Examining the backlash against International Law in the Age of Populism

The author, Barkha Batra, is a third year student at Ashoka University, majoring in Political Science with a minor in International Relations.

Examining the backlash against International Law in the Age of Populism

“The eggheads who came up with this international law should turn on their TV”

- US President Donald Trump

It is no secret that the world has been witness to a surge of populist governments, leaders, parties and policies in contemporary times. This recent turn to populism has brought with it various conflicts and threats, all classified broadly as a challenge to the liberal institutional order. In particular, one of the biggest challenges that populism has brought with it is one to ‘internationalism’ and multilateralism: be it pulling out of treaties, abusing multilateral institutions, undermining international courts, or flagrantly violating international law. Populist leaders across the world are set on de-legitimising and undermining international law. Populism’s most fundamental tropes are used in defending the resentment against these international law and norms - for example, such law is seen as created by ‘elites’ who are disconnected from domestic realities. This paper seeks to analyse the trend of backlash against international law and legal institutions by populist leaders and govenment. In doing so, it will first establish the general role of international law. Next, it will analyse the populist response to international law. Further, it will try and analyse the populist reasoning behind this backlash, assessing whether there is any merit to their appeals. Finally, this paper will examine the efficacy of international law in the age of populism. This paper uses the case of the United Kingdom and the European Court of Human Rights to illustrate some of the assertions made.

1. The Role of International Law

While international law does confer various opportunities upon States, it also does impose upon them several duties and obligations which, to these States, can be both unexpected and unwelcome. Why, then, is international law considered important to begin with, and why do States abide by it?

The answer to this is manifold. To begin with, it is clear that States do acknowledge the effectiveness and importance of the international legal system because it provides some sense of stability: the laws are clear and comprehensive, the rules are certain and predictable, and there is meant to be an impartiality in its imposition. Even without this impartiality feature, international law has always been seen as malleable - more powerful states have moulded facets of it to benefit their interests, whereas less powerful states have cited other facets of it to try and counter excessive use of power or violations by the more powerful ones. The rule of law at the international level is representative of a ‘culture of order' (Arthur, 7). While there is no ​rule of law internationally per se, the existence of and adherence to international law is representative of the acceptance of something larger that will be beneficial for the international community in the long term. This culture of order, ie the establishment of the rule of law, shows that it is applicable for everyone, and that the international community thrives when in collaboration. The existence of international law is also a partial answer to realist anxiety: the fact that without these overarching rules, norms and principles, the world would exist in a state of disorder and anarchy. All forms of collaboration - be it trade, finance or communication requires a structure to function under. International law provides this structure. Thus it naturally flows that international law provides the foundation on which States base their opportunities and duties in the international domain. It is for these reasons that States in the international community have been prone to adhering to all sources of international law: be it treaties, judicial decisions, statutes, writings, or even unwritten customary laws and general principles.

It is clear, therefore, that international law is a crucial part of the structure of international society, and that adhering to it is beneficial for all actors involved. However, the populist era has brought with it a shifting view - an opposition to international laws and standards. Across the world, populist leaders have flouted laws, undermined agreements, and openly threatened and subverted the authority of international institutions. Interestingly, this has broadened their domestic appeal - the populist leaders are seen as strong and brave. The next section delves into the populist response to international laws and institutions, and analyses the behaviour of populist leaders with regard to the same both at the domestic and international level.

2. Populist aversion to International Law

Just a few months into his tenure, Donald Trump declared his intention to pull out of various international treaties inter alia: withdrawal from the Paris Agreement, the Trans-Pacific Partnership, cutting funding for the United Nations Human Rights Council, and vocal opposition to the North American Free Trade Agreement. In Europe, populist leaders in countries like Hungary and Italy are calling for a protection of national interests against ‘foreign meddling.’ In Africa, a number of nations are turning against international legal institutions: for example - Burundi, Gambia, Kenya, South Africa and Zimbabwe have all either threatened or managed to quit membership of the International Criminal Court. The populist backlash against international law can be explained by popular opinion across the world. The primary foundation of this lies in understanding emotions. Ordinary people often felt left behind and therefore frustrated by and resentful of globalisation. They lost faith in international institutions and those who supported them. They preferred leaders that would advance national interests first, allowing the ‘common people’ to benefit. Populist leaders capitalised on this sentiment.

The binary between the domestic and the international has always existed in international relations. However, with the coming of populism, this binary is exacerbated by one of the classic populist tropes: the creation of an ‘us vs them’ mentality. Here, the domestic is one cohesive unit, united against the international ‘other.’ For the international to interfere with the domestic is illegitimate - amounting to a violation of sovereignty that is unacceptable to the domestic politics and people. International law interferes with the domestic and therefore undermines the sovereignty of the state. Populist leaders build on suspicion against international standards, making them appear illegitimate. One example of this is Viktor Orban’s opposition to the creation of an EU asylum agency that would vet applications and distribute asylum-seekers across EU nations. Orban referred to this as “meddlesome and stupid.” Similarly, Trump cited a reassertion of America’s sovereignty as a reason to withdraw from the Paris Agreement.

The second response to international law uses another typical populist approach: delineating the virtuous people in opposition to the privileged, disconnected elite. The argument used is that international law is moulded by elite leaders who espouse principles that are alien to the common people and do not represent their “real interests.”

Third, there is a perceived ‘democratic deficit’ (Posner, 10) ie, the lawmaking process is neither representative nor transparent. Judgements in international courts too are made by detached officials who are unaware of the domestic fabric, therefore making institutions and norms undemocratic and illegitimate - particularly because international leaders have little to no electoral accountability. Thus, international law is villainised, and the domestic is established as superior.
 

Finally, one of the clearest traits of populist leaders and governments is that they are anti-pluralists. Thus, they reject international law because it provides an alternate perspective to social and legal questions, often contrary to the populists’ interpretation of social and legal problems. The populists push a singular narrative, selling it as the sole reality or reasoning - therefore any alterantive narrative must be quashed. “Populists are not necessarily against institutions, just those that in their view fail to produce morally correct political outcomes” (Voeten, 16).

There is an observable empirical link between populism and the backlash against international law. It is interesting to note that the populist backlash is not towards the ruling made by the institution, but the institution itself. In a study done by Erik Voeten, twenty eight countries that had vocally opposed international law/threatened to exit institutions/actually exited institutions were selected. Of these, eighteen were found to have populist governments. The observations of this study suggest that governments that rely strongly on populist mobilisation are more likely to initiate backlashes. This is evident with the example of the Investor State Dispute Settlement Court - where India, Indonesia, Poland , Bolivia, Ecuador and Venezuela all lashed out at the organisation when under populist leadership. Such is the case with various other institutions including but not limited to the Interna​tional Criminal Court as well as the European Court of Human Rights.

The populist anxiety towards international law manifests itself both in their behaviour towards the international organisations, as well as in domestic courts at home.

At the domestic level, international law has always been subject to judicial discretion. Typically, the use of international law has been to strengthen the legitimacy of judgements based on domestic law. Another use has been in cases where a domestic precedent does not exist - therefore a hierarchy needs to be established by referring to international law as the legal and moral standard. In a populist climate, however, international law has a severely reduced sociological legitimacy. (As outlined by Richard H Fallon: when legitimacy is measured in sociological terms, a constitutional regime, governmental institution, or official decision possesses legitimacy in a strong sense insofar as the relevant public regards it as justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal reward).

This unbridled public support, coupled with the lack of a credible opposition and the trend of subverting the judiciary and its powers - renders the judiciary relatively unwilling to refer to international law that is domestically under fire. Further, judiciaries in multiple populist nations are hesitant to cite international principles when exercising their power of judicial review against the government and its legislation, giving into state and public pressure. The case of Israel is interesting here. From the mid 1990s to the early 2010s, the Israeli Supreme Court referred to a number of international rules and norms in its rulings and case laws about Occupied Palestinian Territories. Over the last decade, however, the Court has reduced its referral to international law in a number of ways. The most interesting of these is the replacement of the discussion of international law with that of Israeli domestic law - even though Israeli law is not technically applicable or enforceable in the Occupied Territories. This move has been made by judges both pro and anti the incumbent government. Such moves are visible in a number of other countries like Italy, Hungary and Turkey.

So far, a number of cases of populist backlash have been mentioned, with countries ranging from those in South Asia to Africa, Europe and America. Since the backlash appears to be a worldwide phenomenon, it begs the question: is there any reasonable grounding behind the populist denouncement of international law?

3. Examining the Flip-side

This section seeks to examine the populist side of the story: since populism and backlash against international law and institutions appears to be a global phenomenon - is there any merit in the populist argument?
Christine Schwöbel-Patel argues that there is more to this backlash than a general hostility to technocratic institutions - ie those of international law. This argument depicts that the wave of populism has risen since the 2008 financial crisis. Powerful international institutions seem to favour only the already powerful - while also protecting financial capital and MNCs from taxation. Only the wealthy countries seem to have benefited from globalisation, and ‘ordinary people’ have not been able to reap the benefits. A number of arguments assert that multilateralism has in fact been the catalyst in creating a polarised world by allowing economic expansionism, and increased competition for resources. One example here is that of the IMF, which has a quota system wherein each member must pay in accordance with their global economic standing. In relation to this quota, each State is given Special Drawing Rights. Thus, richer countries will have more Special Drawing Rights, effectively allowing them to outvote the poorer nations - translating into the poorer countries always being subjugated by the richer ones. Further, China Mieville argues that international law has also lead to the creation of an unspoken reign of terror - wherein multilateralism and laws are used for imperialist interventions such as the one in Haiti in 2004. On closer examination, therefore, it appears that the populist backlash has capitalised on pre-existing feelings of resentment, of marginalisation, and of subjugation.

At this point, it is interesting to note that populist governments haven’t entirely rejected engagement with, or the use of international law. In fact, these very feelings of resentment, marginalisation and subjugation have motivated populist leaders to use international law to advance domestic self-interest.

4. International Opportunism

While most populist governments have been vocally weary of international law and institutions for all the aforementioned reasons, it is interesting to notice the so-called aberrations when international law is actually used by these nations. Populist governments are described to have a ‘shield and sword approach’ (Rovira, 112) to international law: where on the one hand, they shield the domestic from international meddling and harm, on the other, they use aggressive tactics to advance domestic interests using these very institutions and laws when it suits them. The greatest example of this is the India-Pakistan rivalry at the international level. Despite various attempts by the UN to mediate the tensions, India has always maintained that the issues are either domestic, or of bilateral relevance, and that no foreign intervention is required. However, in 2017, when a retired navy officer was captured into Pakistani custody, India wasted no time in moving the International Court of Justice to adjudicate upon the conflict.

A case study is particularly interesting here. In 2016, the United Kingdom voted to withdraw membership from the European Union. The reasons cited were similar to a number of the general populist responses mentioned in Section 2 - including villainising the EU by claiming it is drying English coffers, calling it a corrupt organisation, and demanding autonomy from this supranational organisation by delineating the domestic and the international, giving the domestic precedence. The assertion was a search for “British autonomous nationhood.” The fascinating part about this assertion, and the Brexit process in general, is that Britain decided to withdraw from the European Union because it wanted greater autonomy to dictate its own policies - however, it has not yet withdrawn from the European Court of Human Rights (subsequently referred to as ECtHR). This is despite the fact that the ECtHR imposes judgements that are legally binding upon nations, and has often been criticised of interfering in domestic politics - imposing judgements that controversial and unpopular amongst British politicians.

Why, then, has the UK retained its membership of the ECtHR despite its populist wave? Why also, does it have one of the strongest records of compliance? Could self-interest be a factor here?

For one, the cases that the ECtHR deals with are pertinent human rights issues that often receive support from the domestic citizenry - such as the judgement about prisoners’ rights. Since judgements do have domestic legitimacy, compliance would mean honouring the domestic agenda, as well as increased popular electoral support.

Second, the UK claims that the ECtHR has a ‘uniquely British’ way of interpreting human rights, and that this way of thinking distinguishes it from the rest of Europe.19 This account is used by British politicians, media, and even the judiciary. In doing so, two populist tropes are enabled once more - first, the establishment of British virtue as superior to that of the rest of Europe - once again prioritising the domestic over the international. Additionally, withdrawal from a human rights institution generates a global image - one that paints the State as unwilling to commit to protection of human rights. This would lead to domestic and international backlash that would taint the ‘morally superior’ image that the populists are trying to establish. Secondly, andmoreimportantly-inthe​otherisationo​ftherestofEurope,theECtHRbelongstotheBritish ‘us,’ further alienating the European ‘them.’

It is thus clear that when international law and legal institutions serve a domestic agenda, compliance is less of an issue, backlash is kept to a minimum, and the laws can serve their purpose. This leads to the final question: is there any efficacy of international law in a populist world?

5. Efficacy of International Law:

There are two sides to the debate about whether international law can be effective in a populist world. One takes a positive view on populism, while the other takes a negative view.
The positive view regards populism as a movement of the people because of the sheer quantity of support it gets. It regards populism as a strategy to ‘unite the masses’ and calls for the mobilisation of these masses. This is a call for a ‘re-politicisation of the international sphere’ wherein states are not the sole actors, but particular movements too get their say. This populism of unity can unite actors from across the globe, allowing them to address the inequality that international law creates. The problem with this view is that it discounts the fact that populism often suppresses any alternative narratives - and often comes with a further marginalisation of the minority. Therefore, in this situation, the groups that will be mobilised will be the ones that already have a platform thanks to populist action.

The second argument takes a negative view of populism. This view establishes that populism comes with a quashing of pluralist narrative, and thus with opposition to the realm of international institutions and norms. To counter this, domestic courts can employ the ‘Engagement Model’ (Hotovsky, 592) wherein they must presume whether judgements, and even parliamentary bills, are compatible with international legal standards. This must be incorporated in court documentation of the same. Courts, judges and lawyers can also refer to general international principles in their writings - even if it is to bolster a decision based on domestic laws. This engagement can serve as a justification for alternate interpretations: say for example, privileging human rights over economic advancement.

Referral to international law has another advantage. Here, the incorporation of an additional standard legitimises the existence of alternative perspectives, which is important in a populist age. This also opens public discourse, which again enables multiple (even dissenting) perspectives to be expressed.

In conclusion, it is evident that the populist backlash of international institutions is expressed through a number of the classic populist appeals: capitalising on emotion, otherisation, privileging the domestic, and creating a divide between the ‘people’ and the ‘elite.’ It appears that this populist backlash is based on two main pillars: one, the need for domestic autonomy and the resentment against outside intervention, and another kind of resentment - of being left behind and being taken less seriously in the international arena. However, this does not mean that international law is no longer efficient. In fact, it is the most efficient when it allows a state to further its domestic agenda in the international arena. Furthermore, international law can act as a mechanism to check, and even counteract negative populist influence.

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