Remarks by Anne Havn

How do you define double standards and how are they expressed within international law?

Remarks by Patryk Labuda

Drawing on a project that David Hughes and I co-initiated last year, we have found that people often bring differing assumptions and definitions to discussions about the problem of double standards.Footnote ¹ While there is a general understanding that double standards involve treating two similar situations differently, we have discovered that it helps to be more precise in our language. The working definition from my research, which I have used to frame these conversations, is that a legal rule or principle is applied in a different way to similar things without adequate justification.

To help break this down, it might be useful to think of this definition as comprising two separate questions: First, are two or more similar situations being treated differently? And second, if they are, is there a valid justification for the differentiated treatment? It is important to stress that not all instances of differentiated treatment amount to double standards. Sometimes, distinctions are justifiable—indeed, exploring these cases can prompt us to interrogate what might constitute an acceptable justification.

Framed this way, debates over double standards prompt further questions, for instance: Is the same norm or rule applicable to the situations being compared? Are there factual dissimilarities that might explain an apparent normative inconsistency? Do we see instances where bias—conscious or unconscious—explains why the same rule is administered inconsistently? This last question reveals also that debates about double standards are closely tied to broader questions of equality, justice, and fairness in legal philosophy.

The project is currently grappling with two major issues. First, it seems these wider concepts of justice apply somewhat differently in international law compared to domestic legal systems, which forces us to reflect on the extent to which insights from domestic legal theory can be fruitfully applied to international contexts. Second is the extent to which double standards emerge across various fields of international law. In human rights, for example, we might ask on what basis countries’ human rights records are subjected to external scrutiny within the Human Rights Council. Is there a principled, consistent standard for launching investigations, or is political bias at play? In migration, concerns often center around whether host states treat asylum applications from different population groups differently—and if so, whether this differentiation is justifiable or, conversely, reflects bias. Investor-state dispute settlement mechanisms raise related concerns, for instance around the fair and equitable treatment standard. In turn, in the field of climate law, the principle of “common but differentiated responsibilities” would raise intriguing questions about the rationales and justifications of differentiated obligations.

Beyond these examples, my own work has focused on double standards in international criminal law, where such allegations often seem particularly politically charged. For instance, in the last two years there has been much scrutiny over the perceived disparity in how the situations in Gaza and Ukraine are being addressed. I argue it is important to consider whose perspective is prioritized—those of states, international organizations, or victims?—as each vantage point raises distinct questions and may point to different answers about the persuasiveness of allegations of double standards in international criminal law.Footnote ² There is a lot to unpack here, and these definitions and illustrative examples only scratch the surface, but we will have the opportunity to delve deeper into these themes during the panel and in Q and A.

Anne Havn

Can you help us put this in a historical context: are double standards a new phenomenon in the emerging multipolar global order? Or have states always practiced double standards?

Remarks by Hansong Li

If we save ourselves the labor of tracing double standards to global antiquities—we could say, for example, that Roman responses to the outbreak of the Nicomedes-Mithridates conflict, for example, showcases a kind of “double standard” in the enforcement of treaty obligations—it is still worth tracing contemporary debates over double standards to the early-modern creation of the interstate order. The inequality of normative and material power, as well as the inherent contestability of doctrines across entire legal cultures, conspire to leave compliance selective and enforcement scarce. And despite my optimisms on other fronts, I am afraid that this will remain a central feature of public international law, as long as we are still trying to govern the world without a world government.

But there is something unique about our present debate over double-standards in international law since the post-war decades, especially after the disintegration of the Soviet Union in the 1990s: an unprecedented level of confidence in the doctrinal positiveness of international law as we, or the West, found it a gift for all time. Three decades later, with the supremacy of the dual guarantees of the 1990s international legal order—the U.S.-led global security scheme and global economic structure—shaken from within and without, we now confront a frictional and fractured international legal order that no longer looks as universal as it once promised.

In this poly-crisis, we face for the first time an inter-epistemic question of global scale in international law, a symptom of normative underrepresentation in the historical making of international law. Peoples and polities excluded from setting the basic ethical and epistemic terms of what became “international law” as we know it, largely a product of Western international history before its diffusion to or imposition on the rest of the world, have tried several means of redressing the issue. One redress is to weaponize double standards: a progressive dualité aimed to elevate the “Global South.” One successful practice of this remedial or reparatory kind of double standards was the legitimation of exceptions and exemptions for developing nations in climate negotiations, when China, India, Malaysia, and others accepted Western epistemic authority over climate science, in exchange for better terms and technology transfers in various amendments to the Montreal Protocol (1987). Another approach is to use Western international legal instruments to pressure the West for consistency, hence South Africa’s case against Israel in The Hague. Yet others chart altogether different paths, by asserting different cultures and cosmologies of international justice. Of course, these “civilizational” narratives are often abused as blind justifications for non-compliance, which deserve our criticisms. But again, at the risk of a little “whataboutism,” were the “revisionist” and “subversive” nations outside the West the first to order the world by cultural claims? And has the West always been led by liberal-institutional positivists? No. After all, modern international law was founded on “standards of civilization,” which, despite their liberal institutionalization, retain many built-in cultural and civilizational commitments. Think about it: even Eleanor Roosevelt, when she presided over the debates leading up to the Universal Declaration of Human Rights, spoke of “civilized” versus “uncivilized” states.

Do we then descend into a radical relativism about intercultural views of international law? History teaches us many lessons, not just cynicism. In 1864, the Prussian ambassador Guido von Rehfues seized three Danish ships upon arrival at the Daku Port, on the basis of jus in bello. The Chinese consulted William Martin’s recent translation of Henry Wheaton’s digest of international law, and decided that the seizure took place illegally, within three nautical miles of the Chinese coasts. Interestingly, the Prussian side complied. This is an early and successful example of single-standardization. But things did not go smoothly when the Chinese and Japanese foreign ministers, Li Hongzhang and Mori Arinori, debated whether Korea had been socialized into jus gentium, which they translated into a kind of ratio gentium. As they struggled with that question, they deferred from time to time back to traditional categories of benevolence and other Confucian virtues. I raised these two examples, in haste, to suggest that we have not always been hypocritical, nor always faithful. Rather, we have always been contesting claims of justice between different normative frameworks of international law, which I hope to explain further as our conversation progresses.

Anne Havn

Our panel have given examples of double standards; how do you see use of double standards by states in your work on armed conflicts?

Remarks by Ka Lok Yip

I see an underexplored, granular, personal dimension to the use of double standards in my work on international law in armed conflicts for even state practices perceived to adopt double standards have a personological basis. This personal dimension to the use of double standards in international law in armed conflicts is the human predisposition to avoid applying to ourselves the same standards we apply to others because of our existential anxiety about guilt and condemnation. The only antidote to this predisposition is to find courage to look inside ourselves to confront our own responsibility and the potential guilt and condemnation that come with it.Footnote ³ Unchecked, this predisposition often results in what I call “inverted double standards,” which are “inverted” because unlike the usual sense in which the term “double standards” is used to denote unfair, discriminatory, differential treatments, “inverted double standards” convey the sense in which people sometimes insist on differential treatments precisely on the basis that it is fair, discerning, indeed, imperative.

For example, both Israel and Hamas have been condemned for serious violations of international law, but right after October 7, 2023, Israel insisted that its actions be treated differently from those of Hamas and stated in its letter to the Security Council that “[i]t will not tolerate moral equivalence between those defending against this terrorism and those perpetrating it.”Footnote ⁴ When the International Criminal Court (ICC) chief prosecutor later applied for the arrest warrants for the Israeli Prime Minister Benjamin Netanyahu, the then Israeli Defense Minister Yoav Gallant and three Hamas leaders for war crimes and crimes against humanity, Gallant dismissed “the parallel … drawn between the Hamas terrorist organization and the State of Israel” as “despicable”Footnote ⁵ while Hamas likewise dismissed it as “equating the victim with the executioner.”Footnote ⁶

Both Israel and Hamas are actively demanding differential treatments on the basis of a difference that boils down to a difference in identity. This difference in identity is in turn constructed by a psychological mechanism termed by Melanie Klein as projective identificationFootnote ⁷ whereby a person who cannot tolerate their own “bad parts” defend against them by deflecting and projecting them outward onto the “evil Other” in order to regain their own, distinct sense of innocent identity. This psychological phenomenon often manifests politically as what Caroline Rooney called the “politics of self-partition”Footnote ⁸ where the self and the evil Other (to whom one’s “bad parts” have been projected) accuse each other of the same misdeeds while declaring their radical distinctions from each other and end up acting like each other’s doppelgangers.

Anne Havn

Have specific cases before the ICJ exemplified systemic double standards in state behavior? How do double standards manifest in the way states engage with the international Courts as the ICJ?

Remarks by Edgardo Sobenes

Double standards emerge when states instrumentalize international law—upholding it when doing so aligns with their interests, and disregarding it when outcomes prove inconvenient for themselves or their allies. This pattern is evident not only in official rhetoric but also in how states conduct themselves in international judicial proceedings. It is important to recognize that the problem does not lie with international law itself, but rather with how certain states interpret and apply it asymmetrically—some more overtly than others.

This asymmetry is reflected in several recurring tactics. Some states, for example, violate international law while simultaneously asserting legal legitimacy. Others selectively interpret treaties, applying broad constructions when advantageous and narrow interpretations when not. Similarly, certain states engage in unlawful conduct first and later attempt to normalize it through legal or diplomatic justifications, creating a façade of legality around behavior that clearly violates international law, including obligations erga omnes and norms of jus cogens. Even in some cases, states present their actions as efforts to promote democracy or protect human rights, in order to gain public support and shield themselves from scrutiny. This strategic framing, aimed largely at non-legal audiences, serves to obscure breaches of international norms.

Another common tactic involves vigorously pursuing international legal action against adversaries while ignoring or downplaying similar violations by allies. This practice of selective prosecution undermines the universality of international law and weakens confidence in its mechanisms. Additionally, the way states interpret and invoke the jurisdiction of international courts and tribunals often reveals similar inconsistencies. Rather than treating jurisdiction as a stable legal principle, some states approach it through a political or strategic lens. When legal proceedings align with their interests, they are more likely to accept jurisdiction and participate fully. When the outcomes appear less favorable, the same states may contest the Court’s jurisdiction, question procedural integrity, or avoid engagement altogether.

To be clear, there are situations in which jurisdiction genuinely does not exist, and states are fully entitled to raise preliminary objections.Footnote ⁹ However, when such objections are asserted inconsistently—accepted in some cases and rejected in others, not on legal grounds but based on political convenience—they reinforce the perception that international law is applied selectively. This damages trust in judicial processes and diminishes the standing of international courts as impartial forums for the resolution of disputes.

These tactics are not hypothetical; they have been repeatedly observed in proceedings before international courts and tribunals, including the International Court of Justice. A particularly emblematic case is Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), in which, following the Court’s judgment of November 1984 affirming that it had jurisdiction and that Nicaragua’s application was admissible, the United States announced that it “intends not to participate in any further proceedings in connection with this case.”Footnote ¹⁰ Another more recent example is the advisory opinion on climate change. In this context, several Global North states publicly acknowledge historical responsibility for CO2 emissions, yet in their written and oral submissions to the ICJ, they reject binding legal obligations. Such selective engagement undermines the credibility of those commitments and further entrenches perceptions of double standards in the application of international law.

Ultimately, when powerful states engage with the ICJ on a discretionary basis—embracing it when convenient and disregarding it when not—they place the Court’s credibility at risk. Such behavior undermines the judicial function of international courts and threatens to transform them into instruments of foreign policy. That shift captures the very essence of the double standard at play in this context.

Anne Havn

As a political theorist and historian, do you think we are moving away from the rule of law? If yes, what can be done to reverse the development?

Hansong Li

I am afraid that is a question beyond the mixed and matched wisdom of history and political theory! We are definitely moving away from the set of international legal arrangements inherited from a historically contingent moment. Once the global political, economic, and security structures are altered, of course all the other pieces of the puzzle, especially the normative correlates of those structures, have to move, as well. Similarly, we see that as the socioeconomic structures of various Western nations shifted to new realities, the basic political consensus and coherence of these societies also faltered, leading them to rethink and even renege constitutional and global commitments. This is only one of the many links between the crisis of the international legal order, on a planetary scale, and the political turmoil almost too conveniently dubbed “right-wing populism” in domestic contexts.

If change is inevitable, we have to answer two basic questions: are we moving away from the “rule of law” per se, or its current incarnation? And if the international rule of law is not a static set of institutional arrangements, but a space of contestation by plural modes of legal-philosophical reasoning, how much do we have to agree, in order to disagree robustly but meaningfully?

Again, I see two major challenges ahead: the structural (socioeconomic) and the inter-normative. Let me use the same example of the Universal Declaration of Human Rights, where both concerns were present. Charles Malik of Lebanon’s debate with Peng Chun Chang, or Aquinas v. Confucius, was inter-normative. The objections raised by the Soviet Union, that the West focused only on political but not economic rights, was more structural. Interestingly, what annoyed Eleanor Roosevelt was not the dual debate, but the Soviet insistence on deferring everything to nation-state authority, which she dubbed “communist,” a great irony, given the internationality of what communism was. But beyond the Soviets, the Indians and the South Africans both objected, with Hansa Mehta saying that promising secondary education and higher was impractical in India, and South Africa unwilling to concede, mindful of inter-racial dissensions at home.

When we try to address the structural problem rooted in the inequality of power and resources, such as by taking collective actions amongst smaller states, we inevitably also stumble on the inter-normative problem. Already, we cannot escape from thinking about ethical and epistemic authorities. My prejudice is that we need a space for different normative commitments to renegotiate the relational terms on which the different “poles” of a so-called multipolar world were to interact with each other. Now that world-making agency is more diffused across the planet, the West has good reasons to heed what different knowledge systems have to offer. But on the other hand, it falls on the so-called “emergent,” “subversive,” “revisionist” political communities to show not only their historical grievance, but also their normative relevance: why does it matter, and what do we gain, from consulting their wisdom and heeding their counsel? If you cannot show that, then I am justified to counter-remonstrate: why not cling onto what we have already built since the 1990s?

It is always normatively good to unshackle ourselves from the tyranny of no alternatives, but we also need to interrogate alternatives, and make sure that we do not fetishize their alterity. The bottom line is that nobody could claim interpretive monopoly over traditions of legal thought. Let me end this remark with another anecdote from Eleanor Roosevelt: when four Muslim countries abstained from the deliberated proposal of the Universal Declaration of Human Rights, she consulted Sir Mohammad Zafarullah Khan of Pakistan, who told her that the Koran is, in principle, open to pluralism, but what Islam forbids is hypocrisy, or, as we have been calling it, double standards.

Anne Havn

In your work on armed conflicts including terrorism, how do you see the implications of the practice of double standards?

Ka Lok Yip

The law of armed conflicts, or international humanitarian law (IHL), is built on a certain identity blindness—the same rules apply to all sides whether they are aggressors or self-defenders. Double standards on not just violations of IHL, but more importantly, violations of jus contra bellum and thereby, international human rights law in armed conflictsFootnote ¹¹ reify the distinction in identity between different sides to a conflict so drastically that makes it very hard for those implementing IHL to continue to entirely ignore it anymore.

The stronger the sense of distinction in the identity between different sides to the conflict, particularly along the good and evil divide, the greater the pressure to sideline the minimal constraints of IHL and to use all means available, even in violation of IHL, to “prevail” over the evil Other. Even people far away from the battlefield, be they activists, philosophers, lawyers, are beginning to feel discomfort in demanding a people being driven up against the wall by those who violate the law with impunity to nonetheless strictly adhere to the law on their own part or face legal sanctions. The activists who condone violations of IHL, the philosophers who delegitimize the identity-neutral IHL, the lawyers who doubt the utility of IHL, all do so in a context of widespread double standards that create for them anxiety about their own potential guilt and condemnation in endorsing a legal system that increasingly resembles a “trap for the innocent, signpost for the guilty.”Footnote ¹² Ironically, the key implication of these widespread double standards is that we run a serious risk of losing all standards.

Anne Havn

State actors from other parts of the world, for example African, Asian, and Latin-American states participating before the ICJ, how do they perceive the development? Is it different from the “Western” view (ref. panel description “in particular how accusations of double standards are formulated and perceived from various perspectives, especially from the Global South(s)”)?

Edgardo Sobenes

States from the Global South have consistently upheld the ICJ as a vital mechanism for legal redress, often relying on it more faithfully than many of their Western counterparts. This is no coincidence. For many Global South states, international law is not mere rhetoric—it is a crucial tool for safeguarding sovereignty, securing justice, and resisting external coercion and unequal power dynamics.

This commitment is evident in a number of landmark cases. For example, Nicaragua has repeatedly turned to the ICJ in disputes with the United States, Colombia, and Costa Rica. More recently, Vanuatu spearheaded the request for the advisory opinion on climate change,Footnote ¹³ again with widespread support from across the Global South. Such actions, inter alia, reflect a proactive engagement with international adjudication, grounded in a deep belief in the ICJ’s potential—even in the face of evident double standards.Footnote ¹⁴

History shows that some powerful states have disregarded the ICJ’s rulings when politically inconvenient, contributing to a growing perception of legal asymmetry. When international law is rigorously enforced against weaker states but selectively applied—or entirely ignored—when it comes to dominant powers, the legitimacy of the system is inevitably called into question.

This dynamic highlights a fundamental truth: trust in the international legal system is essential, but the foundations for that trust are fragile and must be protected. Every time a major power dismisses or undermines the Court’s findings—as seen in the ongoing South Africa v. Israel caseFootnote ¹⁵—that trust erodes further. And every time the same actors invoke the ICJ’s authority for others while disregarding similar obligations for themselves or their allies—even in parallel proceedings—the contradiction becomes starker. Ironically, this pattern has revealed that the true defenders of the international legal order are not always the most powerful states, but those from the Global South.

Indeed, the Global South continues to place its trust in the ICJ, seeing it as the most viable alternative to force, coercion, or silence. For these states, the Court represents not just an institution, but a safeguard for legal equality and peaceful dispute resolution. That is why countries from the Global South not only rely on the system but actively defend and seek to reform it—not to abandon it.Footnote ¹⁶ The alternative—allowing legal institutions to erode or be manipulated—risks dismantling the very framework designed to maintain global peace and justice. Such a loss would harm the entire international community, but especially those states whose protection depends not on power, but on the rule of law.

Anne Havn

Why do double standards ultimately matter? What do we risk by practicing double standards?

Patryk Labuda

I would suggest that double standards go to the heart of the international system and at stake is a fundamental question: are we collectively building and operating within a set of rules that provide a coherent normative framework—one that fosters consistency, predictability, and genuine commitment to the rule of law? Or, as many skeptics contend, does international law merely reflect the raw power and strategic interests of states, rather than shared values? This tension directly touches on the legitimacy of the international legal order. Where there is inequality and perceived unfairness in how rules are applied, the credibility of that system erodes.

One can think of this as a theoretical, normative challenge, but I would like to focus on its practical dimensions. Take, for example, the international response to Russia’s aggression. Claims and criticisms of “whataboutism” have often arisen—but questions about inconsistencies in the application of international norms have not necessarily been raised to deflect from Russia’s actions, but rather to point out the difficulty of imposing consequences when other actors’ similar conduct by other actors has gone unaddressed. One of the challenges is figuring out when comparisons can bring to light obscured issues of unequal enforcement, without devolving into a downward spiral of mutual accusations of bad faith.

Another issue that requires more reflection is the distinction between perceived double standards and actual double standards—one gets the impression that sometimes all accusations are taken at face value, without asking harder questions about the persuasiveness of comparisons between, for instance, the unprovoked and illegal Russian invasion of Ukraine and the Russia- and China-sanctioned Chapter VII intervention to protect civilians in Libya in 2011. Are these the same violations of international law? How exactly do these two examples relate to conversations about double standards?

Another important theme may be the need to differentiate between international law’s selectivity, which may reflect pragmatic or unavoidable constraints, and genuine inconsistency of enforcement that undermines legal norms. For instance, accusing the ICC prosecutor of double standards in prioritizing justice for Ukrainians over Syrians (at the time of writing, the ICC does not have jurisdiction over Syria) may miss the point and conflate international law’s fragmented and selective nature with unjustifiable double standards.

A final point based on our project is that some people prefer avoiding these discussions about double standards altogether. I think this is a missed opportunity. If we want to bridge divides and overcome entrenched disagreements, we must be willing to confront uncomfortable allegations of double standards. The era in which the United States—or a small handful of powers—could dictate the rules of the game is likely coming to an end, yet I do not think this shift in the normative fabric of international law has been acknowledged by many people who are used to a privileged place in the global order. Going forward, we need a more inclusive conversation about double standards—one that integrates a broad range of perspectives. It does not mean that all allegations of double standards will necessarily be persuasive, but it does mean listening beyond the dominant voices like the United States, China, or the EU, and creating space for a wider group of countries to participate meaningfully in setting the standards and rules that define international conduct. With the diversification of actors involved in international law, it is unlikely the conversation about double standards is going away, and we need to think through how to engage it constructively.