This article examines the potential impact of the populist challenge to International Law on the United Nations Security Council. The Security Council is often criticized as ineffective, unprincipled, and an anachronistic mechanism that reflects a power balance from the past, rather than the realities of today. The article argues that the rise of populism is likely to further erode the Security Council’s legitimacy and efficacy. At the same time, however, it emphasizes the need for greater nuance in the way that both the phenomenon of populism, as well as the relationship between national and international concerns, are understood and framed. Taking these complexities into account, the Article explores three scenarios that could result from an escalating crisis of Security Council legitimacy. The first involves reform and renewal. The second comprises retreat and realignment. The third encompasses reimagining the international peace and security architecture and creating something new.
This essay explores some of the parameters and merits of a putative argument that the announcement of June 19, 2018 that the United States would withdraw from the United Nations Human Rights Council might most properly be understood as but one manifestation of a wider political backlash within the US (and indeed other Western democracies) against the multilateral human rights system epitomized by the Council. There are two prongs to this argument. First, populist-nationalist political sentiment at home simultaneously fuels and is fanned by strident high-profile diplomatic critiques (or even rejections) of global bodies such as the Council. Second, the nature and force of this backlash constitutes a systemic threat to the future of the post-1945 rules-based international order, especially since it comes mostly from the superpower whose values-based rhetoric and leadership has perhaps done most to advance the global human rights agenda in the modern era.
This symposium article examines the growing populist backlash to gender equality as a part of populist leaders’ broader backlash to the global legal order. While both the populist backlash to the international legal order and the backlash to gender equality are framed as efforts to “reclaim sovereignty” and reject cosmopolitan and liberal values, the battle over gender equality taking place in international legal fora is marked by populist engagement and transnational alliances rather than retreat. In this light, this article untangles one of the “puzzles” of nationalism, showing how a movement focused on domestic grievances has become a transnational movement, with deepening cross-border alliances that mobilize around traditional views of the family and utilize illiberal and authoritarian approaches to their goals. It concludes by calling for deeper examination of the implications of the populist backlash to gender equality, as well as response and resistance, for the global legal order.
By its nature, the populist backlash against the international legal order is antithetical to the values and core precepts of international justice. It is thus natural to attribute recent setbacks in this sphere to ascendant populism. The principal sources of those setbacks in fact lie elsewhere, though existing challenges to global justice have been compounded by newly influential populist movements. Despite rising challenges to the institutions and practice of international justice, the demand for accountability for grievous crimes remains powerful. To meet that demand while surmounting myriad challenges, the enterprise of global justice requires a meaningful measure of course correction.
This contribution to the Maryland Journal of International Law’s Fall 2019 symposium on populism aims to begin to explore the impact populism may have on gender equality, or more specifically, women’s human rights, as mediated by international courts and quasi-adjudicative bodies interpreting human rights law. In other words, it considers the extent to which populism is potentially harmful or helpful to women’s human rights, as articulated by these institutions.
In this contribution to a symposium I make the case for building international human rights norms from the bottom up.
This essay focuses on the role of states, cities, and other subnational jurisdictions (collectively “localities”) in local incorporation of international law norms aimed at protecting the climate and immigrants. As a case study, this essay considers local innovation in climate and immigration policy in the United States within the twin concepts of federalism and glocalization—the interaction between “global scripts” and “local norms.” In a parallel project, I analyze climate change and immigration in developing a theory about federalism to justify lawmaking from above and below the nation-state as a critical role in addressing national political market failures—particularly when: (1) underrepresented minorities are systematically locked out of the political process (as immigrants quintessentially are) or, by contrast, (2) influential minorities can externalize the costs of their negative conduct through regulatory capture (as the fossil fuel sector in the climate context). The present essay builds on that project, but investigates a different dynamic. Taking as a given my point about the circumstances justifying local innovation to address particular failures of national politics, this essay looks to the process of transplanting legal norms across jurisdictions—horizontally and vertically. Since my starting point is that local innovation and transplantation of innovative ideas is useful under defined circumstances, this essay takes a closer look at the efficacy of federalism and glocalization as processes for tipping norms and creating norm cascades to address the negative distributional consequences of national policies. In examining the political geography of debates on climate and immigration law, this essay explores how both federalism and (its close cousin) glocalization serve as mechanisms for not only managing and shaping polite disagreement, but sharpening and consolidating forceful resistance to significant threats to rule of law we face today. More generally, political polarization and the “Big Sort” have resulted in a divide between blue states and red states on a range of issues. What is particularly interesting about the climate change and immigration disputes is that they are both inherently transnational matters (regarding, respectively, the future of the planet and the global labor supply).
Since 2017, World Trade Organization (‘WTO’) Member States have been unable to reach a consensus on Appellate Body (‘AB’) appointments and reappointments. The United States is spearheading a populist backlash against procedural and substantive aspects of the dispute settlement system of the WTO. As a consequence of this, the AB is now facing an unprecedented crisis. The jewel in the crown of the WTO dispute settlement system will be missing: yet countries are still bringing complaints. This paper considers US actions through the framing of populism and backlash, and assesses responses from other countries.
For many observers, the Paris Agreement signaled a historic breakthrough in addressing the problem of global warming. In its basic design, however, the Agreement is far from novel. Its dependence on each nation’s self-determined pledge to reduce greenhouse gases mirrors the domestic policy strategy called management-based regulation—a flexible regulatory approach that has been used to address problems as varied as food safety and toxic air pollution. In this article, I connect insights from research on management-based regulation to the international governance of climate change. Unfortunately, management-based regulation’s track-record at the domestic level gives little reason to expect that the Paris Agreement will lead to major long-term behavioral change needed to reduce greenhouse gas emissions. Although a management-based regulatory strategy may have been the best option available for securing a widespread global climate agreement, this strategy seems to offer little assurance of forward momentum on climate policy due to an inherent paradox created by the Agreement’s management-based design: global progress will depend on domestic politics. Especially given the rise of nationalistic populism around the world, the Paris Agreement will succeed only if political efforts within individual countries push back the threat to global cooperation posed by populism and convince domestic leaders to support serious climate action.
The 'We Are Still In' movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of dormant preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also avoid lumping sub-national action advantaging some firms in a competitive market under the old unionist fears of protectionism in all things local. A bottom-up movement like 'We Are Still In' may be uniquely positioned to keep the nation's pledges on climate change mitigation — and its obligations under U.S. treaties and public international law — but only if our courts understand the stakes and the fine print of our foreign affairs federalism.
