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Towards a Rule-Based and Value-Oriented International Community? – Legal scholars and political scientists examine the role of international law in global change

The International Court of Justice (ICJ) in The Hague. Photo: The International Court of Justice (ICJ) in The Hague.

The International Court of Justice (ICJ) in The Hague. Photo: The International Court of Justice (ICJ) in The Hague.

The UN Security Council, UN peacekeeping missions, and the first forms of international criminal justice: these all seem to herald the formation of an international crisis management system within an increasingly interconnected world. But is there actually a sort of value-oriented juridification of international relations? Is the world really coming together and creating a common system of international law that is universally supported? The Potsdam legal scholar Prof. Andreas Zimmermann wants to explore these issues with Prof. Heike Krieger of Freie Universität Berlin and Prof. Georg Nolte of Humboldt-Universität zu Berlin at the DFG-funded (initially until 2019) Humanities Centre for Advanced Studies on “The International Rule of Law – Rise or Decline? – The Role of International Law in Global Change”.

“After the Cold War in 1989/90 everyone thought, ‘Now the world will be reorganized',” explains Zimmermann. “Preexisting structures of international law consolidated and new ones were developed. The ‘House of Europe’ grew, the OSCE was founded, and the Russian Federation became a member of the Council of Europe. There was a period of intense structural changes to the field of international security as well as the economic system, such as the founding of the World Trade Organization.”

It seemed as if international law had developed from a mere formal and value-neutral system towards a more value-oriented and person-centered one, an interpretation immediately supported by many scholars of international law both then and now.

Certain developments have, for some time now, however challenged the paradigm of value-oriented juridification at the global level. These developments include international crises, such as in the Ukraine or maritime territorial disputes in East and Southeast Asia, which indicate that thinking in geopolitical spheres of influence is likely gaining traction again. They also include, however, the difficulties that states encounter if they want to tackle pressing global issues through international legislation, such as climate change or the international trade system. For a while now, an increasing number of people have predicted a “stagnation of international law” and a “return of geopolitics”, explains Zimmermann. “Given these signs, we ask ourselves: Will the development of international law—positively perceived for a long time—be superseded by reformalization or even de-juridification? Or are we merely observing delays in a long-term development towards a value-oriented juridification? Is international law really becoming a ‘right of the world's population’ or are we experiencing a dampening of enthusiasm or even a breakdown?”

The legal scholars from the University of Potsdam, the Freie Universität Berlin, and Humboldt-Universität zu Berlin launched the Humanities Centre for Advanced Studies, funded by the DFG until 2019 with the aim of thoroughly examining this development from as many angles as possible. For Zimmermann, this constellation is ideal. “Of course, the proximity offers optimal working conditions. Where else can you just hop on a crosstown train to visit a colleague at another university?” says the researcher. “Above all, we expect highly productive research from a working group in which three people will be looking through ‘their microscopes’ at the same object and exchanging their views on it.” Moreover, the three researchers all assess international law similarly. “We consider the potential of what international law can and must achieve rather conservatively,” says Zimmermann. “In my opinion, quite a few of my colleagues in Germany see it too idealistically. Therefore, we expect our investigation to show what international law can actually achieve in a changing world.”

The group wants to investigate three key areas of discernable processes of change in international law and their prerequisites: values, structures, and institutions. Each researcher is responsible for one of these areas. Heike Krieger from Freie Universität Berlin is focusing on whether recognized fundamental values and principles of the international law system shared in principle by all states are being eroded by reinterpretation. These include safeguarding peace and security, protecting fundamental human rights, protecting the environment, and renouncing the use of force. China and Russia, for example, have been striving for some time now to strengthen traditional values – such as protecting the institutions of family or religion – to the detriment of classical freedoms.

Georg Nolte of Humboldt-Universität zu Berlin, in turn, is examining the transformation of international structures of international law. Zimmermann explains that, unlike a few years ago, there are now “less strict normative orders and more informal agreements between individual states. We want to clarify whether this practice challenges international law and its treaty-based instruments.”

Zimmermann is examining the development and the current state of international law on the basis of its institutions, notably the European Court of Human Rights in Strasbourg and other international courts and tribunals. The growing number of international organizations and courts—and their far-reaching practice—are often interpreted as evidence of a maturation process of international law, explains Zimmermann.

But there are apparently also indications that certain states are abandoning such forms of judicial conflict resolution. While this was once an exception, an increasing number of actors do not recognize the jurisdiction to which they are formally subjected. The Russian Federation, for example, simply did not appear at the International Tribunal for the Law of the Sea for the proceedings on the release of the Greenpeace ship ‘Arctic Sunrise’ in 2013. The same applies to China in a dispute with the Philippines over sovereign rights in the South China Sea. “It has always been said that dispute settlement by international courts forms the capstone of international law. Now it seems this capstone is breaking off in various places.” Zimmermann is investigating the role international courts can play and claim under the current overall conditions. This brings him face-to-face with intricate issues of the application of law. Which new institutions have gotten involved, and who has complied with their decisions? Which legal proceedings have been conducted, and what have their results been? How did the parties involved react to the court decisions? Did they accept them even when they undermined their national constitution? By addressing these questions, the legal scholar hopes to ultimately clear up which courts actually function under what conditions.

For Zimmermann and his colleagues, it is important to exchange their ideas and findings with other disciplines. Besides legal scholars, the project also includes political scientists – Prof. Andrea Liese (University of Potsdam), Prof. Markus Jachtenfuchs (Hertie School of Governance), and Prof. Michael Zürn (WZB Berlin Social Science Center). Their research will help examine current developments in international relations not only from various perspectives of international law but also reflect political and historical perspectives. “In order to examine whether international law is really effective, we need a ‘reality check’," says Zimmermann. “And political science can do this much better than us because our view is a rather normative one.”
In addition, the Humanities Centre is also always taking on “Senior Fellows” to bring novel perspectives. Research stays by colleagues from China, South Africa, and the United States have already been planned. Ultimately, international law is an international affair.

The Researcher

Prof. Andreas Zimmermann, LL.M. (Harvard) studied law at the University of Tübingen, the Université de Droit d'Économie et des Sciences d'Aix-Marseille III, and at Harvard Law School. Since 2009, he has been Professor of Public Law, specializing in Constitutional, European and International Law as well as European Economic Law and International Business Law at the Law Faculty of the University of Potsdam and Director of the Potsdam Human Rights Center.

Contact

Universität Potsdam
Juristische Fakultät
Am Neuen Palais 10, 14469 Potsdam
E-Mail: schiller@uni-potsdam.nomorespam.de

The Project

Humanities Centre for Advanced Studies “The International Rule of Law – Rise or Decline? – The Role of International Law in Global Change”
Participating: Prof. Andreas Zimmermann (University of Potsdam), Prof. Heike Krieger (Freie Universität Berlin), Prof. Georg Nolte (Humboldt-Universität zu Berlin); Prof. Markus Jachtenfuchs (Hertie School of Governance), Prof. Andrea Liese (University of Potsdam), Prof. Michael Zürn (WZB Berlin Social Science Center)
Funded by: German Research Association (DFG)
Duration: 2015–2019

The outlined consolidation of constitutional structures since 1990 – at both the national and international level – can be summarized under the modern notion of “Rule of Law”, which has its origins in Anglo-Saxon concepts of international law, emphasizing the claim for compliance and referring back to the concept of the rule of law in domestic legal systems. This notion asks—yet leaves open—whether applicable norms of international law are merely formally determined and are brought about in specific procedures, or whether instead it also embraces content-related concepts, especially those related to fairness and justice.

Text: Matthias Zimmermann, Translation: Susanne Voigt
Online-Editing: Agnes Bressa
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