HLS Library Book Talk | Anthea Roberts, "Is International Law International?"



we'll get started good afternoon everyone hi we're gonna get started just so we can maximize our time my name is Jocelyn Kennedy I'm the executive director of the Harvard Law School Library and I want to thank you all for being here copies of today's book is international law international are on sale outside the room and I think professor Roberts would be happy to sign them after other talk if you're interested today's talk is being recorded by the law school it'll be on the Law School YouTube channel early next week the question the answer period is also recorded just so you are now on notice I'd like to thank the dean's office for sponsoring our lunches our talks and our lunches and then particularly today our co-sponsors the Harvard International Law Journal so thank you for supporting our book talks so it's my pleasure to introduce Anthea Roberts who's our author she's an associate professor in the school of regulation and global governance at the Australian National University she visited here so that's part of her connection with us she writes and teaches in the area of international and comparative law among many accomplishments professor Roberts serves on the Editorial Board of the american journal of international law which is one of the preeminent journals on international law and as a librarian i read that she's also a reporter for the restatement forth of the foreign relations law of the United States she's joined today by two of harvard law professors professor nas mudras a date I just said it wrong I was practicing okay good and professor mark woo professor moterz mudras a day I'm getting there is the founding director of the Harvard Law School program on international law and armed conflict and she researches and teaches in the area and the intersection of international human rights international humanitarian law and Islamic law and professor Wu is a is a faculty director at the Berkman client center and he researches and teaches in the areas of international trade IP emerging economies and a bunch of other interesting international topics so I will stop talking I turn it over to press to Professor Roberts and we'll get started okay well thank you very much for that warm introduction and also for having me here this is actually a book in many ways that was started here at Harvard Law School and that's because I'm originally an Australian trained international lawyer I studied in Australia the UK and the US and then I started working and teaching as an international lawyer in the US and the UK then Australia and then came back here to teach and it was really when I came back here to teach that I started to become very aware that there were very different communities of international lawyers between these three different states and that made me start to wonder about this idea which I started calling comparative international law because I became aware that we are quite used to the idea of comparative domestic law because we expect Indian law to be different to German law in a way that it might be interesting to study the similarities and the differences but when it comes to international law we didn't really have much of a language of comparative international law because by its definition international law likes to assume and assert universality and it was really by moving around and studying and teaching and working in three different countries that I began to question this universality and become much more aware of the different communities of international lawyers and also much more aware that this was from moving between three extremely similar states the US the UK Australia Western english-speaking common law which made me much more attentive to the question of what does international law look like if I were to come from Russia or if I were to come from China and that is really the origin of this book when I started to think about the idea of comparative international law I really started to orient myself around three different concepts that would come up repeatedly in my work the first was the question of difference do we find different national or regional approaches to international law in a way that it's interesting to study and compare the second was dominance are there certain national or regional approaches that have had a disproportionate role in being able to claim the space as being the neutral international and finally are we facing disruptions disruptions could be from technology or in particular what I focus on changing geopolitics and economics which mean that some of the established patterns we have of difference in dominance are going to be upended in this next generation now the best analogy I have for the kind of work I've done here is actually an analogy from language which is international law likes to think of itself as Esperanto it likes to think of itself as this constructed language that happens between states that everybody has an equal buy into and is actually intended to foster world peace it was actually also suggested as the language for the League of Nations but in fact what we actually end up with in this world is a combination of two things multilingualism which is much like difference where we have different communities of speakers of different languages where there's much more interaction within the community than across communities and we don't always know whether we're saying the same things in different communities or different things in different communities that's on the one hand that's difference and on the other hand dominance we have certain languages and here particularly English which becomes the global lingua franca and is a case of one particular national or regional approach coming to dominate what is classed as the international and the language tension really exists in this kind of push and pull between the multilingualism the difference and the English as the lingua franca the dominance now how was I going to study this well I chose not to study the international law per se but in fact the communities of international lawyers and their sociology that lead to the interaction with the international law per se and I knew that I could not really study the government international lawyers because you simply cannot find the information about the backgrounds and the profiles or the government international lawyers so instead they chose to study the Academy because the Academy is much more visible you can find out much more information about the international lawyers and the international lawyers also play in the Academy play a particularly strong role in the construction of international law both because their work ends up being cited as evidence of international law because there is a very strong connection between the international law academics and various forms of international law practice the textbooks they use are considered to be some of the bread and understanding of international law and are cited to by international courts and tribunals so I studied this particular group recognizing that there are some limitations to how you can cross apply that to government lawyers for example and I chose to study it with respect to the five permanent members of the Security Council which was an interesting choice because they've all historically been privileged in international law they're a nice mix of Western non-western english-speaking non-english-speaking common law civil law so they're interesting in that respect but of course with any selection of States you also have various blind spots so what with this you don't see Latin America you don't see Africa and you also miss some of the core periphery dynamics so this is by no means an exhaustive study but it's one of the first four I saw rotated is the first foray to do this kind of work in a comparative international royal vein looking at the sociology of international lawyers in different countries now I'm going to divide my talk into three today to talk about this idea of difference about dominance and about disruption so I'm going to start with difference and there are many aspects in the book that deal with difference the one I want to highlight here is this idea of the invisible college of international lawyers because international lawyers love this idea that we're all part of an invisible college we're engaged in a continuous process of communication and exchange but what I came to realize in my study was that actually we're more like the divisible College of international lawyers where we have very distinct different groupings of international lawyers some very national others transnational but often very Western and various combinations in between where you see that through different things like the way in which you're educated where you're educated how you're socialized and incentivized by where you publish actually creates very different communities with very different understandings of what the international law topics are and what the accepted parameters of debate are and so one of the examples I'll give you of this is that when it came to Crimea you ended up having a Russian international law debate which was by the Russians in the Russian language in the Russian publications that was a wholly and utterly different conversation to buy the Western international ways in English in the english-language publications and you could even see it down to their very first assumptions where there was Russia's and exhale of Crimea or Crimea's reunification and self-determination with Russia these were completely separate communities and one of the really interesting things about it was not only that they were different but there was almost no exchange between these communities at all they were largely self-contained now you might think well that's because it's China that's because its Russian and the the US right they're both very different but interestingly you actually find very different communities of international ways even between the US and UK where I had been teaching so in the u.s. you found primarily speaking at the top law schools that most of the international lawyers had done one law degree in the United States they then worked for a US District Court Judge a US Supreme Court judge half of them went and worked for the US State Department they then tried to come back and publish in general as US law journals to appeal to a generalist US law faculty all of these things had a very strong nationalizing effect which meant that they largely focused on foreign lations or topic international law in domestic court's national security a completely different picture emerges when you go to the UK where about 75 percent of the international lawyers there not only got their law degrees from more than one state but got their first law degree from outside the United K in the United Kingdom which is a very good proxy for the fact that they're not British nationals they did not study British public law they did not work for the UK government they did not work for UK courts they in no respect do British Foreign Relations law instead they focus very strongly on international courts and tribunals and have a completely different Network and a completely different set of assumptions about what international law is and what are our assumptions are even though they're both english-speaking core Western states so I ended up finding these very different communities of international lawyers who have different focuses approach different things have different networks but I also found that they had very different connections to practice as I mentioned earlier the u.s. lawyers were particular for how strongly they were connected to the US government and I think in ways that deeply shaped the scholarship in this country the UK and the French international lawyers not at all really connected with their government but deeply connected with the international courts and tribunals and international adjudication in a way they also think approaches their approach affects their approach to international law and so we can see that these are not just happen in the classroom and not just in the textbooks but also very much in their connections to practice and who they influence and who they are influenced by but it's not just connections to practice it's also other incentives like funding and so to give you a bit of an example of this where as the US government lawyers were very connected with the government the UK and French ones for example if you look at who the professors are that appear before the International Court of Justice you'll see it strongly they all come from the West but within the US there's a massive duopoly of the u.s. of the UK and France so you can see very strong capture of these international organizations by certain communities but you go across to a China and you see something very different which is the Chinese government actually puts out recommended topics of research on international law each year so I actually started to code what did they recommend international lawyers focus on and what did they fund and what you see there is there is a very strong emphasis on international economic law Loretha see post for 2009 and international environmental law and the kind of international lawyers that China is incentivizing and producing are not only completely different to what you have here in the United States but there is a there is a complete mismatch between the types of expertise that are being developed in the academies of these two states so that gives you some small background about some of the different communities of international law lawyers what about what it is that we teach as international law well I started to notice that what it was that we actually taught as international law was also quite different between these different states and again I first noticed that here at Harvard Law School when I went to teach a 1l class and I thought look I'm used to teaching from a UK textbook back in the UK but you know the American students it's all international we'll be fine but I'll set a u.s. cases of materials books because they used to that case based method and suddenly I was in front of 92 first years twice a week teaching US Supreme Court cases that I had never read before and I was shocked because not only did I not think that the US Supreme Court was the authority on internet law when I read these cases that I hadn't read before I actually thought the US Supreme Court was not a good student of international law either I thought well maybe this is me maybe I just it looks domestic because I'm not used to it so I actually started to look at all the textbooks the main textbooks in the different states to say well look how inwardly focused or outwardly focused are they and I started to say you know what percentage of the cases they refer to come from their own domestic courts read from international courts blue or from foreign courts green so it turns out I wasn't imagining it the American case books were absolute outliers for having a huge and disproportionate emphasis on international law as interpreted by US courts you flip across to China on contra in contrast and out of the five main textbooks I study there there was not a single domestic Chinese case and we'll come to why in a second and then you go across to France and basically France it was all basically it's the ICJ and us and nobody else matters in the world and I have to say that seems like many of the French international lawyers I know actually I thought well maybe it's just string citations maybe it's not representative but if you actually look at which cases are taught by the sort of frequency with which they are referenced in the book what I started to see is that in some of the u.s. books you see a very very strong preponderance of the cases by US Supreme Court's and the one real exception here is Nicaragua in the US where the US was taken to the ICJ objected to jurisdiction when the u.s. when the ICJ said we still have jurisdiction the US said I'm going to take my baton ball and go home and that's the main international law case you would learn from this particular textbook which is one of the u.s. textbooks compared to the UK textbooks where almost all of the big cases are actually by international courts and tribunals and the one main exception is sorry the one minute one in common is Nicaragua in the u.s. which sits at the intersection of the international and US foreign relations law but when you learn Nicaragua in the US in this context it looks like the US is the outlier when you learn Nicaragua in the US in this context it looks much more like international courts don't matter and in terms of the idea that these are not the UK lawyers are not UK foreign relations lawyers you can see one case here this one Pinochet is the one major domestic US a UK case after that you can see Jones and after that you actually can't really see any of the UK decisions because it is fundamentally not considered to be a foreign relations more subject in the UK but that's just generally how international or domestic you are one of the other questions I wanted to know is how Western is this field and so I wanted to look at for example all of the domestic cases that were cited and I wanted to ask the question well where do they come from and how regionally representative are they so here are the geopolitical groups from the UN and the one I want you to pay particular attention to is the yellow so how yellow are our textbooks and I would have to say the answer is shockingly so so when you look at all of the domestic cases for France that's 99 points 6 percent were Western cases the u.s. 99 percent great diversity from the UK with 96 percent and one of the things I started to realize from this is people then like well of course that they're the ones that have the decisions but then you actually have to realize that some of the metrics that you take for granted as a way to approach international law like understanding it through case law or domestic court seems so natural when you come from the West in general and from common-law in particular actually render invisible really important countries like China that do a lot of international law but not through their domestic court's it's also the case that this West is not equal within the West and often 70 or 80 percent of the cases were just to two Western states the US and UK so we have Western dominance in general and anglo-american dominance in particular and this is a feature that we see again and again of what is claimed to be the International but it wasn't just the case citations and it wasn't just these differences of emphasis there were also substantive differences as well so when I started the study I I was deeply amused to find that all of the Russian international law textbooks had an entire chapter on the law of outer space which had never occurred to me to be relevant and often had twice as much treatment on the lore about a space than they did on international trade law which I had assumed to be quite relevant now I'd assume that that was just a throwback to the fact that they had been communist not very connected with the international system and the space thing was just because they put the first astronaut up into space but when I actually read these books read these materials I realized that they were actually raising some really difficult questions about how technology has really increased the ability to go into space has really increased for commercial reasons and military reasons it's being by non-state actors now and yet the legal regulation has largely stalled and it was something I was totally unaware about from my Western textbooks on the other hand in my western textbooks I had always learned about unilateral humanitarian intervention and for example Kosovo and I had learned and taught that well Kosovo it was illegal but it was legitimate and there was probably an emerging norm in favor of unilateral humanitarian intervention but if I flipped across to the Russian books I I certainly didn't learn that it was illegal but legitimate I learned about the NATO war criminals who had illegally used force in the in Yugoslavia I learned about the utter illegitimacy of the ICTY that even caused Milosevic his death by withholding valuable like vital medical treatment from him and I got a totally different impression but I also got a totally different impression of not just what the issues were but who the good guys and who the bad guys were so in what I was used to teaching it was the West that was pushing forward for human rights and it was that naughty recalcitrant Russia and China that were vetoing and stopping it whereas when I went across up into outer space it was actually China and Russia that were pushing for new international treaties and that militant the u.s. that wasn't agreeing to international regulation or to demilitarization so very different narratives but it wasn't just differences between the west and the non West here it was also within the West for example so for example on the legality of war in Iraq in many of my u.s. materials I found 20 or 30 pages of really detailed material that allowed you to really clearly follow the argument about the revival and the u.s. materials and to try and understand the case and it wasn't that at the end they said this is lawful but you were left with a very strong sense that this is arguable and this is open-ended you go to the French international law textbooks and in one page sometimes two they would very clearly state under heading illegal invasion of Iraq 2003 and there was no sense that this was open and arguable it was that the US and UK tried to argue it and it was wrong full-stop okay so very different senses of what's an open issue what's a closed issue what the lawyer but where does this leave us well I think where it leaves us is having to think very very carefully about what international law looks like in this next generation and that's particularly because we're facing various geopolitical and economic disruptions so when I said at the beginning that I had not been familiar with an idea of comparative international law that simply betrays my age because I was an international law baby that came of age in the post Cold War period and it turns out if I had just gone back one generation earlier to the Cold War actually there was a really clear idea of Western approaches to international law and Soviet approaches because we had bipolar power in the post Cold War era we have unipolar power and a much stronger sense of universal international law square brackets Western anglo-american but let's not talk about that aspect and that was the international law I knew but now we're moving into what I call a competitive World Order and I have to say I called it that before the national security strategy where we're moving into a multipolar era where we're seeing a strong challenge to this Western order from countries like China and from countries like Russia and I think this is going to make us think much more consciously about different approaches to international law and needing to understand them so we can see these examples coming up all over the place in terms of current debates one of them for example are Chinese and Russian versus Western Approaches on cyber security where you see a very different approach to whether or not the Internet should be treated as a global Commons or whether or not that you should have the much stronger sovereignty conception which you see in all of the approaches to international law from China and Russia which would seek to balkanize the Internet and they actually use the idea of cyber sovereignty inside the territory in just the same way as they push the idea that state sovereignty is still the supreme and international law and should not be watered down you also see it in the format of those debates about who should be at the table it turns out the hottest topic in the Russian international law Academy is where there are not only states or subjects of international law or whether individuals are – and the reason that's such a hot topic even though it had never occurred to me is a hot topic in the West is that that has become a proxy debate in the russian academy for those that are more Soviet inspired who hark back to the state sovereignty and those that are more Western inspired who want to break it down in favor of the individual and it also maps onto the debates that are happening about cybersecurity where China or Russia saying no it has to be an interstate treaty between states whereas the West is saying our global governance we should have corporations at the table you know very different approaches on this issue we also see very different approaches between for example some of the Chinese scholars and some of the Western scholars on the South China Sea we not just see very different narratives in the papers and in the scholarly treatment on things like the West focusing very strongly on the fact that China didn't turn up to the tribunal that it was ignoring the decision and that it was being aggressive in the region versus what you saw very strongly in the Chinese materials which was that China had gone through a century of humiliation at the hands of the West it had never been aggressive and here it had a very strong illegitimate jurisdictional objection which meant that it shouldn't be taken before this Court so you had very very different narratives but unlike in the Crimea example where these two communities didn't connect the Chinese international lawyers typically particularly in the younger generation do their first law degree in China their second and third law degree in the West because they're incentivized to they learn to speak English they're incentivized to publish in english-language journals and so they are actually able to cross out of this silo in a way that the Russians aren't but it's asymmetrical we're not learning Chinese we're not incentivized to publishing their journals and even if we wanted to there will be issues about censorship and so we're seeing some engagement but we're seeing asymmetries in this engagement so at the end of the day when I asked myself is international law international what I see are very clear patterns of difference with the communities and what they focus on and how they approach international law I see very clear patterns of Western dominance in general and anglo-american dominance in particular but I see a situation where a lot of this is going to be disrupted in the next in the next order and what that says to me is that we really need to make ourselves much more conscious of our own blinders and trying to see international law through the eyes of others we need to diversify our perspectives we need to diversify the sources of materials we use we need to diversify our networks so we have a better understanding of approaches from different states and by that I mean you don't have to agree with everything you read that comes from a different community but you need to understand the way in which they're viewing you and the way in which they have understood an approach to international law and you also need to use that to check your own blind spots one of the things that I found really interesting about this approach was not that I agreed with everything I read in the Chinese and Russian approaches I certainly did not but they helped identify for me some of the gaps and blind spots and biases in my own materials that I was not aware of and they say in psychology often we're much better at updating our understanding of the other based on new material than our own self understanding well they tell you what often in these materials they gave a much the Chinese often gave a much better and accurate understanding of the US but not of themselves and the u.s. materials often gave a much better accurate understanding of China but not of themselves and so I want to encourage us to be more open-minded about this this does present a real challenge for what international law is in the next generation but this is a challenge that we have to face and so with that I open it up to comments and questions thank you well Anthea I want to first start by just welcoming you back to Harvard I know this project began five years ago when you were here and there were several exciting conversations that we had and others had on this faculty that spawned this wonderful book I'm going to make five points here today and the first point that I'm going to make is just simply to extol the virtues of this book I think both Anthea as well as the library probably were almost too humble to note that this book is the recipient of the American Society of international laws 2018 Book of the Year as far as the preeminent contribution for creative scholarship in international law so if there's anything to sort of write warrant you to say if there's one book write that write the American international legal community thinks you should read this year right this is that book so this leads me to my first point which is it's interesting right that we as Americans right see merit to this book after it's produced but one of the first points that I want to highlight is the anything it makes in this book about the parochialism of u.s. international law and what I will highlight as this American need to put everything into boxes and so we are we teach you right how to categorize everything and then within these we simplify it into there are certain veins that are attached so in domestic law right touch to lism versus purposive ism right in international law we talked about whether treaties are contracts versus constitutions and so on and so forth right um one of the things I think is most astonishing or it's really a virtue of all this an international law the other divide that we have is this divide between what we think of as the orthodoxy and the critical legal studies third-world approach to international law and these are sort of two communities that almost talk past one another and I know that when Anthea took on this project on there was pushback from number of folks who I would say fall into that orthodoxy camp we said well we'll wait a minute this is a very dangerous topic for somebody like you who doesn't identify as a crit or as a toil scholar to undertake and this sort of me to sort of pigeonhole folks into this type of scholarship but really what this book has done is confirmed what I think many of the critical legal scholars the toil scholars have always suspected right that the international law is a is not necessarily Universalist it reflects a certain type of mindset that's tied to self to the West it's that in particularly to an anglo-american type of tradition and we can debate whether that's good or bad and so on and so forth but the first question that I just want to raise is right is there something about the American legal Academy right where these types of projects are seen as risky rather than actually encouraged and does it actually right should we as Americans look back to say why is it that it takes somebody from the outside to immerse themselves here and to notice our own problems rather than we being aware of these types of parochialism within the US Academy and I know some people right particularly associated with a critical legal studies with 12 and so forth have made these types of arguments but they've not worked their way into the orthodoxy if anything they continue to linger on the Brinks of the heterodoxy now more than a generation later and I think that's a real issue or challenge to our American tendency to put everything into boxes the second point that I wanted to highlight is the question about what do we do about this well I think like with anything awareness of the problem is a first step right to all this and I think Andy has made a great contribution that I hope will resonate within the u.s. that this is a problem but I think ironically the US domestic political debate has highlighted for many of us why this is a problem right because just as the left is only speaking the left and the right is only speaking to right today if we are to use international law as a tool by which to mitigate conflicts whether these are economic whether these are security related whether they are in outer space or seas or any of the other global Commons and if we're to find ways to cooperate on all this right we need to find a common framework by which to do so and there is a problem when these communities speak to one another speak only to one another and that they do so or that one community demands that these be done on its own terms right this expectation that amongst I think some of us who are American right well the world comes to Harvard and by having the world come to Harvard and by having all of you engage in the discourse that we in the American legal Academy or we could say right in the transatlantic legal Academy engage on that is our means of soliciting the input from the rest of the world and I think there's a recognition that just because right folks from outside of that transit life tradition come here study here master these types of terms and are able to engage with us in debate our terms do not necessarily mean that they buy into these types of norms and that there needs to be much more of an effort made to venture out where artwork to have these debates be on neutral terms or on mutual terms and one of the things I want to highlight is some of this is going to be forged by requiring you to immerse yourselves elsewhere right whether that's immersing yourself in the legal Academy outside of this type of tradition whether it's by spending time right prior to law school or after law school or by just attending conferences that are not in English that are not dominated by transatlantic Western scholars and so on and so forth and I think technology ironically will make this a little bit easier but it's incumbent upon us to forge a inter personal ties to make that happen and I don't know if I see anyone in this room who took part in a seminar that I had two years ago but I think some of you will know two years ago we had the prescience to actually have a seminar on us-china economic conflicts and highlighting how there was a large divide and how several of these problems were not necessarily easy to solve and we did this in conjunction with Chinua law school with another professor who had also been a trade negotiator in the Chinese government and one of the terms that we set up it took us two years of just meeting coming to the terms and so forth just to set up this type of course but one of the things that we both agreed upon was that we would do so in a way that this would be student-led that we wouldn't have right the traditions of just the professor's preaching as to what this is and to have a mutual type of engagement of dialogue whereby the terms by which this discussion took place were not in English right there participant could choose an either language that they wanted to and there were simultaneous translation being provided for and I think those types of right that made a huge difference right when either side could engage on its own terms and in particular it's very impressive right because several people in my seminar right would speak to their Chinese counterparts in Mandarin Chinese and vice versa but it really changed just by having the language go back and forth between the two languages really change the nature of those types of understanding and there's a wee chat group right and again not set up on Facebook now part of is this technology right you can't get on to Facebook but this is all done there's a wee chat group that I understand has endured for coming out from the participants and these types of so in some ways technology makes us a lot easier but I want what I want to highlight from this is solving the problem still requires people to be aware of the problem and then to find ways to engage this on other types of terms right so so the third thing then like you know I'm just demonstrated my guiltiness is an American train right of course I begin with my two comments about America right but let me venture a little bit forth outside of this right and not make the u.s. the center of all of this the third point I think is very important to highlight about all this is the divide that's highlighted here in terms of within the west and particularly within what I would highlight is a Continental tradition as opposed to a anglo-american tradition one can think of this as a common law civil law divide but I think in many ways this is also informed by our own historical experiences and the way Europeans think about the role that you law has played as international law and what that has done in terms of preserving the peace on the continent and how that ventures forth in terms of what your views about international institutions are as opposed to those who most closely value their sovereignty and are much more shall one say skeptical about the types of encroachment or distrustful that international institutions can play upon regulating summer space this is not this is different than I would say a civil law common law divide this is different than necessarily say just the European American type of divide but I think this is a fault line that runs through international law and it will be it is the key fault line I think this book does a fantastic job highlighting all this the fourth point that I want to highlight is of course one of the reactions people ask is well and they asked this quite often of me particularly with regard to China but I think it's a question that oftentimes gets asked right well where is China on this or where is India on this or what does this say about Africa right and one of the things that I wanted to highlight is I think that those questions in of them themselves reflect part of the problem about the way we see these types of issues because right these are continents with a huge amount of heterogeneity within them with huge amount of debates within those types of communities and just as you would not say where is America on cybersecurity or where is America on trade right you make an effort to disaggregate where the different constituent parts and you understand how changing dynamics within that change the orthodoxy within each of these different clusters I think there is much more work to be done our part in terms of understanding all this and I would say right with regards to the China question in particular this is still a work in progress to be determined and we shouldn't expect necessarily right that this principle or this desire to put it into a box and say here the three bullet points about Chinese views about international law or to expect that Nigeria or South Africa speak for the entire African continent right to actually hold true in this type of context which leads me to my final point in my final point is geared towards those of you in this audience who are especially come outside of the Western or Anglo American type of tradition I see many of you here in this audience I know I supervise some of you and I do say to you that when I supervise you right I do teach you to write in this type of American tradition and to engage with America on its own terms I say that because I think it's important for all of you as international lawyers right to recognize the US will remain a dominant power in this and you need to be able to engage America on its terms but I want to make a second command which is to say I hope this does not come at the expense of actually forcing you to adopt the type of voices that right it's to teach you to be more nimble as a lawyer in this type of space but it hopefully doesn't cause you to actually lose your own voice if anything right it's incumbent upon you especially for those of you right who didn't see your colors reflected in there to speak and engage and to make that type of voice heard in this discourse of ideas and to do so in a way that can engage in attach to those of us who come from this type of Western tradition and I think we need to meet you more than halfway on this read and just say here in our IV towers and expect the world to come right to the Harvard's and yells and Stanford's and Princeton's and just basically that's this is where the debate takes place in English on Westphalia in terms right with groceries and these other white men who come from right in Western Europe in the sixteenth seventeenth eighteenth centuries and so forth we need to go there but you also it's a comment upon you to do that job about laying that path to make it easier for all of us to do that and I hope you all will do so when you venture forth regardless of what you all do is your careers in international law so with that Anthea congratulations on a wonderful book and thank you for coming here to speak about it great thank you so much I think it is a mark of Professor Wu's correctness that he said he had five points I'm gonna have three points so we're already categorizing our own comments like American international lawyers I suppose I wanted to echo professor Liu's comments I think this book is tremendous and I just from a personal standpoint and my guess is that you've gotten a lot of comments that are both of course on the scholarly level but also people having very personal reactions to the book and I certainly felt not only a sense of deep recognition with your arguments and with your inquiry but also I think often a sense that I was recognizing my own anxieties in the book that the feeling of how do you teach this topic not only in this country but in any country how do you balance the ideas of sort of a rooted located contextual way of teaching and talking about international law with this universal that ultimately particularly for first-year students we do want to teach right and we do want to invite them to be in all of that Universal before they go about tearing it apart or getting critical or thinking that it isn't real so I want to ask you three sets of questions one about teaching and course materials two about what explains this phenomenon and I know you said a little bit in your talk and a bit in the book about the historical context I just want to ask a bit more about that and then three your sense of the normative implications and where we go from here as so first just a personal story that I think resonated very much with your account of teaching here and also in the book I had the same dilemma when I went to teach public international law for one else this year what book do I use and I looked at all the available PIL case books in published in the US and by US authors and I found that I did not think I would be able to teach with them they just had so much US law that I don't know that I thought it was going to be a disaster if I actually try to teach through this material and I also shared professor Roberts sense that not only did the US Supreme Court appear it through these books to be a paragon of international legal development and that I didn't feel capable of teaching but also I often thought that the United States Supreme Court was indeed if I could put it a bit more sharply wrong on international law in in many of the things it was setting so I am using a a UK textbook the Evans book that is discussed in professor Roberts book and I have enjoyed the experience but I also think it's been very challenging for my students it is astonishingly different from a US case book in fact it is not a case book and to teach it in the 1l curriculum when my students are taking torts and contracts and Krim law and then they walk into my class and we don't necessarily have cases we are not teaching through the case study method don't tell anyone and we are it does not necessarily lend itself to a Harvard Law School style of teaching we are looking at analysis we're looking often at just very doctrinal descriptive writing and we are trying to kind of draw out of that the arguments but in some ways it's much much harder work we had one chapter that actually had subheadings and bullet points and we all took a moment to just appreciate that we finally had an outline in one of our chapters so I guess my question there is a two that came to mind one is if you teach in this more international way right so you don't use the US case book and you teach a more international law is real and is international style how do you avoid making it into a topic that is so exotic or irrelevant that many of the students will just think well this is clearly not related to anything I will ever do in my practice most of our students will ultimately become us-based lawyers and practitioners so how do you avoid it not being a class that just sort of seems like a like a throw away and second I really liked your analysis of the Iraq war and we just did it in my 1l class and I guess I was wondering when I was reading that to what extent is the US case law approach to the sorry case book approach to the Iraq war part of the case study way of teaching meaning so we we had I mean we were really struggling with this in my class in in our materials we went through the Security Council resolutions on the Iraq war and we did treat it as arguable we really took seriously the argument that the US and the UK might have been right in their interpretation of the Security Council resolution and at a certain point I said if we were in France if we were in Belgium we would simply say illegal move on we would not be having this conversation so how much is it the way that we learn to think like lawyers and do we want to preserve some of that moving forward secondly I wonder my instinct having not done the hard work you've done in terms of the analysis and the empirical work is that it wasn't always this way in the u.s. that there was a generation of scholars maybe two generations ago at least for HLS that had multiple languages had studied abroad really saw themselves while on the faculty here as being engaged in an international project and I'm wondering how much of our current situation particularly the obsession with national security law is about 9/11 that international law just became more popular after 9/11 I was looking at the Harvard Law Record magazine article on ten years ago when pil was introduced to the 1l curriculum for the first time and the article starts by saying Guantanamo Bay is one of the hottest questions facing lawyers today they should know international law in order to talk about that so I'm wondering how much is it that we are at war and that sort of brings international law to the fore my third set of questions is about sort of where do we go from here and the normative punch of of what you're bringing forward so for the where do we go from here I guess my question is if you had unlimited resources is this a massive translation project and I mean translation across both ways is this about going to 25 countries and actually building up international law teaching in a way that in one generation we would be able to get these new approaches and new languages what what did what would we do if we not only took your book seriously but actually put behind it the time and resources that we might in order to engender the kinds of conversations that you talk about and second your book made me think about a debate that's been raging in comparative political theory about the value of these kinds of understanding and cross cultural or cross societal discussions and I wonder whether you think that if the kind of exchange that you talked about at the very end of your talk occurs is it will it change international law I mean do you think that behind this is a real possibility that if we took seriously not just the periphery but those who are not in the p5 and their views on international law that we might be looking at a very different content of the law that we study a real disruption I suppose is the is the contemporary term – the core norms and even the sources of law that we consider to be doctrinally binding or is it a diversity project that that really what we're going for is let's hear the other let's understand these diverse perspectives but ultimately the project remains this term as universal as we might think it is problematically Universal International well but once again thank you so much I think this is a contribution that is going to stand the test of time and really really challenges us to think differently about what we do [Applause] so an absolutely fabulous set of questions and engagement I don't think I can address all of them but let me do my best to address a number of them so I think professor Wu was right to start off with the question of how does this connect with critical legal studies and also third-world approaches and the interesting point about that is I think he's quite right that there have been these boxes either of the third-world approaches or the CLS approaches and one of the things I noticed about those boxes was that I was quite deeply sympathetic to a lot of the arguments that came from these traditions but that I noticed that people who weren't sympathetic to them as soon as they could box them was saying oh that's CLS or oh that's third-world they just shut down and stopped engaging with them and for that reason I actually very self-consciously did not position this book as a third-world approaches to international law or as a critical legal studies book I positioned it as someone in the West an english-speaking Anglophone international lawyer someone within the orthodoxy speaking to the orthodoxy saying hey guys what are we doing here and that was deliberately to try and make this community of which I was a part open to actually having this discussion in a way that I felt they often shut it down if they could say you're an outsider you're the other and it doesn't count and I discredit it but there are politics behind that choice and different people could make different choices about that with different implications the second thing I wanted to pick up on was this idea of well you know Harvard Law School it represents the world because all the world comes to us and I'm not endorsing them that you weren't endorsing that as well but one of the things I want to say about that is it was extremely stark to me when I came here these different ideas of what is the International and I had an incredibly international student body and yet I would go and have the faculty lunches and I would be almost entirely with Americans and this disconnect between the largely American American trained professors and this highly internationalized student body made me think a lot about the claim to the International and it also made me think a lot about the transfer of knowledge and so it became very clear and I've got some slides on this about what I started to see with the global flow of students and how this constructs fields is that students flow often from periphery towards core from non-western towards Western and from non-english-speaking towards english-speaking but ideas and materials and sources tend to flow back out the other direction and so it creates this really interesting situation where those who begin and start in the core in America are often the best able to diffuse their approaches and yet they themselves are the most procure because they have no incentive to go elsewhere and so if they have these asymmetries of students coming in like many of you you will take many of the ideas from your American professors here back out and yet they take remarkably little of your ideas back in because there is a hierarchical dynamic here where frankly you listen to us a lot more than we listen to you and you need to get inside our heads because we set the exams rather than we have it to get inside on your exam set and and these sort of dynamics really shape the construction of international fields well outside what we have in international law it's a bigger problem and so it really creates a problem when you have something like the rise of China where the Chinese students are incentivized to come and understand the Western Approaches but the West is not incentivized to get inside the head and frankly you know is incredibly little about the non-western approaches and this isn't just international law if you look at like international relations ninety percent of what the international relations scholars teach in this country and said for their syllabus over 90 percent is just other international relations things by other American international relations scholars who only speak one language right your ability to understand the world through this metric is is severely limited and so that's going to be a real problem that needs to be disrupted the next point about there being a really interesting divide within the West so I absolutely agree that there's a very interesting divide between like the European approach to international law and the American approach to international law of Europeans would say there's is the approach to international law and the Americans are violators of international law but you can you can also see it coming up really clearly in debates for example about investor state arbitration at the moment there's been a real legitimacy crisis with investor state arbitration so how do you deal with the legitimacy crisis so the Europeans say well I know what we should do we should international eyes and have a court sounds great the same sort of thing we had in Europe but let's make it for the world and things like are you crazy legitimacy crisis let's get away from those international courts let's bring back sovereignty and so these splits actually play out in real time in some of the debates we're seeing now I very much echo the desire that you need to understand the global lingua franca and be able to play that game but you need to use that voice without losing your voice and so one of the really important things is to try and take some of the language and some of the tools that we have but make sure you're identifying concerns from your country from your region from your perspective and one of the things that happens when you come and study in the core but also if you then try and publish in journals in the core is that you're trying to do it on the priorities of the core and that is we need to be getting away from that and you see this in economics all the time where people go back to where they come from and they're not incentivized to write about where they come from Peru for example because you couldn't publish it in the US and UK and they're taught to take some of the concerns about technology diffusion for example back to their countries where these are not the pressing issues so we need to find ways where we speak in a common language but we don't have the intellectual agenda always set by the core but whereas I was reacting very strongly when I first came here to the fact that I found international law was to national one of the other things I found was that international law is not always national enough and this goes to one of the other points that Professor we made and I wanted to give a real contrast here that when people say well what's the approach in China and what's the approach in India not only is there great diversity but interestingly when you actually go to their materials you often learn very little about their approach and India is a very good example of this where there are no Indian international law textbooks they teach only from UK international law textbooks and one of the realities of that is that they learn almost nothing about India's approach to international even though India has a very active and interesting Supreme Court it has very distinctive approaches to international law from the United Kingdom but if you learn from an international law textbook it's not that international or is your domestic law international or is something that is totally and utterly unrelated and you are simply an importer and not an exporter at all and this also goes to one of the other points that was made like how do you make it connected so I think I I don't idealize that it should all be the international I think there needs to be some healthy balance between what's happening at the international level what's happening in its reception to your own country and what's happening in the reception in other countries the foreign dimension and that's why I think of it as I sort of a comparative international or triangle of the international the domestic and the foreign that it's that triangulation that gives us a better understanding of what it is we and others are doing and what constitutes the international law so to some of the points about teaching so yes I was very struck by the difference between the case based approach and the textbook approach and there is really something about being taught to be a lawyer and that that's part of making arguments but here's what I would say to that I don't object to the idea that you should be taught to be a lawyer and to make the argument but I object when the materials that you were given don't really allow you to make that proper argument and the reason I would say that is when you look at a lot of the materials on the Iraq war in the u.s. case books is they set up the Security Council resolutions they often set out what the US argument is they set out some of the positions of US scholars and then they say and so what is the international law and this happens quite often in these textbooks where they set out the American Restatement they set up with the US Supreme Court says they said that was what's written in some American journals and they say what is international law and I say I wouldn't know because you haven't given me the materials to effectively do that so if you're going to be setting out the position of the US government I also want you to be setting out the position of the French the Russian and the Chinese government who had a very different interpretation of that resolution and some of their scholars about so and at the end of they then you can make the argument and you can come to your decision but if you're going to make the case base argument you need to be aware of the diversity of your sources now I completely agree that this what we are seeing in this particular moment in time is not the case that has always been the case and in addition to wanting to do a more of a horizontal study where you look at States more States you also would want to do a deeper dive domestically within these states and a deeper dive over history and it is very much the case that you go back a generation ago the u.s. international lawyers often came over here because of World War two they spoke multiple languages they were very geared to the international they're very geared to things like human rights and wanting to protect that you then have that generation largely retiring or dying the new generation that comes up often has a very strong foreign relations while focus they've usually only studied international law in the u.s. they only speak English and they do a completely different type of international law then you have 9/11 and the foreign relations law becomes much more national security law you also have the international law the interdisciplinary movement which is often international law and and many of the people are much better at the ends and they are at the international part and so you see you see this movement of segments over time and and various forces caused this but it means that we can never just take a snapshot we always have to understand how it moves over time and then finally what do you do with this so does this really disrupt if you took it seriously does it disrupt the content of international or is it just a diversity point it absolutely disrupts the content of international law if you take seriously the views of the third-world state so you take seriously the views of China and Russia we get a very different international first of all we get a lot less agreement on what is international law it's going to be a much narrower range we're going to find it much harder to find agreement on new areas of international law but also interestingly we have to take into consideration these views because geopolitical power is changing but our views in the West also change when geopolitics changes so you think about something like extraterritorial jurisdiction you can be very in favor in the west of an expansive approach when you think you're the one expanding your jurisdiction suddenly if you think you might be the one that is receiving the expansion you have a tendency to moderate right and so as we see geopolitical power change and we see this in investment treaties we see this in a large range of areas it's not just that the approaches of other states are different and that changes international law but the changing power dynamic changes these Western approaches it to international and that also changes approaches to international law going forward we have very little time for questions but it can open up the world [Applause] Thank You professor Roberts I got this book last September so how has two semesters so I come from China and it's really netcode my experience so one of the question is the underpinning of this book according to as I see it is that you start from your first chapter it's called divided College of etosha lawyers so it's like doing the Oscars honors in Brisco clod in this for college of international lawyers so which has a both descriptive and prescriptive meaning in them so when you mention the divided College of Nationals what's your percentage of descriptive and do you think that this did why of course it's factually true but do you think that should be like for the feature is something that we should aspire for I mean I see at least till this moment the invisible College still has a very compelling sense even for people yeah yeah so I think the essence of that is that maybe the divisible college is descriptively accurate but the invisible college is prescriptively where we want to go right so so I don't actually take a strong normative you on this i I do think the divisible college is what we've got I think that I would like to see a lot more interconnection going on so I'd like to see much stronger bonds going on between different communities and one of my projects and very much what you see at the end of this is their desire to increase these networks but I also think we also need to be deeply aware of the need to have our bonds both at the invisible college level between states but also within States and I think very much what you've seen in the u.s. reaction at the moment is that if some of your international has become too international they can lose that connection domestically and if they become to domestic they can lose that connection internationally so I think we need to be aware of the invisible College domestically and internationally and that these are in tension with each other do we have time for I thank you so much again this was a world-changing presentation I'm just curious have you ever considered those of you that thought PIL to teach PIL through the u.s. case case law box through Supreme Court cases but with a supplement explaining how they're wrong why they're wrong and the perspectives of different countries and whether that would be a solution or not I pass to you on that yeah I've heard of this idea so I think there are some faculty who will use the regular case books and then use a supplement sort of either critical views or views that might take a different perspective but I think in some ways the problem is that you it already puts you in the language of US law right so if you're looking at a US Supreme Court case that is itself largely actually about domestic law and trying to keep it on the track of international law I think it's quite challenging but I do I mean I that sounds it sounds like a good case book where you would have the Supreme Court case and then sort of challenges to them perspective within the book itself and I should also say I mean one of the other experiences that first led me to this was the very first case I ever worked on working in international law at a US firm was the Soren Alvarez machine case which ends up being one of the most cited cases here and I was put on that case as a young for an associate because I had written on customary international law and there was this idea that the 80s was customary international law in US courts so I was like great and a problem but of course I had never studied an 80s case which you know would be unheard of for an American international lawyer at that stage but I was not phased because it's all international and so I went away over a weekend and read all of these 80s cases and I was just completely and utterly horrified because it felt like they were using all this language I was used to like state practice in a penal URIs but then finding and world by reference to US domestic court cases and doing really weird like mixing and amalgamation of US corporate law principles with international and they didn't even seem to be asking the very first question which is do you have jurisdiction to do this at all they were asking the question do we have jurisdiction under US or I'm like well we're do you have jurisdiction under international law didn't seem to have been noticed at that point and it has been noticed now and so if there's a really interesting divide then when you start to use these materials like how much do you buy into it and how much do you kind of react against it it's really hard to have both discourses going and I think we find that quite commonly if you then want to litigate in the u.s. called stuff you kind of have to accept these cases is your but baseline you can't be forever being like oh and you made you made the decision wrong in the first place and now it's still wrong and it's still wrong it's still wrong you sort of have to go well you made it incorrectly but now that's the law and I need to work within that and so it's sort of and so you can kind of disrupt it in various ways but it gets very hard to hold these communities together so you can make people aware of it but they're very very different dialects I'll just say I don't teach PIL but I think the one case book I am a part of it's not a case book right it reads like a UK European style book and that was a conscious choice that we did as co-authors because we felt like that's the right way to teach the subject materials I think the answer though is we are at American law school so it is important for you to understand how international law gets integrated into US domestic law as part of that deep dive down this way and so for those of you have taken my world class right there is a portion we do that but I think we need to do it in a way that's honest to say look the u.s. is actually an outlier rather this is the norm by which this is out stunning all the rest of the world or the rest of the world is going to come to adopt this highlight just exactly how the US is an outlier and just to go on that last point I think sometimes when I would so say to some of my US colleagues well you know it's done differently elsewhere and they'll be like no and then they'll be like well but you know they're just a generation behind so kind of like well we don't really need to know because it's just less good and I'll catch up to us and I just think the world is changing I think we need to know a bit more about what's going on and not just assume it's all going to be on the American dollar on the American dollar terms but one more okay if there no more questions then thanks again on behalf of the library for attending today's book talk and they've been doing professor Roberts will be here for the sign books all right thanks again [Applause] you

5 thoughts on “HLS Library Book Talk | Anthea Roberts, "Is International Law International?"

  1. this book is literally the smartest idea for Roberts to get connected with all the influential international lawyers in the field lol

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