The trend for isolationism in international law

International agreements are being increasingly called into question – not only in the USA

November 28, 2016

Since Donald Trump was elected the 45th President of the United States of America, the world has been speculating about the extent to which the USA will feel bound by international treaties in the future. During the election campaign, for example, Trump referred to as NATO as “obsolete” and he also announced that he would withdraw the USA from the North American Free Trade Agreement (NAFTA) and the Paris climate agreement, which has only been in force since 4 November 2016. In this interview, Matthias Hartwig, a scientific consultant at the Max Planck Institute for Comparative Public Law and International Law, explains the impact international law treaties can have and where their limits lie.

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Matthias Hartwig, Max Planck Institute for Comparative Public Law and International Law
Matthias Hartwig, Max Planck Institute for Comparative Public Law and International Law

Mr Hartwig, let us take the climate agreement as an example. Is it possible to simply cancel the Paris Agreement?

First and foremost, the Paris Agreement is a contract like any other, and like a property lease or contract of work, it can be cancelled. This is fully in line with international law. The Paris Agreement states that a party can only withdraw from the agreement three years after it entered into force for the party in question. A period of notice of one year then comes into effect. This means that the USA can withdraw in four years’ time at the earliest. However, there may be a possible loophole: the Paris Agreement was concluded under the United Nations Framework Convention on Climate Change (UNFCC) and a party can withdraw from the UNFCC within a period of just one year. So there is already speculation as to whether the Americans will withdraw directly from the UNFCC, which would also render their participation in the Paris Agreement invalid.

Whether it withdraws or not, it is questionable whether the USA will comply with its targets. Even Germany, which likes to see itself as a pioneer in the area of climate protection, has found it difficult to reach a political consensus on concrete measures. How can the implementation of such international law agreements be ensured?

The fact that violations are not effectively sanctioned is definitely a weakness of international law. But other mechanisms exist for encouraging compliance, for example “blaming and shaming”. This approach relies on the fact that the general public perceives the failure of states to comply with international agreements negatively, and that states would prefer to avoid such embarrassment. Moreover, in most cases, states enter into such agreements because both sides have advantages to gain from them. If state A does not comply with an agreement, state B can also threaten to contravene it. This does not work in the case of climate protection but it does with trade agreements, for example. And a judicial authority actually exists in some areas, for example the European Court of Human Rights (EHCR) which monitors the implementation of the European Convention on Human Rights.

How well does it work?

The ECHR is very successful. Last year alone, it passed over 2,400 judgements and, as a rule, the Member States try to comply with its judgements. And if they don’t, they provide detailed explanations as to why this is so. However, Great Britain is now debating whether it should withdraw from the European Convention on Human Rights. This would considerably weaken this agreement, which is the expression of set of values applicable throughout Europe. And such a withdrawal would set a precedence for other states.

The International Criminal Court has also lost support in recent times: three African states announced their withdrawal from it in October and Russia also intends to withdraw its cooperation. Are states no longer willing to comply with international law?

The International Criminal Court (ICC) is a separate issue. Many people are critical about what has been done there in the last 20 years. Regarding Russia’s withdrawal, it is important to understand that although the Russians signed the Rome Statute, based on which the ICC was established in 1998, it never ratified it. It has now withdrawn its signature – just like the USA, by the way, which withdrew its signature as far back as the year 2000. This means that Russia has merely caught up with the USA. However, its withdrawal coincides with confirmation from the Advocate General of the ICC that the conflict in Ukraine is an international law conflict, in which Russia has military involvement. Representatives of Russia could be held accountable for violations of the law of war.

Are we experiencing a general rejection of international law?

I would not say that. There are many examples of international agreements that work well and are followed to the letter, particularly in the area of international commercial law. But a trend is clearly emerging throughout the world for states to withdraw into themselves. International treaties are not being established or extended and, as we can see from Brexit, countries are even withdrawing from them. I see this as a worrying development.

Interview: Mechthild Zimmermann

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