Lieblich: Whataboutism in International Law

Eliav Lieblich (Tel Aviv Univ. - Law) has posted Whataboutism in International Law (Harvard International Law Journal, forthcoming). Here's the abstract:

Whataboutism, as a response to allegations of wrongdoing, is everywhere in contemporary public discussion, and international law is not an exception. Unsurprisingly, it has been central to Russia’s justification discourse regarding its invasion of Ukraine. Whataboutism evokes conflicting responses. On the one hand, it can be a logical fallacy and is frequently employed as a cheap tactic to derail public debate. On the other, we often feel that there might be something in such arguments, and that they cannot be dismissed offhand.

This article seeks to offer a general theory on the potential normative relevance of whataboutism in international law. Utilizing insights from the theoretical framework of informal logic, it shows that whataboutism should be addressed as a potentially valid argumentative scheme, rather than as a pure fallacy. The article argues that since whataboutism in international law frequently invokes notions of unfairness, the question whether whataboutism is relevant in international legal argumentation requires establishing whether there are indeed obligations of fairness between the alleger and the whataboutist objector.

As the article claims, since obligations of fairness generally require the exercise of public power, the salient question concerning the relevance of whataboutism in international law is whether international actors interact under assumptions of private or public law. The article explores both traditions in international legal theory, offers indications for the existence of such public functions in specific instances, and suggests preliminary implications of a relevant whataboutist claim in international law.