Global governance, state sovereignty, and the future of international law.

Position:International Law in a Multipolar World - Discussion

This panel was convened at 11:00 am, Saturday, April 6, by its moderator, Jose Alvarez of New York University School of Law, who introduced the panelists: Bruno Simma of the Iran-U.S. Claims Tribunal; Xue Hanqin of the International Court of Justice; and Joel Trachtman of the Fletcher School of Law and Diplomacy, Tufts University.

JOSE ALVAREZ

I'm Jose Alvarez, from New York University Law School. Welcome to the final panel of the entire Annual Meeting.

In conducting this panel, I will begin by briefly introducing the three wonderful panelists, and then descend from the stage in order to engage in a genuine conversation. I have prepared a script but if, at any moment, a question occurs to you, please write it down on the index cards our staff are holding. I will put as many of your questions into our conversation as possible, hopefully with a natural flow.

So let me begin with introductions. Professor, Judge--I'm not sure what to call you now-- Bruno Simma was a judge on the International Court of Justice from 2003 to 2012. Before that, he was a member of the International Law Commission from 1996 to 2003, and on the UN Committee on Economic, Social, and Cultural Rights from '87 through '96. He has been an arbitrator and continues to do arbitrations to this day. He is a member of the Iran-U.S. Claims Tribunal. He is also the William W. Cook Global Law Professor at the University of Michigan, as well as Professor of International Law and European Community Law and Director of the Institute of International Law at the University of Munich.

Joel Trachtman and I go back to when we were practically teenagers. He is a foremost expert in international trade law. He is a member of the faculty of the Fletcher School of Law and Diplomacy, Tufts University, and the author of a number of books including, most recently, The Future of International Law: Global Government. Other titles are Developing Countries in the WTO Legal System; Ruling the World?: Constitutionalism, International Law and Global Governance; The Economic Structure of International Law; and The International Economic Law Revolution. His latest book will partly inspire how we think about the three themes of this panel--namely, global governance, state sovereignty, and the future of international law.

Our third panelist is a little less familiar to this Society but not to the world. Judge Hanqin Xue has been on the ICJ since June 29, 2010, was reelected in 2012, and has done everything that you could imagine of an international lawyer. She has been a professor at Wuhan University and Vice President of the Chinese Society of International Law, while also serving on the Chinese Society of Private International Law. She entered the Foreign Ministry of China in 1980 and served in every conceivable capacity at a great many treaty negotiations. She is one of the editors of The Commentary on the Charter of the United Nation--so Bruno, you have some competition on this panel with respect to that--and many other books and articles, including Transboundary Damage in International Law. We are really delighted to have her here.

The panelists have been very good about giving me total discretion in the questions I ask.

Starting with Joel Trachtman, the title of your recent book includes the term "global government." You say you chose "government," not "governance," because the latter is too vague. Moreover, you think the term "government" should not be restricted to hierarchical authority and that in fact we do have a form of global government right now. Is that just to sell books, or are you serious?

[Laughter]

JOEL TRACHTMAN

I actually had quite a fight with my publisher to maintain the title "government." I am serious, and it's based on the idea that more and more governmental functions relate to things that cross borders, functions that can't be carried out without some level of cooperation between states. Obviously, soft or informal law is important as well, but in this book I wanted to focus on formal law. I look prospectively at the needs of the international system. Generals and environmentalists think 20-30 years into the future. I wanted to do that in this book, branching out from my usual focus on trade law. Rather than examine developments in that particular tree, I consider the forest of broader international cooperation. It was important for me to avoid a kind of utopian idealism that the title of the book might connote. Instead, I sought to rehabilitate social scientific functionalism by looking at the ways in which the demand for international cooperation causes the creation of international law, and at how that international law increasingly looks governmental in its character.

JOSE ALVAREZ

Other people have described global governance in various ways. Ruti Teitel calls it "humanity's law." Some call it a form of "constitutionalism." My own colleagues at NYU call it "global administrative law." A number of German scholars are working on "international public authority." I'm curious--we have two judges on this panel--how do you define global governance? Do any of those terms sound familiar or useful, or do you prefer Joel's term "global government"?

BRUNO SIMMA

Well, I am not on the Court anymore, but you won't be surprised to hear me tell you that within the Peace Palace the term "governance" is not used very often. You see governments and you see government in action, and even as somebody who has left the Peace Palace and rejoined academia, I don't have a clear vision of what "governance" means. Some scholars use the term as a counter to "government," while others don't draw such a clear distinction. Leaving aside the term "governance," of the various other schools of thought you mentioned, my greatest sympathy is with Ruti Teitel's and Rob Howse's humanity's law. Although I do not agree with everything they write, it is closest to what I have written myself. My work focused on developments transcending bilateral relations, developments leaving behind a traditional model of bilateralism, which I encounter now in my latest incarnation as an arbitrator at the U.S.-Iran Claims Tribunal. In short, I see and do research into the move from bilateralism to community interests, and within community interests, an interest of the international community to protect human rights. That phenomenon is of great interest to me. I hand over to Hanqin.

XUE HANQIN

Thank you. It's a great pleasure and honor to join this panel. I notice the composition seems to be "the west and the rest."

[Laughter]

I think the topic is very pertinent to international law today. I agree with Judge Simma that in the Peace Palace we don't talk about governance. We talk about states all the time, we talk about state sovereignty all the time. Whatever school of thought, whether "humanity's law" or "constitutionalism," we tend to focus on the concept of sovereignty. Actually, I think international law should focus on global governance, but the question is: What do we mean by global governance? If we mean the international regulation of state relations, then we are not far from the system now. The very question touches on the nature of the legal system we are talking about.

Personally, I feel that global governance and state sovereignty are two sides of the same coin. Without either of them, there would be no international law--or no need for international law. There is no point in arguing about whether the Westphalian system is still functioning, whether or not sovereignty remains a valid notion. From the inception of that system, there has been no absolute state sovereignty. From day one, when states engaged in relations with each other through law, they had to give up some of their sovereignty. A result of the development of international relations in recent decades is the expanding scope of international regulations and more restrictions on sovereign rights. Indeed, even as "humanity" has moved to the center of our attention, it has not moved to the point where global governance could replace national governance, such that we might see the formation of a world government. We should be careful about using the term "government" or "world government" or "global government." We can easily confuse the two concepts.

When we talk about sovereignty and global governance, I don't think these binary systems are mutually exclusive. When you strengthen global governance, it does not mean state sovereignty necessarily has to be compromised or weakened. No state, no matter how strong or weak, is ready to give up its statehood in exchange for global government. On the other hand, no state claims it is not bound by international law. So if the international legal community focuses on the diminution of state sovereignty in thinking about global governance, it is aiming at the wrong target.

JOSE ALVAREZ

Your Hague lectures, Judge Xue, were really a progress narrative of China's integration into the international legal system. Other people think that international law is a progress narrative of increased legalization over time. Is that accurate, or is a dialectic at work? If international regulation goes too far or international judicialization goes too far, will we see backlash? Is it a progress narrative or a dialectic?

XUE HANQIN

It is not either/or. My Hague lectures tell the story--which is a success story--of China's practice over the last 60 years, since 1949. China's success in terms of its participation in international legal development is mainly due to two factors. One is internal economic reform and the adoption of open policy. The other is the fundamental transformation of international relations since the end of the Cold War. From isolation to full engagement, you may call it a success story, but in the process China paid a high price. When we reviewed China's participation in the World Trade Organization, for example, some Chinese scholars hailed this as a remarkable progress. It...

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