Authoritarian International Law? - In Conversation with Tom Ginsburg

International law is a live instrument in the current global geopolitical crisis. This latest RevDem Rule of Law podcast, conducted by Konstantin Kipp with Professor Tom Ginsburg, reflects upon the potentially authoritarian nature of international law in its function of enabling relations between states.

Authoritarian regimes have traditionally been reluctant to engage in robust forms of international cooperation. Reasons for this may include strong nationalist views, and concerns that cross-border engagement could invite interference in domestic affairs or constrain the government’s autonomy. Consequently, international law has largely been shaped by liberal democracies.

However, this stance appears to be shifting in the 21st century. Just as authoritarian regimes once recognized the strategic value of adopting new constitutions and utilizing seemingly democratic institutions in order to gain legitimacy, they are now beginning to see international law as a potential tool to legitimize their policies and strengthen the pursuit of their preferences.

This development was identified by Professor Tom Ginsburg in his 2020 article “Authoritarian International Law?” published in the American Journal of International Law. Half a decade on from this publication, Professor Ginsburg discusses his findings on this still-emerging phenomenon and considers its potential future developments.

Past, Present, and Future Authoritarian International Law

Ginsburg provides an introduction to the history of Authoritarian International Law (AIL), highlighting the pivotal turning point as marked by the year 2006. He claims that this was the peak for global democracies and that subsequently the story is one of decline.  The conversation explores current developments in international law, raising a concern that the United States’ potential shift towards isolationism could cede the international playing field to authoritarian forces like China or Russia, thereby fueling the development of AIL.

Ginsburg describes AIL as “designed to extend the survival and reach of authoritarian rule across space and/or time.” AIL is seen as having the potential not only to secure the persistence of existing authoritarian regimes, but also to be a possible trigger for further authoritarianism. The podcast addresses the extent to which this feature is inherently embedded within AIL, given that liberal democracies tend to pose a challenge to authoritarian regimes. Ginsburg reflects upon whether there is a danger that authoritarians might create entirely new international legal systems and institutions, or else seek to capture and transform existing bodies.

While an American return to isolationism might fuel the development of AIL, there is also significant concern that the U.S. could veer toward dictatorship during Donald Trump’s second presidency. Statements by President-elect Trump, such as suggestions that people “won’t have to vote anymore,” imply at the very least authoritarian aspirations. Ginsburg reflects upon whether U.S. isolationism is truly the main danger to international law, or instead whether a government under Donald Trump may actively engage in promoting AIL. Ginsburg offers his view on why, despite his authoritarian nature, Donald Trump will not be able to become the dictator of the United States of America.

Authoritarian European Union Law?

While the European Union continues to embody relatively strong democratic values among most Member States compared to other regions, right-wing populism with authoritarian aspirations has also been on the rise. The EU's most notable authoritarian leader, Viktor Orbán, has recently advocated that right-wing populists should “occupy” Brussels. Ginsburg considers whether the emergence of authoritarian EU law may be possible.

One of the EU’s current strategies for addressing “backsliding” on its values, including democracy and the Rule of Law, is financial conditionality. It remains to be seen whether this tool may effectively halt the trend towards authoritarianism in the long term, or whether it may indeed exacerbate it. Ginsburg concludes his reflections on the supranational dimension of AIL by musing upon whether the Eurasian Economic Committee, discussed in his 2020 article, could evolve into a serious competitor that promotes authoritarian rather than democratic values in the Europe-Asia region.

Preventing the Emergence of Authoritarian International Law

Tom Ginsburg suggests that there is a strong possibility that the 21st century will be known more as an authoritarian century rather than a democratic one. The notion that international law guarantees a right to democratic governance has faced substantial criticism; Ginsburg challenges this idea as well. The podcast concludes with reflection upon the options for democratic countries to prevent international law becoming authoritarian. Could civil society – whether or not such societies aspire to be ‘open’ or not – prevent the authoritarian transformation of international law? Ginsburg concludes his contributions by emphasizing how recent developments in South Korea illustrate the vital role of civil society in the struggle for democracy. Such struggle, for democracy and against authoritarianism, is set to continue in the second half of the 2020s.