In Democracies and International Law, Tom Ginsburg warns of an emerging post-liberal order influenced by powerful authoritarian regimes and new illiberal laws that repurpose global rights, undermine international courts, and expand executive power. Autocrats and kleptocrats embedded in the global economy increasingly appear to use international law to preserve their power, protect norms of non-intervention, and enhance the global stability of autocratic rule. Legalistic autocrats, for example, exploit judicial deference and vague statutory language in national security laws to circumvent checks on their authority. This process, which I call “dark law,” aids in the consolidation of state power and the global entrenchment of authoritarianism. In this Essay, I argue that dark law also contributes to the construction of authoritarian international law. Conflicts in the South China Sea illustrate how authoritarian regimes use law to pursue illiberal ends. By disregarding multilateral treaty obligations, resisting third-party adjudication, and repurposing national security laws, authoritarian states sabotage maritime norms and principles. International dark law makes global waterways more dangerous for sailors and fishing communities, undermines international cooperation on marine protection, and threatens maritime accountability and ocean governance. Future protection of oceans and seas depends on state compliance with international law and the effectiveness of multilateral enforcement.
"Dark Law on the South China Sea,"
Chicago Journal of International Law:
1, Article 4.
Available at: https://chicagounbound.uchicago.edu/cjil/vol23/iss1/4