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International Law - Rise or Decline?
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The General Question


Traditionally, international law was conceived as an important, yet feeble, element of international relations. While after the end of the Soviet Union a process of juridification of international relations accelerated, opposite trends have emerged recently.

Juridification and the international rule of law

After the end of the Cold War 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.

Challenges

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 (G7/8/20, 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.

See also: Three Perspectives

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