The Current Political Discourse Concerning International Law
| Published date | 01 January 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12314 |
| Author | James Crawford |
| Date | 01 January 2018 |
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THE
MODERN LAW REVIEW
Volume 81 January 2018 No. 1
The Current Political Discourse Concerning
International Law
James Crawford∗
Reading current statements of world leaders on subjects relevant to international law is liable
to cause confusion, even distress to those for whom the 1945 regulatory arrangements, as
completed in the post-Cold Warera, have become the norm. On occasions inter national law is
invoked, but in what seems an increasingly antagonistic way, amounting often to a dialogue of
the deaf. At other times it is apparently or even transparently ignored. This touches many of the
arrangements governments spent the preceding period seeking to establish. Is there a pattern to
all this, and how should we respond? How susceptible is the edifice of international law to such
rhetoric? These issues are examined in the context of the law of withdrawal from treaties.Three
recent high profile examples are examined: Brexit, South Africa’s pur ported withdrawal from
the Rome Statute, and the United States’ announced withdrawal from the Paris Agreement.
INTRODUCTION
Reading current statements of world leaders on subjects relevant to interna-
tional law is liable to cause confusion, even distress to those for whom the
1945 regulatory arrangements, as completed in the post-Cold War era, have
become the norm. On occasions, international law is invoked, but in what
seems an increasingly antagonistic way, amounting often to a dialogue of
the deaf. At other times it is apparently or even transparently ignored. This
touches many of the arrangements governments spent the preceding period
seeking to establish, whether concerning – in no particular order – human
rights, international humanitar ian law, refugee protection, free trade, the
environment, the regulation of ocean spaces, international dispute settlement,
foreign investment, international criminal law, the rules relating to the use of
force, nuclear non-proliferation, and so on. Is there a patter n to all this, and
how should we respond?
Obviously, for a complete answer it would be necessary to look in detail
at each of these areas, and to extract real underlying tendencies from the
∗AC, FBA, LLD, Judge, International Court of Justice. This is a revised version of the 46th Chorley
lecture, delivered at the London School of Economics on 14 June 2017: it reflects the position as
known to me at the time. Views expressed are personal and do not imply any opinion on matters
that may come before the Court. Thanks are due to Amelia Keene, Associate Legal Officer, and
Harry Aitken, University Trainee, for their considerable assistance.
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited. (2018) 81(1) MLR 1–22
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Current Political Discourse Concerning International Law
‘foreground noise’ associated with such developments as Britain’s exit from the
European Union, the policies and pronouncements of the new United States
administration, controversies over Syria, Iran, North Korea and Ukraine, and
more generally the apparent backlash against globalisation in its various forms.1
THE NECESSARY LAW OF NATIONS
The international system is a sort of layer cake—at least it is a sedimentary
formation. It has a core of institutions and associated rules which might be
described as comprising the ‘necessar y law of nations’, to use Vattel’s term.2No
doubt international law is not necessary in the sense of historically inevitable.
But it is implicit in the way we have organised the world over time. Its necessary
core includes the modalities of interstate relations, the principle of the formal
equality of states, the general capacity of governments to represent the state,
the processes of treaty making, and so on.
It is interesting to see the reflection of this common core in the Joint
Declaration on the Promotion of International Law, issued by the Russian
Federation and China on 25 June 2016. They said:
The principles of international law are the cornerstone for just and equitable
international relations featuring win-win cooperation, creating a community of
shared future for mankind, and establishing common space of equal and indivisible
security and economic cooperation.
States enjoy their rights on the basis of independence and on an equal footing,
and assume their obligations and responsibilities on the basis of mutual respect.
States have the right to participate in the making of, interpreting and applying
international law on an equal footing, and have the obligation to comply with
international law in good faith and in a coherent and consistent manner.3
And they went on to identify two core pr inciples of international law: first, ‘the
principle of non-intervention in the internal or exter nal affairs of States’, and in
particular ‘any interference by States in the internal affairs of other States with
the aim of forging change of legitimate governments’, and the ‘extraterritorial
application of national law by States not in conformity with international
law’; and second, ‘the principle of peaceful settlement of disputes’, although
they qualified their endorsement of this principle by saying that ‘all dispute
settlement means and mechanisms are based on consent and used in good faith
and in the spirit of cooperation, and their purposes shall not be under mined
by abusive practices.’ A cynic might observe that perhaps the most important
accusations currently made against the authors of the Joint Declaration are,
1 See, for example, R. Haas, A World in Disarray. American Foreign Policy and the Crisis of the Old
Order (New York: Penguin, 2017).
2 E. Vattel, The Law of Nations (Indianapolis: Liberty Fund, 2008) 70.
3 Declaration of the Russian Federation and the People’s Republic of China on the Promo-
tion of International Law, signed in Beijing on 25 June 2016 at http://www.mid.ru/en/
foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2331698. Unless other-
wise stated, all URLs were last accessed 14 June 2017.
2C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(1) MLR 1–22
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