On this week’s episode of the Governance Podcast, our Director Prof. Mark Pennington interviews Prof. Carmen Pavel from the Department of Political Economy at King’s College London. This episode is titled “Sovereignty and International Law”, which features Carmen’s recently published book with Oxford University Press, Law Beyond the State.
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Dr. Carmen Pavel is a Reader in Philosophy, Politics and Economics in the Department of Political Economy at King’s College London.
Dr. Pavel specialises in political philosophy and the history of political thought. Her interests include international justice and international law, liberal theory and contemporary challenges to it, and ethics and public policy. She received her Ph.D. from Brown University and then served as a postdoctoral fellow and lecturer in the Program in Political Philosophy, Policy and Law at University of Virginia and subsequently at the University of Arizona.
She is also the author of Divided Sovereignty: International Institutions and the Limits of State Sovereignty and, with David Schmidtz, is the co-editor of the Oxford Handbook of Freedom.
Welcome to the Governance Podcast hosted by the Centre for the Study of Governance and Society here at King’s College, University of London. My name is Mark Pennington, and I’m the Director of the Centre. Regular listeners to the Governance podcast will know that the Center’s work focuses on governance challenges that impinge on questions of peace, prosperity, and ecological security. Within that context, the relationship between rules of governance that operate at the local, national and international levels is a central concern. I’m very pleased, therefore, to have with us today, someone whose work examines from a normative standpoint, but one informed by empirical work, what those relationships should look like. Dr. Carmen Pavel is a leader in international politics, and a colleague here in the Department of Political Economy at King’s. Carmen’s work looks at the philosophy, politics and economics of international law. She’s the author of Divided Sovereignty, published by Oxford University Press in 2015. And a new book just out with Oxford University Press “Law Beyond the State : Dynamic Coordination, State Consent, and Binding International Law”, which will be the focus of our discussion today. So Carmen, it’s great to have you with us.
Thanks for having me.
Okay, so I wonder if we could start off by you telling us a little bit about what sparked your academic interest in the question of international law? Why did you get into this as a topic?
Thanks. There are a few different reasons. One of them is that I grew up in communist Romania, which is a country with a terrible human rights record historically. So one of the central questions that I had, and one of the reasons I got into political philosophy, was to examine how we can constrain states from committing large scale abuses against their own citizens. This is, in fact, the question of my first book. But in that question, I looked at distinctively structures and institutions outside of the state and place some limits on what states do to their citizens, because in the philosophical literature, and in political science, there’s a lot of attention paid to domestic institutions, to electoral systems and the design of constitutional rules and so on.
And I wanted to leave that aside, because in countries and there are many countries around the world who don’t have those domestic constraints, there is an additional question about what international institutions can do. And by looking at some examples of what those constraints might be in the area of, say, human rights, or genocide or crimes against humanity, I ended up being quite interested in how they operate as part of a system of rules, a rule based system of international law, and what that means for both the existence of international law, what counts as law at the international level, but also what it means for the legal subjects, such as states, which are corporate agents. Obviously, corporate agents have their own internal rules, unconstitutional rules, and their own reasons to resist interference from the outside. And so it’s both a philosophical interest and whether law is possible at the international level, coupled with a sort of a very practical interest of how the interface between that international and domestic law looks like that led to this book.
Okay, that’s great. So I mean, this new book and the previous book, really do they address this question of what is the appropriate relationship between sovereign states and international law? And thinking about how questions such as trans boundary externalities, for example, I dealt with in that context, but I guess before we can actually address the notion of international law and the role it may have, we actually first need to understand what we mean by the term law itself. So can you tell us in your understanding what actually is or what is the purpose of law? What does law do?
Thanks, Mark. One of the reasons why I like sort of looking at international law is because it raises really fundamental questions about our received conceptions of what law ought to look like. A lot of our model of law comes from a state-based legal system. And it assumes something like a centralised legislature and enforcement capacity. But international law sort of turns that on its head; turns that conception of law on its head. So, for example, a very influential conception of law in the domestic system is John Austin’s conception of law. Austin said, “Law is the command of the sovereign and was not bound by any commands himself”. And, of course, he points out a centralised person who, whose rules and is not bound externally by anything else. Because if it’s, if a sovereign is externally bound, they’re not sovereign. And, and I think this model, although challenged, and pretty much discredited in the philosophy of law, is still very powerful to us as a representative of what we go to when I think of law. International law, of course, doesn’t fit at all within that model, because there’s no global states. And a lot of law is made contractually, by states agreeing bilaterally to certain rules, or multilaterally, to rules that bind a large majority of states, or almost everyone, as the case is for the UN Charter, for example. So, we need a different understanding of what law is and what it does for us.
To the question of what law is for, there is no single answer right? Law plays a variety of roles in our lives, and serves many functions. One is, you know, self preservation, conflict resolution, providing impartial arbitrators for disputes, enabling cooperation and productive use of resources. Managing externalities, helping us sort of to live our lives freely and independently without getting in each other’s way, enabling processes of projects of social solidarity and public goods. So law doesn’t do one thing, it does many things, and historically has provided a variety of social functions. And international law is the same thing. So it protects the system in its existing form. International law protects state sovereignty. So it protects states from interference from other states. This is physical, such as armed interference, but also interference coming from say, increased pollution or the pollution of waterways and other shared resources. It enables the setting of certain sovereign territorial rights, what we in domestic law might call property rights. So for example, the Law of the Sea treaty regime defines territorial waters. So what counts as a state’s sovereign territory is within its territorial sea and rights over the exploitation of oceans resources, beyond those territorial waters. It’s also naval states when they have disagreements about what the rules are to go to a court and settle that disagreement peacefully as opposed to via political or military means and it’s increasingly enabling states to deal with commerce problems, such as depletion of the ozone layer, and in very small steps, but increasingly so I would say, with climate change. So those are various sorts of functions in international law.
But again, coming back to your question in terms of the model that helps us think about what makes international law law, I found Hart’s conception of law among the most helpful although it has sort of significant shortcomings. So Hart said that law is a combination of primary rules that guide behaviour, the behaviour of the last subject, and secondary rules rules about making, changing, and applying law that legal officials adopt and internalise as the internal point of view and regulate the function of the law. And so a system that has those characteristics, namely a primary system of rules that directs the behaviour of the legal subjects and this secondary set of rules that direct how those primary rules ought to be made, interpreted and change; that counts as a legal system. International law in my view has those features, though imperfectly, as I argue in, in an article called ‘Is International Law a Hartian Legal System’? I think it does so imperfectly. And I think Hart himself was a bit, sort of simplified a bit too much his own view about the necessary features of the law. But I think as a progressively developing system of rules, international law is already exhibiting some of the most important features of a legal system. So that’s sort of to make a long story short, I think international law is very much law-like, in a lot of respects. My book is about how to make it more law-like in the right way and avoid the dangers that come with strength in our legal system and legislation that we are familiar with from domestic ecosystems.
Okay, that’s great. I thought that was a great definition. Very clear. So I mean, you mentioned that, in your view, we do have something that’s like international law. But it’s also imperfect, if not highly imperfect. And one of the imperfections, you know, one of the big imperfections that you identify, there’s this tension where for international law to be law in the usual sense, it would have to be universal, and there have to be sort of credible enforcement powers. But this comes into direct tension with the idea of state sovereignty, where states are unable to make their own laws. And to a large extent, they only sign up to international law via voluntary treaties. And even when they’ve signed up to those treaties, and they’re subject to various international legal rules, they can then interpret those in terms of their own national traditions. And you point out how this generates a sort of tension where countries can effectively sort of opt out of the system. And this is not just you know, wealthy countries like the United States, reneging on climate change obligations, you also point out, it can be relatively weaker countries or less rich countries, like China and India, for example, not signing up to climate change agreements. So can you say a little bit about the kind of measures that you think would overcome what you see as being these weaknesses in the current system?
The book is aimed really at two audiences, one as towards a group of people who are skeptical that international law is necessary or can be effective. And I try to show that international law, there’s a justification for international law that borrows from a sort of thinking about the necessity for law more generally. And second, the second type of audience is people who already support international law. But I want to show that international law understood in a robust way is a lot more demanding than even its supporters realise. It is demanding precisely because it suffered from certain structural flaws to which you’re referring to right now. One structural flaw is that treaty law, when international law though not customary law, and a number of other rules and norms that apply without state consent, the treaty law applies primarily with state consent. And this is in one of those secondary rules of international law, namely the Vienna Convention on the Law of Treaties that says ‘no treaty should apply to a third party without a party’s consent’. But in a consensual legal system, what we have are a certain set of rules, say in any legal system, you want a certain set of rules that ought to be non optional. I would argue, you know, it’s sort of a complicated case to me. I think the same is true in international law precisely because you have collective action problems, and you have problems of peace and order. But also importantly of large scale human rights abuses, most of which happen internally, you need a certain set of rules that bind everyone. But that’s very difficult when state consent plays such an important role in structuring the relationships among states. So one of my arguments in the book is that for a narrow set of international rules, state consent should play a much smaller role or no role at all, in making those rules. And that would be a significant departure from the existing system of international law. But it also would involve an important cost to state sovereignty. And in my previous work, I show that this cost of sovereignty is justified, we’re justified in imposing costs on sovereign states for the sake of the individuals living in them. Namely, that the institutions of a state should not be the institutions of last resort to judge what happens on the territory of a state because of the significant failures that we know historically have taken place once states are the last sort of deciders, enforcers and interpreters of their citizens rights. And so an appropriate conception of sovereignty is not absolute sovereignty over one’s citizens and territory. But it’s a constrained account of sovereignty, one that leaves considerable scope for states to govern themselves internally, and for communities to engage in processes of self-determination and self-governance, but also places limits on what those communities do both internally and how they interact with other states.
That’s sort of the general point, the general argument that I tried to make, that the international ought to impose some general constraints on states when it comes to, for example, the use of force, when it comes to rules protecting citizens from the violence inflicted by states. And also when it comes to a certain rule-of-law requirements that international law imposes or ought to impose on our states as legal subjects, namely, allowing all states access to peaceful dispute resolution mechanisms. But that’s not possible in the current system, because a lot of courts have to have the consent of both parties in order to proceed with a legal case. And often perpetrators of violations of legal rights of states refuse consent to courts, just as we would expect certain perpetrators of violence in the domestic case like individuals or violence to refuse consent to courts for jurisdiction. So two states refuse consent to court to international court. So they can do that, because consent is so important in legal authority and exercising legal authority at the international level. So these are some of the reasons why I think international law ought to have some general binding rules. Of course, not all international law ought to be like this. So there still can be considerable scope for international law to be consensual and respect a quite substantive and a large understanding of state sovereignty. But on certain matters, I would argue that international law should not be optional.
Okay, so that’s a good sort of point to go into the next question that I wanted to ask you about this when you talk about this being non optional. Because I guess there are a number of objections around the implications of anything that is non optional. And one of those arguments would be that if you create that kind of structure where in a sense, people cannot exit from it, it becomes unaccountable itself. So if the reason for having the law in the first place is to deal with various abuses, but those abuses are not actually being addressed within states that we currently have, why would we think that they would not simply be replicated at some higher level? So there’s that kind of argument which is really that, you know, within nation states, governments arguably abuse people’s rights, they allow externalities to take place. Why wouldn’t this simply happen at a higher level if we have international law performing various functions? And I guess the second unrelated objection is a kind of what I’d call a sort of accountability argument. And you could say this was very influential in the, the UK Brexit vote, whatever one thinks of that, where from a large number of people’s perspective, the European Courts, which have got some aspects of that kind of international law aspect to them, were unaccountable to the values of the people in the UK, or at least a significant number of people. And therefore, people felt, well, why should we take any notice of these rules? They’re not reflecting a particular set of cultural standards or the way we think that various crimes, for example, should be dealt with. So how do you respond to those kinds of accountability type objections?
Thank you so much, Mark. I think they’re very serious. And in a sense, they form very much the kind of model of law that I think is defensible. So I do take those worries very seriously. Because I think we all know very well, all law is prone to certain kinds of pathologies of abuse and misuse, and of encroaching the legal subjects’ liberties and inequalities. And I think a similar concern ought to inform how we think about international law as well. So the question is, how do we strike the balance between having a more robust system of international law, but at the same time, keeping that system, as you said, accountable, and making sure it doesn’t sort of overwhelm the capacity of states to make decisions about public policies? Policies that enhance their citizens welfare, free from interference from the outside? So one of the areas that I think there’s quite a few parallels between international law and domestic law is that I think, an ideal such as a rule of law, namely certain sort of formal and substantive requirements in law that we think of in the case of domestic law, such as equality before the law, government bound by law, access to courts for the peaceful resolution of disputes and rules that are consistent, and perspective and so on. Those rule-of-law requirements are relevant in the case of international law. And one of the reasons they’re relevant, though not the only reason, is that they enable us to constrain legal institutions themselves. Yes, they enable us to set rules and procedures that the institutions themselves ought to follow in order to create, interpret and apply law. So one of those rules of accountability is, say things like an impartial judiciary. So that’s sort of, it’s an important moral ideal in the rule of law.
An impartial judiciary is important because you want the judiciary to be able to challenge the authority of other sort of functions, and in a system such as the executive where the enforcement capacity or sort of the agents that make the law, right, and so they ought to make it respecting certain kinds of principles. So far in liberal democratic systems, those constraints are typically considered to be individual or group rights. Yeah. So I think those rule of law principles ought to inform international law. So one, one important option of the independence of the judiciary principle is that international courts ought to be designed in such a way as to create or, to the extent possible, a system of impartial adjudication. And this is an interesting, I think, one of the areas of international law that I think does quite well. Many international courts have judges drawn from a variety of geographical regions and legal backgrounds, there are majority requirements to their decisions, and and so I think they’re much less subject to political influence than even many domestic courts.
So one way of creating accountability is to design institutions appropriately so that they’re less subject to political capture by powerful states. Another way to ensure accountability is to not give too much power to international institutions and disperse that power among several nodes of agencies. And one of the one of the great benefits of having a decentralised system of international law is we don’t, we don’t have to start from a centralised basis and take power away. We already have quite a sort of a system of, of unrelated powers. So for example, international law is not made up of one coherent body of legislation, but of legal regimes that have governed different areas of state interaction. Okay, we have the Law of the Sea, we have international economic law, we have human rights law, we have humanitarian law, we have, foreign investment laws. And those operate independently of each other, they have their own set of systems of courts, and their own rules of both primary and secondary. And I think the structure of international law is such that we can expect it to play a really important role in maintaining accountability across the system.
And the other one, of course, is to define more specifically, the competencies and authorities of the international institutions themselves. And we don’t have that. There’s no articulation right now in international law of those limits. So for example, the Security Council is quite problematic in this respect, because it can make rules. It doesn’t even have to give a reason for the rules it gives, for the rules it makes, and there’s no opportunity to review its decisions or challenge them. And we’ve seen this very clearly in this case that came before the Court of Justice of the European Union, when the Security Council engage them. On anti terrorist legislation, they’ve created lists of individuals and organisations that were thought to aid and abet terrorists. And, it required member states, including the European Union, to subject those individuals and organisations to confiscation of the property and freezing of their funds. And the number of individuals challenged this implementation of the Security Console before the Court of Justice of the European Union. And the Court of Justice found that actually these rules violate property rights and due process rights of these individuals, because individuals and organisations are given no reason why they’re included on such lists nor a way to remove themselves from those lists, right?
So we have, so basically, that kind of legislation was scaled back in the European Union, but not in other places around the world, which means that the Security Council still has this quite unaccountable power and reach over individual lives and over sort of private associations, and nonprofits and so on. So one of the other important ideas of the book is that we need a system of constitutional rules for international law, that define clearly the authority of institutions like the Security Council, and also specify the ways in which they can be pulled accountable, held accountable, and their decisions reversed, if inappropriate, according to other rules that we think are important, such as due process or other kinds of rights that individuals and organisations ought to have. So this is to make a long story short, but there are multiple avenues of accountability. And I think we ought to take those very seriously in rethinking the nature of international law precisely for the reasons I suggest.
I was just gonna ask this question about constitutions. So I can see the argument where some kind of constitutional provisions provide the restraint on international power. And you can think of different kinds of constitutions and when you spoke there about the importance of a kind of dividing power that there isn’t actually any one centre, even though it is a sort of in international regimes such I can see all of that. But I guess one objection would be if you’re talking about designing a system of international law to try to address some of these problems is a kind of argument that similar to you know, some people would point out that in other areas where people have tried to transplant a constitution that works saying one country to another country, it actually morphs into something very different. So isn’t there a danger that if you know, in many cases, constitutions don’t provide those checks, but then morph into something else that wasn’t really intended that that sort of process could happen at the international level? That would be a concern that people have?
Sure. Again, I think it’s a legitimate concern. But I think we ought to maybe at least try to be a bit more specific about what the concern is. So what kinds of things could constitutions morph into? Well, I mean, one of the things they could morph into, is, say, they could be taken over by special interests who then design the rules. So one problem that a lot of people have with the WTO is that it’s in a way, so at least some of its rules are thought to sort of be more to the benefit of wealthier countries than poorer ones. And I think there’s significant evidence for this, for example, trade. Trade in industrial goods and manufactured goods are liberalised. So they’re very low tariffs. There are not very high tariffs on agricultural products. So one worry with the Constitution is, of course, that it can be captured by political states. Another worry is that sort of maybe it could be that it maybe takes a life of its own, and then instead of being on account, the institutions become unaccountable to anyone. I would say that those are all reasonable concerns.
The question is, what do we do with those concerns? So we have concerns about this anytime we develop any kind of domestic institution, too. And so I think the answer is not don’t develop that institution, but to try to develop it in a way that is not subject to those kinds of pathologies. So you know, we know that police forces can be quite unaccountable and I think this is the question of, what do you learn from existing ways of empowering and regulating police units that you can use in designing them in other places. And of course, those things are not always transferable, for a variety of reasons. But I think there’s a wealth of information about institutional failures at the domestic level that can serve to inform our understanding of how we decide constitutional systems at the international level. So I would say the lesson there is not not to do it, but to move forward cautiously. And make sure that in the process of designing that constitutional system, you build some safeguards to avoid precisely the problems you identify.
Let me try a different type of objection. And I guess this is more of a philosophical one, and it really deals with the issue of how you’re grounding the idea of international law in the first place. So you say very clearly in your book, that the purpose of international law is actually to guarantee individual rights. So the problem is precisely that lower level institutions like, for example, states, may be tempted to abuse the rights of individuals within their territory. And the purpose of international law as much as anything else is to give people within states another level to appeal to when their rights may be being abused. Now, I guess some people would say that that is a that is coming from a very individualist, philosophical position that starts from an assumption that individual rights are the most important thing. And I guess some people would argue that if you come with a more communal notion of rights or a more communalised notion of a person or subject, then you might end up with a different, very different set of understandings about what should be protected. And that international law is governed by the idea of protecting individual rights that potentially justifies all kinds of quasi-imperialist or neo-colonial schemes to enforce essentially Western norms on countries where those are not accepted. So is that a concern? Do you have a way to address that kind of objection?
Thanks, Mark. So a constitutional system for international law, I think ought to take, ultimately, human beings as the ultimate unit of moral concern, you know, it ought to be designed for their benefit. Right now, international law refers a lot to states’ rights and responsibilities. And individuals are sort of a small part and increasingly a subject of international law, both with rights and obligations. But the international law is based primarily on states. One of the reasons we care about individuals is that state power itself has instrumental value for the service of individuals for the various states and groups. And that’s why I think there, it’s important to justify constraints on state power, but you say those constraints need not be specified in individual terms. Because of this, there’s disagreement about whether individual rights or some group rights, or a sort of communal ethos ought to be protected, respected in the law. Now, as a unapologetically liberal political philosopher, I think that individual rights show the most respect for human beings, but the individuals ought to be then also protected from engaging in all kinds of associations with one another, and further redefine their own rights to govern themselves as they see fit. And so, a constitutional system at the international level could protect both individual rights, including rights of exit from groups and group rights. And this, I think it’s an open ended question to the extent to which these two are blended in a constitutional system, just as they’re blended in, and many domestic constitutional legal systems.
So for example, we have in the new constitution of Chile, I think there’ll be a lot more protection for the rights of indigenous people as collective groups, including for their land rights, and cultural rights and rights of autonomous political organisations against a background of them having those rights violated repeatedly, historically. So I don’t think there’s necessarily a problem in accommodating both individual and group rights, a constitutional system. And the best balance to strike will be one that will not be sort of resolved by philosophers thinking about it in the abstract, but by actual compromise and negotiations in a constitution in the course of a constitutional agreement. So a system of international law does not have to be an imperialist project, in the sense that it does not have to regulate every sphere of state action that doesn’t fall in line with the most demanding individualist tenets of liberalism. I think we should wish to start at the very minimum, by recognising that harms against individuals and their rights are really important. And maybe start by by trying to make more effective prohibitions against large scale abuses, such as genocide, crimes against humanity, and slavery and other very extensive harms that are still very much a part of the fabric of political life in the 21st century. So I think if we started there, we already have a very solid basis for recognising individual rights via various human rights agreements. And those rights, again, do not preclude all kinds of cultural rights and rights of association of individuals.
So in a sense, I don’t think it’s an either or question. And within a system of international law that respects state sovereignty, it will be, again, primarily up to states to decide that balance internally, it will not be up to up to international law. But that said, I think international law is a project that evolves over time and it’s appropriate for it to evolve to reflect the interests and needs of a changing international community like all law ought to do. Can I go back to Brexit? Because I do want to say something?
Because I think that’s a fascinating political development, but also one that shows that states and citizens of states that commit to projects of international cooperation don’t actually realise what the cost of doing so are. So, you know, the book really shows that states, a lot of times want to have it both ways, they want to participate in this project of economic cooperation and legal cooperation. And also, for there to be systems of rules that bind other states; states that do not want themselves to be bound by the same rules. And I describe this problem as a paradox of commitment, right? That they really want to be free from interference from international law, but want all other states to be bound, so that they can exercise their freedom. And that’s just not possible the same way as individuals cannot be completely free. But also, you know, free from interference from the interference of other individuals.
And Brexit is a really interesting case study of that, because the UK and some other states, I think went in with the idea that they could commit to the European Union, but only to an extent, and on the terms that the UK wants to do. And in a collaborative enterprise like the European Union, which is becoming more and more comprehensive in the way it regulates member states, that’s just simply not possible because the rules cannot reflect the unilateral will of any one state, they’re the results of some sort of compromise. And those compromises can be better or worse, right? We can, we can recognise, of course, that the European Union has a lot of accountability problems itself. But I think one thing that’s been really a mistaken rhetoric about the UK’s membership in the European Union was that they can be fully sovereign while remaining a member of the European Union. And once they realised that, that sovereignty is being a chipped at margins, a certain number of politicians, and obviously, with support from the public, opted out. And, and I think it’s a mistake to think that, they can join large cooperative agreements without losing the authority to decide to some extent, and it’s the same with the European Court of Human Rights, where the UK is part of the Council of Europe that created the Convention on Human Rights, but then has difficulty accepting some of the decisions of the court when it comes to say, the rights of prisoners, and so on. And I think states ought to do much better job of, of defending the authority of international law, but also of, of acknowledging the costs of being part of a system of international law, where their their authority to make those decisions is significantly curtailed, in ways in which states typically nowadays voluntarily agreed to. Because if they agreed to the authority of the European Court of Human Rights, they agreed that they’re not going to make those decisions unilaterally, because the court will have the authority to interpret those rules in a way that that maybe domestically, people will disagree with.
So I think Brexit is a really important lesson. And the idea that you cannot have your cake and eat it, too, you cannot be part of the European Union and retain all authority to make political decisions, just as before.
So I think that’s right. But I think, you know, someone might argue and I have some sympathy with this view myself, is that the way those decisions are made in the first place could be an example of what I was referring to before about a constitution morphing into some things that people hadn’t actually originally agreed to. So a lot of people who were Brexit supporters would have said, when they joined, the European Economic Community wasn’t even called the European Union. It was supposed to be effectively a kind of customs union, an economic union, not a union that had all these other powers that was subsequently voted on after people had agreed to be in what they thought was an economic union, or what was sold to them by their politicians, as an economic union. Now, you can say that the politicians who originally sold that, if they knew the way it was going to morph, were being duplicitous. Or you could say, actually, they weren’t, they didn’t know themselves how the constitution was going to morph. And that’s the kind of area where I think it’s a bit ambiguous. Because I think it’s not always clear what those costs are going to be when you go into one of these kinds of arrangements.
Now, that’s right. I think that’s a very good point. And the EU has evolved tremendously over a number of decades from something that was a sort of bare bones, economic agreement on the free movement of goods and services to something a lot more comprehensive, but still with economic cooperation at its core. And you’re right. I do think that the people that went into signing those original agreements, did it in good faith. But of course, some of them did think of a much closer union of the centre of the European Union. And I think there’s a significant sort of question that arises here about what’s then the appropriate way to get ongoing consent from the citizens of the member states as our project evolves. I don’t know what the answer is. So maybe Brexit is a referendum and our way of doing that. And also, of course, we know that there is a failed constitutional treaty in the EU that the French and other citizens have rejected. And so that’s another sign that the EU might be moving, in a sense faster than some of the member states are ready to. But I don’t think that that makes it illegitimate, but it does raise questions about the authorisation, or democratic authorisation of that process, by the citizens themselves.
But I also think it raises important questions about political communications. What do political elites tell their citizens when they’re engaging that high level sort of transformative change in the European Union? And I think that’s been incredibly poor, which is why, in part, we have had Brexit and, you know, there are other sorts of problems of legitimacy of the EU. Yes, but I think that’s a really, really good question. This is why in a sense, international law is evolving in a similar fashion sort of incrementally in different areas of international law. And I think a constitutional treaty would make those areas of development a lot more explicit, and would sort of have a renewed investment in authorising those rules. How is a different question, but a constitutional assembly that would negotiate some of these rules of international law would have a greater legitimacy because I think, in a sense, it would be more explicit. Yeah, it would be more explicit what people commit to. And that’s sort of highly necessary at this point in time. I think we’ve gone through many multilateral treaties, especially since the end of the Second World War. But we haven’t rethought the architecture of international law since the UN Charter.
Okay, that’s Brexit done, as they say. So let me move on to the sort of final set of questions that I wanted to put to you. And these are more about, really, I guess, what distinguishes your approach to thinking about international law to some of the sort of dominant paradigms that have looked at this question. So you are very critical in the book of realist approaches to international law, which basically, in my understanding, at least, take international law as a kind of, it’s almost an epiphenomenon of an underlying powerplay between different sets of rational actors that are typically seem to be states or powerful coalitions within states that are essentially pursuing their own interests through international law. And in that sense, international law doesn’t really seem to have any kind of moral standing or the sort of normative worth that you ascribe to it. So what is your primary objection to that realist conceptualization of what is actually happening in the space of international law?
Where to start? Um, so of course, realists have made really important contributions to the way we understand international law and have emphasised the ways in which power politics does play a significant role in shaping how states interact with one another. But I think if they stop there, they provide a very simplistic account of how the institutions of international law evolve, what’s their power, what’s their authority and, and how they effectively operate. So it’s sort of in a sense, a truism that’s worth investigating that a lot of law is the result of some sort of power, power politics. It’s true of domestic law as well. So historically, law has represented more often than not, and across sort of large historical periods and geographical spans. It has been consistently the case that the law has protected the interests of the wealthiest, best connected to those with higher social status. But that’s not all law is. And increasingly, and partly because of its democratic, more democratic pedigree recently, law has created conditions of individual flourishing, regardless of people’s political status, or economic power.
And I think we see something similar in international law. So while there’s still a significant part of international law that is shaped by the major powers, that’s not true of all international law. And in fact, major powers are constrained. And we have good evidence that they’re constrained across the board, and a large number of areas of international rule by international law. There was a lot of empirical evidence that this is happening, for example, even at the WTO. Brazil can take US to the dispute resolution mechanism, and challenge its subsidies for the domestic producers, and win the case that has happened at the WTO. So I think realists provide too simplistic a picture of the evolution of international law, of the nature of socialisation in international law, of states elites in processes of international law creation, of the ways in which those political elites depend in part of the democratic pressures that are exerted domestically, about the forms of cooperation they should engage at the international level. This is sort of the empirical fact of how much international law there is there that is effective, you know, there’re tens of thousands of treaties. It really challenges in many ways, the realist picture of a state of war of all against all in international politics in the absence of states. So I think both empirically and normatively, realism provides us with an impoverished picture of human cooperation in general, but it transfers that to the level of international politics.
Well, that connects quite nicely to I guess, the other sort of approach that I think you’re criticising, which we could think of as being a sort of almost Hobbesian type view of international law, which would be that if you don’t have something that looks like an international Leviathan, then essentially people are going to be living in a state of nature, a state of anarchy in effect. And I take what you’re offering is your understanding of international law to be very much in the, the sort of David Hume, Elinor Ostrom tradition. And that kind of tradition says, actually, we’re never in a state of nature. We’re never in a situation where people have no form of socialisation. There are no social norms. There are no ways in which at the local level, people can find ways of developing norms of cooperation that help them, for example, to address collective action problems, whether that’s managing a local fishery or a local stream or whatever it may be. The trick is to think about how those kinds of localised systems of socialisation can be scaled up in a kind of nested structure at multiple levels. International law as in your understanding of it, correct me if I’m wrong, this is almost like the highest level of that process. Is that the right way of thinking about your approach?
Now, that’s very accurate. Yes. And I love the image of the nested levels of social cooperation. Because what’s really important is that international law doesn’t exist in a vacuum. It does build on processes of socialisation and legalisation of different scales at the state level, at the sub-state level at the local community level. And it borrows legal instruments and principles from lots of legal systems around the world. And, and practices and processes of making and interpreting law. And so in that sense, it operates with an already developed vocabulary of concepts and practices, legal concepts and practices. But of course, the reason we need international law, perhaps even more now than we did before, is that due to technology, due to people’s ability to travel people are much more able to get in each other’s way than they did in Hume’s time. But also they’re much better able to engage in common projects of discovery and creation, and of protection of environmental resources, and also exploitation of resources for the common good. And all of those possibilities and dangers require some basic rules of interaction between states.
Hume is great, because he tells us how law is an evolutionary process. And I think we see very well, this evolutionary process in international law. From very basic customary rules that were in place thousands of years ago, the exchange of diplomatic representatives and rules about not killing, you know, another state’s diplomats, even if they bring you bad news and providing them immunity from local laws and so on, to rules regulating trade, and to rules regulating the waging a war, to the much more complex rules having to do with outlawing of slavery. So rules that have a much more sort of important focus on human beings and their well being, to rules creating an international telegraphic union, and rules regulating the division of air routes for international air transport. These are very sophisticated systems of rules that govern and actually affect us in very important ways and affect the lives of individuals around the world in important ways. Because they operate at some distance from our ordinary concern, we just don’t realise how important all of these rules are to our lives.
So the book is really an appeal to be a lot more conscious of that influence and the challenge that it poses for the justification of political authority in general. State political authority, but other political authorities. And to think of international law as authority in its own right with its own institutions, its hard pathologies, its own problems and ways of making things better or worse for states and individuals. And so if we do that, I think we can both diagnose problems in international law, but also reflect more deeply about the nature of law, which is, which is the question we started with, because I think international law shows really remarkably well how law is possible in the absence of a centralized state. And I think the challenge here is, how possible is it to make international law in the absence of centralised enforcement? The reason, of course, that it’s possible to have law in the absence of centralised enforcement is that a lot of law requires the internalised practice of the legal rules by the legal subjects. And I think the most effective law depends on citizens being appropriately socialised. And to probably go social attitudes, and believing in the legitimacy of the rules that are imposed on them. I think in a sense, international law is no different.
There’s no state whose citizens are going to, you know, be coerced into obeying the law without sort of majority of them. No state like that could be set to have effective law because it wouldn’t work. So I think for me, this also raises questions about how we relate to legal systems more generally, and how our implicit or tacit acceptance of the rules serves to both legitimise and make law effective. And that process, I think, is what explains in large part why international law can be effective to the extent that it has been so far.
Okay, Carmen. That’s great. Thank you very much. So just a final question really, is what is next for you? What are you planning to do with this project? Are you going to do more work on international law? What’s the next project?
Thanks, Mark, I think I’m gonna investigate much more deeply this idea of a constitutional agreement at the international level, those what the sources of support for it would be and also what the challenges would be both in terms of in terms of institutional design and in terms of the substantive rules and the conditions for its feasibility. So that’s something I’m really excited about, because it again, goes to the nature of constitutionalism itself. And it allows us to think of traditional political concepts and institutions in very new ways. And I think that’s always something very, very helpful. And I want to say, not only the point where we have these global challenges that I have to address but looking at the future, you know, if some of the science fiction scenarios become realised in practice, such that we discover alien worlds with other humans or with other beings, humans are not, then we might have to also consider what will be the rules of engagement with them. So I may take this into a more fanciful science fiction direction as well, if, if I have the time and resources.
Well, I’m taken aback by that. That sounds like a very exciting project. But anyway, thank you so much for being on the Governance Podcast today and I strongly recommend the new book to everyone who is listening. So that’s Law Beyond the State: Dynamic Coordination, State Consent and Binding International Law with Oxford University Press. So Carmen, thanks very much for being our guest today.
Thank you so much for having me Mark, and thanks for the wonderful questions and conversation.