Resurgent Authoritarianism and the International Rule of Law

By Wayne Sandholtz
John A. McCone Chair in International Relations
Professor of International Relations and Law
University of Southern California

 

Keywords: authoritarianism, rule of law, accountability, compliance constituencies, international legal order

Synopsis: Evidence suggests that authoritarianism is on the rise and will likely erode the international rule of law and shape how the international order evolves. Here’s how.

 

Authoritarianism is on the upsurge. The shift toward authoritarianism is visible across regions and across regime types. Entrenched authoritarians have intensified their repression (Azerbaijan, Burundi, Cambodia, Egypt, Iran). Countries that had appeared to be consolidating democracies (Brazil, Hungary, Philippines, Poland, Turkey) are now seen as “backsliders”. And regimes in established democracies like India, Israel, and the United States have embraced some authoritarian rhetorics and policies. Resurgent authoritarianism undermines the rule of law within countries, eroding constraints on political power. But the harmful consequences of rising authoritarianism overflow national borders and threaten to undermine also the international rule of law (IROL).

“Authoritarian” has often been just a residual category: a regime that lacked free and fair elections was by default authoritarian. A more useful approach is to focus not on the presence or absence of elections but on the strategies and practices of authoritarian leaders and groups. Authoritarians seek to suppress or eliminate mechanisms by which societal actors can hold political leaders accountable. A solid body of research identifies three key institutions that authoritarians target in order to consolidate unaccountable power: judicial independence; freedom of expression, especially freedom of the press; and the freedom to assemble and organize in civil society. I selected two indicators for each of these accountability mechanisms in order to assess global trends. For each of the six authoritarian practices listed below, the number of countries showing an increase (that is, greater authoritarianism) is greater than the number of countries exhibiting a decrease, especially in the last five years. Ten countries (Hungary, Poland, Zambia, Serbia, Cameroon, Turkey, Nicaragua, Cambodia, Burundi, and Azerbaijan) have experienced a rise in all six indicators and 25 have seen an increase in five of the six since 2007. Among the latter group are states that had been seen as stable democracies (Brazil, Israel, United States).

Indicators of authoristarism

 

How should we evaluate the effects of rising authoritarianism on the rule of law? The rule of law requires not just a system of legal rules but also effective constraints on the powers of the state. Since World War II, in both national constitutions and international law, the powers of the state have been limited by individual dignity and freedom, that is, by rights. Domestically, rights-based constraints on state power are necessary to avoid majoritarian repression. Modern international law also sets boundaries to state powers, in the form of international human rights law. Core international human rights norms have been (at least formally) accepted by virtually all states and seriously rejected by none, though of course states continue to violate international human rights norms and to disagree on how to interpret and apply them. Still, at the core of both domestic rule of law and international rule of law are rights-based limits to state power.

The rise of authoritarian practices clearly undermines the domestic rule of law, as authoritarian leaders are less constrained by mechanisms of accountability. The inescapable result is that hundreds of millions of people around the world will suffer under greater repression. Because those same rights-based limits to state power are at the core of the international rule of law (IROL), resurgent authoritarianism imperils the IROL as well.

Even under a “thinner” conception of the international rule of law – that is, dropping rights-based limits on state power – rising authoritarianism portends serious risks. The thin version of IROL defines it as state conformity with existing international legal rules, whatever those happen to be. The argument is that authoritarian states are capable of conforming to international legal regimes, including the use of force, the conduct of war, trade, investment, refugees and migration, and the environment. Michael Barnett, in a previous post to The Global, suggested that an international order shorn of its “liberal” pretensions might actually facilitate more effective multilateral solutions to global challenges. There are reasons to be skeptical.

National support for, and compliance with, international legal orders depends on domestic compliance constituencies. Compliance constituencies are actors and groups that support a state’s continued participation in and general adherence to international legal rules in a particular issue area. For instance, such constituencies include exporting firms and their workers. They include civil society organizations that favor international environmental protections, as well as firms that invest in “green” technologies and markets. They include NGOs that lobby and litigate on behalf of human rights.

Authoritarian practices degrade the ability of domestic compliance constituencies to criticize or oppose government policies that violate international legal rules favored by those constituencies. As political accountability erodes, authoritarian governments have more leeway to disregard or undermine international legal structures without facing domestic political consequences.

In addition, political science research provides suggestive evidence that authoritarian regimes are less likely than democracies to fully participate in and comply with the rules of international organizations. For example, research provides evidence that authoritarian regimes are generally less likely to join international organizations and more likely to withdraw from them than are democracies. Research has also shown that international organizations composed mostly of democracies contribute significantly more to peaceful conflict resolution than do IOs that are less populated by democracies. Rising authoritarianism implies a declining share of democracies in international organizations, which in turn may diminish their capacity to promote peaceful dispute resolution. Finally, one of the clearest and most stable empirical findings in international relations research concerns the “democratic peace”: democracies do not fight each other. As the proportion of democracies in the world declines, the potential for armed conflict between other types of dyads (democracy-authoritarian, authoritarian-authoritarian) increases. Though more research needs to be done, there is sufficient evidence to suggest that resurgent authoritarianism is likely to erode international rule of law, even its thin version. Rising authoritarianism will certainly diminish IROL in the thicker, rights-based conception.

The post-1990 “liberal international order” was always part myth and part aspiration. The question is not whether something that never fully existed is really vanishing. The question is whether the “new” will be better than the “old,” whether the international system is evolving in a way that better enhances respect for rights, the rule of law, and institutions that promote peaceful dispute resolution and solutions to global problems. Resurgent authoritarianism does not bode well for any of those objectives.

 

Interested in learning more? This blog post draws on:

Sandholtz, Wayne, (2019) Resurgent Authoritarianism and the International Rule of Law. KFG Working Paper Series, No. 38, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”

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