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Can we detect paradigmatic shifts when we see them?

Observations from an interdisciplinary workshop on norm and value changes

There certainly is no shortage of supposedly common wisdoms in academia on the futility of interdisciplinary work, not all of them as witty as MacIntyres’ observation that it “seems impossible to be truly bi-lingual in scientific terminology and methodology”. At the same time, there are questions that no single discipline can answer. The Workshop “Decline or Transformation? Norm change and values in international law” convened by Andrea Liese (international relations) and Heike Krieger (international law) in Berlin on 24 and 25 November showed why in such cases it is both possible and fruitful to enter into a dialogue. The two professors are responsible for  the value-perspective of the Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”. The perspective is focussed on whether current developments in international law and politics are signs of an erosion of the trend of value-based juridification of the 1990s and early 2000s. It inquires, inter alia, into the intrinsic value law offers in comparison to other normative orders and thereby asks whether the legal character of a norm makes it more resistant to change.

“We truly believe that we benefit from putting the best cards of each discipline on the table”, Andrea Liese said at the beginning of two days of work among scholars from international relations and international law. The workshop combined general discussions of meta-questions with sessions on concrete cases of potential norm change and value shifts, such as the nuclear taboo, women’s rights or the prohibition of torture (for a summary report of the workshop, see here).

International law does not exist in a vacuum – the example of Women’s Rights

The question whether the liberal international order is in decline has become an almost obvious one to ask in recent years: The election of a US president openly disapproving of multilateralism, Brexit putting the European integration into question, withdrawals by several African states from the ICC have become a conceivable policy option – the list could be continued. Many in both academia and practice have developed a sense that something is in motion. From an academic perspective, this feeling of course cannot be enough. It needs evidence and translation – into at least two scientific languages.

Women’s rights are arguably the most pressing example discussed at the workshop. They are a magnifying glass for many of the worrying trends developing in the international sphere. On the workshop panel dedicated to this issue, Conny Roggeband (University of Amsterdam) pointed to an apparent correlation between the counter-movements against women’s rights and the “hollowing and backsliding democracies” on the one hand, and backlashes against the alleged ‘imposition’ of global norms on the other.

Indeed, the debate surrounding women’s rights shows how multifaceted the problem is: We have seen a trend towards more legal institutionalisation of women’s rights in the 1990s, building upon a political momentum, driven by transnationally active civil society actors, UN bodies and political leaders sympathetic to the issue. The ‘traditional values’ debate led by Russia that has developed in the UN Human Rights Council since 2009 gives testimony of the counter-movement. For some representing the ‘traditional values’ perspective, women’s rights – to put it bluntly – are just another pet issue of ‘western liberals’ whose domination of the international agenda has come to an end. Restrictive NGO legislations are shrinking the operational space for transnational civil society actors and relevant advocacy groups are being side-lined. It is not far-fetched anymore to assume a connection between these trends.

From an international lawyer’s perspective, it is tempting to lean back: The legal norms are in place, we can point to a certain number of treaty ratifications of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), for example. There is an international oversight mechanism (Art. 18 CEDAW) and – under the optional protocol of 1999 – even a right to bring an individual complaint before the CEDAW Committee.

Leaning back would not only be too easy, however, but indeed a mistake. Or, as Heike Krieger put it, “silence would be the worst indication for a paradigmatic shift”. International law does not exist in a vacuum, it necessarily relies on a set of non-legal norms and underlying values. They are where the normative decisions about what the law is supposed to protect, defend and promote are made. If the underlying values and norms are under attack, especially without openly debating the corresponding legal norms that rely on them, the latter are being hollowed. If this happens in one single issue, one could assume a simple change of preferences. If it happens in several areas at a time, the law itself as the normative framework regulating international relations is called into question.

“It’s crucial to understand the puzzle of symbolic compliance and façade policies

With respect to women’s rights, Conny Roggeband pointed out that “it’s crucial to understand the puzzle of symbolic compliance and façade policies”: Reluctant or oppositional governments do not necessarily (have to) withdraw from conventions or change laws to transform legal instruments and implementation policies into dead letters. The dangerous development might often not be the “death of a norm” judged as extremely rare by Wayne Sandholtz (University of Southern California), but the hollowing of norms until they lose their meaning. Such analyses and conceptualizations are very important supplements for international lawyers and their analytical methods.

 “Where do we draw the line?”

So, what is the value and role of the law in all this? There are examples of norms being complied with, albeit contested and without very strong legal institutionalisation (take the nuclear taboo). And there are norms that, in contrast, are densely institutionalised but rarely complied with (take the prohibition of the use of chemical weapons). Those examples should be an incentive to reflect on what legal norms can and cannot do.

Drawing on the numerous great contributions from both disciplines presented at the workshop, a tentative conclusion from an international lawyer’s perspective is this:

Enshrining values in international law allows to uphold the norm they are underpinning even when the upholding of those norms are not in the short-term interest of a state. Legal norms can be important resources for political actors to draw from in framing their arguments. Law can thus play a positive role in promoting values, as the example of gender equality shows. But the stability of a norm’s legal institutionalisation is not in and of itself a guarantee for norm stability. In the interest of upholding the acceptance of international law as a normative order, one should therefore also mind its limitations.

But just as important as knowing the law’s limits, is determining “where to draw the line and to resist” (Krieger): Contestations may sometimes be a good thing, indeed a chance to reinforce (legal) norms, but often they are not. International law as a normative order is after all linked to certain normative value decisions. Neutrality rarely helps.

A final note on interdisciplinary work: It might very well be that much of the structural changes in the international order will be properly classified only in hindsight. But changes are going on, and normative decisions are being made. For academics and practitioners from both fields, this begs the question how to relate to these changes and what position to take. Whatever the answers will be, we certainly have a better chance finding them when we accept the limits of our disciplines and work together.

Simon Blätgen is a PhD candidate at the Berlin Potsdam Research Group „The International Rule of Law – Rise or Decline?“.

Cite as: Simon Blätgen, “Can we detect paradigmatic shifts when we see them?”, Völkerrechtsblog, 6 December 2017, doi: 10.17176/20171206-090417.

ISSN 2510-2567
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