Online Scholarship

Article Responses

The Emerging Global Regime for Investment: A Response

Responding to Jeswald W. Salacuse, The Emerging Global Regime for Investment, 51 Harv. Int’l L.J. 427 (2010).

I.        Introduction

Professor Salacuse argues that today’s network of investment treaties adds up to an emerging global “regime” for international investment.[1] He defines “regime” as do international relations scholars: “principles, norms, rules, and decision-making  procedures around which actors’ expectations converge in a given area of international relations”[2] and adds that to qualify as a regime the network must “constrain and regularize the behavior of participants, affect which issues among protagonists move  on and off agendas, determine which activities are legitimized or condemned, and influence whether , when, and how conflicts are resolved.”[3]

Salacuse’s conception of the regime does not include other arrangements that set out additional or overlapping principles, norms, and rules for international investment.  Specifically, he does not incorporate the investment rules associated with the World Trade Organization (WTO).  Yet, both the Agreement on Trade-Related Investment Measures (TRIMS), which restricts host countries’ imposition of performance requirements on foreign investors, and national schedules under the General Agreement on Trade in Services (GATS), which ensure market access to certain investors, cover part of the agenda of home countries in earlier negotiations for a truly multilateral agreement on foreign investment.  These rules now surely form part of any emerging global investment regime.  Of course, the “regime” has not generated international law that is binding on non-treaty countries.  As a result, it does not cover a large part of investment flows, particularly those between rich countries.  In addition, it has not yet created a really common set of principles, because language differs considerably from treaty to treaty and only limited common interpretation has emerged from arbitration tribunals.  Subject to these caveats, Salacuse’s conclusion is reasonable: an international regime for investment is emerging through the spread of bilateral investment treaties (BITs), investment provisions in bilateral and regional trade agreements (RTAs), and dispute settlement clauses of individual investment agreements.[4] Salacuse’s exploration of the emerging investment regime and its key differences from most international regimes clarifies some of the special challenges the regime faces in retaining developing countries as adherents.   Its unusual origins and structure carry important consequences for those who wish to encourage developing countries to remain in the regime.  One feature is the fact that the existing regime makes it difficult for host countries to benefit from learning by experience.  A second problematic outcome is that the scope of “investment” covered by the regime has frequently been stretched beyond what many host countries probably intended when they signed investment treaties.  The third issue is the absence of significant “escape clauses,” safeguards that have played crucial roles in making other international regimes politically acceptable and long-lived.  Finally, the unusual structure makes it extremely difficult for concerned parties to effect constructive change.

. . .

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[1] See Jeswald W. Salacuse, The Emerging Global Regime for Investment, 51 Harv. Int’l L.J. 427, 431 (2010).

[2] Id. at 431 (quoting Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in Power, the State, and Sovereignty: Essays on International Relations 113, 113 (2009)).

[3] Id. (quoting Donald J. Puchala & Raymond F. Hopkins, International Regimes: Lessons from Inductive Analysis, 36 Int’l Org. 245, 246 (1982)).

[4] Political scientists who have explored the “regime nature” of current rules on foreign investment have also tended to ignore the investment rules embodied in the WTO and the GATS, although they have generally accepted the view of the system as making up a regime.  Schill argues a somewhat different point, that the current regime is approaching the equivalent of a multilateral regime because of its most-favored-nation provisions and the possibilities of treaty shopping.  See Stephan W. Schill, Investment Treaties: Instruments of Bilateralism or Elements of an Evolving Multilateral System? 9–15 (Global Admin. L. Viterbo IV Working Paper, 2008), available at http://www.iilj.org/GAL/documents/Schill.pdf.  One might also add to Salacuse’s list unambiguous consent to the International Centre for Settlement of Investment Disputes (ICSID) (or other) arbitration provided by some countries in their legislation.  When such exists, a country opts into the regime without the need of BITs, RTAs, or clauses in investment agreements.  In spite of the emerging international regime, unilateral actions persist.  The United States still threatens to cut off aid, withdraw its generalized system of preferences (GSP), and vote against multilateral loans for countries that take U.S. property without prompt and adequate compensation.  One might also consider national and multilateral political risk insurance organizations as part of any regime. The Overseas Private Investment Corporation (OPIC), for example, has insured investors against non-payment of arbitration awards.

Article Responses

Agency, Universality, and the Politics of International Legal History

Responding to Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

I.        Introduction

A widespread “turn to history” has marked international legal scholarship in recent years.[1] In the rich and extensive study to which the present note responds,[2] Arnulf Becker Lorca offers a new contribution to the growing literature on nineteenth-century international law[3] by approaching this period from the semi-periphery. That is, Becker Lorca prioritizes those states which, though not European, were deemed sufficiently “civilized” to engage with the West on something approximating a formally equal basis, or at least with greater power and legitimacy than was ordinarily accorded to “non-civilized” peoples. He argues that nineteenth-century semi-peripheral jurists appropriated and deployed the international law of their time to bolster the sovereignty of their states. It is in such appropriation—and not in some unidirectional process of European expansion or imposition—that he seeks to find an explanation for international law’s incremental “universalization” during the course of the nineteenth century.

Despite its familiar roots in world systems theory,[4] and its increasing currency among international legal scholars, “semi-periphery” is, like many of its cognates and corollaries, a deeply ambiguous term, suggesting considerations of ethnicity, territory, and politico-economic power alike. However, regardless of how it may be defined, at least one thing remains certain: jurists hailing from or in the service of states on the semi-periphery of the international legal order have often fascinated legal historians with their willingness and ability to put even the most overtly value-laden rules of international law to counter-hegemonic use.[5] Close enough to dominant centers of economic and intellectual production to come under their influence, but with national traditions and state institutions resilient enough to resist formal colonization, the semi-periphery was a natural home for informed engagement with the international legal rules that facilitated colonialism and imperialism. By adopting a comparative approach, Becker Lorca aims to demonstrate that such engagement drove international law to become “a global legal order” in the nineteenth century.[6]

The complex patterns of influence and interaction engendered by these relations made themselves felt in a variety of legal instruments. A well-known example, and one which Becker Lorca discusses, is the “standard of civilization,” a kind of metric with which nineteenth-century international lawyers sought to gauge and evaluate competing claims to formal membership in the international legal order.[7] Only by satisfying those attributes that happened to be associated with the standard at a given juncture could a state gain full admission into the “family of civilized nations,” winning recognition as a state in possession of the robust international legal personality requisite for the complete exercise of legitimate sovereign powers. Of course, like most criteria of its type, the standard admitted degrees. Hence, while China, Japan, and the Ottoman Empire were seldom recognized as belonging to the “family of civilized nations,” at least not without considerable controversy,[8] even the most crudely positivist jurists felt a need to carve out an intermediate category for cases of the type they were thought to exemplify, thereby distinguishing them from “savage” regions and terrae nullius.[9] Indeed, the influential classification of “civilized,” “barbarous” (or “semi-civilized”), and “savage” (or “non-civilized”) states that was offered by James Lorimer was intended to make room for precisely this type of gradation: Westerners may not have accepted judgments issued by Chinese courts, but they had to grant “partial” recognition to China as a state, given its “barbarous” rather than “savage” character.[10] Though the “standard of civilization” fluctuated over time, it remained a gatekeeper to admission in the international order spawned by the European state system well into the early twentieth century.

As problematic as the “standard of civilization” obviously was, the fact that neither its content nor its parameters was ever fixed, and that it appeared in different incarnations in the hands of different jurists, allowed it to serve a number of political projects. The most ambitiously counter-hegemonic were designed to strike at the foundations of the very political and economic relations which had made it possible for a “standard of civilization” to be articulated in the first place. To take one of Becker Lorca’s examples, Japanese international lawyers of the late nineteenth century often pushed for the abrogation of the unequal treaties into which authorities in Kyoto and Tokyo had entered with Western powers by arguing that their state satisfied each of the elements of the “standard of civilization.” Among other things, a functioning court system was now in place, a professional bench was on offer, extant laws and customs had been codified, and newer, more “modern” laws had been promulgated.[11] Less ambitious and counter-hegemonic, but no less revealing, were those projects in which semi-peripheral jurists employed “civilizational” discourse to distinguish the polities they represented from their regional neighbors or antagonists. Becker Lorca’s strongest examples here are Etienne Carathéodory, an Ottoman lawyer and diplomat of Greek heritage who saw in the “standard of civilization” an opportunity to question pan-Islamism, and Fedor Fedorovich Martens, the famous Baltic-Russian jurist who sought to draw a sharp distinction between the international status of the Russian state and those of its southern and eastern neighbors.[12]

The “standard of civilization” was not an idiosyncratic, easily isolatable outgrowth of an international law that had been placed at the beck and call of the “Great Game” or the “Scramble for Africa,” themselves merely two of the better known examples of nineteenth-century imperialism. Rather, it was one in an assemblage of instruments with which nineteenth-century lawyers sought both to conceptualize and to intervene in an increasingly complex world—a world marked as much by non-European resistance to European expansion as by such expansion itself. It comes as no surprise, then, that Becker Lorca focuses in his article on precisely the kind of creative appropriation one sees at work in semi-peripheral lawyers’ engagement with the “standard of civilization.” On his account, international law “became universal” not through imposition, as though “the rules applicable to the relations between the West and the non-Western world . . . exclusively flowed from the former to the latter,” but through appropriation, a multifaceted process driven by “a global profession that articulated a transnational legal discourse.”[13] Nineteenth-century semi-peripheral jurists shared “a distinctive . . . legal consciousness defined by a ‘particularistic universalism’”—to such a degree, in fact, that a “common pattern of appropriation” grounded in “functional equivalences” can be traced from Russia to Latin America and from Japan to the Ottoman Empire.[14] And this unique “legal consciousness,” this “common pattern of appropriation,” was one that permitted, even encouraged, innovative “reinterpretation” of “the doctrinal structure of international law.”[15] Instead of simply “learning how to play by the new rules of international law that Western powers sought to impose on them,” semi-peripheral jurists also learned how to go about “changing the content of those rules.”[16]

. . .

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[1] For discussion, see Martti Koskenniemi, Why History of International Law Today?, 4 Rechtsgeschichte 61 (2004); Matthew Craven, Introduction: International Law and its Histories, in Time, History and International Law 1 (Matthew Craven, Malgosia Fitzmaurice & Maria Vogiatzi eds., 2007).

[2] Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

[3] See Antony Anghie, Imperialism, Sovereignty and the Making of International Law 32–114 (2005); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001); Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004); David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 65 Nordic J. Int’l L. 385 (1996); Casper Sylvest, International Law in Nineteenth-Century Britain, 75 Brit. Y.B. Int’l L. 9 (2004).

[4] For classic exposition, see Immanuel Wallerstein, Semi-Peripheral Countries and the Contemporary World Crisis, 3 Theory & Soc’y 461 (1976). As is well known, world systems theory seeks to describe and explain the emergence and development of global politico-economic systems by analyzing relations between “core,” “semi-peripheral,” and “peripheral” states. These relations change over time, generating different hegemonic regimes, divisions of labor, and modes of development. See, e.g., 1, 2, 3 Immanuel Wallerstein, The Modern World-System (1974, 1980, 1989); Chaos and Governance in the Modern World System (Giovanni Arrighi & Beverly J. Silver eds., 1999); The World System: Five Hundred Years or Five Thousand? (Andre Gunder Frank & Barry K. Gills eds., 1993).

[5] See, e.g., Liliana Obregón, Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America, in International Law and Its Others 247 (Anne Orford ed., 2006); Lauri Mälksoo, The History of International Legal Theory in Russia: A Civilizational Dialogue with Europe, 19 Eur. J. Int’l L. 211 (2008); Umut Özsu, “A Subject Which Excites the Deepest Interest throughout the Civilized World”: The Greek-Turkish Population Exchange and the Craft of Diplomatic Nation-Building, 24 Leiden J. Int’l L. (forthcoming 2011).

[6] Becker Lorca, supra note 2, at 475.

[7] For prominent analyses of the “standard of civilization” on which I draw, see, for example, Georg Schwarzenberger, The Standard of Civilisation in International Law, 8 Current L. Probs. 212 (1955); Anghie, supra note 3, at 84–87; Gerrit W. Gong, The Standard of “Civilization” in International Society (1984).

[8] Take the Ottoman Empire, the first non-European state to gain such admission. Even as late as 1894, Westlake could still write that

[t]he case of Turkey must . . . be left out of sight, because of the anomalous position of that empire, included on account of its geographical situation in the political system of Europe, but belonging in other respects rather to the second group of contrasted populations. She may benefit by European international law so far as it can be extended to her without ignoring plain facts, but her admission to that benefit cannot react on the statement of the law, which is what it is because it is the law of the European peoples.

John Westlake, Chapters on the Principles of International Law 103 (1894).

[9] The need to develop such classificatory schemes was felt widely at the time, and not only among lawyers. In 1859, for instance, John Stuart Mill wrote that “[t]o suppose that the same international customs, and the same rules of international morality, can obtain between one civilized nation and another, and between civilized nations and barbarians, is a grave error, and one which no statesman can fall into.” John Stuart Mill, A Few Words on Non-Intervention, in 21 The Collected Works of John Stuart Mill 111, 118 (John M. Robson ed., 1984) (1859). For lucid analysis of the distinction between “semi-civilized” and “non-civilized” states, crucial for organizing international legal relations and determining the kinds of politics semi-peripheral jurists could plausibly pursue, see Jörg Fisch, Internationalizing Civilization by Dissolving International Society: The Status of Non-European Territories in Nineteenth-Century International Law, in The Mechanics of Internationalism: Culture, Society, and Politics from the 1840s to the First World War 235, 252 (Martin H. Geyer & Johannes Paulmann eds., 2001).

[10] 1 James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities 444 (1883).

[11] Becker Lorca, supra note 2, at 497–98.

[12] Id. at 500, 542–45.

[13] Id. at 508, 546.

[14] Id. at 475, 483. See also id. at 503, 521. Comparisons on this scale may seem far-fetched or anachronistic, given the obvious differences that existed between the legal instruments in operation. Nevertheless, it is significant that, as late as the mid-nineteenth century, many British jurists did not draw sharp distinctions between the extraterritorial privileges British officials enjoyed over large swaths of Africa and the Pacific and the more formal extraterritorial jurisdiction they were authorized to exercise in Turkey and China. See, e.g., W. Ross Johnston, Sovereignty and Protection: A Study of British Jurisdictional Imperialism in the Late Nineteenth Century 29 (1973). This would suggest that at least certain legal comparisons can legitimately be drawn between the different semi-peripheral states of the period, and also, perhaps, between semi-peripheral states on the one hand and peripheral states on the other. From a voluminous literature, see Richard S. Horowitz, International Law and State Transformation in China, Siam, and the Ottoman Empire During the Nineteenth Century, 15 J. World Hist. 445 (2004); C. A. Bayly, Distorted Development: The Ottoman Empire and British India, Circa 1780-1916, 27 Comp. Stud. S. Asia, Afr. & Middle East 332 (2007); Melissa Macauley, A World Made Simple: Law and Property in the Ottoman and Qing Empires, in Shared Histories of Modernity: China, India and the Ottoman Empire 273 (Huri Islamoğlu & Peter C. Perdue eds., 2009).

[15] Becker Lorca, supra note 2, at 477.

[16] Id. at 482.

Article Responses

The Particularistic Universalism of International Law in the Nineteenth Century

Responding to Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

I.        Introduction

Becker Lorca’s essay is divided into three main parts—(a) the appropriation of classical international law, (b) international legal regimes, and (c) the particularistic universalism of non-European international lawyers.  Each section makes it possible to problematize the current state of research in the history of international law.[1]

The first part sets out the essay’s main thesis: nineteenth-century international law has not been imposed on non-Western peoples but has been appropriated by non-European jurists (or “semi-peripheral jurists,” as Becker Lorca defines them), who have modified non-Western peoples’ rules in ways functional to their countries’ interests.  To identify this appropriation process as the source driving the global expansion of European international law is to deny the view that such law expanded unilaterally through the pressure of Western powers.  Rather, the expansion rested on a dialectical interaction between Western and non-Western states.

This appropriation thesis, strongly supported by a variety of primary sources, offers a new interpretation of the way international law developed in the nineteenth century.[2] Especially notable is Becker Lorca’s analysis illustrating how international European law was received by recombining its constitutive elements—legal positivism, sovereignty, and the standard of civility—thus creating a tension between the self-proclaimed universality of international law and the specificity of national interests.

I start out by introducing the important thesis that Becker Lorca terms the particularistic universalism of international law in the nineteenth century, a development that began with the historic turn which followed the natural law of the seventeenth and eighteenth centuries and climaxed with the legal positivism of the nineteenth century.  I then expand this thesis by noting how particularistic universalism grew historically out of the plurality of universalistic conceptions of international law proclaimed by different legal civilizations, rather than just by Western civilization.  With that done, I critically discuss the standard of civilization by analyzing it not only in legal terms but also from an anthropological and sociopolitical standpoint.  Finally, I underscore the continuity of the West’s civilizing and hegemonic ideology encapsulated in international law and spanning from the early modern age to the contemporary world, regardless of however much it takes on different conceptual forms.

. . .

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[1] See generally Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int’l L.J. 475 (2010).

[2] Becker Lorca’s thesis is markedly different, for example, from that argued by Onuma Yasuaki holding that the nineteenth century saw a collapse of non-Western legal regimes, especially the Chinese and the Islamic ones, making it possible for Western international law to universalize, thus imposing its hegemony on non-Western states.  See Onuma Yasuaki, When Was the Law of International Society Born? – An Inquiry of the History of International Law from an Intercivilizational Perspective, 2 J. Hist. Int’l L. 1, 64 (2000).

Profiles & Interviews

An Interview with John B. Bellinger III

The following is an excerpt from the published interview with John Bellinger. To see the full interview, please click on the link to download the article above or below.*

Q: As you moved from law school to private practice and the government, what most surprised you about the practice of international law?

I was most surprised in government how little understanding of the importance of international law there is even at the highest levels of our own government in all three branches—the executive, particularly in congress, and even amongst the judiciary.

As I said earlier today, in other countries international law is something that is absolutely accepted. But in the United States amongst the population, and even in our government, at best there is not an understanding of the importance of international agreements or international tribunals, and at worst there is an active hostility—a belief that international law and international institutions are somehow undermining the sovereignty of the United States. So that was certainly a challenge for me when I was Legal Adviser.

 

Q: If you had the opportunity to be the Legal Adviser again, what, if anything, would you do differently?

This is an issue that I look back on. Every Legal Adviser essentially has to play the hand that is dealt to him. You don’t really get to pick and choose that much because you are the lawyer to the Secretary of State and for the rest of the administration.

I ended up spending a disproportionate amount of my time on post-9/11 terrorism issues—detention in Guantanamo and various other things—which were important to discuss with our allies. But it was not always terribly enjoyable work to have to go and explain controversial policies to audiences that were very hostile toward those policies, and I sometimes wonder whether, had I spent less time on those issues, I could have spent more time picking other interesting treaty issues and traveling to other places to work out international disputes.

And it was certainly at some personal cost to myself, because I had to be the face of some of these unpopular issues. So I do look back and wonder whether I should have spent so much time on all of those issues. But I felt that it was important to explain issues that other countries didn’t understand even if I didn’t necessarily agree with our own policies.

Q: Speaking of international institutions, Joan Donoghue was sworn on September 13, 2010 as a Judge of the International Court of Justice. After there has been all this attention last summer for the selection of a new Supreme Court Justice, what was it like being on the nominating committee for an international judge?

Well this was very exciting, I kept telling members of the press that they needed to write one fewer article about my Harvard Law School classmate, Elena Kagan, of whom I am very fond and very proud, and write at least one article about the fact that we were putting the first American woman on the International Court of Justice.

This is exciting! Judge Tom Buergenthal who had served for nearly ten years resigned this summer. The appointments to the International Court of Justice are made not by governments but based on nominations made by the U.S. “National Group,” which comprises the four members of each country in the Permanent Court of Arbitration. So in our case the national group consists of Harold Koh (the Legal Adviser), me, David Andrews (former Legal Adviser to Clinton), and Steve Schwebel (who used to be the president of the International Court of Justice).

So we had to have all four of us to agree to—or at least to have a majority to support—a candidate. We had a number of well qualified candidates to consider, and all of those were people very knowledgeable about international law. We wanted to put the best candidate that we possibly could on the Court. The person we agreed on was Joan Donoghue, who had been a long standing member of the Legal Adviser’s Office. She left to go to the private sector and I had brought her back in to be my principal deputy—so I was very fond of Joan. There was a long interregnum while Harold’s confirmation was being debated when Joan was the acting Legal Adviser so she got to know the Secretary of State quite well. Harold had spent nearly a year with her and became very impressed with her. And we did not actually have, in the end, disagreement about who the candidate ought to be, but this was someone who we could agree on —an indisputably well qualified international lawyer who had served in the administrations of both parties, and whom the National Group consisting of people who had served in both governments agreed on. And this was an exciting appointment, which I wish had gotten greater public attention.

Q: What is your opinion on the ICJ’s Kosovo decision? How do you resolve the tension between self-determination and international law or do you feel there is no tension?

The Kosovo case was also very exciting. I was heavily involved in the Kosovo independence issue. Harold Koh ultimately argued the advisory opinion case before the International Court of Justice, but the Bush Administration had worked very closely with the Kosovars—first trying to hold back from unilaterally declaring independence prematurely to avoid bloodshed, but essentially to have a balanced approach to the issue.

I was surprised at how favorable the International Court of Justice decision was towards Kosovo. I fully expected that the International Court of Justice would rule that the independence was legal; I could not have imagined that they would somehow try to “put the toothpaste back in the tube.” But I was also equally confident that there would be some kind of loose language about self-determination, declarations of independence, or UN Security Council Resolution 1244 that would be unhelpful in some way. And instead it was an excellent opinion that really tracked the arguments that had been made by the United States and others. So I was surprised at how well the opinion turned out.

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Q: As you moved from law school to private practice and the government, what most surprised you about the practice of international law?

I was most surprised in government how little understanding of the importance of international law there is even at the highest levels of our own government in all three branches—the executive, particularly in congress, and even amongst the judiciary.

As I said earlier today, in other countries international law is something that is absolutely accepted. But in the United States amongst the population, and even in our government, at best there is not an understanding of the importance of international agreements or international tribunals, and at worst there is an active hostility—a belief that international law and international institutions are somehow undermining the sovereignty of the United States. So that was certainly a challenge for me when I was Legal Adviser.

Q: If you had the opportunity to be the Legal Adviser again, what, if anything, would you do differently?

This is an issue that I look back on. Every Legal Adviser essentially has to play the hand that is dealt to him. You don’t really get to pick and choose that much because you are the lawyer to the Secretary of State and for the rest of the administration.

I ended up spending a disproportionate amount of my time on post-9/11 terrorism issues—detention in Guantanamo and various other things—which were important to discuss with our allies. But it was not always terribly enjoyable work to have to go and explain controversial policies to audiences that were very hostile toward them, and I sometimes wonder whether, had I spent less time on those issues, then I could have spent more time picking other interesting treaty issues, traveling to other places to work out international disputes.

And it was certainly at some personal cost to myself, because I had to be the face of some of these unpopular issues. So I do look back and wonder whether I should have spent so much time on all of those issues. But I felt that it was important to explain issues that other countries didn’t understand even if I didn’t necessarily agree with our own policies.

Q: Speaking of international institutions, Joan Donoghue was sworn on September 13, 2010 as a Judge of the International Court of Justice. After there has been all this attention last summer for the selection of a new Supreme Court Justice, what was it like being on the nominating committee for an international judge?

Well this was very exciting, I kept telling members of the press that they needed to write one fewer article about my Harvard Law School classmate, Elena Kagan, of whom I am very fond and very proud, and write at least one article about the fact that we were putting the first American woman on the International Court of Justice.

This is exciting! Judge Tom Buergenthal who had served for nearly ten years resigned this summer. The appointments to the International Court of Justice are made not by governments but based on nominations made by the U.S. “National Group,” which comprises the four members of each country in the Permanent Court of Arbitration. So in our case the national group consists of Harold Koh (the Legal Adviser), me, David Andrews (former Legal Adviser to Clinton), and Steve Schwebel (who used to be the president of the International Court of Justice).

So we had to have all four of us to agree to—or at least to have a majority to support—a candidate. We had a number of well qualified candidates to consider, and all of those were people very knowledgeable about international law. We wanted to put the best candidate that we possibly could on the Court. The person we agreed on was Joan Donoghue, who had been a long standing member of the Legal Adviser’s Office. She left to go to the private sector and I had brought her back in to be my principal deputy—so I was very fond of Joan. There was a long interregnum while Harold’s confirmation was being debated when Joan was the acting Legal Adviser so she got to know the Secretary of State quite well. Harold had spent nearly a year with her and became very impressed with her. And we did not actually have, in the end, disagreement about who the candidate ought to be, but this was someone who we could agree on —an indisputably well qualified international lawyer who had served in the administrations of both parties, and whom the National Group consisting of people who had served in both governments agreed on. And this was an exciting appointment, which I wish had gotten greater public attention.

Q: What is your opinion on the ICJ’s Kosovo decision? How do you resolve the tension between self-determination and international law or do you feel there is no tension?

The Kosovo case was also very exciting. I was heavily involved in the Kosovo independence issue. Harold Koh ultimately argued the advisory opinion case before the International Court of Justice, but the Bush Administration had worked very closely with the Kosovars—first trying to hold back from unilaterally declaring independence prematurely to avoid bloodshed, but essentially to have a balanced approach to the issue.

I was surprised at how favorable the International Court of Justice decision was towards Kosovo. I fully expected that the International Court of Justice would rule that the independence was legal; I could not

Q: As you moved from law school to private practice and the government, what most surprised you about the practice of international law?

I was most surprised in government how little understanding of the importance of international law there is even at the highest levels of our own government in all three branches—the executive, particularly in congress, and even amongst the judiciary.

As I said earlier today, in other countries international law is something that is absolutely accepted. But in the United States amongst the population, and even in our government, at best there is not an understanding of the importance of international agreements or international tribunals, and at worst there is an active hostility—a belief that international law and international institutions are somehow undermining the sovereignty of the United States. So that was certainly a challenge for me when I was Legal Adviser.

 

Q: If you had the opportunity to be the Legal Adviser again, what, if anything, would you do differently?

This is an issue that I look back on. Every Legal Adviser essentially has to play the hand that is dealt to him. You don’t really get to pick and choose that much because you are the lawyer to the Secretary of State and for the rest of the administration.

I ended up spending a disproportionate amount of my time on post-9/11 terrorism issues—detention in Guantanamo and various other things—which were important to discuss with our allies. But it was not always terribly enjoyable work to have to go and explain controversial policies to audiences that were very hostile toward them, and I sometimes wonder whether, had I spent less time on those issues, then I could have spent more time picking other interesting treaty issues, traveling to other places to work out international disputes.

And it was certainly at some personal cost to myself, because I had to be the face of some of these unpopular issues. So I do look back and wonder whether I should have spent so much time on all of those issues. But I felt that it was important to explain issues that other countries didn’t understand even if I didn’t necessarily agree with our own policies.

Q: Speaking of international institutions, Joan Donoghue was sworn on September 13, 2010 as a Judge of the International Court of Justice. After there has been all this attention last summer for the selection of a new Supreme Court Justice, what was it like being on the nominating committee for an international judge?

Well this was very exciting, I kept telling members of the press that they needed to write one fewer article about my Harvard Law School classmate, Elena Kagan, of whom I am very fond and very proud, and write at least one article about the fact that we were putting the first American woman on the International Court of Justice.

This is exciting! Judge Tom Buergenthal who had served for nearly ten years resigned this summer. The appointments to the International Court of Justice are made not by governments but based on nominations made by the U.S. “National Group,” which comprises the four members of each country in the Permanent Court of Arbitration. So in our case the national group consists of Harold Koh (the Legal Adviser), me, David Andrews (former Legal Adviser to Clinton), and Steve Schwebel (who used to be the president of the International Court of Justice).

So we had to have all four of us to agree to—or at least to have a majority to support—a candidate. We had a number of well qualified candidates to consider, and all of those were people very knowledgeable about international law. We wanted to put the best candidate that we possibly could on the Court. The person we agreed on was Joan Donoghue, who had been a long standing member of the Legal Adviser’s Office. She left to go to the private sector and I had brought her back in to be my principal deputy—so I was very fond of Joan. There was a long interregnum while Harold’s confirmation was being debated when Joan was the acting Legal Adviser so she got to know the Secretary of State quite well. Harold had spent nearly a year with her and became very impressed with her. And we did not actually have, in the end, disagreement about who the candidate ought to be, but this was someone who we could agree on —an indisputably well qualified international lawyer who had served in the administrations of both parties, and whom the National Group consisting of people who had served in both governments agreed on. And this was an exciting appointment, which I wish had gotten greater public attention.

Q: What is your opinion on the ICJ’s Kosovo decision? How do you resolve the tension between self-determination and international law or do you feel there is no tension?

The Kosovo case was also very exciting. I was heavily involved in the Kosovo independence issue. Harold Koh ultimately argued the advisory opinion case before the International Court of Justice, but the Bush Administration had worked very closely with the Kosovars—first trying to hold back from unilaterally declaring independence prematurely to avoid bloodshed, but essentially to have a balanced approach to the issue.

I was surprised at how favorable the International Court of Justice decision was towards Kosovo. I fully expected that the International Court of Justice would rule that the independence was legal; I could not have imagined that they would somehow try to “put the toothpaste back in the tube.” But I was also equally confident that there would be some kind of loose language about self-determination, declarations of independence, or UN Security Council Resolution 1244 that would be unhelpful in some way. And instead it was an excellent opinion that really tracked the arguments that had been made by the United States and others. So I was surprised at how well the opinion turned out.

have imagined that they would somehow try to “put the toothpaste back in the tube.” But I was also equally confident that there would be some kind of loose language about self-determination, declarations of independence, or UN Security Council Resolution 1244 that would be unhelpful in some way. And instead it was an excellent opinion that really tracked the arguments that had been made by the United States and others. So I was surprised at how well the opinion turned out.

Profiles & Interviews

An Interview with Martha Minow

Introduction

In this interview, Martha Minow (Jeremaih Smith, Jr. Professor and Dean of Harvard Law School) discusses her work with several international human rights organizations, her recently published book about Brown v. Board of Education’s underappreciated influence outside the United States, and her take on the merits of arguments debating whether U.S. courts should consider foreign and international law.

This is the inaugural edition of the Harvard International Law Journal Online’s new interview series, “Profiles,” which will publish interviews with influential international law practitioners and scholars. Many thanks to Dean Minow and her assistant, Kristin Flower, for making this interview possible.

Q: How did you become involved in international and comparative law issues?

Based on longstanding concerns about genocide and crimes against humanity, I started working in the early 1990s with a wonderful NGO, Facing History and Ourselves, which teaches teachers and communities about how individuals can stand up against hatred, and can learn from history about courage and civic responsibility in the face of bigotry and intolerance. After I directed a year of study with Facing History’s founder, Margot Strom, culminating in an international conference comparing international criminal law, truth commissions, and reparations as responses to mass violence, I wrote a book, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (1998), which received the American Society of International Law Certificate of Merit. Much of my subsequent work can be linked directly to this project.

Q: Was this book linked to your involvement with the International Independent Commission on Kosovo and the United Nations High Commission for Refugees?

Absolutely. Justice Richard Goldstone, who at the time was serving on South Africa’s Constitutional Court after his work as the first prosecutor at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, invited me in 1999 to serve on a commission sponsored by the government of Sweden to analyze and assess options available to the international community before, during, and after the Kosovo crisis in the 1990s. This is how I became involved with the International Independent Commission on Kosovo. Justice Goldstone had written a foreword to my book, although we had not yet met. I worked with the Commission to produce our report on the origins of the Kosovo crisis, the diplomatic efforts to end the conflict, the role of the United Nations, NATO’s military intervention, the decision to intervene militarily, the resulting refugee crisis including the responses of the international community to resolve the crisis, and the norms of international law and diplomacy brought to the fore by the Kosovo war relevant to the situation there and to Kosovo’s future status. Our commission members, from around the world, worked hard and devised a thoughtful analysis which has contributed to international debates—although the subsequent events of September 11, 2001, significantly reshaped those debates.

On another day in 1999, I received a phone call from Madam Sadako Ogata who was serving as the UN High Commissioner for Refugees; she said she had read my book and though I could help her deal with refugee crises following mass conflict. I wasn’t sure I could help, but our conversation led to a fascinating project for the agency that we dubbed “Imagine Co-Existence,” which supported pilot initiatives promoting joint economic, social, and problem-solving efforts in the former Yugoslavia and Rwanda, and which produced guidelines to reduce the risk that refugee aid itself could exacerbate intergroup conflicts. Interdisciplinary research growing from this work is collected in the book I co-edited with Antonia Chayes, Imagine Co-existence: Restoring Humanity After Violent Ethnic Conflict (2003), and the Program on Negotiation at Harvard Law School was a terrific support for this work.

Q: How did your work on the Imagine Co-Existence project relate to your work on school desegregation in the United States?

The root of both lines of my work grows from the concern that degradation and demonizing of individuals due to their group identity lies at the core of gross human rights violations, intergroup violence, and brutal denials of life chances for so many individuals. I have worked on school integration issues since the 1970s, when I conducted research into Boston’s court-ordered desegregation plan which had occasioned real and violent opposition. I found fascinating convergences between the racial desegregation challenges and the insights of psychologists, sociologists, philosophers, and field-based aid workers in the Imagine Co-Existence project. In both contexts, I learned that prospects for overcoming intergroup hatred or bigotry improve where people from different groups work alongside one another on shared projects of mutual benefit.

Q: You recently wrote a book about Brown v. Board of Education. Could you briefly describe that book?

I returned to issues of U.S. schools to find that the 50th anniversary of Brown v. Board of Education gave rise to many statements of disappointment and criticism over the continuing and in some ways worsening separation of school children by race in American schools. I argue that the landmark decision had more success—during the brief time when it was emphatically enforced by the courts and the Department of Justice—in overcoming racial separation, but perhaps its more enduring legacy is the inspiration for social movements to overcome discrimination and exclusion along lines of race, ethnicity, religion, disability, gender, socio-economic status, immigration status, language and sexual orientation—in this country and elsewhere. The rise of the school choice movement, with vouchers and charter schools, enable new forms of self-separation by, inter alia, language, gender, disability, and gender. The book traces social science evidence of the benefits of social integration and the costs of social separation in terms of academic achievement, team-based problem-solving, political stability, and individual flourishing.

Q: You also discuss Brown v. Board of Education in your article, The Controversial Status of International and Comparative Law in the United States, which was recently published by Harvard ILJ Online. Can you give us some background about the article and how it relates to Brown?

The article centrally addresses the recent controversy among judges and elected officials over whether and how judges in the United States should consult or refer to international and comparative legal sources. The article steps back from the controversy to ask why it has emerged and what is at stake, and in the course of discussing the stakes, it considers how Brown has offered an example of U.S. jurisprudence carrying influence in many parts of the world, even as it was influenced by contemporaneous concerns about how racial segregation affected the foreign policy and world standing of the United States.  This is a topic I explore more fully in my book.

Q: How would you summarize your new article?

I ask what might be the concerns of people who oppose the use of international and comparative legal sources by U.S. courts and suggest three potential worries:

1)      That the United States risks being taken over or losing its identity if it engages with others;

2)      That because the United States is exceptional as the last superpower, it faces politically motivated attacks in the use of international law; and

3)      That the ambiguity and amorphous quality of “customary international law” in particular poses risks of uncertain and politically motivated application.

The article responds to these concerns by explaining that:

1)      Judges in the United States can entertain arguments from international and comparative sources without mindlessly conforming to them, and in fact, consideration of non-U.S. sources can help clarify unique values and features of legal and political commitments in the United States;

2)      The law of the United States—which requires Presidential and Congressional authorization before a treaty becomes binding—directs judges in this country to refer to international law where they are part of U.S. law, and protects the United States from coercion under international law where it is not part of U.S. law; and

3)      The risk of customary international law overriding domestic law did grow when federal courts opened the door to using customary international law, but the U.S. Supreme Court has clearly restricted applicable norms to “traditions and understanding in this country in 1789,” and thus forecloses application of amorphous or changing standards announced elsewhere.

Finally, the article argues that outside of judicial action, the United States may learn from consulting international and comparative experiences, with the examples of soft law and the institutional design of the International Criminal Court’s reliance on complementarity offering tools of potential use in law reform in the United States. The experience that the United States has had with the international reception of Brown should be a source of pride in our own experience with comparative and international repercussions—and a good reminder of the foreign relations perspective that influenced domestic advocacy in that case.

Q: One could argue that Brown’s influence is a testament to American exceptionalism—that the U.S. court system is superior to others and this supplies no basis to suggest we should look to others for models or advice. When Brown was decided, few other countries had a civil rights movement. To hope that other nations learn from the United States bears no further implication that the United States should learn from other countries. How would you respond to that argument?

Well, there really are three concerns raised here.

One is the suggestion that the U.S. judiciary is superior to others and hence comparisons with other systems are irrelevant. The curious element of this claim is its historicity: our court system drew directly on the British system and some other systems as well. In addition, the authors of the Declaration of Independence and framers of the Constitution explicitly referred to the opinion of the world and the law of nations.

The second concern is whether the role of a social movement, like the civil rights movement, is unique to the United States, rendering the reference to Brown irrelevant. The language of civil rights has been deployed by social reformers in Germany since the mid-19th century to argue against the oppression of same-sex sexual relationships. As unique as has been the struggle for freedom for African-Americans in the United States, the antebellum abolition movement was global, reaching success in England before it did in the United States. History tells us that the U.S. civil rights movement was itself deeply connected with liberation and anti-colonial movements around the world; moreover, it was concern about the standing of the United States in the world that led the State Department to urge the Eisenhower administration to support the plaintiffs in Brown.

Finally, the argument that the learning can and should flow only from the United States to other countries and not the other way around seems a curiously insecure view; if our practices are better, we can confirm that by comparing them with others. Where we have different values and traditions, we strengthen them by affirming them in the face of comparison, and where we have common problems and traditions, we can learn from how others proceed. I don’t see why we should be threatened by the possibility of learning about others.

Q: Would you feel differently about the propriety of the Supreme Court considering international consensus in 8th Amendment cruel and unusual punishment analysis if the rest of the world condoned the death penalty more than did the United States, say, if every country permitted the execution of mentally retarded defendants, which the Supreme court prohibited in Atkins v. Virginia in 2002?

The 8th Amendment to our Constitution is unique in directing assessment of what is unusual, and that arguably summons—pursuant to U.S. law—a canvassing of laws elsewhere—and surely that would be the same whatever the laws elsewhere are. No other part of our Constitution does this, and the consultation of legal rules and practices elsewhere proceeds not on this textual ground within U.S. law but instead as a source, like a treatise, that simply may offer insight.

Q: You claim in your article that we should not worry too much about U.S. judges considering international and foreign laws because judges can entertain other viewpoints without conforming to them. That claim conflicts somewhat with the prevailing theories of social psychology, which contend that social forces in general, and consensus among peers in particular, can have very powerful influences on people, and can in fact effectuate de facto conformity (see, for example, the Asch conformity experiments). How would you respond to that argument?

Assuming that the analogy between the judicial process of reading sources and the lab experiments among small groups of people performing a very simple task has merit, there are few if any instances in which the comparative and international sources will all align in a consensus contrary to the United States. But I also wonder whether the analogy works. Judges engage in a process of assessing arguments presented by competing advocates, which by definition prevents the kind of surrounding of uniform, conforming views; judges engage in a process of reasoned elaboration and presentation of their reasons which in turn are subject to challenge and review. None of these features matches the conformity experiments.

Q: Do international or comparative sources figure in your teaching?

Over the course of my 30 years of teaching at Harvard Law School, I have by necessity become far more aware of comparative and international materials. You can’t teach Civil Procedure today without addressing issues of extraterritoriality in jurisdiction and comparative issues in choice of law. Constitutional Law is much enriched through comparative materials. I also have been teaching a course on the International Criminal Court. And over that period of time, the level of student interest in comparative and international issues has skyrocketed, as has student experiences abroad both before and during law school.

Q: What advice do you have for students and young lawyers when it comes to international and comparative law?

Read widely, follow your curiosity, and work on being the best lawyer you can be.

Read full article (PDF)

Student Features

The Controversial Status of International and Comparative Law in the United States

Introduction

In recent years, I have watched the swirling debate over whether the United States courts should consult international or comparative law.  As a law professor, the debate has puzzled me, for international and comparative legal materials have always appeared in the sources consulted by American lawyers and judges.  So this article is really a search for the roots of the contemporary controversy.  Why is there a controversy? And what can we learn from it?

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