TABLE OF CONTENTS I. Introduction II. The Challenges III. Setting the Stage IV. Conventional and Customary International Law V. International Law in the Classical Period VI. Institution Building in the Bretton Woods Era VII. International Law Today VIII. International Law Applied in Canada IX. Law of the Sea and the Rule of Law X. The Rule of Law in International Trade XI. An Array of Challenges XII. Some Conclusions--A Lasting Legacy? The following is the text of the 10th Annual Canada-United States Law Institute Distinguished Lecture given at Western University Faculty of Law by Lawrence L. Herman on November 14, 2016.
I am honored to have been asked to present the 10th Annual Canada-United States Law Institute ("CUSLI") Distinguished Lecture. This has been particularly humbling given the venerable history of the Institute as a repository of debate, discussion, and education on Canada and the United States' shared interests in the area of law and policy.
I attended my first CUSLI meeting in 1986. I have the good fortune to have known its founder, Professor Sydney Picker, since those days, and to have collaborated for many years with its esteemed Executive Director, Henry T. King Jr. Both men are admirable American scholars dedicated to fostering closer relations and better understanding between our two countries. In that respect, I must dedicate this address not only to the CUSLI, but to these two visionary Americans.
This address is given from the perspective of a practicing, non-academic lawyer with continued involvement in public international law issues. I have mainly practiced in the private sector, and have some experience working in the government. This piece is not intended as a scholarly contribution. I ask for forgiveness if the discussion here is not up to the high standard of those who have written broadly and have great expertise on the subject. (1)
I have been fortunate to take part in some major international law issues, having served as a member of the Legal Bureau of the former Department of External Affairs, as an Officer at Canada's United Nations Mission in Geneva, and as Canada's delegate to the United Nations Law of the Sea Conference. Later, in private practice, I was part of the Canadian legal team in the Gulf of Maine Case that went to the International Court of Justice ("ICJ"). (2)
What I gained from these experiences is that when faced with unsettling events, including the unexpected election of Donald Trump as U.S. president, (3) public international law is critical in bringing an element of stability to a chaotic, fragmented, and destabilized world.
Some may say that this is a naively optimistic view. They may argue that lawyers' involvement in the game of diplomacy has stunted global progress. It is impossible not to see the many challenges that face those engaged in international law, whether as diplomatists, teachers, government officials, or lawyers in the private sector.
Public international law has emerged from the shadows over the last forty or so years. From being championed mostly by academics and a select handful of practitioners in the musty corners of foreign ministries, international law today is a forceful element in inter-state relations.
Its evolution is too broad and varied to encapsulate in a single analysis. International law today covers a wide range of formerly untrodden fields, including human rights, climate change, the environment, war, and terrorism. It is impossible to summarize this area of law's many achievements in a few pages.
I have chosen two milestone achievements to bring focus to this discussion: the 1982 United Nations Convention on the Law of the Sea ("UNCLOS") and the 1994 World Trade Organization ("WTO") Agreement. Both are fitting subjects to discuss how international law brings an essential ingredient of coherence, and a semblance of order to a turbulent world. Each case was groundbreaking, not only in the breadth of its results but in the process leading to its conclusion.
I posit that the UNCLOS and the WTO Agreement are extraordinarily important examples of how international law anchors the global community in two critical aspects of inter-state relations. (4) These two multilateral treaties are not applied consistently, nor are they interpreted uniformly. Nonetheless, the rules and institutions that each treaty encompasses are beacons of light and their broad principles serve the global community in a wider sense.
The point here is that the progressive development of international law and the emergence of norms, as exemplified by these two cases, transcend political upheaval. While the world may stumble from crisis to crisis, these norms, developed through the discipline of public international law, remain as guideposts for defining acceptable state conduct.
There are two profoundly destabilizing factors that threaten the UNCLOS and the WTO Agreement's achievements:
* First, growing anti-globalization forces in developed and developing countries have radically changed the political landscape. Nothing illustrates this better than the election of Donald Trump, whose antipathy to trade agreements has reached astonishing proportions. Similar pushback is seen in Europe. These forces seriously impinge on the ability of governments to pursue multilateral solutions to global problems, particularly in the field of trade. (5)
* Second, global economic growth and rise of newly industrialized states, a welcome development in itself, may well have rendered the post-Bretton Woods multilateral consensus a thing of the past. The collapse of the Doha Round in the WTO, for example, has signaled a paralysis of the legislative arm of that organization and represents a setback in multilateral law-making. (6)
In addition to these two factors, the achievements of the WTO and other advances in international law are in danger of being hindered by over-legalization, excessive involvement of lawyers, and short-term institutional rigidity. This has particularly infected the WTO dispute settlement process and has endangered the achievements of that regime. (7)
Finally, somewhat less critical but nonetheless important, is the tendency to conflate political statements and declarations, including declarations of the United Nations General Assembly, with legally binding rules. Political declarations and statements of intention are often claimed to be norms or rules with the status of international law. This clouds the development of the law by overlaying it with rhetorical declamations of an impermanent nature.
Thus, the question is whether the breakdown of the post-World War II consensus, which respected rules-based international order, reduces the significant achievements of law-making in the UNCLOS and the Uruguay Round. Have we reached the stage where any semblance of coherence in the law of the sea and in the world trading system has been shattered? (8) I will subsequently attempt to answer this question.
SETTING THE STAGE
The last three decades have produced far-reaching changes in the discipline of public international law. These transformations have occurred as the world has been shaken to the core in positive ways, such as the 21st century's information technology revolution, and also in negative ways, such as the spread of terrorism and violence on a global scale. Much of the global order emerging after the collapse of the Soviet Union and communist ideology has dissipated.
Somewhat paradoxically, the international law emerged onto the mainstream at the same time as these de-stabilizing events took hold. From a relatively small area of expertise practiced by a handful of jurists, academics, and governmental lawyers, international law expanded to impact geopolitics and inter-state relations on a vast scale. (9) This expansion is often referred to as the globalization of the rule of law.
What forces have produced this burgeoning growth in the rule of law? Is it triumphal or chimeric? Are these achievements of historic proportions or just transitory and largely insignificant in a long-term sense? These are questions that have to be asked by any jurist, student, or practitioner that has faith in the continual evolution of the rule of law.
The elements at play are varied and difficult to distil into neat chapters. For present purposes, it is useful to look at the story, at least in a Canadian context, in three phases: first, the classical period of the first half of the 20th century up to 1945; second, the modern or post-War period from 1945 to the mid-1990s; and third, the contemporary world of today.
Each phase has hallmarks that inform the next. From that vantage, we can then peer forward and get a sense of what the future holds for international law and to discern whether it is continuing to grow or, as some predict, decreasing in influence.
CONVENTIONAL AND CUSTOMARY INTERNATIONAL LAW
Whether by treaty or custom, the core of international law reflects the course and status of inter-state relations, which lead to agreements that are eventually distilled into treaty language. Additionally, consistently accepted patterns of State behavior can be distilled into customary law. Over time, this forms the corpus of public international law.
Running through this review is this distinction known by every first-year law student between conventional law, which includes treaties and international agreements, and customary international law, or the widespread conduct and accepted practice of States that achieves the level of a legal rule or principle.
These two sources of international law are enshrined in Article 38 of the Statute of the International Court of Justice. (11) It is impossible to address the current and future prospects of international law as a discipline without being aware of the interplay between the two sources." There is also much scholarly debate about whether the concept of jus cogens, as...