia was therefore disappointing. He argued that the norm of self-defense (Art. 51 UN Charter) is most in motion. With the ICJ rejecting a right to self-defense against non-state actors and contrary state practice, he sees a tension rising that should be dealt with carefully, by refraining from assuming a change in customary law too quickly.
In the third and last phase of the Workshop, all participants convened for a concluding plenary session, bringing together the insights from the parallel sessions. Based on panel-reports by the post-doctoral researchers Velimir Zivkovic, Alexandros Thoki, Yuwen Fan, Dana Burchardt, Balingene Kahombo and Björnstjern Baade, an intensive debate about conclusions from the different cases developed.
“Silence would be the worst indication for a paradigmatic shift”
Heike Krieger concluded the workshop by combining a tentative synthesis of the results with some general observations. She pointed out that while “we can detect a paradigm change when we see it, what remains so difficult is the interpretation of the direction of change”.
Contestations and debates about where the law is going, she posited, are an inherent feature of the law. They do however confront scholars and practitioners, with a normative value decision of “where to draw a bottom line and to resist”.
She insisted that the current struggle for international law is not a power free discourse in the Habermasian sense, so that geopolitical changes may exert an impact on legal interpretation. If states and other interpretative communities do not defend law and liberal values, she urged, “silence would be the worst indication for a paradigmatic shift”.
Note: The collected papers are envisaged to be published in an edited volume. The KFG will make further announcements in time.