The Double Effect of “Double Standards”

The summer may have brought a pause to parliamentary sessions, university lectures, and the editorial of Verfassungsblog, but not to international law. In early September, the Shanghai Summit made the continuing erosion of the so-called liberal international legal order and the looming risk of its fragmentation evident. The leaders of the assembled Asian states (mostly autocracies) once again decried the West’s (or North’s) “double standards” (Tianjin Declaration of 1 September 2025).

The accusation of double standards is not new, but in today’s period of upheaval in the world order, it has acquired an entirely new dynamism and urgency. It focuses particularly on the allegedly selective enforcement of international law by Western states against weaker states of the Global South. The accusation is intuitively plausible. After all, virtually every (legal) culture in the world recognises as a basic principle of fairness and justice that “like should be treated alike” and “unlike cases unlike”, unless there are objective grounds for deviation. Whether double standards are merely alleged or whether there is in fact an unjustifiable practice, however, usually requires closer scrutiny of the facts and the legal situation.

In particular, one must bear in mind the structural feature of international law as a decentralised order among equals, lacking a monopoly of the legitimate use of force. In their “horizontal” relations with one another, states are generally not obliged to treat each other equally unless specific rules say so. The principle of sovereign equality does not, for example, prohibit Germany from tying its (development) aid to and trade relations with Syria to conditions (such as schooling for girls) which it does not impose on Saudi Arabia or Turkey – because these latter states are ones Germany seeks to bind to itself for geostrategic reasons.

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Moreover, only in rare instances of conflict international courts or bodies have jurisdiction and are competent to establish facts and the legal situation in a binding manner. Whether situations merit equal treatment is therefore often a matter of opinion in the absence of authoritative closure. International institutions also offer weaker actors only limited protection against encroachments, above all not against a permanent member of the Security Council such as Russia or the United States, both of which can block any action by the Council with their veto. Since they are not shielded by a powerful institution, it is for many reasons prudent for most states not to match their words (e.g. UNGA Res. ES-11/L.1 of 1 March 2022) with deeds (such as sanctions against Russia).

Finally, there is no general duty to denounce violations, let alone to impose sanctions. The situation is different only when a specific legal regime imposes an obligation to react. Thus, the UN Human Rights Council, by virtue of its mandate, is obliged to deal with human rights issues evenly within the limits of its resources. It is therefore problematic that since its creation in 2006 it has “condemned” Israel 108 times, but Russia only eight times. Likewise, Article 5 of the NATO Treaty obliges all parties to provide “necessary” support if one of them is subjected to an armed attack.
In the absence of such duties, no state is compelled to sanction law-breakers, and states typically react according to their interests – and thus selectively. Strong actors in particular can afford to sanction violations of weaker actors. One may lament this as politicisation – or even instrumentalisation – of international law for one’s own interests. Yet the possibility of such “lawfare” is inscribed into the very structure of international law as a decentralised and power-dependent order.

Even if we were to assume an international legal duty of “horizontal” equal treatment in interstate relations – analogous to the prohibition of discrimination by state authorities – this would not require a schematic identical treatment of all states. Often factual and/or legal differences justify, or even mandate, treating situations differently. Lawyers could elaborate legally relevant distinctions, though many value judgements come into play. And unlike in the field of human rights equality and anti-discrimination law, it remains largely unclear what criteria might justify different treatment in an interstate ban on double standards: severity of the violation, area of law, impact assessment, capacity and feasibility constraints, preferential treatment for developing countries, other legitimate interests?

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In the end, the current swell of the – mostly strategic and often abusive – litany of double standards is indeed ambivalent. The legal subtleties could, in theory, be explained to global publics. Not all considerations, however, are easily understood. The appearance of double standards often clings. Such appearances are a genuine problem when it comes to public credibility. That is why procedural rules typically prohibit even the mere appearance of bias or conflicts of interest. The widespread – if diffuse – perception that “two weights and two measures” are being used severely undermines trust in international law. The ever-present threat of the charge of double standards also fosters timidity. In order to avoid criticism altogether, states prefer to remain silent: a chilling effect on calling out violations of international law by others, and thus a brake on the development of customary international law.

On the other hand, the reproach of double standards can expose real problems. International law would be strengthened if Western actors engaged substantively with debates over which situations are comparable and what criteria for differentiation are legitimate. Such debates would also have to penetrate to the deeper layer of the ubiquitous lament. States that decry Western hypocrisy are not merely displeased at being criticised selectively. They would prefer not to be criticised at all. What is often hidden behind the accusation of Western double standards is not a call for international law to be applied consistently – but for it not to be applied at all. International law is seen as an instrument of the West to secure Western dominance. The states of the West should therefore take the unease expressing itself in the accusation of double standards much more seriously than they have so far, and be open to substantive reform.

Above all, they should seize the opportunity of the boomerang effect: anyone who complains of double standards is thereby signalling that they regard coherence of the international legal order and consistency in the application of the law as valuable goods. The speaker is thus implicitly calling for a general principle of equal treatment that is, in current international law, present only in nuce. The spread of the accusation can therefore be read as a sign that normative expectations of international law – with respect to equality and fairness – are rising.

The invocation of (real or alleged) double standards thus also carries a latent message that is welcome: the demand to work towards an international rule of law. Coherent and consistent application and enforcement of the law prove themselves here as a universal, not merely “Western”, regulative idea. Western states, accused of double standards, should orient themselves towards this idea – and they can also hold their critics to it.

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Editor’s Pick

by EVA MARIA BREDLER

Foto: Eva Maria Bredler

The “Rights of Nature” movement, though gaining momentum, can still seem like an abstract intellectual exercise – perhaps even a luxury, amid today’s violence. Robert Macfarlane’s Is a River Alive? makes that abstraction tangible, as far as words allow. He lets us hear the song of the Ecuadorian cloud forest Los Cedros and its river, taste the poison in the waterways of Chennai, and feel the suffering of the Mutehekau Shipu in Canada’s Nitassinan. In the meantime, he introduces us to the people who dedicate their lives to protecting life through law – the professor and lawyer César Rodriguez-Garavito, the Innuit writer and activist Rita Mestokosho and many others. The answer to his title’s question is evident from the start, yet by the end I felt it viscerally. That may have been helped by the rain that began to fall as I finished reading in my favourite park.

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The Summer on Verfassungsblog

summarised by EVA MARIA BREDLER

The days are getting shorter, the leaves more yellow – and once again you’ve got an email from us in your inbox. In other words, summer is over (please don’t shoot the messenger). We’re already feeling a bit nostalgic, so let’s look back with the ten most-read pieces of the season (in no particular order).

Hopefully you had a lively summer – perhaps with a trip to France, or (the cheaper option) hours of Tour de France binge-watching from the sofa (my personal sporting highlight of the year). Now, the sporting calendar rolls on: the World Athletics Championships kick off on 13 September. In the run-up, two major federations – World Athletics and World Boxing – announced they will require genetic testing for anyone competing in women’s events. The aim is to exclude certain women – including those with congenital “differences of sex development” – from women’s sport. It revives a model last common in the 1990s, long since condemned as unscientific, unethical and ultimately unworkable. SONJA ERIKAINEN, KATRINA KARKAZIS, and MICHELE KRECH (ENG) outline the many legal pitfalls.

Maybe you didn’t just watch (or play) sport this summer but also made a dent in your reading pile. If your group is now leaning towards Marx rather than Mann or Márquez, proceed with caution: the Hamburg Administrative Court has recently ruled that “the social theory founded by Marx” is in key respects incompatible with “the principles of the free democratic basic order.” BRUNO LEIPOLD (ENG) has read and unpacked the ruling for you (without going round in circles).

Who else, besides Marx, counts as an “enemy of the constitution” in Germany may soon become clearer: several federal states are moving to reform their domestic intelligence laws. For JAKOB HOHNERLEIN (GER), this is a chance to modernise the definition of the “free democratic basic order.” He shows where the states diverge and argues for a tighter focus on the core elements of human dignity, democracy and the rule of law.

The new German law on foundation funding also invokes “hostility to the constitution” – as a potential ground for excluding organisations from public money. This is bad news for the AfD-aligned Desiderius Erasmus Foundation, which has applied to the interior ministry for millions in 2026 funding. Even if constitutional doubts remain, ANTJE NEELEN (GER) predicts the application is unlikely to succeed.

Meanwhile, debate continues over a very different application – the one to ban the AfD outright. SPD leader Bärbel Bas now wants to take up the Greens’ offer of talks, with the Left signalling support too. That could inject movement into a controversy that has dragged on for months. Again and again, arguments are made that claim constitutional weight but don’t hold up legally. MARKUS OGOREK (GER) sets the record straight with the ten most common misconceptions.

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There may be no procedure at EU level for banning opponents of Europe’s constitutional principles, but there are creative proposals for dealing with authoritarian-populist member states whose sympathies with Russia could pose a serious threat to the Union. In June, ARMIN VON BOGDANDY and LUKE DIMITRIOS SPIEKER (ENG) suggested a way of overcoming a Hungarian veto on EU sanctions against Russia. Their proposal drew sharp criticism from MARK DAWSON and MARTIJN VAN DEN BRINK (ENG), who found it unconvincing on doctrinal grounds and politically dangerous. ARMIN VON BOGDANDY and LUKE DIMITRIOS SPIEKER (ENG), however, remain far from persuaded by this critique, as they set out in their reply.

Before the summer break, we were also caught up in the failed election of Federal Constitutional Court justices – a vote the Bundestag is now expected to redo on 26 September. The public treatment of candidate Frauke Brosius-Gersdorf was especially troubling. CHRISTINE LANDFRIED (GER) explains why the objections to her candidacy don’t hold up, and why politically minded constitutional judges are no problem. Even so, Brosius-Gersdorf has since announced she will withdraw. PATRICK HEINEMANN (GER) is critical of the tone of the debate, but also of some of Brosius-Gersdorf’s positions, and argues her statement is right to denounce the smear campaign against her, though it also raises further questions.

VICTOR LOXEN and TRISTAN WISSGOTT (GER) have also reflected on public statements and defamation. The occasion was Sebastian Hotz, better known as “El Hotzo,” who commented on X after the assassination attempt on Donald Trump that he found it “absolutely fantastic” when fascists died. Although the Berlin-Tiergarten District Court acquitted him of condoning crime, the case raises another question for the authors: can German criminal law even capture the approval of an act which, in the absence of a relevant provision in the law on the application of criminal statutes, is not itself punishable here?

Meanwhile, Trump is very much alive – despite viral conspiracy theories to the contrary – and continues to bully the democratic constitutional state, universities included, with deals that bypass normal lawmaking. David Pozen of Columbia University calls this “regulation by deal.” Columbia struck just such a settlement with the Trump administration over allegations it had violated federal anti-discrimination law. But once you make a deal with a businessman – and a bully – fresh demands are never far behind. KIM LANE SCHEPPELE (ENG) explores the power of the bully and what it means for the future of US universities.

So if you’re heading back to university after the summer feeling a little sluggish or unmotivated – whether you’re at the lectern or in the lecture hall – it’s worth remembering: what an achievement it is to be able to study, learn, research and teach freely. And what a privilege that we can share the ideas that take root and ferment there just as freely.

All things considered, it’s rather nice that autumn has arrived.

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That’s it for this week. Take care and all the best!

Yours,

the Verfassungsblog Team

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