Are Norms Liberal?
Palace of Justice, Nuremberg
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Geneva Academy of International Humanitarian Law and Human Rights
In his extremely interesting and thought-provoking article, Andrey Kortunov identifies the three main components of the “liberal world order”: rationality, normativity and openness. While in my opinion, not a single manifestation of human activity, especially one as complicated and intricate as international relations, can be reduced to one or two ‘overarching theories,’ whether it be liberalism, realism or the Big Mac Index, one question in particular arises upon reading Mr. Kortunov’s article: What makes normativity inherent to liberalism? Are norms liberal?
Hominum causa omne jus constitutum est. “(Every) law has been created for the sake of men.”
In his extremely interesting and thought-provoking article, Andrey Kortunov identifies the three main components of the “liberal world order”: rationality, normativity and openness. While in my opinion, not a single manifestation of human activity, especially one as complicated and intricate as international relations, can be reduced to one or two ‘overarching theories,’ whether it be liberalism, realism or the Big Mac Index, one question in particular arises upon reading Mr. Kortunov’s article: What makes normativity inherent to liberalism? Are norms liberal?
The simple answer: no. Norms, to be honest, could not care less what liberals or realists think about them. They exist and are applied regardless of what paradigm the person might be using – as long as it is a legal one.
It is worth noting that ‘normativity’ in some ancient societies is associated with conservatism – or at least not with ‘liberalism,’ however one defines it. For instance, Qin Shi Huang, the first emperor of China and the man who united the country in 221 BC, was a proponent of Legalism (Chinese: 法家, Fajia) and, to a certain extent, of the ‘rule of law,’ which did not prevent him from doing away with the protagonist of the Chinese film Hero in a very non-liberal manner.
They exist and are applied regardless of what paradigm the person might be using – as long as it is a legal one.
We can look at more recent norms that exist to this day. The main international documents that protect the person from the state – be it the 1949 Geneva Conventions for the Protection of Victims of War, the 1966 International Covenant on Civil and Political Rights, or the United Nations Convention against Torture – were signed during a time when realism/neorealism was the prevalent theory of international relations. The same can be applied to a number of other international documents, including the 1947 General Agreement on Tariffs and Trade (GATT), the 1961 Vienna Convention on Diplomatic Relations, and the 1982 United Nations Convention on the Law of the Sea. Finally, the series of documents signed by the two conflicting sides in the Cold War were not done so as a result of a commitment to liberal ideals.
Readers who have more than a passing knowledge of law may quite rightly ask: Do different paradigms favour of focus more on different sources of the law? If it is so, then realism must aspire to positivism, that is, it must follow the letter of the law because that is what was agreed by the states in question. Fortunately, it is not that black and white: for example, almost the entire Nuremberg process was built on customary international law, as the Geneva Convention of 1929 did not apply to a number of the conflicting parties in World War II.
Why are norms indifferent to how they are perceived? [1]
The law, rules and norms are associated not so much with the ‘presiding paradigms’ or any other kind of construct thought up by politicians. At the end of the day, the more liberal (certainly by 3rd century BC standards) Liu Bang, who came after Qin Shi Huang and was the founder of the Han Dynasty, kept part of the Legalist doctrine, albeit in a milder form. It was not a question of Legalism of Confucianism (piety to which Liu Bang sought to reinstate), but rather one of preserving normativity.
Rules become ‘fairer’ as human civilisation develops – the reason for the rapid development of the observance and protection of human rights since the second half of the 20th century has little to do with liberalism as such
Every society needs norms. At the initial stage of human development, this role was carried out by customs – in the exact same way that customary international law helped to bring (some of the) war criminals to justice during the Nuremberg tribunals and continues to play an important role in international relations to this day (for example, in matters related to the delimitation of maritime borders).
With time, norms crystallise into more concrete rules, are drawn up in treaties and conventions, and acquire mechanisms for their implementation and enforcement. Rules become ‘fairer’ as human civilisation develops – the reason for the rapid development of the observance and protection of human rights since the second half of the 20th century has little to do with liberalism as such, but rather with elements that can be considered liberal: the shift away from (open) discrimination in society, the increased role of the individual and new milestones in human development as a whole.
Perhaps the reason for this is not in the ‘prevailing paradigm of international relations,’ but rather in something more basic and understandable to everyone.
The tragedy of World War II brought us to an understanding of the importance of protecting the rights, life and dignity of the individual. As a direct result, the revised Geneva Conventions of 1949 extended the scope of international humanitarian law. The horror of the Holocaust led to the Convention on the Prevention and Punishment of the Crime of Genocide. Multiple territorial disputes forced countries to agree the United Nations Convention on the Law of the Sea. The war in the former Yugoslavia provided an impetus to the development of international criminal law.
Even though we continue to hear about horrific violations of human rights – targeting hospitals, shelling humanitarian convoys, torturing people in secret prisons – even ‘the powers that be’ follow and uphold the rules most of the time. As professor of international humanitarian law Marco Sassòli often said in his classes: ‘IHL is respected simply because no one wants to be the only idiot to comply with law in such dangerous situations [of armed conflict].’ Unfortunately, this does not mean that international law, just like any other law, knows no violations.
***
No matter what political stance one might take, it is difficult to disagree with many of Andrey Kortunov’s observations. What is happening in the world right now is reminiscent of the 1930s, sometimes frighteningly so: openly xenophobic rhetoric, the emergence of far right in governments through democratic elections, the growing criticism of the basic institutions of international cooperation (the League of Nations in the 20th century, the United Nations in the 21st), the ‘bloodless’ annexation of other states’ territories under the pretext of defending their ethnic group.
However, those who want to repeat the history of the previous century should remember: every Munich eventually leads to Nuremberg.
1. It does, of course, concern them too. And, as the meticulous reader who understands the nuances of different legal sources will notice, the interpretation of the law is no less important than its codification. In certain instances, the interpretation of the law decides everything: should the right to self-determination be interpreted as being more or less important or relevant than the right to territorial integrity?
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