Dr Carmen Pavel is a Senior Lecturer in International Politics at King’s College London.
Carmen, in your latest work, you provide a moral justification for developing international law. With recent political trends, it is becoming clear that people feel they are losing their ability to govern themselves. How can we justify developing stronger international law while delegating maximum control to individuals?
I think you identify the challenge exactly right. Many people fail to appreciate the vast role international law already plays in our lives, or if they do, they tend to worry about it as a challenge to state sovereignty and local democratic control. International law regulates many areas previously considered the exclusive prerogative of sovereign states, from tax rates for imports and subsidies to domestic producers to environmental protection, control over territorial waters, or the treatment of citizens and foreigners residing on a state’s territory. There is widespread skepticism of the role and value of international law and its ability to accommodate state-based legal systems. Some of the strongest resistance comes from defenders of constitutional democracy, who worry that international law erodes the supremacy of domestic constitutional rules and undermines projects of collective self-determination at the state level.
While I don’t deny that skepticism is legitimate to some extent, my new book defends the project of developing international law against the critics who misunderstand the value and legitimacy of international law. The basic argument is simple: the same reasons we have to develop law at the state level, such as peace, the protection of individual rights, and the resolution of collective action problems, are reasons to develop it at the international level. In fact, the very existence and adequate functioning of state-based legal system depends on rules at the international level that restrict the use of violence and prevent states from interfering with the internal affairs of other states, on the accountability that supranational human rights bodies provide in case of large-scale violations of human rights, and on solving collective action problems such as catastrophic climate change.
I also argue that international law could be compatible in principle with respecting state sovereignty when the latter is not understood in absolute terms. International law is of course not compatible with complete and absolute control of sovereign states over their actions, territories, and citizens. Nor should states be allowed to define their sovereign prerogatives in this way. This line of argument builds on my previous book, Divided Sovereignty: International Institutions and the Limits of State Authority (OUP 2015), in which I show that states as means of institutionalized political control are structurally ill equipped to resolve the problem of ‘who guards the guardians,’ and thus international law and institutions can provide additional layers of oversight and control to insure that states remain within the legitimate bounds of their authority. Citizens should consider thus dividing sovereign authority between states and international institutions, and this kind of division is perfectly compatible with collective acts of self-determination.
Yet to be compatible, the legal systems of existing states and international law should make efforts at mutual adjustment. This will require important changes to some (but not all) of the claims of legal supremacy of sovereign states, and a recognition in their legal systems of the role international law must play in securing goods that all states and their citizens need, such as international peace and justice.
Your new book does not claim that any kind of international legal system will do. What features should international law have? And how do we get countries to support them?
To be acceptable, international law must be more effective at securing international peace and solutions to collective action problems. This means in the first instance that it must be more robust, and contain institutions with greater authority to create, enforce, and adjudicate it. Take adjudication for example. While the last few decades have witnessed the expansion of international courts, they still operate on the basis of state consent. This means that if states refuse to recognize the jurisdiction of a particular court, a case cannot be brought against that state before the court. Thus, lots of disagreements and conflicts about how best to interpret and apply international law, or claims about its violation, are left to diplomatic negotiations, where powerful states can twist the arms of weaker states to get their desired outcome, or remain unresolved.
Second, robust international institutions present dangers of their own, and this is why they should be governed by rule of law principles that clearly delineate their authority, control their exercise of arbitrary power, and protect the autonomy and equality of the subjects of international law, including states. The concern about international legal institutions abusing their power is not just theoretical. In Kadi, the European Court of Justice found that the lists created by the Security Council of individuals and organizations alleged to have aided and abetted terrorist organizations did not provide a justification for inclusion of particular names on the list or the possibility of challenging such inclusion. The Kadi decision is an important reminder that international institutions themselves can violate individual rights such as due process and property rights and must be restrained in their ability to do so.
Third, and more controversially, I argue that the best way to secure the principles of the rule of law in international law is to create a constitutional relationship between international and state law. A constitutional pact that clearly delimits the areas in which international law is binding over states with or without their consent, and protects state sovereignty from interference from various international law organs is how we ensure stability, coherence, and legitimacy in the relationship states have to international law.
If this sounds like an ambitious proposal, it is. But even if it is not achievable immediately, it gives us some guidance about the direction of travel for reforms in international law. The process of strengthening and constitutionalizing international law will be marred by contestation and disagreement, and many states will refuse to support it for a variety of reasons, some having to do with the difficulty political elites experience in relinquishing control. Therefore, the book supports the effort to build the necessary justification for reform in international law. It aims to give reasons to citizens, NGOs, diplomats and international institutions to develop a more muscular system of international law, but also one whose authority is better defined and circumscribed.
Reflecting on the rise of national socialism in the 30s, Michael Polanyi once wrote that “all people of the West will have to undergo some assimilation towards a more uniform type of man” and the basis of this order would be “the rule of law, equal citizenship and a religion similar to early Christianity with its admixture of Greek philosophy.” Who gets to choose the values of the international order? Should we go with Polanyi’s vision?
Polanyi’s vision made me smile. The idea that the goal of the international order is the “assimilation towards a more uniform type of man” is naïve and dangerous, and calls to mind the totalitarian projects of the 20th century. But his dream has a noble dimension too, that of a world governed by the rule of law and equality in the protection of individual rights. International law cannot achieve strict equality of rights in my view, but it can prevent some of the worst abuses states inflict on their citizens, such as genocide and war crimes.
Yet behind your question, and Polanyi’s dream, lies a fundamental challenge: how do we build a system of international law that is fair, inclusive, and just? Luckily, we have made some progress on this challenge. The recent history of international law, particularly in the last 70 years or so, has seen a gradual agreement in the form of treaties on norms, values, and principles that are fundamental to the international order, such as sovereignty, equality, the importance of self-determination through the condemnation of colonialism, the protection of basic human rights and accountability for their violation, principles of fairness in trade, and the recognition that we face many problems that transcend national boundaries which require cooperative efforts.
The existing treaties are far from perfect, and they have often failed to be sufficiently inclusive or take account of various states’ interests, but it would be a mistake to deny that we have come a long way, and that we have a solid basis on which to build reform to make this process better and more inclusive. This kind of challenge will be the topic of my next project on global public reason, which asks what kinds of justifications we can offer for the institutions of international law that respect people’s diverse views and a legitimate range of variation in their visions of what constitutes a just world.
It seems like there is a tension between strengthening the legitimacy of international law and at the same time offering individuals a sense of representation. How do we best maintain our means of self-governance while committing to a rules-based world order?
Studying the institutional alternatives for a rule-based world order is a project that deserves its own discussion and book. Such alternatives can range from a polycentric order to a world government. We might even be able to separate, at least conceptually, the question of what kind of institutions are best from the question of how to make these institutions inclusive and responsive to the individuals they affect directly or indirectly.
Although designing intuitions for the globe may seem daunting, we have a large repertoire of institutional options to draw from the experience of existing political communities. In terms of inclusivity, for example, we can rely on various forms of representation developed in the context of large liberal democracies: representation along geographical lines or political sub-units, descriptive and proportional representation, or a combination of these. Legitimacy and inclusiveness are not at odds, but rather entwined. Legitimacy depends on adequate representation and a sense that institutions are supported and obeyed for the right reasons by the people to whom they speak and from whom they demand compliance. Inclusivity is thus essential for legitimacy. But we should be careful not to oversell it.
For certain kinds of basic norms that protect fundamental interests, such as the interest not to be killed or be the victim of torture, inclusivity is desirable but not essential. This matters where we face trade-offs between getting the norms off the ground with less inclusive procedures due to the barrier to representation of people living under authoritarian governments, or wait until we have full adequate representation to do so. I would defend the former strategy as a precondition for achieving wider inclusion for shaping other rules.
In terms of the shape of the institutions, I lean towards a more polycentric order, and in Divided Sovereignty I devote a chapter explaining why. Rule-based order is compatible with a multiplicity of institutions that divide their prerogatives to make, apply and interpret the rules. The addition my new book makes is to argue that the best way to achieve that order is for the various institutions to operate within a common constitutional framework, but I see no reason why such a framework would require a world government.