The Imperial Over-Stretch of International Law

Abstract

In presenting the international law community with a call to action in defense of the liberal international order against a trend towards “authoritarian international law,” Tom Ginsburg prompts us to assess the systemic dynamics at play in the contemporary international legal order. In doing so, we should be cautious about assuming that the consequences for international law of any particular actor will be positive or otherwise. A couple of decades ago even American international lawyers were concerned about what they perceived to be the threat posed to international law by the United States as global hegemon. And yet from today's vantage point, it seems that the imperial actor during the post-Cold War period may not have been the United States so much as transnational civil society. The very openness of the system of international law that enables both democratic and authoritarian regimes to promote norms reflective of their policy preferences has also enabled civil society to advance norms, processes, and institutional structures that go beyond the policy preferences of dominant states. In doing so, civil society—a hallmark of what we might refer to as the “pseudo-democratic” international legal system—has challenged the delicate balance between power politics and the realization of a pure international rule of law. The consequences appear serious.