Populist backlash against international law
“A lot has been written about the populist backlash against international law,” Karen Knop states. “Some international lawyers focus on resistance to the backlash and the resilience of international law, while others are concerned with identifying the underlying causes of the backlash and how to change international law to make it more democratic and representative.”
Karen Knop shows that if we look at national law, it turns out that resistance to the populist backlash has already changed how international law is made and unmade in a number of countries. She calls this phenomenon the “rise of foreign relations law”. The best-known example of the backlash is the many states that have abandoned, unsigned or withdrawn from international treaties.
“One strategy for resisting the backlash has been to argue that a treaty exit is not a decision that a populist leader can make alone but should require the approval of the legislature as well.”
According to Knop, in South Africa and the United Kingdom, for instance, courts have rejected the traditional view that the decision to withdraw belongs to the executive only and have held that the legislature must also have a say for certain kinds of treaties.
A different example of resistance to the populist backlash involves sub-divisions of the state. When President Trump announced that the United States would withdraw from the Paris Agreement on climate change, a number of US state, Indigenous, county and city leaders pledged to abide by the agreement.
“They could not be formal parties to the agreement under international law, but they could commit informally and participate in transnational networks with sub-divisions of other states,” Knop says. “To counter this type of resistance, the Trump administration brought an unprecedented lawsuit against California for engaging in an environmental agreement with the Canadian province of Quebec.”
National laws as tools for and against treaties
In the examples Knop gives, opponents of treaty exit have used national laws to try to stop their state from withdrawing or to compensate for that withdrawal. But she also shows that this alliance between international law and the increasing role of courts and legislatures in foreign relations is an uneasy one.
Courts in Venezuela, Colombia and the Dominican Republic have recently joined or even led efforts to escape treaty obligations.
“And the Brexit example shows that both sides can claim to have democracy on their side, and the involvement of courts and legislatures will not persuade populists – on the contrary.”
Street protesters who were against the Prime Minister suspending Parliament during the Brexit negotiations held signs saying, ‘This is about defending democracy’, while populist protesters maintained that the people had already voted to leave the European Union. Other protesters carried signs with the slogan, ‘We want a people’s vote’, meaning a second Brexit referendum (which came close to being held at points).
“In other words, populism in foreign relations law is not only about the executive powers of populist leaders,” Knop claims. “It is also an area where populist movements make claims for direct democracy in forms such as referenda.”
A closer look at the current alliance between international law and foreign relations law
A closer look at the current alliance between international law and foreign relations law shows that whether or not this alliance is successful in resisting the populist backlash, it may have risks for the status quo of international law in the longer run.
Although international lawyers do not usually pay attention to the foreign relations law of individual states, Article 50 in the EU Treaty refers to this law: it specifies that any member state can decide to withdraw from the Union “in accordance with its own constitutional requirements”.
According to Knop, some scholars argue that failing to secure Parliamentary approval for the UK’s withdrawal would have made it ineffective in international law, and even go so far as to argue that this should be true of treaty exit more generally when it is clear that a state’s decision to withdraw has violated a fundamentally important rule of its own law.
“We need a critical historical understanding of this kind of relationship between the international and the domestic,” says Knop. “Recovering this history is likely to give us a very different picture of the state in international law: one that may reveal the negative impact of nationalism and imperialism in new ways, but also open up positive possibilities for pluralism that would have implications for Indigenous peoples and their law, among others.”
Together with Professor Martti Koskenniemi, Karen Knop is holding an informal workshop on this subject at the University of Helsinki this June involving colleagues from a number of countries.