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.

International organizations (IOs) provide space for the exchange of ideas. Particularly since the Cold War ended, many expected that this exchange would inevitably lead to more democratization and liberalization around the globe. Instead, some of the largest non-democratic actors on the global stage have functioned within these organizations for decades without liberalizing, while others joined as full or newly transitioned democracies just to see those qualities slowly erode. As Tom Ginsburg's recent article concludes, today's autocrats might instead use international law—including the legal apparatus of IOs—to further their own authoritarian agendas. This essay engages with Ginsburg's thoughtful piece by suggesting that IOs both enable and resist the emergence of “Authoritarian International Law” (AIL). Creating or joining IOs is a costly but attractive strategy for revisionist states since members equally influence IO evolution. Fortunately for democracy's advocates, IOs are usually status quo entities, and liberalism is deeply embedded in many existing today. Cross-temporal observations of changes in IO membership, members’ regime types, and IO features beyond the founding documents are needed to fully understand how organizations simultaneously perform these paradoxical functions.

As he searches for differences in how democratic and authoritarian governments use international law, Tom Ginsburg highlights—perhaps inadvertently—the fact that both kinds of regime use law as a tool to advance their goals. Governments’ goals may differ, both within and across regime types, but the instrumental use of law in the service of political ends does not. Ginsburg's article permits three distinct readings: it is an effort to show a correlation between regime-type and uses of international law; it is also an argument that the historical-normative core of international law included the promotion of “liberal” goals such as human rights and democracy; and third, it is a defense of the meta-claim that law follows the political purposes of society's powerful actors. This third contribution is the quietest in the article but is arguably the most important. Because the methodological difficulties in correlating regime type with attitude toward international law are insuperable, Ginsburg's contribution is that he directs attention to the substantive goals that governments pursue through law and to the tradeoffs that follow as one goal wins over others. The normative valence of international law depends on how one feels about these practical tradeoffs; those whose interests are harmed by international law have good reason to feel disadvantaged.

Tom Ginsburg's important article comes at a critical time. The COVID-19 crisis has spurred heated debates about political regimes vis-à-vis countries’ bureaucratic capacity. Political regime type is the core independent variable in Ginsburg's conceptualization of authoritarian international law—a global projection of authoritarian states’ domestic politics. This essay echoes Ginsburg's insightful observation but complicates it by shifting the focus to the less-known perspectives of secondary authoritarian countries. I use a matrix case study of two smaller states, Vietnam and Cambodia, on two prominent issues, the South China Sea (SCS) and the Belt and Road Initiative (BRI), to demonstrate small states’ effort to use international law to “hedge” big powers. As the case studies show, small authoritarian states, not unlike other small states, prefer a pluralist vision of international law, even if they may at times embrace the alternative model offered by big authoritarian powers. These states thus have an important, perhaps unexpected, role to play in preserving the pluralist international legal order and mitigating the hegemonic tendencies of authoritarian international law.

In presenting the international law community with a call to action in defense of the liberal international order against a trend towards “authoritarian international law,” Tom Ginsburg prompts us to assess the systemic dynamics at play in the contemporary international legal order. In doing so, we should be cautious about assuming that the consequences for international law of any particular actor will be positive or otherwise. A couple of decades ago even American international lawyers were concerned about what they perceived to be the threat posed to international law by the United States as global hegemon. And yet from today's vantage point, it seems that the imperial actor during the post-Cold War period may not have been the United States so much as transnational civil society. The very openness of the system of international law that enables both democratic and authoritarian regimes to promote norms reflective of their policy preferences has also enabled civil society to advance norms, processes, and institutional structures that go beyond the policy preferences of dominant states. In doing so, civil society—a hallmark of what we might refer to as the “pseudo-democratic” international legal system—has challenged the delicate balance between power politics and the realization of a pure international rule of law. The consequences appear serious.

Tom Ginsburg's concept of “authoritarian international law” (AIL) is as important as the one it references, Thomas Franck's “right to democratic governance.” It underlines how the promise carried by Franck was betrayed in the bitter turn of history that ended the emerging hope for democracy ruling all nations in the world after 1989. This hope had developed by fits and starts as the slow fulfilment of the Kantian project for “perpetual peace” amongst a world federation of democratic republics on which the League of Nations and the United Nations were built. To the now-universal acknowledgment of the grave domestic setbacks to human rights and democracy, Ginsburg's article adds an account of the international setbacks which followed. Its chief importance is in raising the question of the emergent authoritarian traits of international law in the wake of these setbacks. With my appreciation of Ginsburg's formidable treatment, including a title that will mark, like Franck's, an important moment in the field, I will challenge some of his conclusions and offer counterpoints in the present essay. In particular, I will (1) suggest the irrelevance of the three “evils of AIL”; (2) highlight the significance of 2006 as the date when AIL started rising; (3) emphasize the importance of U.S. isolationism in the rise of AIL; and (4) argue that the better investment to counter that rise is in nonviolence.