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ESIL Annual Conference: the responses of international law

In preparation for the European Society of International Law (ESIL) 13th Annual Conference, we asked some of our authors to reflect on this year’s conference theme ‘Global Public Goods, Global Commons and Fundamental Values: The Responses of International Law’. How should international law respond to the fundamental challenge of defining and regulating global public goods, global commons, and fundamental values?

James A. Green via the University of Reading. Used with permission.

International law scholarship has long struggled with the clash between the irresistible force of moral universalism and the immovable object of voluntarist sovereignty. However, ‘human good vs sovereignty’ represents unhelpful binary extremes. Holding any particular value to be ‘fundamental’, and especially then deriving legal consequence from that determination, risks engaging in an ‘eye of the beholder’ norm popularity contest. It is observable social fact that international law is not always derived from state will and that state power can be curtailed by it. The system ultimately represents an uneasy balance between various (at times) competing imperatives of state autonomy, communitarianism, moral value, practicality, and certainty. We should recognise that balance and look to promote fundamental values while acknowledging the limitations of the system. Uncritically and subjectively asserting ‘fundamental value’ is a voice into the void; ignoring fundamental values represents an unforgivable paucity of ambition for the project of international law.

James A. Green, Professor of Public International Law

Dame Rosalyn Higgins via the University of Cambridge. Used with permission.

International law is not a neutral actor that responds to concepts. It is the authoritative process by which laws and norms are made and shared values are sought to be realised. It is there for the main actors—states, international organisations, and NGOs—to use imaginatively to protect and develop what is valued. Preeminent among such organisations, ever expanding in their number, is the United Nations: global in its membership and in the reach of its work. Part of its work is indeed to promote and develop international law, which it has done in a great variety of ways. Ideas that found their place in the Purposes and Principles of the Charter, and perhaps occasionally elsewhere in the Charter, have developed enormously through practice. Self-determination and human rights are examples. Yet other matters which found no mention in the Charter such as democracy, action against terrorism, protection of the environment, protecting international peace through peacekeeping, and bringing perpetrators of international crimes to justice, have been developed through practice to achieve a perceived common good. One of the major challenges today is to ensure that the UN, as it uses different mechanisms to realise values it wishes to protect, itself operates within the confines of international law.

Dame Rosalyn Higgins DBE QC, Former President of the International Court of Justice

Jean d’Aspremont via the University of Manchester. Used with permission.

It is not difficult to fathom why the internationalist and managerialist spirit of the profession has constantly been translating itself into the invocation of notions like general interests, global values, and global commons. After all, international law, as an argumentative practice, has remained a continuation of the global conversation about how to mediate between the private and the public, the particular and the general, the individual and the universal. And yet, I have always been struck by how little suspicion international lawyers have shown towards the way in which these notions have been invoked and deployed, in international legal thought and international practice, in support of strategies of exclusion and domination. This is even more surprising given international lawyers’ contemporary self-proclaimed critical mindset. In this context, I believe that the pressing question for international lawyers meeting in Naples this year is not whether international lawyers can (or should) emancipate themselves from their internationalist and managerialist spirit and from the notions through which the latter manifest itself, but rather, whether the notions of general interests, global values, and global commons actually achieve what international lawyers claim they achieve in international legal thought and practice.

Jean d’Aspremont, Professor of Public International Law

Lauri Mälksoo via the University of Tartu. Used with permission.

One age old concept is conspicuously missing in this list of suggested values-candidates: state sovereignty. I would argue that a number of non-Western countries see state sovereignty as such a fundamental value to be protected by international law. In the Western international law academia, state sovereignty is frequently construed as an obstacle to the realization of truly penetrating international law as ‘constitutional law of the mankind’. However, Russian textbooks of international law emphasize Article 2 of the UN Charter as locus where fundamental principles of international law are codified, and they interpret state sovereignty and non-intervention to be central values of international law contained there. Values such as human rights and protection of environment are often interpreted in the light of state sovereignty as in a way the most superior value of international law. The debate about fundamental values of the international community is also a debate between regions. Even notions like human rights or human dignity often have an interesting regional touch. These developments deserve to be studied too because they constitute part of the reality in the contemporary world.

Lauri Mälksoo, Professor of International Law

Gregory S. Gordon via University of California Berkeley Law School. Used with permission.

In the twenty-first century, social media have become the virtual global commons for public communication. As a result, platforms such as Facebook and Twitter have served as the crucible through which international law attempts to strike the right balance between regulating hate speech that can provoke violence and protecting legitimate free expression that can spur healthy public debate. Unfortunately, the law is often less effective at achieving this human rights equilibrium than the companies that operate the platforms themselves. As a practical matter, social media self-regulation in real time will always achieve results more effectively than direct intervention by the long-arm of the law. Reminders of that were on display recently when a black activist in the United States was bombarded with racist hate speech messages on Facebook after she used the same platform to express concern about racist tendencies at a national restaurant chain. When she complained to Facebook, the company not only failed to lock and/or remove the abusive content and accounts of the hatemongers, but shut down the activist’s account when she complained about the hate speech. Europe seems to be taking the right approach. In light of failed voluntary compliance measures undertaken by the major social media platforms, EU ministers recently approved regulations that will block hate speech on those platforms. While freedom of expression must still be respected and protected, effective social media regulations on a transnational scale will go a long way toward ensuring respect for fundamental values within the virtual global commons.

Gregory S. Gordon, Associate Dean for Development/External Affairs

Professor Marten Breuer via University of Konstanz. Used with permission.

At first sight, the Council of Europe (CoE) might seem ill-equipped to enhance the protection of fundamental values at a truly global scale. Being a regional organization, its outreach seems to be a priori and inevitably restricted to the regional sphere. This assumption, however, stands in marked contrast with the Organization’s current practice. To begin with, the case law of the European Court of Human Rights is so rich that it cannot be overlooked by the international human rights dialogue. Besides this, the CoE has developed different techniques to transgress its regional boundaries: most CoE conventions are not restricted to the 47 CoE Member States but are open to membership of non-European States as well. By this means, European values may be ‘exported’ to other regions of the world.

– Marten Breuer, Professor of Public International Law

The qualities that contribute to the conclusion that a particular feature of international life is to be placed in the category of Global Public Goods seem to be the subject of general recognition and agreement (non-exhaustibility, non-exclusivity, etc.). What is less clear is: what then follows? If it is determined that X is a global public good, what can one then deduce from that: what can one say about X that one could not have said, absent that determination? If there is no such ‘added value’, then the usefulness of the concept seems limited to ease of reference. The topic, as defined, however seems to indicate, as its purpose, finding that element, that is to say “assess[ing] what is the inherent ‘plus’ of international adjudication at the international and domestic level”. Could this question be answered without invoking the GPG concept at all?

Hugh Thirlway, former Principal Legal Secretary of the International Court of Justice

More articles on this year’s ESIL conference theme are available in our Journals Collection. All papers are freely available online until 30 October 2017. To stay connected throughout the conference, you can follow us on Twitter @OUPIntLaw and like our Oxford International Law Facebook page.

See you in Naples!

Featured image credit: “Napoli & Vesuvio” by Damirux. CC0 Public Domain via Wikimedia Commons.

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