Perspective: Reconceiving Engagement with International Law in a Populist Era

All News

The rise of populism and illiberal democracy, especially in major Western states, has challenged longstanding and widespread understandings of and commitments to the international legal order. Around the world, we see self-described populist leaders dismantling their nation’s constitutions and threatening to withdraw from or even launch outright assaults on key international institutions and multilateral treaty regimes. We are thus at a moment when, for many, the modern internationalist vision of multilateral cooperation and global governance appears to be under assault and unravelling, and when ideas of supranational organization and post-national sovereignty are increasingly resisted.

Increasingly, populist movements and political parties advocate withdrawing from or severely curtailing multilateral treaty regimes and institutions; they assail the fundamental normative premises of liberal accounts of democracy, human rights and the rule of law; and they stridently reject on national sovereigntist grounds the proposition that international norms should bind or influence domestic decision-making. Populist antagonism towards international law and the accompanying reflex to disengage from international institutions represent a fundamental challenge to the collective action required to prevent and manage global threats and challenges.

There has been little research to date on the connections between the emergence of these populist political movements and the nature and evolution of the norms and institutions of the international legal order. Behind many of the ‘non-liberal’ and ‘anti-global’ positions we see articulated today, there is a growing desire to ‘take back control’ of political authority, not only at the domestic level, but internationally, expressed in terms of reclaiming national sovereignty.

Rather than interrogating these roots of populist backlash, there is a strong reflex in contemporary scholarship to reinforce or renew existing conceptions of legal and political order. This reflex ignores the need for political analysis and contextual understanding of the origins of these movements. There is an urgent need to explore the extent to which the incumbent international legal order may itself have acted as an incubator for populism and illiberal democratic movements. Analytical and empirical research on the complex interrelations between these competing conceptions of normativity and authority is vital to any future international legal order capable of confronting global threats and re-establishing sustainable global cooperation.

Serious work is only just beginning on these questions that are among the most pressing and perplexing issues in international law today. The far-reaching normative shift we have seen over the last half-century towards a global governance-based understanding of international law has, paradoxically, generated tremendous anxiety and insecurity in national political communities. The key idea in this international legal imaginary is to displace sovereignty as the grundnorm and replace it with global approaches that can work across “artificial” national boundaries in pursuit of objectives that have nothing territorially limited about them.

A critical analysis of contemporary understandings of the sources of legal normativity, of competing notions of collective identity and political community, and of the rise of managerial regimes of knowledge in international law will reveal that within each of these spheres of contestation lie the seeds of the international legal order’s reimagination and re-creation.

Peter Danchin is associate dean for research and faculty development, Jacob A. France Professor of Law, and co-director of the International and Comparative Law Program. He is part of an international research team conducting a five-year Australian Research Council Discovery project on “Reconceiving Engagement with International Law in a Populist Era.”