Opening of a hybrid conference
Changes in international lawmaking brought about by new actors and processes were
the theme of the Annual ESIL Meeting, held in Stockholm. For the first time, due to
the pandemic, the conference was organized in a hybrid format, with more online participants
than on-site attendants; itself already a powerful sign of change. Crown Princess
Victoria of Sweden opened the conference. She recalled that Stockholm was, in 1972,
the site of the 1st United Nations World Conference on the Environment (UNCHE), which
adopted the Stockholm Declaration (United Nations 1973); the United Nations, she said,
have always been a cornerstone of Swedish foreign policy, with Dag Hammarskjöld and
Folke Bernadotte representing it. The Crown Princess, herself a peace and conflict
researcher, demonstrated her personal interest in the subject by attending further
panels on the first day of the conference.
Jessika van der Sluis, Dean of the host law faculty at Stockholm University, emphasized
the paramount importance of the rule of law in international relations, especially
for small and medium-sized industrialized nations like Sweden. The role of states
in the production of international law is changing, said Photini Pazartzis, President
of ESIL, private and transnational actors are emerging, and the conference programme
reflects this increasing diversity. According to Hans Corell, former Under-Secretary-General
for Legal Affairs and the Legal Counsel of the United Nations (1994–2004), the greatest
enemy of the rule of law is corruption; the former is indispensable for justice, stability
and security. The rule of law is now threatened even in democracies such as Poland.
The Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI) provides
politicians worldwide with an informative guide to the rule of law in 26 languages
(RWI 2012). Pål Wrange (Stockholm) spoke on behalf of the organizers. Although the
Covid-19 pandemic affects everyone, not everyone is affected equally. The challenges
for governments and international law are immense, especially in terms of sovereignty,
universality and solidarity. In terms of the sheer volume of regulations and numerous
new actors, international lawmaking under the classical Westphalian system had been
comparatively easy, unlike today; in the meantime, even rules that were not recognized
by the international community of states as binding hard law would very much have
an impact on international law; however, all this did not mean the end of the Westphalian
system, it had been under pressure at all times and yet always survived.
The politics of global lawmaking
Sarah Nouwen (EUI Florence) and Marrti Koskenniemi (Helsinki) discussed the current
political implications of global lawmaking against the background of historical developments.
Property and sovereignty are the “yin and yang” of international law and its generous
gift to the respective holders of positions of power, but this no longer applies exclusively
to states; in this respect, one should no longer postulate the ideal type of the state-centered
Westphalian system. According to Nouwen, decision-making and regulation processes
in international law now also take place very much on the corporate side, beyond the
sphere of sovereignty, a process whose channels of influence and decision-making need
to be made (more) transparent. Furthermore, the mere invocation of the binding force
of formally correct norms is no longer sufficient in a world marked by global injustice;
international law and politics are inextricably interwoven; one must ask much more
consciously about the winners and losers of international regulations and take a more
conscious look at the diversity of the different perspectives on (international) law,
for which deeper encounters are indispensable to promote mutual understanding.
Koskenniemi asked about the historical premises for the development of international
law in Europe (Koskenniemi 2021). He stated that a turn towards legal concepts such
as property (and later on sovereignty) had taken place during the 13th century by
recourse to ancient Roman law, which was attractive for aspiring rulers, because it
could help to overcome prevailing theological constraints. In a world of sinners,
ruling over others, expropriation, and the establishment of new property (including
through appropriation of the fruits of [others’] labor) could thus be justified and,
not least, used to counter popular demands of the Franciscan reform movement, which
propagated equal common property and solidarity with the poor. Instead, the adopted
ancient Roman contract and commerce law guaranteed merchants security and stability
for their burgeoning trades. Even non-lawyers such as Francisco de Vitoria and Immanuel
Kant, despite their disdain for the profession, would have deliberately resorted to
legal concepts in order to be able to position themselves against theological doctrines.
Once the principle of sovereignty had been established, law had fallen behind economics
around the 18th and 19th century, for sovereignty alone said nothing about how to
use the power it entailed; the doctrines of economics had taken over this task as
a guiding principle for the modernizing law.
On the deformalization of international law
For Concepción Escobar Hernández (International Law Commission), guiding principles,
action plans, codes of conducts, etc., as legal texts informally adopted free of mandatory
procedural and formal requirements, are an undeniable expression of the increasing
complexity of international law; they are also undoubtedly norms in the sociological
and political sense, but ultimately non-binding under international law for lack of
a sufficient state consensus. Without a minimum of procedural formality, one could
not speak of binding law. Nevertheless, this category of norms was not without influence
on international law; thus, the establishment of new binding law could be triggered
or existing law could be further developed by way of interpretation. Ultimately, however,
the reasons for this type of informal law-creation were predominantly of a non-normative
nature, namely considerations of flexibility and efficiency. According to Anna Leander
(IHEID Geneva), the trend towards increasingly deformalized law and rule-making is
closely linked to the changes in government forms: however, we also need to think
more carefully about what is actually meant by ‘deformalization’; in her view, the
focus has so far been too actor-centered, and there is an underexposed material side
to this phenomenon. As examples, she cited the role of documents in international
financial law or the embedding of code-based technologies in everyday life. Law is
undergoing massive change at its margins, she said, noting a sociological transformation
through the mediatization of law into a technological element. States are not opposing
this process, but involved in it, yet the necessary public discussion does not take
place, the commercially practice-relevant formation of norms also takes place precisely
by avoiding a general debate. The phenomenon of this deformalization of law requires
further, more in-depth conceptualization and discussion.
International and subnational lawmaking from below
Globally positioned and networked activists deliberately use national jurisdictions
as an arena to initiate and drive global change, as the example of the LGBTQIA* movement
vividly demonstrates. According to Balakrishnan Rajagopal (MIT), in order to better
explore this dynamic and tense change due to the increasing influence of non-state
actors on international lawmaking, the reference to the pluralization of institutional
forums is more appropriate than the reference to legal pluralism, which is empirically
undeniably given, but too state-centered and therefore analytically insufficient.
Theories of international law also remain stuck in Westphalian categories, this even
applies to feminist approaches or the Third World Approach to International Law (TWAIL).
Pluralization encompasses political antagonisms between states and social movements,
forms of institutional and extra-institutional disputes, hierarchical and pluralistic
relationships, as well as the relationship between states of the Global North and
the Global South. The latter is a key question, as one can observe the beginnings
of a hegemonic power formation in the Global South. Regarding the issue of overcoming
the climate crisis, the North increasingly forms the counter-hegemonic position.
Raffaela Kunz (MPI Heidelberg) spoke about the imminent danger of the research-based
knowledge system being captured by powerful market players in science publishing.
In order to narrow the knowledge gap, the innovative Open Science movement had aimed
to transform the scientific publishing system with its oligopoly-like structures,
high publication costs and exorbitant profit margins, driven by actors from the public
sector such as universities, libraries and researchers, to whom a high degree of legitimacy
is attributed. However, the results achieved by Project DEAL or Plan S, for example,
tend to perpetuate the status quo and the power relations in the science publishing
system, causing the knowledge gap to widen; moreover, there is a shift in charging,
away from reading towards publishing, which leads to new exclusions. In South America,
which pursues a different Open Access (OA) method, the worldwide dominance of the
heavily criticised gold OA approach is feared and perceived as a neo-colonial instrument.
The fundamental problem, she argues, is the lack of public and political accountability
in the field of this informal norm-setting, compounded by the fact that the interests
of dominant actors are even more powerful here than in the field of traditional international
lawmaking.
Giedre Jokubauskaite (Glasgow) argued that not every participation of non-state actors
in the norm-setting process is tantamount to lawmaking from below. The decisive factor,
she said, was who could set the agenda and determine the debates; the dominant discourses
were still those on security and the economy, with questions about the assumption
of historical liability on the margins. The starting point was therefore the inclusion
of representatives who were in a disadvantaged position, in order to be able to actually
speak of legislation from below. The United Nations Declaration on the Rights of Peasants
and Other People Working in Rural Areas (UNDROP) serves as an example; human rights
were indispensable as a ‘living instrument’ in this area (UN General Assembly 2019).
In another panel, Natalie Jones (Cambridge) referred to the participation of representatives
of indigenous people in international negotiations; the decisive factor was that these
representatives could refer to an (internal) democratic selection, an accreditation
by the home state was not necessary, a justified participation was rather to be decided
by the secretariats of the hosting international organizations. In addition to financial
hurdles, there were also sectoral restrictions, for example, the participation of
indigenous groups was generally limited to environmental and social issues, but much
less to trade and investment.
Laura Prat (King’s College London), however, drew attention to new developments, particularly
in the area of investment, with a view to South America. There, local referenda by
affected groups on the legitimacy of investment projects by multinational corporations
in the mining sector have become increasingly legally binding since 1999. Even smaller
communities with no more than 6000 members could thus bring such large-scale investments
by transnational corporations to an end. The balance of power and hierarchies has
leveled out where the corporations no longer had any influence on determining local
consent. It is a sub- as well as a multinational regulatory process with the participation
of transnational actors, enriched by conflicting goals between (overall) economic
development and (environmental) interests of the affected local population. (Mega)cities
and metropolitan regions are key actors in the decentralized fight against climate
change, Maša Kovič Dine (Ljubljana) said. The Edmonton Declaration signed by more
than 3400 cities in North America, the Lima-Paris Action Agenda (LPAA) and the Paris
Declaration supported by more than 100 cities worldwide are proof of this. Although
the commitments vary, what they have in common is a commitment to more stringent commitments
than those made by states, and a system based on city cooperation. This urban practice
is a central element that can no longer be isolated from international lawmaking,
and cities must therefore be much more involved in it as stakeholders.
Remembering James Crawford (1948–2021)
Friends and companions commemorated James Crawford (ICJ), who died on 31 May 2021,
with a special panel. Kaj Hobér (Uppsala) called Crawford a giant of international
law, of formidable competence, and yet always pursuing a practical and pragmatic approach.
He had always particularly appreciated his work as a judge in international commercial
disputes because of the dynamics prevailing in this area of law. Laurence Boisson
de Chazournes (Geneva) said that there were very few international lawyers whose first
name alone was enough to know who they were talking about; his contributions to international
law were indispensable readings (Crawford 2007, 2014, 2019), the rule of law was his
concern, and he had also worked pro bono for this cause.
A visibly moved Alain Pellet (Paris Nanterre) paid tribute to his friend James Crawford
– a modest man and firm Australian – as a fantastic team player and attentive listener,
who was very interested in promoting young talent. Despite his training in common
law, he had always been aware that international law was an interplay of continental
law and common law. His sense of compromise had worked wonders in the adoption of
the Draft Articles on the Responsibility of States for Internationally Wrongful Acts
by the International Law Commission (ILC) in August 2001 (UN General Assembly 2002).
Peter Tomka (ICJ) also praised Crawford’s never-to-be-forgotten role as ILC’s last
of five Special Rapporteurs in this regard, not least due to his pragmatic streamlining
of the draft, including the abandonment of the controversial concept of ‘international
crime’. Crawford’s view had been that the draft first had to prove itself in practice,
which is why he had not pushed for the conclusion of a binding convention; he had
been right in doing so, the draft articles on state responsibility had asserted itself,
it was accepted by the states and meanwhile counted among the most cited international
law documents in court. Unfortunately, he had not been able to work on the history
of international law, which had been planned in three volumes.
In addition to Crawford’s immense dedication to his work, all speakers emphasized
his collegiality, fairness, friendliness, his famous smile and his sense of family.
It was unmistakable that the human loss was felt to be at least as great as the professional
one.
Is Covid-19 a gamechanger in international law?
For Bryan Mercurio (Hong Kong), the Covid-19 crisis does not represent a paradigm
shift, it merely reinforces the already tangible departure from liberal principles
in (economic) international law: firstly, a shift of production capacities back to
the domestic economy is taking place, especially by large states, combined with increasing
protectionism; in this respect, the pandemic is a welcome occasion to reduce dependencies
on China within the global supply chain. Second, the willingness of states to engage
in international lawmaking is declining, not least due to a lack of confidence, exacerbated
by the uncertainties still associated with Covid-19. Thirdly, there is an increasing
shift away from multilateral agreements towards bilateral treaties, which are also
limited to specific sectors. In view of the major challenges posed by the Covid-19
crisis, this should have led to greater cooperation between states within the framework
of multilateral agreements such as the World Trade Organization (WTO), but the opposite
is the case. Instead, there will be more bilateral agreements in niche areas; in this
respect, smaller states in particular will have to act and react skilfully. The Covid
effect will have a significant impact on future international lawmaking. However,
the WTO rules on intellectual property (TRIPS, Trade-Related Aspects of Intellectual
Property Rights) would not hinder the necessary innovations; in the fight against
the pandemic, it was the insufficient production of vaccines and not a lack of innovation
that was the big problem in the first place; moreover, the pharmaceutical companies
would have no interest in refusing licences for vaccine production. If Covid-19 has
shown anything, it is the paramount importance of cooperation in the scientific field,
not only in the development of vaccines, said Gian Luca Burci (IHEID Geneva). A science-policy
interface must therefore be integrated into a future WHO agreement on pandemic prevention;
the potential danger of a virus pandemic originating from mass animal husbandry, for
example, affects cross-cutting problems of food production, animal husbandry and health,
public health and, last but not least, economic interests. He did not expect a fundamental
change in the rules on intellectual property, but waivers under the TRIPS Agreement
could be considered.
Diane Desierto (Notre Dame) sees the danger of a normalization and proliferation of
legal emergency regimes due to the pandemic. 109 states worldwide have enacted regulations
on states of emergency. At the same time, democratic control mechanisms for reviewing
these emergency measures would be weakened; should the Covid-19 pandemic become endemic,
it would not be possible to remain in emergency mode permanently. Human rights activists
would have to become more active and concern themselves more with (world) trade, economics
and health, because at the moment too many restrictions are justified with reference
to the pandemic. The pandemic also exposes inequalities and asymmetries: countries
with the least access to vaccines are among the most affected by Covid-19. For Martin
Scheinin (Oxford), the Covid-19 pandemic cannot be overcome without respecting human
rights. The decisive factor is not how the virus behaves, but how people behave, which
is why more emphasis must be placed on persuasion rather than on governmental instruction.
Instead, overreactions and underreactions were observed in pandemic management. Unlike
after 11 September 2001, there had been no power grab at the United Nations Security
Council, although measures could be justified under Chapter VII of the UN Charter.
Should a global agreement on pandemic prevention and control be reached, human rights
would have to be included.
Global law as the end of international law?
For Andrea Leiter (Amsterdam), a transnationally understood global law makes it possible
to overcome the conceptual weaknesses of the classical doctrine of international law
with its focus on states as the authoritative legal entities and creators of law (Art.
38 ICJ Statute). New concepts are urgently needed in this regard in order to be able
to better meet the current challenges and shifts in power – not least through innovations
in technology and digitalization – as well as the associated injustices; such a reconceptualization
also by no means implies forgetting history. Anne Orford (Melbourne) was very sceptical
about the characterization of international law as conservative in contrast to the
allegedly dynamic nature of global law. One must ask themself who is propagating global
law as a new category of thought and action, why and with which possibilities of influence;
it also has to be examined who ultimately benefits from it. She rather sees the danger
of re-colonialization if the consensus of states necessary for lawmaking in international
law should lose importance in favor of private and transnational actors, especially
since there is no international political institution that is constituted in a way
that enables it to adequately represent and integrate all actors of global law. It
is more important to fight for a different, a better international law.
For Makane Mbengue (Geneva), international law has never been purely ‘westphalian’,
it has always been ‘global’, not least because of its evolutionary and adaptive nature.
International law and global law would be mutually supportive, the latter being a means
to an end in order to improve international law. As evidence, he pointed to the 2017
draft of a Global Pact for the Environmemt: stemming from a private initiative by
authoritative lawyers, its modus operandi was clearly attributable to the sphere of
influence of global law, but its goal was the deliberate strengthening, and not the
replacement, of already existing (environmental) international law – now affirmed
by a United Nations General Assembly resolution (UN General Assembly 2018; Le club
des juristes 2017). Dire Tladi (Pretoria) also questioned the need for the new category
of global law, noting that a greater role for non-state actors is already evident
throughout international law, despite the insistence of structurally conservative
states on respect for their national interests. So, even if we all look at the same
international law, we always discover different aspects.
For him, the turn to global law can be explained by the unequal influence of the Global
South on norm-setting in international law: at best, the new discourse reflects this
old power imbalance; at worst, it obscures it once again.
The conference was excellently organized, with a benchmark high technological, human
and financial effort. According to Pål Wrange, the hybrid conference format is here
to stay, as is the coronavirus. If this should be the case, apart from the undeniably
positive effects on the ecological footprint of international conferences, there are
also questions of justice with regard to who will be able to participate on-site in
such conferences in the future, when, how often, why and with what kind of financial
support; notably, it could get more difficult for young academics to establish and
maintain their own transnational networks (and friendships).
Supplementary Information
German full-text translation of the Conference Report of the 16th Annual Meeting of
the European Society of International Law (ESIL) by Hubert Mayer