Global Justice, Global Governance, and International Law

The chapter comments on Eyal Benvenisti’s discussion of international law’s contribution to global justice. It puts forward that global justice at the international level can only be the result of a permanent bargain and a compromise between the multiple and conflicting interests among states. It emphasizes that better governance at the global level involving the sharing of the policy-making and decision-making, accountability, the rule of law, and sanctions can help improve global justice. It concludes by suggesting that if international law could contribute to the advent of global justice in a move from ‘Responsibility to protect’ to ‘Responsibility to develop’, it would open a new era for its rise amongst nations and peoples.

The Eye of the Beholder? The Contestation of Values and International Law

The chapter comments on Tiyanjana Maluwa’s analysis of the contestation of value-based norms. It first, referring to the metaphor of the ‘eyes of the beholder’ and the song by Metallica with the same title, answers the question ‘Do I see what you see?’ Second, it is interested in coming closer to an intersubjective ‘truth’, that is a shared understanding for determining the alleged erosion of international law or the value-based legal norms of the United Nations (UN) Charter. By focusing on one of Maluwa’s case studies, it illustrates how conceptual choices may predetermine findings. In other words, they guide ‘into what you read’. Finally, it argues in favour of being more explicit about these choices to let others ‘see what I see’ and therefore to be transparent about the type and form of contestation one seeks to explain.

The Contestation of Value-Based Norms: Confirmation or Erosion of International Law?

The chapter discusses the concepts of shared values and value-based norms. It examines two areas of international law that provide illustrative examples of contestation of value-based norms: the fight against impunity under international criminal law and the debates about the responsibility to protect. It argues that the African Union’s (AU) difference of view with the International Criminal Court (ICC) over the indictment of Omar Al-Bashir is not a rejection of the non-impunity norm, but of the context and sequencing of its application. As regards the right of intervention codified in the Constitutive Act of the AU, Africans states responded to the failure of the Security Council to invoke its existing normative powers in the Rwanda situation by establishing a treaty-based norm of intervention, the first time that a regional international instrument had ever done so. Thus, in both cases one cannot speak of a decline of international law.

The Rise and Decline of the International Rule of Law and the Job of Scholars

International law feeds on preconditions which it cannot guarantee itself. International scholarship, too, must come to grips with pre-conditions and existing parameters over which it has no control itself. But such scholarship must not ‘succumb’ to these factual and ideational realities by adapting its methods and findings to any given political, social, and economic climate. It is the job of international legal scholars to produce ideas in a spirit of realist utopianism (John Rawls). Depending on the existing parameters, these ideas are apt to shape attitudes and actions, or not. Such scholarship also needs to distance itself from its object of study in order not to lose its capacity to criticize the law and the practice. How far exactly scholarly writing should transcend or keep aloof from the prevailing political climate and from concerns of feasibility depends on the research questions under discussion and is a matter of judgment. The style of scholarship suggested here is illustrated by the work of three eminent scholars whose careers continued through different political eras more or less favourable to the international rule of law: Hersch Lauterpacht, Antonio Cassese, and Josef Kunz.

The Relationship between Legality and Legitimacy: A Double-Edged Sword

This comment on Thilo Marauhn’s chapter addresses the relationship between legality and legitimacy from a norm-related perspective. It inquires into the reasons for the two-dimensional relationship between legality and legitimacy through the lens of norm theory. It considers legal norms on the one hand and legitimacy norms on the other hand, interrogating how these different kinds of norms can coexist, interrelate, and influence each other and what functions they can fulfil in the international sphere. By doing so, it highlights to what extent legal norms and legitimacy norms compete and complement each other—where the double-edged sword in the relationship between legality and legitimacy can be used for undercutting or rather for defending each other.

International Law, Informal Law-Making, and Global Governance in Times of Anti-Globalism and Populism

The chapter focuses on the impact of globalization on public international law in times of anti-globalism and populism, where globalization itself has increasingly become contested. It submits that traditional public international law has been dangerously unreceptive in capturing new transnational regulatory actors and normative dynamics, which makes it more vulnerable to anti-globalist and populist attacks. It looks into the corresponding rise and certain features of ‘informal international law-making’ and ‘global governance’, as they may offer some responses to, or at least some defences against, anti-globalist and populist politics. It also addresses the current challenges which traditional forms of international law-making, like treaties and customary international law, are currently going through. It concludes that public international law will have to adapt to both the challenges of globalization and anti-globalism, if it is to remain relevant in regulating international life in the twenty-first century.

Do Non-State Actors Strengthen or Weaken International Law?

The chapter compares the liberal beliefs and sensibilities informing the question of the rise or decline of international law with the liberalism found in the way in which the concept of non-state actors has been conceptualized, theorized, and used in international legal thought and practice. It shows that the question of whether non-state actors strengthen or weaken international law prejudges its very answer and supports an image of international law on the rise. In doing so, the discussion simultaneously shows that liberal discourses are organized around liberal symbioses that are necessary to preserve international lawyers’ confidence in the ability of international law to intervene in the problems of the world.

International Law within a Global International Society

This chapter is a comment on Felix Lange’s analysis of the universalization of international law from a historical-contextual perspective. Building on Lange’s arguments the comment underscores and develops further three specific themes, all of which are of ongoing relevance: the importance of mutual constitution in the relations between the West and the non-West; the need to look ‘beyond membership’; and the agency of the non-Western world. It concludes by returning to the idea of the international rule of law and the ways in which our understanding of the universalization of international law and the international rule of law may be related and brought together.

Coercion, Internalization, Decolonization

The chapter discusses competing narratives of ‘rise’ and ‘decline’ of international law in the historical writings of international lawyers and historians. The author proposes a contextual approach to the history of international law which takes the terminology of the actors of the past seriously, but also leaves room for an assessment of functional equivalents. The author applies his contextual approach to the story of international law’s universalization. He claims that from the seventeenth century, European international law universalized via processes of forceful coercion by Western powers, internalization through non-Western states, and decolonization after the Second World War.

Ensuring Access to Information: International Law’s Contribution to Global Justice

This chapter examines the role of international law in promoting indirectly global (and domestic) distributive justice. The focus on institutions and processes at the global level is grounded on the assumption that questions about the just allocation and reallocation of resources are ultimately resolved through processes of public deliberation (including through the involvement of courts). The author argues that the key to approaching a more just allocation of resources is by addressing the democratic deficits that underlie the skewed distribution (or the lack of redistribution) of assets and opportunities. He suggests that international law can play a role in the political empowerment of weak constituencies (within and between states). In doing so, international law can indirectly shape the distribution and redistribution of resources, in a manner that is more dignified and preferable to handing charitable contributions.