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Moderator: Lauri Mälksoo, University of Tartu Center for U.U.- Russia Studies
Speakers: Lori Damrosch, Columbia Law; Vincent Nmehielle, African Development Bank; Maria Teresa Infante, Ambassador of Chile in the Netherlands, Jacques De Lisle, University of Pennsylvania
With a view to unpacking how perspectives on international law have become more fragmented, speakers for this panel appropriately represented both U.S and regional perspectives. Moderator Malksoo presented this foundational problem in international law. In the past European western international law norms used to focus on “civilized nations,” but when did that end, and has it? Is regional or national understanding of international law a contradiction in terms? Tensions within regional systems have arisen since the drafting of the U.N. Charter and in keeping with the theme of this annual meeting, can what international law values be answered with one voice, or even with one normative frame of reference? Many panelists alluded to the joint Russian and Chinese Declaration on the Promotion of International Law and the challenge of localized norms for the global community and global norms that might evoke a defensive response in such a declaration.
Professor (and past president of ASIL) Lori Damrosch addressed the implications of having international law emerge as variable. She favors the universalist approach; a just world under law is a global system, but with room for diversity. She challenged the notion of place as an organizing principle for international law. The U.S. Declaration of Independence and Constitution play a role in that global vision. Indeed the American Society’s vision might be hard to reconcile either with diverse regional rules or with exceptions for the most powerful nations. Hegemonic international law has been well critiqued but legal polycentricity and fragmentation cannot be extended to extremes where all common understanding ceases. There is room for regional custom. The UN Charter in chapter 8 provides for different regional arrangements and groupings. Article 9 of the ICJ Statute recognizes the need for diverse representation on the court and that the legal systems of the world contribute to interpretive activities and include all the main civilizational streams regardless of region. To underscore this point, she cited the forthcoming work of Yasuaki Onuma, International Law in a Transcivilizational World (Cambridge: CUP, 2017) and the author’s continuing focus on a transnational order subscribing to one non-western-centric set of root norms. Even common law jurisdictions may view the attempt to teach students differently one from another, and leading cases in one system may draw too heavily on leading cases from within that system. Other scholars may argue, for example, that there isn’t an agreed statement of the law of jurisdiction; there was a failed attempt to reach an international treaty on it and leading cases do not point to a common view. Damrosch believes the Society now reflects these transcivilizational trends but as contributing to a single vision of international law.
Fellow panelist Vincent Nmehielle, with a perspective from African institutions, saw international law as a body of generally common norms but implementation does not reflect the universality. It is to be hoped for, but there has been politicization of international norms by powerful nations, often of the west. The legacy of European colonization has given rise to some skepticism and he referred to the laws of immunity, in particular for heads of state, and its uneven application. Another example in human rights shows some regions viewing economic and social as well as collective or group rights as valid while other regions seem to disfavor these rights as not fully enforceable. A notion of human rights law is universal but there is disagreement on its practical application. These shared principles might be underpinned by certain assumptions that undermine the universality.
Speaker Infante agreed that universalism may be a call for broad contribution to international law but tensions in these three areas: human rights and democracy, use of chemical weapons, and her Latin American perspective was reflected in the observation that smaller countries not well able to affect or amend the development of international law.
Professor De Lisle addressed the issue of China and its participation after initial rejection of the notion of universal international law. In the context of imperial as well as colonial and Communist history. With its rise, China has sought acceptance of many aspects of the international order and joined major institutions and regimes without getting many concessions However, there is also some human rights relativism emerging alongside a resurgence in Chinese values. Intervention by force has been supported and not; the South China Sea issues are also an area of expansive interpretation that is hard to square with conventional interpretations of the Law of the Sea. And as to climate change, can there be a common but differentiated approach; for the internet, can international law assert sovereignty and not freedom or will that remain China’s interpretation?
After considering questions about the lack of common understanding and need for some deconstruction of international law, there was some agreement in the panel for the need to take opportunities for new law making, as in cyberlaw, and to create common standards. Despite the tension between shaping international law (for the US, “our law is part of international law” as a new version of “international law is part of international law”) and undermining it, there was a recognized need to make the international law continue to benefit from what Nmehielle called the good will of states. The goal, however, is total acceptance by powerful as well as small states. Giving up some sovereignty for the sake of human rights might be one of those principles that would make international law more international if states become consistent in honoring this principle.
Marylin J. Raisch is the Associate Director for Research & Collection Development and Adjunct Professor of Law at Georgetown Law.