Authoritarian International Law, the Use of Force, and Intervention

Abstract

Tom Ginsburg's thought-provoking Authoritarian International Law? invites us to reflect on the potential changes to the international legal order that might flow from the global decline of liberal democracy and the corresponding rise of illiberal authoritarian regimes. Given that Ginsburg's cautionary tale is predicated on the central interest of authoritarians in the survival of their regimes and their concerns about internal security, it is not surprising that many of the implications he identifies— which involve the expansion of norms that facilitate internal repression, enable repressive regulation of online expression, and dilute international democracy promotion—concern international law's regulation of states’ internal affairs. If Ginsburg's predictions about expanding authoritarianism are correct, however, we should also consider the implications for the evolution of international law in the external security realm, and in particular, for the legal regime governing the use of force and intervention in the affairs of other states. In this essay, I suggest that the expansion of authoritarianism is likely to diminish legal accountability of outside states that support repression by such regimes; to entrench the legal status of existing authoritarian regimes confronting domestic political violence; and to weaken the legal basis for Security Council interventions rooted in the “responsibility to protect” principle. When authoritarian states do wage wars, particularly when they intervene in civil wars, we should expect that their compliance with international humanitarian law (IHL) will be weak.