Sovereignty, Justice, and International Law

OUTLINE OF THE TOPIC The wave of anti-internationalism signalled by Brexit, the “America First” slogan of the new United States administration, and by African states’ challenge to the authority of the International Criminal Court, raises important questions about the tension between the sovereign authority of states and possibility of a peaceful and just international order. This wave weakens the fragile links established by the progressive expansion of international law and the justice and accountability that it has engendered. The tension between the authority of states and the authority of international law is a longstanding feature of international politics. For example, the principle of constitutional supremacy sits uneasily with the authority claimed by international law to constrain state action. International law amplifies this tension with rules that at once protect the sovereign authority of states and grant them the justification to resist such rules. Principles which protect non-intervention into the internal affairs of other states, sovereign immunity, and the right of self-determination of peoples, give international law legitimacy only to the extent that it does not challenge too much states’ entitlements to do as they please within their own territories. This tension is mirrored in the politics and jurisprudence of the European Union. The EU asserts constitutional supremacy over member states, yet states are reluctant to give up their claims of national constitutional supremacy, to which they have been historically wedded. A strong, unyielding conception of states sovereignty stands in the way of the ability of supra-national regimes to constrain the authority of states, enforce cooperative arrangements, and protect human rights. States view the authority of international law as a threat to their ability to rule and to democratic legitimacy. They consider themselves bound only by the laws authorized by their democratic constituency, and the idea of a community based ‘We the People’ plays a central role in their efforts to resist the encroachment of international law. With the rise of the notion of popular sovereignty in the practice of advanced democracies in the 18th and 19th century, the idea that only the people of a territory could create and legitimate political institution took a powerful hold. The people thus understood are the only legitimate constituent power, or so the argument goes, and they cannot be subjected to rules outside of their control. But is there room for such a thing as a global constituent power, made up of the citizens of the various nations around the globe? And could international rules derive their authority from it? This is one of the fundamental questions at the heart of the relationship between sovereign states and international law. A joint sessions workshop hosted by ECPR in Mons, Belgium with the title Sovereignty, Justice and International Law will examine the tension between state sovereignty and international law, and ask what are the ways in which it can be resolved so that the gains in peaceful co-existence and in solving common problems facing the international community is not undermined. Whereas the connection between law, politics, and justice at the domestic level is well studied and much celebrated, disciplinary specialization has stood in the way of a productive dialogue about this relationship at the global level. Therefore, a first aim of the workshop is to develop a theoretical framework for describing these issues by combining the insights of international law scholars and political philosophers working at the intersection of theories of justice and international law who have expertise to address these questions from different disciplinary perspectives. Thus, the joint session will necessarily be integrative and interdisciplinary. The second aim of the workshop is to address a series of substantive questions that will help guide us toward a resolution of this practical and theoretical problem. The questions are organized around three themes: 1. The first theme refers to the justice and injustice of international law. Indeed, many cases that came before international courts, dealing with the sovereign immunities of states, involved the question of whether individuals wronged by states (their own or others) can have recourse to international rules to hold violators responsible. The ICJ ruled that sovereign immunity bars such accountability in Germany v Italy, but the dissenting judge Cancado Trinidade from Brazil made a justice-based argument that allowing limited exceptions to state immunity is for many victims the only mechanisms they have available of ensuring redress for violations of their fundamental rights when those violations are committed by states. If international law is an important tool for realizing justice, is it capable of creating and applying rules bound by considerations of equality, fairness, human rights, autonomy? Is sovereign immunity an obstacle to justice and accountability? Can we redefine the rights and obligations of sovereign states so that the exercise of their function is better constrained by norms of justice and human rights? 2. The second theme refers to the relationship of state authority and international law. In Germany v Italy, the ICJ required Italy to make changes in its domestic legislation or to take measures with the same effect to accommodate the decision by the court to uphold Germany’s sovereign immunity. This is a clear example of an international institution making demands for reform on the domestic law of a state in order to elicit compliance with international law. Are there limits to what international law can require of states? What are the boundaries of states’ prerogatives to make their own rules? Should those boundaries be defined by general international rules or are they a matter of purely internal exercises of democratic self-creation? These questions invite us to rethink the contours of state sovereignty and consequently some of the fundamental concepts and normative ideals in political philosophy, such as democracy, political authority and political obligation. 3. The third theme refers to the democratic credentials of international law. States sometimes resist the authority of international law precisely on grounds that it lacks democratic authorization. Only state authority has a democratic pedigree, or so the view goes, and it cannot accept limitations of its actions coming from outside the national demos. But if international law is created by successive contracts among states, could it claim a democratic pedigree? Could it justify its authority both on the basis of the multiple demoi that create it, and also on the basis of a global demos constituted by acts of multilateral law-making? These and related questions will be the focus of a series of 15-20 papers on the relationship between state sovereignty, justice, and international law. We aim to reach out to practitioners from international law, European law and politics, political theory and international relations. RELATION TO EXISTING LITERATURE Issues of justice and injustice in international law are only just emerging as a theme in the literature. Indeed, Steven Ratner’s recent book The Thin Justice of International Law (OUP 2015) is a major advance in this regard, as is seeks to show that the various principles and rules of international law are compatible with a narrow version of justice consisting in respect for peace and human rights. It contributes to an incipient discussion to which Allen Buchanan (2004) and Terry Nardin (1983) have made early and important contributions, but whose vitality seems to have dried prematurely. These accounts provide abstract evaluations of the major principles of justice and legitimacy underlying international law, and fail to engage with the significant shortcomings and failures that the existing institutions and rules of international law suffer from. A more fine-grained account of existing institutions that draws on the vocabulary of procedural and substantive accounts of justice repurposed for the context of international law is needed. The question of the relationship between sovereign states and international law is well-trodden terrain. But despite extensive engagement with the issue from a variety of disciplinary perspectives (Mearsheimer 1994, Goldsmith and Posner 2005, Cabrera 2005, Lu 2006, Wadron 2013, Besson and Tasioulas, 2013) the issue of the proper legal hierarchy between national and international law is largely unsettled. Against arguments that attack the legitimate constraining function of international law (Hurd, 2015, Goldsmith and Posner, 2005), some defend the supremacy of international law, at least in some areas, as a solution the problem of international conflict and the protection of human rights (Ohlin 2014, Crawford 2014, Pavel 2015). Should the later set of arguments prevail, scholars and practitioners must still work out the nature and shape of the constraints international law can impose on sovereign states. Whether such constraints are justified will depend in part on how we settle the question of the democratic legitimacy of international law. Recent debates on the idea of constituent power have attempted to settle the issue of whether the people of a state can delegate authority to international institutions and still retain that authority themselves. Indeed, Jean Cohen (2012) has explained that agreements which create supranational arrangements can both preserve existing demoi at the state level while at the same time creating a compound demos made up of the demoi of the authorizing states. In the context of the European Union, Habermas identifies as the locus of both sites of democratic authority as the individual constituting both the national demos and the transnational one (Habermas 2007, Niesen, 2017), and this understanding can be productively adapted to the international law realm. 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