LCIL International Law Centre Podcast

Tuesday, 30 April 2019 - 9.00am Location: Lauterpacht Centre for International Law, Finley Library All-day workshop: 09:00 - 17:00 hrs Conveners: Eyal Benvenisti, Harold Hongju Koh, and Tomohiro Mikanagi In 2019 three major treaty withdrawals will reach important watersheds. Sometime in spring, the United Kingdom is scheduled to withdraw from the European Union under the withdrawal notice it gave under Article 50 of the Treaty of Lisbon. On November 4, 2019, the United States (under the administration of Donald Trump) is set to give notice that it will withdraw from the Paris Climate Change Accord one year later. In November 2019 the dispute resolution mechanism of the WTO will terminate effectively unless the US agrees to re-appoint a judge of the Appellate Body. These events may be seen as signaling a decline in leading states’ commitment to multilateralism and a growing preference to bilateralism. The Trump administration has clearly asserted its preference for bilateral deals while dismissing international organisations as taking advantage of US generosity. China also seems to prefer alternative groupings outside existing multilateral organisations. In October 2007, during its ascent to global power, China declared FTAs to be its basic international economic strategy. America’s disengagement from multilateralism did not prompt China to fill the void by reinforcing existing multilateral bodies with global reach. Instead, its Belt and Road Initiative (BRI) and its regional security arrangements are modelled on the “hub and spokes” pattern, an architecture that allows it to tightly control its numerous partners and limit the application of existing standards and mechanisms. Famously, it ignored the UNCLOS arbitral award on the South China Sea in 2016. Perhaps to confront the risk of two superpowers busy dividing and ruling the rest, other countries have sought to preserve the minilateral institutions (eg the CPTPP) and utilise existing multilateral mechanisms (WTO reforms, UNCLOS conciliation and arbitration, OPCW attribution mechanism, etc.). In this workshop we wish to address the uncertain future of multilateralism in light of the prospective withdrawals and resurgence of bilateralism. We wish to discuss motivations, prospects, and implications for domestic and international law. This one day workshop seeks to reflect on the questions. In particular we wish to address the following questions: Panel I: The Domestic and International Legal Issues Surrounding US withdrawal from the Paris Climate Accord and Revising the WTO Since 2017, the Trump Administration has announced its withdrawal from a host of bilateral and multilateral arrangements, including the Paris Climate Agreement; the Joint Comprehensive Plan of Action (JCPOA or Iran Nuclear Deal); the U.N. Educational, Scientific, and Cultural Organization; the Global Compact on Migration; the U.N. Human Rights Council; the Trans-Pacific Partnership (TPP); the 1955 Treaty of Amity, Economic Relations and Consular Relations with Iran; the 1961 Optional Protocol to the Vienna Convention for Diplomatic Relations on Dispute Settlement; the Universal Postal Union Treaty; and the Intermediate Nuclear Forces Treaty. This panel will address the following questions, among others – Is the Trump Administration aberrational, or are we witnessing the culmination of a long-term trend of U.S. withdrawal from multilateralist institutions? To what extent has the Trump Administration applied tactics first adopted by prior administrations: e.g., blocking reappointment of members of the WTO Appellate Body? What constraints do U.S. and international law place upon blanket unilateral presidential withdrawal from all disfavored organizations? Panel II: The Domestic and International Legal Issues Surrounding China’s “Hub and Spoke” Strategy This panel will address the following questions, among others – Is China accepting the existing multilateral legal rules and mechanisms in economic and non-economic areas? Is China deviating from international standards (including with respect to ISDS) in its various legal arrangements under BRI? Is China deviating from UNCLOS in the South China Sea, including through bilateral COC negotiation? Panel III: The Future of Rule-Based Global Governance through International Institutions: Limits and Potential What are the prospects for international institutions to reclaim multilateralism through concerted action, or through insistence on multilaterally binding norms? To what extent can the UN Security Council, the International Court of Justice, or other international organisations and tribunals can contribute to maintaining and developing further globally-binding norms? To what extent can international process enhance the rule-based global governance through the clarification of law and facts? The UK and the Changing Legal Landscape: The Way Forward from Here

Lecture summary: this lecture analyzes the tensions that arise, both domestically and internationally, when governments use the national security paradigm to regulate international economic relations. Professor Timothy Meyer is an expert in public international law, with specialties in international trade and investment law and international energy governance. He is Professor of Law; FedEx Research Professor; Director, International Legal Studies Program of Vanderbilt University Law School.

A series of three lectures by Professor Tom Ginsburg, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science, The University of Chicago Law School. All lectures are held at the Lauterpacht Centre at 6 pm on Tuesday 12 March, Wednesday 13 March and Thursday 14 March with a Q&A at 1 pm on Friday 15 March (sandwich lunch from 12.30 pm). Lecture Three: Authoritarian International Law? In the final lecture, I ask what international law will look like if current trends continue. In an era dominated by authoritarian and not democratic regimes, what role will international law play? To be sure, we do not want to blindly project forward from current trends, and it is possible that democratic systems will prove resilient. But the rise of authoritarian China, with its own increasingly resilient legal system, along with a newly assertive Russian regime, suggests that the question of authoritarian international law is worth exploring. This inquiry involves examining the international mechanisms established and utilized by these states. As I shall argue, the role of international law in a world dominated by authoritarian regimes will in some ways resemble its role in the earlier Westphalian era. The Hersch Lauterpacht Memorial Lecture is an annual three-part lecture series given in Cambridge to commemorate the unique contribution to the development of international law of Sir Hersch Lauterpacht. These lectures are given annually by a person of eminence in the field of international law.

A series of three lectures by Professor Tom Ginsburg, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science, The University of Chicago Law School. All lectures are held at the Lauterpacht Centre at 6 pm on Tuesday 12 March, Wednesday 13 March and Thursday 14 March with a Q&A at 1 pm on Friday 15 March (sandwich lunch from 12.30 pm). Lecture Two: International Law and Democratic Backsliding We live in an era of democratic erosion, in which the number of democracies has been declining and even long-established democracies are coping with systemic challenges from populism and institutional decay. What, if anything, can international law do about this? This lecture surveys the role of regional institutions in Africa, Latin America and Europe in confronting threats to democracy. The evidence to date is mixed, and we should be modest in our expectations. Nevertheless, I argue that international law can play a more robust role through richer normative frameworks which are emerging. The Hersch Lauterpacht Memorial Lecture is an annual three-part lecture series given in Cambridge to commemorate the unique contribution to the development of international law of Sir Hersch Lauterpacht. These lectures are given annually by a person of eminence in the field of international law.

A series of three lectures by Professor Tom Ginsburg, Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science, The University of Chicago Law School. All lectures are held at the Lauterpacht Centre at 6 pm on Tuesday 12 March, Wednesday 13 March and Thursday 14 March with a Q&A at 1 pm on Friday 15 March (sandwich lunch from 12.30 pm). Lecture 1: Democracies and International Law In this lecture, I seek to explore whether and how democracies behave differently than non-democracies in their use of international legal instruments. Understanding this relationship requires returning to some of the foundational assumptions of the literature, especially those associated with liberal theory. Scholars in the 1990s argued that international law among liberal states was qualitatively different from that among illiberal states. This is, as I argue, an empirical question, and the first lecture will go about testing whether liberal states are indeed more likely to cooperate using legal mechanisms. I show that international law in our era is largely produced by and utilized by democratic states, but I go on to argue that liberal theory did not provide a complete theoretical account. Instead I draw on the theory of public goods to develop an explanation for international legal institutions. The Hersch Lauterpacht Memorial Lecture is an annual three-part lecture series given in Cambridge to commemorate the unique contribution to the development of international law of Sir Hersch Lauterpacht. These lectures are given annually by a person of eminence in the field of international law.

Lecture summary: The WTO Agreement on TBT (Technical Barriers to Trade) aims at taming NTBs (nontariff barriers), the main instrument segmenting markets nowadays. Some of the terms used in TBT to flesh out the commitments undertaken are borrowed from the GATT, and some originate in the modern regulatory reality as expressed through SDOs (standard-development organizations). The TBT does not share a copy-cat function with the GATT, though. Alas, the WTO Appellate Body, by understanding words as ‘invariances’, e.g., interpreting them out of context (without asking what is the purpose for the TBT?), has not only exported its GATT case law, but also misapplied it into the realm of TBT, and ended up with significant errors. In what follows, we explain why the current approach is erroneous, and advance an alternative understanding, which could help implement the TBT in a manner faithful to its negotiating intent, and objective function. Petros C. Mavroidis is Edwin Parker Professor of Law at CLS. Acted as chief reporter for the American Law Institute study on International Trade Law: the WTO. His latest major publication is The Regulation of International Trade, MIT Press, 2016.

Lecture summary: 2018 marks the seventieth anniversary of two momentous events in twentieth-century history: the birth of the State of Israel and the creation of the UN Universal Declaration of Human Rights. Both remain tied together in the ongoing debates about the Israeli-Palestinian conflict, global antisemitism, and American foreign policy. Yet the surprising connections between Zionism and the origins of international human rights are completely unknown today. Drawing on his recent book, Professor Loeffler will discuss how the forgotten Jewish past of human rights holds timely lessons for thinking about the intertwined futures of global justice and Jewish politics. James Loeffler is the Berkowitz Professor of Jewish History at the University of Virginia, where he teaches courses in Jewish, European, and international history and the history of human rights. He received his BA from Harvard and his MA and PhD from Columbia University. He also studied Jewish thought as a Dorot Postgraduate Fellow at the Hebrew University. He is the author of Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (Yale, 2018), which was a finalist for the Jewish Book Council’s Natan Prize for Best Jewish Book of 2018. His first book, The Most Musical Nation: Jews and Culture in the Late Russian Empire (Yale, 2010), won eight major awards and honors. Other publications include the forthcoming anthology, The Law of Strangers: Jewish Lawyers and International Law in Historical Perspective (Cambridge, 2019), and the new special issue of the journal Law & Contemporary Problems on “The Future of Human Rights Scholarship.” He is the co-founder of the University of Virginia Human Rights Research Network, Former Dean’s Visiting Scholar at the Georgetown University Law Center, and former Fellow of the United States Holocaust Memorial Museum. His writing on contemporary Jewish politics, antisemitism, and human rights has appeared in the New York Times, the Wall Street Journal, Slate, and The New Republic. For ten years he curated a concert series of Jewish classical music at the Kennedy Center in Washington, DC. He is currently at work on two books: a study of how the Holocaust became Genocide, and a biography of the author of “Hava Nagila.”

Lecture summary: What parts of their uncomfortable histories should universities remember, and how? Recent debates have erupted at institutions of higher learning over their ties to early benefactors who held views antithetical to the values that today’s leading schools espouse. These controversies stir public “memory work” through which learning communities negotiate their relationship to the past. At Berkeley Law, several paintings from Fernando Botero’s Abu Ghraib series controversially adorn a central corridor, reminding viewers of law’s failure to protect against torture in the US War on Terror. The canvasses also serve as a normative rebuke to the Torture Memos which created a new legal framework for interrogation of suspected terrorists after 9/11, and to John Yoo, the Berkeley Law faculty member who wrote them. I argue that the paintings are a form of public memory, a site of communicative interplay between viewers, the paintings, and the debates about the school’s association with Yoo. Understanding the Boteros as public memory places the paintings and the controversy surrounding them into a larger conversation about the responsibility of law schools and educational institutions to inculcate values of respect for human dignity and freedom and to prepare graduates to serve and safeguard these same principles.

Lecture summary: The International Criminal Court is engaged in investigations in a number of situations of ongoing conflict. Recent scholarship and practice has paid attention to the question of whether the threat of prosecution at the international level contributes to the pursuit of domestic trials. Implicit in much of this work is an assumption that contributing to the pursuit of such domestic trials is always a good thing. In this paper, I challenge this assumption. The central argument is that the Office of the Prosecutor at the ICC ought to, in at least some cases, try to use its coercive power and discretion in order to bring about other, non-retributive, ends. To make that argument, the paper proceeds in four parts. First, on a normative and political level, it argues that the classic tensions between trials and other, incommensurable goods at stake in peace negotiations is as strong as ever, despite conceptual and institutional developments. Second, it looks to literature on compellence theory in international relations, particularly relating to sanctions, and suggests that threats of prosecution and, further along the investigative chain, promises of non-prosecution might be able to contribute to these other, non-retributive, ends. Third, on an institutional level, it argues that although not without risks, the use by the OTP of its discretion in this way is not inconsistent with the Statute and the Court's institutional mandate. Fourth, practically, the paper considers what such an approach would look like in reality, its challenges - both political and bureaucratic - and the difficult issue of prosecutorial accountability. Overall, the aim is to propose an approach that integrates the ICC into an international order that is not, and should not be, concerned primarily with criminal accountability. Miles Jackson is an Associate Professor of Law at the University of Oxford and a Fellow of Jesus College. He holds MA and DPhil degrees from the University of Oxford, an LLM degree from Harvard Law School, and an LLB from the University of South Africa. His doctoral research, supported by a Rhodes Scholarship, was on complicity in international law and was published by Oxford University Press in 2015. He has published in a range of journals, including the European Journal of International Law, the Oxford Journal of Legal Studies, and the Journal of International Criminal Justice. In 2017, he was awarded the Cassese Prize for International Criminal Law Studies.

Lecture summary: This talk reflects upon the evolution of territorial sovereignty in international law. Professor Shaw will trace the classic origin and formulation of this key concept and discuss the major challenges to it, from internal threats such as self-determination and secession to external challenges such as the rise of international human rights, international criminal law and international environmental law. What may be concluded as to the balance between globalisation and territorialism today? Professor Malcolm Shaw QC is a Senior Fellow at the Lauterpacht Centre for International Law and Emeritus Sir Robert Jennings Professor of International Law, University of Leicester. Author of International Law, 8th ed, 2017 (translated into Chinese, Hungarian, Polish, Portuguese and Turkish); of the 5th edition of Rosenne’s Law and Practice of the International Court of Justice, 2016, and of Title to Territory in Africa, 1986, as well as of many articles in leading journals such as the British Year Book of International Law, the International and Comparative Law Quarterly and the European Journal of International Law. Lectures delivered include the Hersch Lauterpacht Memorial Lectures in Cambridge (2010); the inaugural General Course on International Law at the Xiamen Academy of International Law, China (2006) and the first Shabtai Rosenne Memorial Lecture in the Peace Palace, Hague (2011). Former Trustee of the British Institute of International and Comparative Law. Elected Associé of the Institut de Droit International in 2013. Practising barrister at Essex Court Chambers specializing in public international law.