International Law

A very interesting post by Dan Harris at China Law Blog entitled “Who Needs International/Foreign Law? Not Us, We’re Americans” has set off a worthwhile discussion on the use (or non-use) of international/foreign law in the US in the private context.  The Transnational Law Blog also has an interesting follow-up entitled “Transnational Commercial Disputes in the USA Ain’t Easy“.  Rather than steal their thunder, I simply recommend reading the posts and responses.

Even without getting into the scope/depth/existence/possibility of a US or more broad liquidity/credit crunch and/or economic downturn, this is an interesting column from Martin Wolf at the Financial Times on what might happen if there is a real crisis (or, as he frames it, what will happen because of a real crisis that exists now).

It is interesting to think how international economic law and regulation might adjust (or in some cases, be created in relatively unregulated areas) if there are concerns with various housing and credit markets, particularly as these were internationalized and securitized.  Might additional legal regimes be created?  How might claims in the current market play out as they expand to international parties?  If there is a big shift, as Wolf argues, certainly legal claims will follow (and are starting in subprime, as this Economist article notes), along with considerations of new regulatory approaches.  Will responses to any crisis be country-by-country or more universal?  Does it depend on if there is “decoupling” or not?  Certainly some have argued that there will be no decoupling (see, e.g. Nouriel Roubini’s blog) — but that does not mean that responses might not vary between different countries and different actors, as much Roubini hopes for more coordinated approaches.

Here is an interesting new review of a book that has been out for a bit, edited by Thomas Carothers, on the “Promoting the Rule of Law Abroad: In Search of Knowledge” which, as reviewer Simon Stacey notes, is not shy about taking a critical look at the theory and practice of ROL programs.  Thomas Carothers has been a leader in the rule of law field for quite some time and foresaw many of the problems before they were widely known.  The essays are by other leaders in the field, so this should definitely be worth a read. 

It is especially important to get this “right”, or do it as best as one can, as ROL programs proliferate and get mixed into larger geopolitical agendas.  It is also worth asking the larger questions of why ROL programs are proliferating and who they serve, not simply whether they are “effective” or just not doing it right.  In any event, some fun holiday reading.

Surely the participants are well aware of this, but for those not in the respective competitions it is still worthwhile to check out the problems for each of the Jessup and VIS Arbitration moots to get a sense of some “hot” issues in IL and international commercial arbitration and to do a bit of thinking about the issues on one’s own.  These are both great moots which, perhaps more than being just competitions, foster a great deal of transnational interaction and camaraderie.  Good luck to all the teams!

The BBC has been following the talks called by President Bush on climate change, and has reported that Condoleezza Rice has said climate change is a real problem, and world leaders should forge a new global consensus on tackling it.

One might of course be skeptical of Bush’s motives (whether this is purely a political play) and one awaits the probably inevitable focus on voluntary and/or cosmetic cuts or market-based measures. But perhaps this at least shows that some in the US are starting to realize that at least being a part of the negotiation, or perhaps starting a separate set of negotiations in which one frames the debate, may be a more viable way of interacting with areas of burgeoning international law (and increasing domestic pressure), such as climate change. One thing for IL scholars who might not like some of the US or any other major power’s positions but constantly call for more international legal engagement by those same powers, is to be careful what you wish for. Simply having “more” engagement by governments does not mean they will take the positions one hopes for or even use the same forums (as Bush’s sidestepping clearly shows) and in some ways perhaps international regimes (such as the ICC, Kyoto, etc.) were actually “helped” by being largely dismissed by the US. Other regimes in which major countries opt out may also have been helped. While IL scholars or especially advocates for various causes (human rights, environment, indigenous rights, etc.) often call for immediate worldwide adoption of various principles, sometimes having smaller venues helps to develop more organized and internally consistent regimes, some supporting cases, some domestic legislation, etc. to the stage in which major powers are forced to get involved or “miss the boat”.  But of course without such public and worldwide calls, perhaps the regimes would remain permanently marginal. 

In any event, the interplay between “involvement” by major powers in IL and whether this is “good” or “bad” for one’s cause is not as simple as it first appears.

This is fairly old news, but as the summer is rapidly flying by (and people may be starting/completing applications to various places), it is worth remembering that Fletcher will start offering an LLM in International Law in the fall of 2008, becoming the first non-law school to offer an LLM.  It looks like it will be based on Fletcher’s already strong offerings in IL and with Michael Glennon leading the program, it will certainly be well thought-out and very worthwhile (full disclosure – this author is more than a bit biased, being a Tufts/Fletcher/HLS grad).  Congrats, Fletcher! 

FP has an interesting article (polemic, perhaps) by the famous William Easterly on “developmentalism” as a (failed) ideology.  While many of its points are debatable, it does raise valid issues. For international lawyers, this can raise issues in the development context (in the methods/goals/planning/impact of international projects and the like) but also in other IL growth areas such as arbitration/litigation (in terms of the best ways to resolve disputes), international criminal law (in terms of against whom/how/etc. crimes are punished) and especially in the Rule of Law field. It is certainly worth considering whether the ROL field has its own ideology, perhaps closely linked to so-called-developmentalism, on how things should be done — with the accompanying adding of just one more category (”if only you’d done X as well”) when things do not work out.

Ultimately, whether one agrees with Easterly or not (especially with his perhaps too-easy adoption of “classic” economic principles that perhaps risk reflecting an ideology of their own), one must always be cognizant of when broad-brush ideas may become more interested in perpetuating themselves rather than really dealing with the issues at hand, and of course one must always ask who benefits. In the ROL field this has been well explored, and there remains a vital and healthy debate along with some real attempts at finding location-specific solutions to problems, but sometimes one suspects certain ROL programs, especially newer ones or ones based on political agendas rather than reality, of relying too heavily on “standard” sets of norms that may approach (or be aligned with) an ideology. See, for example, the concerns expressed in a previous post here on Good Governance. 

Not that certain goals cannot be helped or inspired by an ideology (often a good thing), but when it comes to making it a practical reality, the danger is relying (or hoping based) on the ideology rather than reality, or assuming that a particular ideology or belief leads inevitably to X or Y conclusion.

To follow up an earlier post on thinking outside the box of possible effects of climate change/environmental issues, it is worth noting this NYTimes op-ed on the possible security risk of global climate change, brought up by the British government at the UN Security Council.  The concern has been raised in the US as well, as the article notes (the full report issued by retired generals and admirals is here (PDF)).  According to London’s Observer and bandied about the internet, the Pentagon commissioned its own report (this site cannot vouch for its authenticity in any way) a number of years ago on the possibly dire security risks of climate change.

As the previous post here noted, it is worth considering what might happen if there are substantial environmental changes, how these could be addressed in IL, and from a risk/etc. perspective, what the impact might be on IL and on clients from such possible consequences as increased migration/immigration out of hard-hit places, increased attempts at legal and extra-legal cross-border actions and reactions for environmental issues, changes/conflicts over the law of the sea, more resource-based conflict, etc., etc.  The scope of any environmental changes aside, as the issue gets more and more high-profile coverage, surely the “law”, either formally or informally, will follow.

 P.S. It looks like, in honor of Earth Day, the ASIL has compiled a small list of resources on international environmental law.  Obviously it seems to be just a start — I am sure the resources available (and the resources needed) will increase over time.

The Willem C. Vis International Commercial Arbitration Moot officially kicks off tomorrow in Vienna.  Having gone as both a participant and a coach for Harvard, I can wholly recommend the event.  Though there are always issues with somewhat subjective competitions (and now, having been a Jessup judge, I can appreciate how hard it can be to evaluate teams), the spirit of the competition is fantastic and the all-together-at-once aspect is wonderful.  There are teams from all over the world, all in Vienna at the same time, all competing but, equally important, getting to know one another.  It is also THE networking event, especially for Europeans, who are far more dedicated to arbitration as a practice than we tend to be in the US, where it is mostly seen as an offshoot of litigation.

The VIS is a unique and fun event and I am more than a little jealous that I am not there this year.  But I hope to be a judge for it in sometime in the future.  In the meantime, the best of luck to all the participants!!

Thusfar this blog has largely avoided some of the “big” current issues in international law, especially the Iraq war, for a number of reasons — in part because it is such a divisive issue but also because the law surrounding the field is in flux.  But here I wanted to note that not only are US soldiers and untold Iraqis dying on a regular basis, but so are many civil servants, international humanitarian workers, lawyers, reporters, diplomats and others who were very dedicated to their respective causes.  And this is true all over the world, where people, international/foreign and domestic, die or are killed on a regular basis just trying to establish what they hope will be a better life/country/world/etc.

This thought was triggered by looking at the NDI website, in which there is a memorial for Andrea “Andi” Parhamovich and three security personel.  Just a little reminder that while academic debates abound, there are also people “on the ground” trying to do what they feel is right, and this is as true in international law (broadly defined) as in anywhere else.  And this is coupled with daily sacrifices by so many people, from standing up to authority and risking lives and careers, or moving to difficult posts, to working hard, often in anonymity, on imporant causes and issues from human rights to development to international law to “simple” peace long after celebrities or the press have moved on.  Even the ultimate sacrifice is often underreported and even untracked, especially for those working outside of major institutions.  We have daily updates on military deaths in Iraq and Afghanistan, which of course we should have.  And there is a huge debate on the number of Iraqi civilian deaths, another key figure, and the loss of life of anyone is no less tragic just because of the country of origin.  But it strikes me as truly odd that we rarely see any detailed reporting or tracking of US or international civilian deaths in Iraq or Afghanistan.  This cite seems to make an effort to track deaths and injuries of many parties (and I cannot vouch for its accuracy in any way), but it acknowledges being far from complete, especially for non-military deaths.

One might not agree with everyone “on the ground”, and an important part of academia, the press, the public discourse, the blogosphere, and other sources is to evaluate, critique, and hopefully improve the work on the ground and the larger issues/goals/etc. that are being sought, and even challenge and question what those goals should be.  But the sacrifices people make should be appreciated and remembered.