ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

91 THE INTERNATIONAL RULE OF LAW –
RISE OR DECLINE?
The panel introduces the Berlin Potsdam Research
Group “The International Rule of Law – Rise or Decline?”
Certain developments in recent years give rise to the
question how international law currently develops and
performs its function. Whether we are seeing symptoms
for a more significant “rise or decline” of international
law is a question that underlies the research
agenda of the group. Panelists will address select issues
within this framework.
Participants
Name of Chair
Room
Pierre d’Argent
Jutta Brunnée
Heike Krieger
Georg Nolte
Heike Krieger
BE2 E34
Pierre d’Argent: Domestic democracy and
normative differentiation as challenges for the
international rule of law
Two challenges – one external, one internal – to the
international rule of law will be explored. The external
challenge relates to domestic democracy: while international
law was largely seen and used after World
War II as a way to strengthen and promote domestic
democracy through external control mechanisms, it is
increasingly seen today as an impediment to popular
choices expressed through democratic means. The
internal challenge relates to international democracy:
while the principle of equal sovereignty of States is
essential to the legitimacy of the international legal
order, the need to accommodate differences in capacities
through normative differentiation tends to erode
such legitimacy.
Jutta Brunnée: Up to the Task? The International
Rule of Law and Complex Problems
International law is routinely called upon to grapple
with environmental problems that are polycentric and
multi-dimensional in nature, and resistant to permanent
resolution. The rise of such complex environmental
problems has coincided with a growing emphasis in
international environmental law, both customary and
treaty-based, on procedural rather than substantive
requirements. Does this turn to procedure signal a
decline in the global rule of law? Using climate change
as an example, I argue that strong procedural requirements
are crucial elements of the rule of law. In the
context of complex problems like climate change, procedural
requirements help provide a resilient and predictable
framework for the long-term interaction that
is inevitably needed in dealing with policy challenges
that may not be amenable to solution on the basis of
formally fixed substantive commitments.
Heike Krieger: Consitutionalization in Crisis?
Numerous developments and symptoms suggest
that international law is currently undergoing a significant
crisis. Here, the thesis on constitutionalization of international
law could offer an answer as to how law might face
and channel significant changes within the international
order. However, this thesis is closely linked to the period
of juridification in the 1990s which fostered an optimistic
perception of international legal developments. Can
constitutionalism prevail as a dominant interpretative
model under current circumstances? The paper analyses
opposite trends which question the appropriateness
of a constitutional reading of international law.
Georg Nolte: The International Rule of Law –
Rise or Decline?
Certain developments in recent years give rise to
the question how international law currently develops
and performs its function. Whether we are seeing
symptoms for a more significant “rise or decline”
of international law is a question that underlies the
agenda of the Berlin Potsdam Research Group on
“The International Rule of Law – Rise or Decline?” The
pursuit of this question requires to clarify how “rise or
decline” can be identified and assessed.
Concurring panels 135