Colloquia and Clinical Programs

2005 IILJ Colloquium

The Colloquium Theme

The theme of this year's IILJ Colloquium will be “Rethinking the Table of Contents of International Law.” The rationale is obvious enough: both notable changes in the world (the proverbial “real world”) and equally notable changes in the ways in which we conceptualize International Law (which, in the important world of ideas, is a phenomenon no less “real”) induce us to think that there is place to Rethink the Table of Contents in at least two ways. Taking as a baseline the very real Table of Contents of any number of International Law textbooks, manuals and the like (which continue to have a great resemblance to each other and whose structure has, somewhat surprisingly, changed very little in the last 60 years), we want to push in two directions and ask:

• Do the changes (in these two different very “real” worlds) require a change in the actual Table of Contents i.e. the inclusion or deletion or rearrangement of the standard list of items one finds in such a Table of Contents? Put differently, this dimension of the enquiry is about mapping and remapping the terrain.

• In what way do these changes require re-writing (rather than updating) of the extant items in the classical Table of Contents?

It is best to illustrate by some examples, but before I do so, a caveat: There is little in our field that is not contestable. It is possible that some of my examples will provoke the passionate reaction: The present Table of Contents is perfectly adequate to deal with that change etc. That may well be the case. It is exactly the discussion we are trying to provoke in the Colloquium.

As an example of changes in the “real” world one could cite, yawn, the move to a world with a single (military) Super Power and the challenges it creates for, say, multilateral institutions; or the use of terror with a level of force which if used by state actors might meet the traditional threshold of ‘armed attack' and the challenges this creates for the normative framework of regulating the use of force and responses thereto; or the emergence of new international institutions such as the ICC or the ‘reengineering' of older institutions such as the WTO/GATT.

As an example of changes in the ways in which we conceptualize international law I would point to the notion of governance – an object of serious intellectual enquiry at the IILJ@NYU. International Governance is of course a phenomenon in the real world – whether it is international management of polities in transition (Kosovo, East Timor) or monetary/fiscal regulation by international financial institutions or the determination of acceptable risk by international standard setting bodies. But it is, too, a way of thinking or rethinking of certain extant and even ancient international legal institutions. (Re)describing international phenomena and institutions as instances of governance force us, for example, to ask a new set of questions or to reframe the older set of questions concerning legitimacy, accountability and transparency. Here are some concrete examples:

Take the far-from-the-eye network of Bilateral Investment Treaties (BITs). If they figured at all in the Table-of Contents of International Law, it would be as a footnote in the chapter on Treaties and maybe as a couple of pages in the Chapter on Dispute Settlement explaining Investor-State arbitration mechanisms under ICSID or UNCITRAL. But, in fact, this network of BITs, the “model” version of which has been adopted as a template by most rich capital-generating countries, has become an instrument of governance par-excellence, with huge impact on welfare and North-South relations. A similar phenomenon may be the far-from-the-eye network of bilateral and regional free trade agreements (RTAs). In their effect in the real world, these phenomena are as much International Law Making as any traditionally negotiated multilateral law making treaty such as the Law of the Sea or the GATT. But they do not have the same procedural ‘safeguards' as the multilateral process and under the traditional vision are considered not only ‘technical” and trivial in nature but, being bilateral, of little horizontal concern. Normatively, is this how we want to leave the international regulation of foreign investment? Are we content to allow the “vendor” states to write the Standard Form Contracts and then, as was once the case in domestic law, argue that the “buyer” states are free to sign the dotted line or not? One can give different answers to these and similar questions. But one can hardly contest that that this is one instance where the whole is not only greater but qualitatively different than the sum of the parts. From the perspective of Governance, we might want to take cognizance of these phenomena, and either, given their importance, find them an appropriate place in the Table-of-Contents or rewrite some of the chapters in the extant Table-of-Contents to reflect their importance. Note: The fact of governance existed for a long time. It is the concept of Governance that has enabled us to reappreciate discrete phenomena.

Under the optic of governance, the sacred cow of Sources might come under scrutiny too. Still dominated in the classic Table-of-Contents by Article 38 of the ICJ Statute, the orientation given to sources such as custom, treaties and ‘new sources' even in the most sophisticated analyses is about finding “what is the law” typically in the context of disputes about its content and when judges (or other decisors) have to make a decision. In the classic Table-of-Contents, the doctrine of sources is usually about resolving pathological situations in accordance with a credible and legitimate hermeneutics and theory of sources. Governance turns the attention from pathology to physiognomy. Sources, under the optic of governance, are after all the international equivalent of Law Making. From a classical perspective, when things go smoothly, when a customary rule is accepted by all relevant states, when there is an agreed interpretation of a treaty there is no problem of sources. From a governance perspective that normalcy is precisely where the problems begin: Under what normative political theory can custom, especially a custom which might have a profound effect on individuals and welfare, claim its legitimate binding authority? ( Pacta sund Servanda does not answer the normative question, it begs it). Should we be concerned about the enforcement of treaties – especially those with far reaching effects into realms traditionally governed by municipal administrative law – when these norms escape the kind of controls we insist in similar domestic regulation? Do we need to rethink sources as Law Making? And with what consequences?

Some issues which may pertain to the mapping of international law – to its Table of Contents – straddle changes in the real world and in the world of ideas. The way in which, for example, we tend to think that culture has replaced ideology as one of the central challenges to a universal, consensual international normativity involves factual as well as conceptual changes. The very notion of Globalization (and its discontents) is a cross between real world changes and ways of thinking about those changes, a combination of phenomenon and notion.

Would it not be strange if Globalization did not somehow find its way into the Table of Contents of International Law? To date it is not really there and it is not clear how and where it should feature.

Colloquium Schedule

January 20, 2005: Professor J.H.H. Weiler, New York University School of Law
Introducing the Project of Rethinking the Table of Contents of International Law

January 27, 2005: Professor Benedict Kingsbury, New York University School of Law
The Problem of Public in Public International Law

February 3, 2005: Professor George Fletcher, Columbia University Law School
The Law of Nations from the Perspective of Nine

February 10, 2005: Professor W. Michael Riesman, Yale University Law School
The Democratization of Contemporary International Law-Making Processes and the Differentiation of Their Application

February 17, 2005: Professor David Golove, New York University School of Law
Rethinking the Relationship between International and National Law

February 24, 2005: Gerry Simpson, Senior Law Lecturer, London School of Economics
The Guises of Sovereignty

March 3, 2005: Nico Krisch, Junior Research Fellow, Merton College, Oxford University
The Institutions of International Government

March 10, 2005: Judge Bruno Simma, International Court of Justice
The Impact of Human Rights on the Development of International Law

March 24, 2005: Professor Anne Orford, University of Melbourne Law School
Globalization and Immortality

March 31, 2005: Professor J.R. Crawford, Cambridge University
State Responsibility and Democracy

April 7, 2005: Professor Eyal Benvenisti, Tel Aviv University Faculty of Law
International Law's Unwritten Rules

April 14, 2004: Vice Dean Moshe Hirsch, The Hebrew University of Jerusalem
Rethinking International Economic Law

April 21, 2005: Professor Richard Stewart, New York University School of Law
Rethinking International Environmental Law