Unilateralism in International Law: Regulation, Responsibility and the Rule of Law

Multilateral rules and institutions in international law appear to be under challenge from a more unilateral regulatory approach. This course offers an assessment of how this approach fits within but also challenges the existing framework of international law. It focuses on the adoption of regulatory measures by States, including legislative and executive acts, which are intended to have an external impact. This is the case, for example, in relation to unilateral sanctions on foreign State or non-State actors. This course explores three different lenses through which international law engages with such measures, providing both a general grounding and focused consideration of contemporary issues. First, these measures are regulated by the international law of jurisdiction, which seeks to directly limit the power of States to regulate extraterritorially, reducing the potential risk of regulatory conflict. Questions may be raised, however, as to whether these rules function as an effective constraint, raising rule of law challenges. Second, regulatory measures may be considered through the lens of State responsibility, as they may breach primary rules of international law, including the prohibition on coercive intervention or other more specialised rules. In some cases, however, the primary rules may provide for an exception (such as a national security exception), and in other case their wrongfulness may be precluded under the secondary rules of State responsibility – for example, where they may be characterised as a countermeasure in response to the prior breach of international law by another State. A third related but broader lens is that some unilateral regulatory measures may be viewed as a means of enforcing international law rules – understood in a wider context of the incomplete institutionalisation and judicialisation of international law. Where collective means of enforcing international law are absent or weakened (a present concern, for example, in relation to international trade law), unilateral or horizontal measures may be adopted as a contentious alternative. They may thus perhaps be viewed as reinforcing the rule of law in international relations, though also present their own rule of law challenges.