“A set of rules for our increasingly globalized world”
Nico Krisch, the first Max Planck Cambridge laureate for international law, examines the rights and obligations of international organisations.
On November 15, 2019, the Max Planck Cambridge Prize for International Law was awarded, a prize that is funded through donations by the Supporting Members of the Max Planck Society. The winner is Nico Krisch, a professor at the Graduate Institute of International and Development Studies in Geneva. The prize is awarded jointly by the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and the Lauterpacht Centre for International Law at the University of Cambridge.
Mr Krisch, you are being honoured with this prize for your outstanding contributions to basic research in international law. What is your research focus?
I am interested in the development of the international legal order under the pressure of globalization and the emergence of “global governance”, in other words, the emergence of new, stronger institutions designed to solve global problems.
That sounds rather abstract. Can you explain this a little bit further?
I began working on this area in 2003 at New York University. Together with the international law specialist Benedict Kingsbury and the US administrative law expert Richard B. Stewart, I studied international institutions that regulate the world, and which “administer” it in the wider sense of the word.
Could you give me an example?
One example is the Basel Committee. Its members include representatives of national central banks and supervisory authorities. Among other things, they determine the standards for the equity of banks, in order to prevent further financial crises. These standards - most recently, “Basel III” - may not be binding, but there is considerable pressure to implement them in EU law and national law.
What makes this interesting from an international law perspective?
This field lies somewhere between international law and national administrative law, and for a long time, it was not a subject of interest among academic researchers. We tried to describe and analyse it. By working out similarities and overlaps between organizations like these, we were able to develop the basic features of a “global administrative law”.
Do constitutional standards also apply to the activities of such organizations?
Not per se, but they are increasingly being demanded. Since the 1990s, international institutions have been the focus of increased criticism, and as a result, they have attempted to reinforce their legitimacy by creating greater transparency and public participation. For example, draft resolutions of the Basel Committee are published, and banks can issue written responses to them, as can interested citizens or consumer organizations.
Is there such a thing as legal protection vis-à-vis organizations like these?
The demand for legal oversight of the activities of international organizations is voiced above all when individuals are affected. One example is the UN High Commissioner for Refugees, or UNHCR, which also runs refugee camps and decides whether or not a person should be granted refugee status in accordance with the Geneva Convention on Refugees. Here, to a certain extent, ideas are being put forward for at least internal legal protection, in other words, non-state legal protection.
What happened then?
In my book, “Beyond Constitutionalism”, which was published in 2010, I focused on the structure of the post-national legal order, in other words, I considered what a set of rules might look like for our increasingly globalized world. In so doing, I was responding to theories based on a “constitutionalization of international law”.
What does “constitutionalization of international law” mean?
Approaches like these are based on the idea that international law is overarched by a legal framework, in simple terms, a type of global basic law, which determines common values and the relationship between the sub-areas, including the relationship to regional and national law. I presented a counter-argument to this idea in my book.
For what reasons?
I believe that the legal reality is more complex. In my view, it is often the case that different legal orders stand side by side and overlap - without a clear hierarchy. Their relationship to each other is then subject to negotiation processes, which also included conflicts and dialogues between courts, such as between the Federal Constitutional Court and the European Court of Human Rights in Strasbourg.
And what are you currently working on?
Currently, I am investigating how relationships between different legal layers are produced, and how the layers are linked to each other. I use the term “interface law” here.
What are you specifically investigating?
For example, I am interested in how actors construct a coherent system of rules from the large number of global standards regarding financial market law. Or how they attempt to connect the law of the World Bank with international human rights - and to transform it in the process. The law that results from such efforts is not a “system” as we know it from the international framework. However, it is also not simply chaotic and disjointed. I have attempted to describe this as a situation where there are “entangled legalities”.
Are you trying to make the world a better place through your research?
First, we have to understand how the world and the law develops if we want to create effective strategies for the future. However, scientific analyses alone aren’t enough to save the world. That can only be done through political and civic mobilization.
Can your work support such mobilization?
For example, I have demonstrated how international law is running into difficulties today, because in a multi-polar world - with a larger number of powerful states - it is becoming increasingly difficult to achieve consensus between states. Once we understand this problem, we can begin to develop new strategies. For example, Europe must also become more willing to compromise in international negotiations in order to make new international law possible. And the general public must pay greater attention to new forms of international collaboration, such as informal networks that are more frequently taking over the role of classic international law.
You already had contact with the Max Planck Society before being awarded the prize...
Yes, from 1997 to the end of 2000, I worked at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. My supervisor while I was a doctoral student was Jochen A. Frowein, who at that time was the Director of the Institute together with Rüdiger Wolfrum.
Did you already examine the area of international law in your dissertation?
Yes, but my approach at that time was far more conventional than my later research. In my dissertation, which was called “Self-defence and collective security”, I examined the issue of whether measures taken by the UN Security Council take priority over the right to self-defence among states.
In which constellations does this question arise?
If the Security Council intervenes in an armed conflict between two states and orders de-escalation measures, such as a ceasefire, this can conflict with the law of the state under attack, which stipulates that it has the right to defend itself. Often, however, there is a dispute over which state began with the aggression. And in practice, states have largely recognized the primacy of the Security Council. In the final analysis, I also regarded this primacy as being correct.
For this dissertation, you were awarded the Max Planck Society Otto Hahn Medal...
That was very important for me, since it gave me a two-year scholarship to study abroad, which I used to fund my stay in New York. That really broadened my horizon, and made the research possible for which I am now receiving the award.
Interview: Christian Rath
Prof. Dr. Nico Krisch
The international law specialist Nico Krisch achieved his scientific breakthrough with his presentation (together with Kingsbury and Stewart) of a “global administrative law”, which led to a large number of follow-up studies. His contribution to the debate surrounding the pluralistic nature of the legal order is also influential.
Krisch obtained his doctorate in 2000 at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. He then spent time at New York University as a post-doc. He was given his first permanent position at the Law Department of the London School of Economics. Since 2015, he has taught international law at the Graduate Institute of International and Development Studies in Geneva.