The Toxic Impact of Illiberalism on Cooperative International Legal Systems

Everyone, thank you for tuning in and thank you to the convener of this conference for your flexibility and hard work in making sure that we can still hold the conference over Zoom. Today I'm going to be discussing the relationship between liberalism and cooperative international legal systems, based on a case study of the European Union. Liberal democracies are democracies that are characterized by a lack of respect for a rule of law or civil liberties. And these democracies have been rising around the world at an alarming rate, especially in the last five to 10 years. And because they are characterized by respect for rule of law, they are inherently an obstacle to the strength of any legal system in which they arise, particularly in the pursuit of a stronger cooperative international legal order. The European Union as a regional political, economic, and legal union can fairly be described as a microcosm of a stronger cooperative international legal order that many are hoping to pursue in the future as globalization rises. In the European Union specifically, there are many countries that have been affected by the rise of a liberalism. That has prompted observers to ask whether a liberalism is toxic to the European Union, or if the cooperation inherent in that legal system is the very key to keeping a liberal movements in check. Because the European Union can fairly be described as a microcosm of a larger international system, this question could be applied to that system as well. So looking to the European Union as a case study to answer this question as to the relationship between a liberalism and cooperation on an international scale, a liberal democracies can arise from autocracies or liberal democracies. And typically they have elections, but the regime suppresses civil liberties and publicly available information to the point that oftentimes those elections are corrupted. In the EU specifically, the classic examples of states that are being affected by a liberalism right now are Hungary and Poland, but there's also shades of a liberalism in states like Austria and the Czech Republic. In these states, a liberalism tends to manifest as crackdowns on civil liberties and efforts to restrict the independence of the judiciary and other institutions that are supposed to be independent and check the executive, such as media outlets and NGOs. But the EU is not the only system that is affected by this ideology. Around the world, in the Philippines, in Brazil, and in the United States, these tendencies have become apparent either in specific leaders or in the government as a whole. And there are many theories on what causes the rise of a liberalism, but it tends to be heavily linked to populism, which is usually present in countries where the populace as a whole has grown wary of elites, is suffering economic insecurity, and have de-aligned from the traditional political parties. As globalization increases, there is a risk of the rise of a liberalism, even if in the future it slows down, there's a risk of it reoccurring, especially as we move towards a more cooperative, stronger legal system internationally. So in the European Union, a liberalism tends to coexist with several crises, including economic insecurity of the region, which causes a societal disillusionment with democracy, Euroscepticism, rising nationalism, and external crises such as the migrant crisis that feeds into and exacerbates the underlying crises. However, these crises are also present in other countries, such as the United States and Brazil, that are not part of a European Union, so cannot be fairly said to suffer from Euroscepticism, but are trending toward isolationism due to distrust of regional orders and international orders. So what has the EU done to attempt to contain this? In 2000, Austria suffered a problem with populism, and the EU took action quickly. Within two years, that populist party had lost power. That is in stark contrast to today, where Hungary has been a liberal since 2010, and the EU has not taken action until 2017. And even then, when it took action, it took it against Hungary, Poland, and the Czech Republic for refusing to obey an EU Council directive to help relocate migrants from Italy and Greece. Since then, the EU has escalated action, even invoking disciplinary measures under Article 7 of the Treaty on the European Union against both Poland and Hungary due to reforms that have threatened the independence of their judiciary. Article 7 is basically the EU's nuclear option, as it can result in suspension of voting rights. It's unprecedented that the EU pursued these measures, but this has not seemed to deter these countries down the illiberal path. This is especially present right now. On March 30, Hungary granted their Prime Minister emergency power to rule by decree and observed that Hungary is an autocracy, and the Prime Minister may not give up that power, even when the emergency of the pandemic is over. So, there are three predicted consequences for the rise of illiberalism in the European Union, which can shed some light on whether the European Union as a legal system can contain it or not. The first potential result is that illiberal states individually exit the European Union because they don't want to be under the influence anymore. This is perhaps the least likely option because the states that are illiberal tend to be economically weaker and need the European Union to keep the economic strength that they actually have. The second option is that illiberal states weaken faith in the EU via non-compliance, but they remain in the European Union. This could threaten dissolution to the system as a whole. This is also a possibility, but also less likely because it would be a slow, painful death for the European Union and would also economically threaten these countries. The more likely option is the third, and this seems to be the strategy that many illiberal leaders in the European Union are pursuing, and that is to pack the EU bodies with illiberal representatives and attempt to transform the EU into an illiberal system. The success of this depends on the spread of illiberalism within the European Union so that other countries are also overtaken by these movements or at least get their representatives into the EU bodies. So based on the problems that the EU is facing and the likely results, this can be applied to the international scale in two ways. There's two takeaways from the EU case study. The first is that the success of illiberal movements depends on popular support. This is seen on a smaller scale in Austria. As I mentioned, the populist party in 2000 had lost power by 2002. This is largely because they had abandoned the economic principles that had gotten them elected in the first place, and the popular movement turned on them entirely. They fell from power and they're back in power now, but the whole rise and fall completely depended on popular support. This is also evident in the third possibility of the European Union member states packing the European Union and transforming it into an illiberal union. And the second takeaway is that the strength of independent institutions control illiberalism spread. So the relationship between illiberalism and co-operative legal systems depends on the strength of the underlying legal system and the diversity of actors cooperating in the system. If these characteristics are present, a cooperative international legal system could be capable of effectively quarantining illiberal movements. The caveat, of course, is that economic unions are more vulnerable to the spread of illiberalism as they would rise and fall with economics and security together, and this is heavily tied to the rise and fall of illiberalism. And this seems to be the problem that the European Union inherently is facing right now.