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What is the future of international law?

With the 10th European Society of International Law (ESIL) Anniversary Conference just around the corner some key thinkers share their thoughts on what they think the future of international law looks like.

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“International law traditionally flourishes with liberal hegemony, shared interests, or balance-of-powers parity. The first condition is visibly waning. The second and third conditions support regional and functional islands of multilateralism. While those islands may sometimes be shaky, they will continue to provide work for international lawyers. Beyond that, in the rough waters of war, peace, and even justice, the language of international law will also continue to pervade international relations. But it increasingly risks being perceived as an imprudent distraction. That is unless civil societies can unsettle the present monopolies that shape the terms of international legal discourse.”

Ingo Venzke, Research Fellow and Lecturer, Amsterdam Center for International Law, University of Amsterdam, author of How Interpretation Makes International Law: On Semantic Change and Normative Twists, and co-author of In Whose Name? A Public Law Theory of International Adjudication

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“The future of international law will be somewhat as with its present: we will witness the continued expansion of international law’s reach into new and emerging areas of common concern, wrought by climate change, technology, and continued processes of international and regional integration that are changing the nature of State-to-State relations. I do hope, however, that there will be continued and sustained critical reflection in scholarship on the impact of law on the international space—on who it empowers and excludes, on the nature of legalisation and its purposes—for it is only through heightened scrutiny, and not unquestioned application, that international law may serve as a progressive force.”

Gleider I. Hernandez, Lecturer in Law, Durham University, author of The International Court of Justice and the Judicial Function

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“In my opinion, the international law of the future will be less influenced by the ‘Westphalian model’, for at least two reasons: the increasing role played by non-state actors, in particular armed groups and multinational corporations, which challenges existing state-centred rules of international law, and the emergence of cyberspace as a separate domain, that will entail a rethinking of traditional concepts like territory, sovereignty, and jurisdiction. With regard to the future of international institutions, it remains to be seen whether the United Nations will be able to survive in its outdated structure.”

Marco Roscini, Reader in International Law, University of Westminster, author of Cyber operations and the use of force in international law

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“The future of international law is likely to be as its past: a vital, though often misunderstood, medium through which social actors at various levels and in various forms can structure and order their interactions, reflect their desires and manifest their concerns. It is neither static nor predictable. Following a period in which there have been high expectations of what international law can achieve, the next few years may be times of challenge as it struggles to deliver solutions which have become expected of it. But this is merely part of the endless re-calibration necessary to reflect the tasks to which it is being put and the realities which need to be faced. If international law does not disappoint from time to time it will cease to be a source of aspiration – and that would make for a far bleaker future.”

Malcolm Evans, Professor of Public International Law, University of Bristol, author of International Law and Blackstone’s International Law Documents

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Vienna, AT. Photo by  Luca Sartoni. CC BY-SA 2.0 via lucasartoni Flickr.
Vienna, AT. Photo by Luca Sartoni. CC BY-SA 2.0 via lucasartoni Flickr.

“International law has undergone dramatic change in the past fifty years, with issues from human rights to the environment to trade now the subjects of a wide range of hard and soft law instruments. Yet, many of the principles encapsulated within these documents remain unrealized due to the inability of international law to influence domestic law and national political priorities. Oftentimes, international law seems to remain distinct from domestic systems, treated with suspicion by national institutions.

“In the twenty first century, the national and international cannot be so easily separated. In areas such as refugee flows, arms proliferation, environmental degradation and combatting impunity, domestic initiatives and capability hold the key to international security. Agreement on and adherence to international standards is essential if global threats with national origins are to be managed effectively. International law must become not only the standard setter but the enabler and enhancer of domestic capacity. One of the key challenges will be to alter perceptions of international law itself. Rather than being viewed as something to be resisted or resented, side-stepped or paid lip service to, international legal standards must become part of domestic legislative and political agendas. The challenge is enormous, but essential, because, in the words of Anne-Marie Slaughter, the future of international law is domestic.”

Alison Bisset, Lecturer of Law, University of Reading, author of Blackstone’s International Human Rights Documents

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“In the security regime, the future of international law looks increasingly dim. Attributability is a prerequisite for accountability, and powerful governments are discovering new ways to mask innovative forms of coercion behind a veil of anonymity. “Little green men” with no visible identification, untraceable drone strikes, “NATO” bombings that conceal belligerents’ identities, cyber-attacks masked by false flags—these sorts of intrusions all erode the rule of law by making it difficult if not impossible to impute responsibility. Should this trend continue, the security regime could look increasingly like Ferguson, Missouri—a juridical black hole where lawless police hide their badges.”

Michael J. Glennon, Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University, author of National Security and Double Government

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“International law is always both forward and backward looking. It seeks to redress injustices and provide a framework for cooperation and coordination amongst international actors. Probably its greatest challenge in the contemporary world is regulating non-State actors, and the relations of States to them. Situations such as the downing of Malaysia Airlines Flight MH17 and the actions of ISIS in Iraq show that non-State entities are capable of engaging in conduct that has huge international impact. Furthermore, States, rather like in the cold war with its proxy wars, often operate through such entities to maintain (more or less) plausible deniability for activities that they support. The future of international law is necessarily bound up with the extent to which it develops to counter such challenges. It is the responsibility of both States and scholars to find ways forward for international law in this area.”

Robert Cryer, Professor of International and Criminal Law, University of Birmingham, editor of Journal of Conflict and Security Law

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“In my opinion, the future of international law in the coming decades will continue to be shaped by the continued tensions between sovereignty and other interests of the international community, such as the protection of the environment, the development of the Responsibility to Protect and more broadly human rights.

“On the one hand, states will obviously have to continue to accept that the traditional Westphalian model of international law is facing challenges and that things cannot be as they were in the past.

“But on the other hand, activists in various fields need to accept that the world is not changing as fast as they would like everyone to believe and that sovereignty remains a key feature of the international legal order. To a certain extent, as a feature of any given community, sovereignty is in fact conceptually unavoidable in one shape or another, whether at the domestic or the international level. Testimony to this is the continued relevance in international affairs of national(istic) claims which find their legal cristalisation in concepts such as statehood, self-determination and the prohibition of the use of force in international law.

“Accepting this reality is key in shaping realistic, effective and intellectually sound policies that not merely focus on individual rights, however important they are, but also take into account the collective dimensions and interests of any human society.”

Dov Jacobs, Associate Professor in International Law at the Grotious Centre, Leiden University, contributor to “Targetting the State in Jus post Bellum: Towards a theory of Integrated Sovereignties” in Jus Post Bellum: Mapping the Normative Foundations

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