Agarwal, Sulekha

Kulamadayil, Lys

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Are We Living in an EastphalianMoment?ajv2016 2019-01-08T10:14:28It is indisputable that economic and geopolitical power has shifted east and that thecore-semi periphery-periphery symbolism, a common reference for liberal, socialistand postcolonial states, increasingly mischaracterizes the complexities of relationsat play, as do voices who proclaim the beginning of the post-liberal world order.True, in liberal strongholds, nationalistically-minded authoritarianism is on the riseagain, more subtle than in the first half of the 20thcentury, but with similar rhetoric.At the same time, financial flows and trade remains as globalized as ever, with newtransnational trade deals being established with and between non-liberal parties,while the mobility of university students, arguably the future elites of any society isas much of a virtue in non-liberal states, as it is in liberal ones. For instance, in July2018, Germany and China, the world’s second and the fourth largest economiesheld their fifth round of inter-governmental consultations where the countries’leaders in a joint statement reaffirmed their commitment to free trade, while signinga trade deal worth 20 billion Euros – a commitment affirmed by economic actors inboth countries.Indeed, China leaves no doubt to its commitment to free trade moving to legalizeits foreign trade policies in instruments, such as the Trans-Pacific PartnershipAgreement (TPP-11). The economy is not the only sphere where China hasembraced liberal globalization. The country also champions international studentmobility. In 2017 China was the world’s largest source country of foreign students.Some may say that to the same extent non-liberalism has creeped into traditionallyliberal societies, liberalism has creeped into traditionally non-liberal ones.Some international lawyers have equated such embrace of liberal virtues tothe embrace of international law, as the instrument cementing the progressiveadvancement of liberal ideas. Given China’s rhetorical and practical embrace ofthe instrument of international law, it seems as if Westphalia has expanded East.Such an impression is created in particular by the commitment to a world order ofpeaceful co-existence of equal and sovereign states, guided by international legalprinciples of the UN Charter and the 1970 Friendly Relations Declaration (see e.g.the Declaration of the Russian Federation and the People’s Republic of China on thePromotion of International Law, 25 June 2016). Yet, there is more to it. It after all itis not its commitment to the Westphalian order, but even more so, to the Uruguayanone, which pinpoints an expansion and possibly even a shift of liberalism from westto east by way of international law. After its first request for a WTO inquiry into theimposition of U.S. trade tariffs against Chinese goods by the Trump administrationwas rejected, a second request and the subsequent commencement of such aninquiry can be expected, should the U.S. walk back from its promise made duringthe G20 summit in Buenos Aires not to increase tariffs on certain Chinese products- 1 -from 10% to 25%. At the same time, much media attention had been given to theU.S. withdrawal from the TTIP and TPP negotiations in late 2016 and early 2017.The Impression that through the institution of international law, the Uruguayan ordershifted east, is founded in such developments.Yet such developments do not speak to shift nor expansion of liberal internationallaw to the east. Assuming so would mean to walk into the trap of the core-semiperiphery- periphery symbolism. This is so for two reasons.First, some ideas of international law are embraced, others are not. And, in return,some core principles of liberal international law, which has so far associated withnon-liberal states and in particular China appear to have come under attack in liberalstates. It suffices to think of voter suppression practises in the 2018 congressionalelections in the United States, or the mysterious murder of Maltese anti-corruptionjournalist Daphne Caruana Galizia.Secondly, reality and rhetoric diverge, complicating the disentanglement betweenthe finding of an expansion (commitment levels increase) opposed to a shift,(commitment levels decrease in one place and increase in another) even further.The last WTO trade policy review of the United States, published in November 2018illustrates this point rather well. Despite its protectionist rhetoric, allexisting U.S.BITs remained in force as did all free trade agreements, with the one exceptionof NAFTA. Possibly, to the same extent that the rhetoric on non-commitment maydiverge from commitment practices, the reverse is also often the case, with statesviolating international obligations despite their declared commitment – phenomenawell-known in the human rights domain (Hafner-Burton, Emilie M., and KiyoteruTsutsui. “Human Rights in a Globalizing World: The Paradox of Empty Promises.”American Journal of Sociology 110, no. 5 (2005): 1373-1411.)So what does all of this mean for international law and its possible shift eastward?We would argue that geography as such is not a good indicator to measure neithershift, nor expansion of international law as such. Rather, we may be living in amoment in which international law travels differently than the ideal that it standsfor. By this we mean, that it is well possible that the question of whether and howinternational law is received, depends not on state interest as it does on the interestsof those individuals who are privileged enough to have any view on the rhetorical orpractical advantages and disadvantages of engaging with it. Lys Kulamadayil is advisor in the Division for Humanitarian Assistance at the FederalForeign Office of Germany. She holds a Ph.D. from  Graduate Institute, Geneva and anLL.M. from the London School of Economics.Sulekha Agarwal is currently working at the Office of High Commissioner for Human Rightsand holds a Masters in International Law from the Graduate Institute, Geneva. - 2 -Cite as: Lys Kulamadayil and Sulekha Agarwal, “Are We Living in anEastphalian Moment?”, Völkerrechtsblog, 8 January 2018.- 3 -

Are We Living in an Eastphalian Moment?

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Are We Living in an Eastphalian Moment?

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