Liberalism and the End of International Law?

Abstract

As globalisation and Pax Americana replaced the cold war as a framework for thinking about things international, explicitly liberal ideas of international relations developed and gained momentum. Liberalism puts great emphasis on law, and it is therefore no coincidence that there has also emerged a liberal theory of international law (LiTIL). Liberal ideas can be traced to many writers of international law, but the articulated liberal theory of international law is associated with Anne-Marie Slaughter, professor of international, foreign and comparative law at Harvard Law School. Besides her law degree, Slaughter has a PhD in IR, and she started publishing at the time of the break-up of the Soviet empire, which does not seem coincidental. Slaughter’s writing builds on a few distinct ideas: International law should be based on developments in IR, i.e., on liberal IR, where the individual is the fundamental actor. There is a liberal zone of peace and law and a non-liberal zone of (potential) wars and politics, and legal relations in the liberal zone are different from relations with or within the non-liberal zone; In the liberal zone, international relations have changed fundamentally from the old Westphalian paradigm, to relations on three levels: the transnational level between individuals, the transgovernmental between governmental institutions – what she calls disaggregation of sovereignty - and the traditional inter-state level. This theory has been critiqued from several points of view: Andreas Behnke will deal with the IR underpinnings of her theory and their political implications, Outi Korhonen has analysed the epistomological theory implicit in liberal international law, Martti Koskenniemi has written about the relation between law and politics in liberal international law, the political theory implicit in liberal international law has been questioned by Susan Marks and the political implications of her legal theory will be covered in Linda Bishai’s presentation. My intention with this paper is to deal with the liberal theory of international law as a legal theory. That is, I want to see what it has to say about the foundation of law, the nature of law, and how we can determine what is valid law, all of which are questions which legal theories usually aim to answer. I will first present Slaughter’s theory, and then deal with the different implications of that theory from the perspective of whether it produces sound international legal theory.