Page 57 - AEI Insights 2018 Vol 4 Issue 1

Szanto, 2018

significant popular resistance, especially if pursued without a popular vote. It merely wishes to
renege on the obligations part of its membership.

Essentially the authority of the Hungarian state to independently determine policy is not
substantially threatened as it has clear options to defy policy directions it does not agree with.
This goes beyond a reasonable interpretation of sovereignty. The problem is that Budapest is
unsatisfied with the fact that it cannot do so without suffering the consequences of its actions.
Once upon a time, before reality inconveniently started to rear its ugly head, BREXIT was
heralded as Britain having its cake and eating it too. Budapest desires something similar:
Hungary wants to enjoy the benefits of international cooperation, benefits it feels entitled to,
without accepting the costs of international cooperation, seeking to pick and choose whether
to honour obligations based on political convenience. While such a desire is understandable,
any form of acquiescence would create a dangerous precedent.

The sovereignty to defy obligations: the end of the international legal order

Law work differently on the domestic and international levels. In a domestic context laws are
based on the disproportionate power of the state. In an international context a higher level of
trust is involved as laws exists between sovereign agents in the absence of a higher enforcement
power. International cooperation is based on states’ trust that they will each honour their
obligations. Take the idea of collective security: one state trust another that it will provide aid
in case of a conflict, but there is little tangible guarantee that the other state will do so. Naturally
states also have a desire to renege on their obligations or conflicts otherwise arise from the
interpretation of international agreements. Hence states create various institutions, such as
international courts, to resolve such issues. But at its core, all of this is based on trust: states
can choose to defy agreements and international courts as sovereign agents. Countries such as
the United States (defying the U.S. vs Nicaragua ruling of the International Court of Justice)
and the People’s Republic of China (defying the Permanent Court of Arbitration regarding the
submissions of the Philippines) have established precedents for this.

This is exactly where the dangers present themselves in the issue discussed above. Hungary
has agreed to certain rules – the UN Refugee Convention and the Dublin process – but seeks
to renege on these rules unilaterally without exiting the agreements. If Hungary is allowed to
do so it creates a precedent that this is acceptable, which in turn will encourage other states to
do so. Other Eastern European states, most prominently Poland, has already joined the path set
by Hungary. This erodes the relevance of existing international law. To use a light-hearted
example, the ‘pirate oath’ is a central theme of the first Pirates of the Caribbean movie. It is
presented as the law governing pirate life until one of the characters breaks it with the argument
that it is not as much an oath as a recommendation, depriving it from any pragmatic relevance
as it is no longer a code to adhere to. International law is the pirate code of international
community and it is effective as long as everyone respects it. However, it loses much of its
effectiveness if it is allowed to degrade into a mere recommendation. Naturally one does not
talk about the immediate implosion of all international law. But incidents such as these
represent a real risk of rot setting in the foundation of the international legal order. If they are
not countered then over time the entire system risks collapse. It is with good reason that states
that are non-compliant with international law are labelled as rogue states and vigorously
opposed and punished by the community at large.

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