Rule of law: norm change versus system change

Given the absence of a global government, IL remains a ‘work in progress’ insofar as its effect, stability and power is constituted by every-day use. As the Chayeses have put it with regard to international treaty norms, a ‘fundamental norm’ is ‘a generic term including principles, precepts, standards, rules and the like’ (Chayes and Chayes Reference Chayes and Chayes1993: 185, Fn 31). International Relations (IR) norms scholarship echoes the view that a norm’s meaning is generated through practice, specifying that ‘meanings-in-use’ are layered upon a norm through re/enacting the norm (Wiener Reference Wiener2009, c.f. Milliken Reference Milliken1999; Wilkens and Datchoua-Tirvaudey Reference Wilkens and Datchoua-Tirvaudey2022). As such, norms are defined as carriers of behavioural and/or ethical instructions that are meaningful to certain groups of norm-users. The absence of clear instructions represents an opportunity for contestation, which may expand into conflict as the number of affected stakeholders with a legitimate claim about a norm is likely to expand as is the number of sites where contestations take place. Given the condition of a norm’s social construction and embeddedness, contestation is to be expected, especially with regard to fundamental norms in international treaties for treaty making always remains ambiguous so as ‘to design the activity to comply with the letter of the obligation, leaving others to argue about the spirit’ (Chayes and Chayes Reference Chayes and Chayes1993: 191). That is, even if the norm does have ethical instructions there is still scope for contestation. Most normative debate is about the scope or applicability of a norm to a particular case, or a difference in the interpretation of the normative meaning. Internationally stipulated treaty norms are thus expected to generate debate about their implementation (Betts and Orchard Reference Betts and Orchard2014). However, recent deep contestations of widely accepted norms of global order have introduced a different degree of contestation to the extent that they have been considered a challenge to the resilience of – especially – the liberal international order.

Notably, as international legal scholars have argued, deep contestations may also pave the way towards ‘breaking points’ that establish novel pathways to solve ‘conflicts and challenges that could not be resolved within the structures of the ‘old’ liberal international order. In that sense, they represent breaking points of that order‘ (Krieger Reference Krieger2024: 1; Tams Reference Tams2021; Hirschl Reference Hirschl2008). One could say, following Wittgenstein, that contestation can occur at two levels – contestation over opinions, and at a more fundamental level, contestations over ‘forms of life’. These deeper contestations are about what type of international community one wishes to inhabit. At the extreme, the participants in the contestation may discover that they do not inhabit the same community at all (Havercroft Reference Havercroft2023: 102–8; Wittgenstein Reference Wittgenstein2009: §241). Thus, deep contestations would find an arena in the context of ‘mega-political’ cases (Hirschl Reference Hirschl2008), which as Heike Krieger suggests, may generate pathways from a ‘hegemonic’ towards a ‘negotiated legal order’ (Krieger Reference Krieger2024: 1). Or potentially a shift from the relatively homogenous liberal legal order of the last 30-years to a heterodox international legal order in which rival centres of power, enforce fundamentally different legal orders within their spheres of influence.

This has raised questions about the robustness of the UNCO and co-evolved liberal political and legal orders (Krieger and Nolte Reference Krieger and Nolte2019; Krieger and Liese Reference Krieger and Liese2023). Among the spectrum of analyses two opposites stand out: IR scholars highlight the potential dangers of populist political mobilisation (Lake, Martin and Risse Reference Lake, Martin and Risse2021; Börzel and Zürn Reference Börzel and Zürn2021), by contrast, international legal scholars note the transformative potential of such deep contestations as enabling a shift from ‘the hegemonic liberal international order towards a negotiated international order (Krieger Reference Krieger2024: 1). As Krieger argues, while addressing transformative change, ‘international law offers a common vocabulary and procedures to mitigate value conflicts in a pluralistic system’ (Krieger Reference Krieger2024: 1) framed by the liberal legal order. This leaves socio-cultural externalities to one side, however.

Contestations and their effect on order: normal versus deep

Contestatory practices are constitutive for global order. The international order is no exception as international relations have been interspersed with contestations of norms, principles and regulations since the UNCO’s inception after World War II. This kind of everyday contestation is conceived as constitutive of and necessary for maintaining a stable international order based on widely acknowledged norms, such as the rule of law which has long been as a widely recognised cornerstone of justice across the world (Art. 1, UN Charter). Together with security, human rights and non-intervention, the rule of law has come to represent a foundational element of the post-WWII global order. More recently, however, several contestations have targeted leading principles of the UNCO. On the one hand, these include heads of state and representatives of government within liberal democratic states. On the other hand, members of the UNCO challenge other members’ norm-following behaviour.

Thus, the recent call to withdraw from the European Convention of Human Rights (ECHR) on behalf of the Conservative Party in the United Kingdom (UK), the repeated refusals of UK Prime Minister Johnson’s administration to act according to the rule of law,Footnote ¹⁰ ongoing rule of law contestations within the framework of the European Union on behalf of the Hungarian and Polish governments (Kelemen and Pech Reference Kelemen and Pech2019), and the recent US Supreme Court ruling that greatly expanded the scope of Presidential immunity Yare examples of contestations of foundational elements of the rule of law. Potentially even more concerning the attack on the US Capitol on behalf of far-right Trump supporters on 6 January 2020, a similar attack by supporters of Jair Bolsonaro 8 January 2023, and the attempted declaration of martial law and subsequent impeachment of South Korean President Yoon, represent a recent trend of leaders in established democracies undermining bedrock democratic principles, such as peaceful transfer of power, and free political participation for opposition parties. Such contestations, it has been argued, have potentially destructive effects for the liberal international order.

Given that the character of these contestations suggests a more disruptive than constitutive change-dynamic and noting especially that these are contestations on behalf of heads of state and government representatives who target foundational elements of an order, they have been defined as ‘deep contestations’ which occur ‘when the fundamental rules of politics, the principles and procedures through which policies get made, are challenged’ (Börzel et al. Reference Börzel, Risse, Anderson and Garrison2024: 6; c.f. Lake and Wiener Reference Lake, Wiener, Wiener, Lake and Risse2025). Notably, much of this contestation, especially around Israel, is happening not just at the level of state leadership but also within democratic countries through protest, and thus the legitimacy of Israel’s actions and other states’ support or non-support is experienced as real-time contestation in the streets.Footnote ¹¹

While ‘normal’ contestations are practiced both in formal (i.e., committees, caucuses, courtrooms, working groups) and in informal gatherings (i.e., social mobilisation, political meetings) and are constitutive for global order, ‘deep’ contestations are conceived as presenting potential push-back for liberal order. Compared to normal contestations (i.e., deliberating, arguing, interpreting, negotiating), the sites, agents and targets of deep contestation are novel. So far, they remain largely understudied. As such, deep contestations – also depicted ‘defiant non-compliance’ (Closa and Hernandez Reference Closa and Hernández2024: 1; Kelemen and Pech Reference Kelemen and Pech2019) – have become an almost regular occurrence in the international realm. The scenario has received less systematic attention so far. It therefore calls for more detailed research especially considering the shift from normal to deep contestation, the novel change-dynamics and their heretofore unexplored transformative effects. What is the effect of such deep contestations on the international legal order, and relatedly, the rule of law? Is the legal dimension which has been established through international collaboration following the Nuremberg trials and embedded in the UNCO doomed to fade, only to be replaced by a merely ‘rule-based international order’ as John Dugard has argued (Dugard Reference Dugard2023)?

Against this background, a series of challenges of international the rule of law norm bundle by government representatives of leading democratic states, such as the United Kingdom, the United States or Germany, to the security norm bundle by Russia and other states, reveals a novel quality of contestation, however. Instead of objecting to a norm’s implementation or violation, these contestations target the foundational elements of the liberal international order and therewith the order itself. Compared to necessary contestations of everyday politics (i.e., deliberating, arguing, interpreting, negotiating), the sites, agents and targets of contestation are novel. For example, international courts have become sites of ‘mega-politics’ (Krieger Reference Krieger2024), local courts have become sites of ‘transnational litigation’ (Golnaraghi et al. Reference Golnaraghi, Setzer, Brook, Lawrence and Williams2021)Footnote ¹², national conventions in the global south have become sites of ‘constitutional struggle’ (Bogdandy et al. Reference von Bogdandy2024), and most recently, ‘old democracies’ have become sites where founding principles, such as the rule of law, democracy and justice have also become contested, often with the involvement of leading politicians and/or members of government.Footnote ¹³

Given that, the sites, agents and targets of these contestations are novel, they require more systematic attention. All generate change-dynamics with unknown effects. For example, contested climate justice driven by climate litigation involves transnational interactions between the involved stakeholders and institutions, for example, often litigants from the global south bring companies from the global north before a court in a liberal democracy in the global north (Aykut, Wiener et al. Reference Aykut, Wiener, Zengerling and Bähring2023; Kang et al. Reference Kang, Havercroft, Eisler, Wiener and Shaw2023; Zengerling et al. Reference Zengerling, Bähring, Aykut and Wiener2024).Footnote ¹⁴ Other sites of contestation involve international courts where deep contestations may pave the way towards ‘breaking points’ that establish novel pathways to solve ‘conflicts and challenges that could not be resolved within the structures of the “old” liberal international order. In that sense, they represent breaking points of that order’ (Krieger Reference Krieger2024: 1; Tams Reference Tams2021; Hirschl Reference Hirschl2008). Such cases, then, may result in transformative change from ‘hegemonic’ towards ‘negotiated legal order’ (Krieger Reference Krieger2024: 1; Krieger and Liese Reference Krieger and Liese2023).

Order and recognition: making justice claims

So far, norm conflicts were mostly addressed as single norm cases involving, for example, human rights, torture prohibition, non-intervention, responsibility to protect and their implementation, violation or contestation as well as their emergence, change or disappearance (Klotz Reference Klotz1995; Katzenstein Reference Katzenstein1996; Finnemore and Sikkink Reference Finnemore and Sikkink1998; Risse, Ropp and Sikkink Reference Risse, Ropp and Sikkink1999, Reference Risse, Ropp and Sikkink2013; Wiener and Puetter Reference Wiener and Puetter2009; Krook and True Reference Krook and True2012). While IR norms research has predominantly studied the effect of contestations on a norm, we know relatively little about their effect on global order. While IR scholarship’s main interest has long focused on single norm cases with reference to norm collision, adaptation, co-optation, diffusion and learning (Finnemore and Sikkink Reference Finnemore and Sikkink1998; etc.), scholarship on global order has been addressing distinct types of order, such as multiplex, multi-order or multipolar (Acharya et al. Reference Acharya, Estevadeordal and Goodman2023; Flockhart and Korosteleva Reference Flockhart and Korosteleva2022; Pardesi Reference Pardesi, Thompson and Volgy2024). This invites future contributions to Global Constitutionalism to address this under-researched interrelation between norms and order in particular.

As Reus-Smit and Zarakol note: ‘The post-1945 international order is in crisis. The rules, norms and institutional practices that evolved after the Second World War to limit conflict and facilitate cooperation are struggling both to meet their original briefs and to adapt to new challenges, from the most fundamental task of preventing destabilising uses of force to addressing global climate change’ (Reus-Smit and Zarakol Reference Reus-Smit and Zarakol2023: 1). In their critical assessment of the IR literature, Reus-Smit and Zarakol highlight the problem with conceptualising order and suggest that ‘(T)he question then is how to conceptualise order and justice together’ (Reus-Smit and Zarakol Reference Reus-Smit and Zarakol2023: 6). In addition, in her assessment of the Westphalian narrative that has become a relatively stable and long uncontested myth about the birth of the state-based international order in 1648, Mitzen importantly notes that a historical perspective on ‘Westphalia suggests that questions of recognition are inseparable from the question of order’ (Mitzen Reference Mitzen2024: 185–6).

As this journal has argued from the outset echoing Public Philosophy,Footnote ¹⁵ contestation enhances a norm’s recognition and acknowledgement as long as claims vis-à-vis a norm are made in public and in good faith so as to establish its ‘legality’ (Brunnee and Toope Reference Brunnée and Toope2011). Social science approaches share this view of claims-making vis-à-vis a norm in addition to habitual norm-following. Accordingly, norm contestation is viewed as a necessary practice as it facilitates visibility of normative meaning and provides a context in which to engage in constructive ‘struggles of recognition’ (Tully Reference Tully1995; Honneth Reference Honneth1995). Importantly, this requires inclusive and reiterated dialogue among all affected stakeholders so as ‘to ensure that a new norm of mutual recognition is acceptable by all, it needs to pass through an inclusive dialogue’, a process which Owen and Tully have called a ‘multilogue’ (Owen and Tully Reference Owen, James, Laden and Owen2007: 283). Ideally, therefore, sustainable normativity in IR would benefit from establishing the quod omnes tangit maxim (what touches all must be approved by all) as an organising principle. This would imply the normative goal of establishing access to contestation for affected stakeholders (Wiener Reference Wiener2014). As long as contestations are practiced regularly in formal (i.e., committees, caucuses, courtrooms and working groups) or in informal gatherings (i.e., social mobilisation, political parties and advocacy groups), the goal remains a possibility. Safeguarding both conditions is therefore key to the quality of international order in the future.