How Authoritarians Use International Law

Two of the great trends of our time are legalization and autocratization. Both of these are now extending to the level of international governance. Gaining greater power on the international plane, the authoritarian regimes now turn to international law for shielding themselves against criticism, in order to foster their illiberal projects. Their strategies range from hijacking multilateral institutions and setting new norms to unilaterally claiming jurisdiction over perceived critics abroad. The authoritarian design for international law thus requires of democracies a more imaginative response than so far provided.

What would it get from international legal norms and standards for those kinds of governments that shun the rule of law? History demonstrates how autocratic regimes survive and thrive by reutilizing all forms of institutions, including those of international legal institutions.1 Today's authoritarians have employed their influence in various international forums not just to insulate their regimes from criticism but also to reshape actively international legal standards in ways favorable to their interests. No longer content to approach international law as the best defense, authoritarians understand international law as a means of developing their own illiberal projects. This extends new authoritarian legal norms that stand beside and compete with democratic principles.

The authoritarian turn to international law reflects the fact that international politics today has been more and more legalized. Trade and investment flows are indivisible from sophisticated legal regimes; efforts toward the objective of seeking global justice proceed on the path of legality. Accordingly, democrats and autocrats alike engage in international law to see these goals through. While the effectiveness of many such international legal regimes remains a matter of debate, that which is undeniable is the fact that what the authoritarians do invest therein suggests huge perceived benefits that come by way of winning the imprimatur of international law: greater legitimacy, greater cooperation with fellow-minded states, and greater ability for repression.

Westphalian Prehistory

Some history here will be useful to explain how we have arrived at this juncture. International law has conventionally been labeled "Westphalian": It treats all states as equally sovereign, and leaves each state to determine its own form of government. Doctrinally, this has meant that international law shows no particular bias toward democracy, no more than toward dictatorship. It is fair to say that the humanrights treaties safeguard speech and assembly, among other essential components of democracy. Article 25 of the International Covenant on Civil and Political Rights, for example, guarantees citizens the right to participate in public affairs, and to vote in genuine and periodic elections. But the authoritarian signatories to these treaties have been able to deflect attempts at enforcement, arguing that forms and modalities of public participation vary across systems. And despite some scholarly argument that international law contains a "right" to democratic government, this position has never won the day.2

Notwithstanding this formal neutrality of international law with regard to regime type, democracies have been the main driving force in the crafting of international legal norms since the Second World War. Democracies are famously unlikely to go to war with one another, but they also tend to be much better at cooperating on everything from trade and investment to environmental and criminal law. They sign more treaties, adjudicate disputes more frequently, and have produced the grandest legal achievements of the era, most notably European integration and the building of the global trade regime. The regional human-rights covenants existing in Latin America and Europe were designed explicitly to protect democracy, and significant bodies of case law reinforcing this bent have since accumulated. These institutions in turn have underpinned the global liberal order.

To be sure, during the Cold War, nondemocracies articulated their own preferences regarding the content of international law. Despite theoretical arguments that the international legal system had been formed largely to protect the interests of capital,3 the Soviets eventually participated in this system, sending judges to the International Court of Justice as well as representatives to the International Law Commission, International Law Association, and other organizations. The People's Republic [End Page 45] of China (PRC) followed suit after it joined the UN in 1971. And various other nondemocracies articulated forceful positions, especially on issues of expropriation of investments and control over natural resources.