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International law in a changing world

“For better or worse, international law is confronting a period of profound change.”
– American Society of International Law

The American Society of International Law’s annual meeting (8 – 11 April 2015) will focus on the theme ‘Adapting to a Rapidly Changing World’. In preparation for this meeting, we have asked some key authors to share their thoughts on the ways in which their specific areas of international law have adapted to our rapidly changing world. How can we expect international law to adapt, in the face of cyber-conflicts, new environmental challenges, and still-unanswered demands for LGBT rights, corporate responsibility, and the protection of people from mass atrocities? Can international law truly intervene to resolve global issues?

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“There is increasing concern about global environmental problems like climate change, but the obstacles to collective action on an international scale continue to block progress. While international law suggests that enforcement of global environmental treaties ought to be possible, the actual machinery for ensuring compliance is almost non-existent. Thus, the only hope is to rely on consensus building strategies for generating treaties which produce ‘compliance without enforcement.’ There are dozens of global environmental treaties on the books, but it turns out to be much more difficult to modify and adapt these treaties to reflect changing political and ecological circumstances, than many experts assumed. The most effective and pragmatic path forward is to create informal problem-solving opportunities for groups of countries to modify timetables and targets without having to re-engage all the countries of the world in formal efforts to modify existing treaties. Countries concerned about their sovereign rights are often unwilling to give non-governmental organizations a formal role in environmental treaty negotiation, modification and enforcement. Yet, without the full participation of these groups, nothing important tends to happen. Environmental treaty-making today is nothing like it was in 1992 when the Rio Summit was held to kick off global efforts to respond to climate change and threats to biodiversity. Global efforts today focus on informal problem-solving, the involvement of non-governmental actors, and incentives for compliance rather than threats of enforcement. There is much more of an emphasis on capacity-building than enumerating largely unenforceable timetables and targets. Such a process might not be optimal in terms of efficient outcomes but it is more realistic and likely to be functional in a pluralistic global legal arena. Perhaps what should be further harnessed are the peace dividends which such consensus-building processes may also provide between adversaries for whom the environment could be a ‘superordinate goal’ for cooperation.”

Saleem H. Ali, Professor at the Sustainable Minerals Institute, University of Queensland, and Lawrence Susskind, Ford Professor of Urban and Environmental Planning, Massachusetts Institute of Technology, authors of Environment Diplomacy, Second Edition

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“As dominant global frameworks for acknowledging and addressing mass harm, international and transitional justice look to the future. Through the redress of state harm, they seek to effect social, legal and political change in order to pave the way for a more just communal existence. Global and national change is thus framed as progressive; indeed transitional and international justice both position themselves as constituent movements in the building of a more humanitarian socio-legal order in which human rights abuses will no longer go unpunished. In this context, our scholarly intervention has been to refocus attention on the past and its enduring implications. Our article, and the broader Minutes of Evidence project of which it is a part, draws attention to the ongoing significance of settler colonialism, in particular the structures of injustice it enabled and continues to maintain. Our aim is to unsettle the presentist and future-oriented approach of international and transitional justice as a means of thinking more holistically about what injustices may demand redress and, in turn, what a committed ‘justice agenda’, what we term structural justice, may require. As such, we would flip the question posed, from one of how international law can adapt to the rapidly changing world to whether and how international law can look back and acknowledge and account for history and its continued significance.”

Jennifer Balint, Senior Lecturer in Socio-Legal Studies, Julie Evans, Senior Lecturer in Criminology, and Nesam McMillan, Lecturer in Global Criminology, School of Social and Political Sciences, University of Melbourne, authors of ‘Rethinking Transitional Justice, Redressing Indigenous Harm: A New Conceptual Approach’ in the International Journal of Transitional Justice

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“Practice is the magic word for international lawyers to justify legal claims, to account for a particular interpretation of a rule or to explain the development of the law over time. The interesting thing is that no one really cares to explain what is practice and whose practice matters, let alone international law scholars who engage themselves in a form of (theoretical) practice. ‘Practice’ is something that goes without saying in the profession. As such, it means different things to different people in different contexts. Interestingly, questions such as ‘what is practice?’, ‘whose practice?’, and ‘how does practice work?’ are not questions that the law alone can answer. To understand the societal structure of a group (be it the international community or the ‘invisible college of scholars’), how its members behave, and what kind of strategies they deploy to achieve certain ends are not issues that international lawyers generally feel concerned about. This is a pity, as sometimes an interdisciplinary inquiry allows a better grasp of legal phenomena. Overall, practice in its ‘infinite variety’ is the best instrument we have to adjust to a rapidly changing world. It would be good if we could understand better what’s going on… in practice.”

Andrea Bianchi, Professor of International Law, Graduate Institute of International and Development Studies, Geneva, and author of ‘Gazing at the Crystal Ball (again): State Immunity and Jus Cogens beyond Germany v Italy in the Journal of International Dispute Settlement

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“International law and US domestic law have become much more intertwined in recent years, in areas ranging from international human rights litigation, to foreign official immunity, to military commission trials for suspected terrorists. The international law that is applied in the US legal system is inevitably shaped and altered by its interaction with domestic rules and doctrines. There has also been more inter-branch disharmony in foreign relations in this period, a phenomenon that has manifested itself in greater congressional efforts to direct U.S. foreign policy, more executive branch reliance on executive agreements and soft law as an alternative to treaty-making, and less systematic deference by the courts to executive branch claims about US foreign relations interests. Scholarship concerning foreign relations law also has evolved, with somewhat less focus on originalist accounts of the distribution of foreign relations authority and more consideration to longstanding patterns of historical practice as well as empirical assessments of how aspects of the law operate in practice.”

Curtis A. Bradley, William Van Alstyne Professor of Law, Duke University School of Law, and author of International Law in the U.S. Legal System, Second edition

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“Victim participation in international criminal trials is a relatively new field of law. While this right had been recognised by some legal systems around the world, mainly civil law systems, developments at the international level only started in the 1980s with the adoption of United Nations’ declarations recognising victims’ rights to justice and reparations. Later, with the wake of the ad hoc international criminal tribunals (for Rwanda and the Former Yugoslavia), the world was confronted with trials that discussed the suffering of thousands of individuals without giving them an independent voice or role (they only intervened as witnesses for the prosecution). The adoption of the Statute of the International Criminal Court introduced, for the first time in the history of international criminal tribunals, the possibility for victims to act as independent participants in proceedings and to receive reparations in the context of a criminal trial. Being a new field of law, international courts have encountered a number of challenges in the implementation of victims’ rights to participation in international criminal proceedings. We believe that victims are the raison d’être of these tribunals and the ultimate beneficiaries of the justice they deliver; more needs to be done to ensure that they can genuinely be involved in justice processes that affect them.”

Gaëlle Carayon, International Criminal Court Legal Officer, REDRESS UK, and Mariana Pena, independent expert in international justice and victims’ rights, authors of ‘Is the ICC Making the Most of Victim Participation?’ in the International Journal of Transitional Justice

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“The ‘rapidly changing world’ has and will continue to challenge the efficacy of many areas of international law, in many cases generating important evolutions in the law. The law of armed conflict, also known as international humanitarian law, is in many ways an iconic example of this process of ‘responsive evolution.’ The military response to internal and transnational non-state threats, to include transnational terrorist organizations, has been the focal point of this evolution during the last two decades. The invocation of what might best be called, ‘wartime powers’ to address these threats has stressed this area of the law significantly, but has in many ways compelled a recommitment to the core principles of the law and the essential balance between authority and humanitarian restraint that lies at the very foundation of the law.”

Geoffrey S. Corn, Presidential Research Professor of Law, South Texas College of Law, and co-author of The War on Terror and the Laws of War: A Military Perspective, Second Edition

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“I work on several areas of law including human rights law, humanitarian law, refugee law, and national security law. Each of these has been impacted by incessant armed conflict in the Middle East, especially in recent years. This includes civil war in Syria, which has caused an exodus of Syrian refugees and the secondary forced displacement of Palestinian refugees, thus testing the limits of temporary protection regimes and the adequacy of UN interagency collaboration; targeted killings in Yemen and, beyond the Middle East, in Afghanistan and Pakistan, thus redefining the law of self-defense and particularly the temporal element of imminence; and Israel’s third assault on the besieged Gaza Strip in the past six and a half years, putting into question the adequacy of the laws of occupation and the legal mechanisms meant to enforce them. What I have found in these instances, and the many I do not have room to describe, is that during armed conflict, the law rapidly adapts to expand the authority of belligerent states rather than to restrict them. History has shown that social movements contract those powers to expand protection to civilians once the conflict is over.”

Noura Erakat, Assistant Professor, New Century College, George Mason University, and author of ‘Palestinian Refugees and the Syrian Uprising: Filling the Protection Gap during Secondary Forced Displacement’ in the International Journal of Refugee Law

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“It might be better to ask how international law generally has (or is) adapting to a rapidly changing world – and if that were the question the answer would have to be that it has not yet begun to recognise, let alone accept or respond to the changing natures of communities, identities and how they relate to one another. Turning to one of ‘my’ areas, it is increasingly obvious to me that the manner in which international law engages with issues of human rights is antediluvian. Although there have been innovations, the primary tool at the disposal of the UN Human Rights Treaty Bodies remains the ‘reporting procedure’ – first devised over 50 years ago and replicated in one form or another in most of the treaties ever since. The theory, and to an extent the practice, of that system still remains locked in the politics of a by-gone era and does much to perpetuate them in the one place above all others where there really should have been some adaptation to a rapidly changing world. But then, international law has never been particularly adept at dealing with egregious wrongs, though if this were a school report, surely it would say ‘could try harder’?”

Malcolm Evans, Professor of Public International Law, University of Bristol, Co-Editor in Chief, Oxford Journal of Law and Religion, editor of Blackstone’s International Law Documents, and editor of International Law, Fourth Edition

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“Russia’s ongoing intervention in the Ukraine in 2015, and fears of further ‘muscle-flexing’ in the Baltic states, suggest that the continued presence of NATO’s ‘Missile Defence Shield’ will remain an invaluable strategic ‘feature and fitting’. The much broader question of whether the use of missile defence shields helps support the existence of a wider right of anticipatory self-defence and the point at which an ‘automated’ response takes place. Does such a response fall within the barometers of necessity and proportionality that govern a state’s lawful recourse to self-defence under international law? Against these legal concerns, one obviously needs to also factor in policy and strategic reasons for having Missile Defence Shields as a ‘necessary’ defence in the modern world. This of course presumes that necessity, proportionality and imminence are, or could be, easily and uncontrovertibly discerned.”

Francis Grimal, Senior Lecturer in Public International Law, University of Buckingham, and author of ‘Missile Defence Shields: Automated and Anticipatory Self-Defence?’ in the Journal of Conflict and Security Law

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“As a generalist in international law, but with specialties in human rights, armed conflict, and foreign investment, I would say there’s absolutely no doubt that the rise of NGO involvement in lawmaking and law application has fundamentally changed these fields. States can no longer make law without involving the nongovernmental stakeholders, and international organizations rely on them for expertise and credibility as well. Even the law of war has evolved in large part due to the work of the ICRC, an usual NGO but still nongovernmental in nature. The current stresses faced by investor-state arbitration are also a product of NGO activism. Given their new roles, NGOs need to be responsible players in lawmaking and law implementation too.”

Steven R. Ratner, Bruno Simma Collegiate Professor of Law, University of Michigan Law School, and author of The Thin Justice of International Law: A Moral Reckoning of the Law of Nations

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“The 1951 Geneva Convention relating to the Status of Refugees is the cornerstone of international protection law. Drafted when the atrocities of the Second World War were within recent memory, the Convention is recognized as a ‘living instrument’ that is ‘constant in motive but mutable in form’. From protecting political dissidents during the Cold War to extending asylum to persons at risk of being persecuted because of their gender or sexual identity, the Convention has proven capable of adapting to the diversifying profile of asylum-seekers in a globalised world. At the same time, a wider field of international protection law has developed to accommodate persons who do not fit within the narrow refugee definition under the 1951 Convention, for example people fleeing from indiscriminate violence. Today, the world is facing environmental and demographic ‘mega-trends’ including rapid population growth and global climate change, which together can contribute to refugee-like cross border displacement. Recognizing that a number of the necessary preconditions for an effective new international agreement on the protection of ‘environmental migrants’ are unfulfilled, a pressing question for international protection law concerns the extent to which new forms of displacement can be accommodated by ‘living instruments’.”

Matthew Scott, Doctoral Candidate in Public International Law, Faculty of Law, Lund University, and author of ‘Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights?’ in the International Journal of Refugee Law

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“Adaptability is just one of several features for applying human rights, the others being availability, accessibility, and acceptability. Adaptability applies particularly to economic, social, and cultural rights such as education. The concept means that human rights are flexible (that is, amenable to the needs of changing societies and communities) and responsive (to individual and community needs within diverse social and cultural settings). A dynamic environment offers opportunities to fully develop the human personality in exciting ways. But human rights must be safeguarded so as not to lose sight of the non-negotiables, like ensuring respect for human dignity. Advocates undertake a constant effort, getting their hands filthy with the mechanics of interrelatedness and pragmatism to get the engine going. So human rights adapt – perhaps more by necessity than deliberation – through greater inclusiveness (multiple participants), confronting realities (e.g. what technology can and cannot do) and accommodating other influences, especially money. Travelling to the outer edges oftentimes requires revisiting the essentials, such as what is a human right and what purpose does, or should, a human right serve. This faithful self-scrutiny makes human rights more resilient, and bestows them with an enduring relevance, whatever else might be bubbling along in the moment.”

Stephen Tully, barrister, St James’ Hall Chambers, and author of ‘A Human Right to Access the Internet? Problems and Prospects’ in the Human Rights Law Review

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“International economic law has not adapted very well to the rapidly changing world. On the one hand, preferential trade agreements have been proliferating, while on the other hand, negotiations in the World Trade Organization (WTO) have faced numerous setbacks and delays. The validity of preferential trade agreements under WTO law and their role in enhancing welfare through liberalising trade remain dubious, particularly given problematic ‘WTO-plus’ elements in these agreements, such as the imposition of ever higher intellectual property standards. In the investment context, states are increasingly questioning the absolute nature of many investment obligations, as well as the legitimacy of the investment treaty arbitration system. At the same time, the most-favoured-nation obligation and the ability of multinational companies to restructure themselves and manipulate their investments and nationality continue to erode the significance of carefully drafted treaty terms in international investment agreements. The current haphazard nature of international trade law and international investment law may undermine regulatory sovereignty, development efforts, and the underlying rationales for these regimes, and neither regime has yet been able to find multilateral solutions to these issues.”

Tania Voon, Professor at Melbourne Law School, University of Melbourne, and author of ‘Legal Responses to Corporate Manoeuvring in International Investment Arbitration’ in the Journal of International Dispute Settlement

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Headline image credit: Sunset over South Africa by Harvepino via Shutterstock.

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