International Law and Its Others

If the rule of law means anything, it is that the law is meant to apply equally to all regardless of the vacillations of power. This is the founding myth of law at the national level — famously forbidding the rich as well as the poor from sleeping under the bridges of Paris at night. More recently embraced at the international level, the myth was formalized in the United Nations Charter, article 2(1) of which founds the Organization on the principle of sovereign equality. It is a useful myth, and a popular one — in 2005, every Member State reaffirmed their commitment to the purposes and principles of the UN, and to an international order based on the rule of law.

Yet a myth it remains. The history of the rule of law at the domestic and international level is a tale of ongoing struggle to ensure that the powerful as well as the weak are subject to it. That struggle is all the more difficult at the international level, as the absence of a hierarchical structure means that in place of the leviathan’s stick there are only the carrots of enlightened self-interest.

For the most part, in times of quiet, the rule of law chugs along, providing stability and predictability in the various interactions of daily life. In such circumstances, it is in the interests of most to comply with the rule of law and accept the security and order that it brings. Yet when there is a tectonic upheaval, an overturning of the ancien régime, bringing those who were powerless into a position to change that order, different priorities may emerge. In particular, for those who laboured under an unjust order — colonialism, apartheid — the very legal system itself may be tainted with injustice. The rule of law may remain a political ideal, but politics may require that the rules themselves change.

So it is with the international rule of law today, an order whose very description as ‘Westphalian’ speaks to its Eurocentric origins. The tectonic shift underway at present is the decline of that West and the rise of its Others — former colonies, the Global South, displaced empires — and the question is what this means for the content and the structure international law. Will the rise of those marginalized or exploited by the international order lead to a radical overhaul of that order, or an adaptation to the new political reality? Will it be evolution or revolution?

How the international order copes with rising powers is, as Aniruddha Rajput notes in his thoughtful and thought-provoking chapter, more a question of international relations than international law. Yet it is also true that powerful States generally seek to nudge or push for the normative regime of the day at least to accommodate — and perhaps advance — their interests. Dr Rajput takes as his lens the rise of the ‘BRICS’ powers in particular — Brazil, Russia, India, China, and South Africa — and considers the possible impact on various areas of law. In this brief response I will consider the BRICS as a category before addressing some of the possible changes in the law that he discusses. The conclusion will return to the question of rising powers more generally.

This is a draft chapter for a forthcoming book edited by Heike Krieger & Georg Nolte, The International Rule of Law, commenting on a chapter by Aniruddha Rajput. The complete draft is available on SSRN here.