The invasion of the Russian Federation in Ukraine on 24 January 2022 is certainly not the first, but one of the most blatant attacks on the international legal order and one of the order’s foundational values, namely peace. It has enlivened widespread debates about the end of the liberal world order and, closely related to this, a crisis of international law. But what does this crisis stand for? Does it indicate that a foundational transformation of international law is underway? Or can the international legal order be defended against this and other attacks?
Our new book, Tracing Value Change in the International Legal Order. Perspectives from Legal and Political Science (Oxford University Press 2023) brings together scholars of international law and international relations to assess these developments through an interdisciplinary exchange. The authors examine the fate of foundational norms of the post-1945 order and of norms representing a widely perceived rise of the international legal order post-1990. These norms include the prohibition of torture, the protection of women’s rights, the prohibition of the use of force, the nonproliferation of nuclear weapons, the value of precaution in sustainability norms, and the anti-impunity norm advanced by the ICC.
Given that international law has always dealt with the tension between maintaining the status quo and adapting to a changing world, we first need to distinguish incremental change from a profound transformation. Methodologically, such a distinction can be built on an assessment of whether essential characteristics of international law are currently changing. Thus, we argue that a foundational paradigm shift occurs if the values protected by international law change in substance or in legal or social validity. Such an interdisciplinary understanding of norm change allows us to transgress the traditional binary legal thinking, to take into account social processes that alter the context in which legal norms operate, and to grasp gradual processes of norm erosion.
“An interdisciplinary understanding of norm change allows us to transgress the traditional binary legal thinking.”
First, legally protected values might not change in the formal sense but lose their social validity and thus their power to structure actors’ behavior. This dimension acknowledges that international norms, understood as social expectations by social scientists, overlap with, but are not identical to, legally codified norms. A current example is the prohibition of to use and transfer of cluster bombs. On the one hand, it is a legally codified norm, on the other a shared social expectation to ban the use of this type of weapon for its detrimental humanitarian impact. While both overlap, they are not identical. As a shared social expectation the norm is even affecting non-parties to the 2008 Convention on Cluster Munitions, i.e., parties that are not bound by the norm in the legal sense. The contributions to our book observe social validity decline for the prohibition of the use of force, where the historically restrictive reading of Article 51 UN-Charter regarding “the inherent right of individual and collective self-defense if an armed attacks occurs” has come under attack after 9/11. Another case in point is women’s rights where a social validity decline occurs due to conservative actors’ successfully hollowing out gender equality norms by means of counterframing techniques or symbolic compliance.
Second, the degree to which a value is legally protected may change (legal validity decline). This category captures, inter alia, cases of erosion or shifting prioritization of values. Our authors identify indications for such an erosion of the value of accountability in relation to certain practices concerning the ICC. Third, a legally protected value may change substantially. Due to processes of fragmentation the value of precaution seems to undergo substantial value change. Still, in view of inherent resilience mechanisms and high hurdles for legal change, many of the norms and their underlying values analyzed in our book have so far proven to be robust to change with the most prominent example of the prohibition of torture.
“The role of norm defenders is vital: robust norms have been defended by legal institutions, key states, and non-state actors who uphold normative expectations.”
Why are some values more prone to change than others? We studied various attacks of and challenges to foundational values of the international order. These included different types of contestation, such as discursive versus behavioral forms or reactive versus proactive types, often encouraged by a spread of populism and autocratic regimes, changing geopolitical power constellations, transnational crises, and technological change. While the type and intensity of contestation certainly matter, we also find that the role of norm defenders is vital: robust norms have been defended by legal institutions, key states, and non-state actors who uphold normative expectations. Furthermore, legal and institutional structures reinforce norms, for instance by stabilizing legal opinion, legitimizing the claims of norm defenders, or denouncing non-compliance. Here, the systemic and autopoietic character of the international legal order contributes to the robustness of legally protected values.
A core question is which side is willing to invest costs and time for attacking or defending norms and their underlying values. The book finds that the magnitude and frequency of non-compliance with and contestation of legally protected values have grown significantly. It also notes the trend to restrict NGOs from promoting and defending international norms and the trend to delegitimize international courts and other institutions. If this trend continues, a foundational change of the international legal order might be unstoppable.
About the authors:
Heike Krieger is Professor at the Freie Universität Berlin, where she holds the chair for International and Public Law, and Chair of the Potsdam Research Group (KFG) "The International Rule of Law—Rise or Decline".
Andrea Liese is Professor of International Relations at the University of Potsdam and a founding member of the Potsdam Research Group (KFG) "The International Rule of Law—Rise or Decline".
This think-piece is based on their co-edited and co-authored book Tracing Value Change in the International Legal Order. Perspectives from Legal and Political Science (Oxford University Press 2023). This blog was originally posted on Oxford University Press’s blog here.
The views and opinions expressed in this think-piece are those of the authors and do not necessarily reflect the official policy or position of SIPA or Columbia University.