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Attorneys who practice international law handle cases involving
legal and practical relationships between nations -- including
issues like inter-nation agreements and treaties, international
trade regulation, and human rights. International law attorneys
also represent clients in legal disputes involving citizens
and businesses in other countries.
International law is one way of looking at foreign
policy. It emphasizes the importance of understandings, both
specific (between two or more parties) and general. Lawyers
call them rules, you can call them laws, if you want to. You
don't have to. You can just say they are norms that get accepted
by the participants in the game of international relations.
In any game there are rules. They change over time, sometimes
unexpectedly, and sometimes they change through violations which
everybody begins to accept and so a new consensus forms. So
one of the things that international lawyers do is actually
not international law; they're doing a lot of what I do, which
is foreign policy analysis. But they bring to bear a sense of
the enclosing structure of rules, principles, and diffuse understandings.
There is a very small group of people who actually litigate
cases before the World Court and arbitration tribunals. They
make quite a good living out of that, by the way. Then there
are people who work for national governments. Every large country,
even smaller ones, have legal advisory offices and there are
careers to be made there. Then there are careers in the private
sector specializing in matters calling for the interpretations
of treaties and related national legislation and regulation.
There are careers in international organizations. There are
some lawyers in each of the various international agencies.
Finally and most commonly, there are lawyers in the private
sector who are not really doing public international law, they're
doing deals across national frontiers involving parties from
different countries. A lot of what people think of as international
law is transnational dealing, [but] these deals call more for
a knowledge of comparative rather than international law.
If you were trying to resolve an ethnic conflict. A lawyer,
particularly a comparative constitutional lawyer, would be aware
of all sorts of techniques that other countries have used to
try to constitutionalize power arrangements that promise to
reduce the anxieties and enhance the satisfactions of these
competing groups. Switzerland is a case in point: you had three,
really four linguistic groups there, and they manage not only
to coexist but to prosper. The Swiss constitution is a quite
complicated document which balances power. It's something less
than majority rule, and indeed, in an ethnic conflict, majority
rule means the conflict goes on until the more powerful party
wins. So if you're going to compromise a struggle for power,
you've got to find some ways to constitutionalize an arrangement
where the minority gets a piece of the political and economic
action.
A constitutional lawyer is aware of the precedents and therefore
is aware of the set of techniques that can be brought to the
table and may help forge a compromise. You could say, "Well,
you don't have to be a lawyer to be aware of those, you could
just be a political scientist who has studied ethnic conflict,"
and that's true. That's true. But lawyers, just by their very
nature, are compelled to be aware of the repertoire of means
for resolving disputes, particularly procedural means. Lawyers
are very procedurally oriented, and these procedures can be
useful to deal with a whole array of conflicts.
National laws are easier to understand for the average person,
because there's a federal court or a state court and that court
has a force behind it so that it can implement its decisions.
People have consented to accepting what that court says. But
international law is harder to get a handle on. You said that
you think of international law as a "system for coordinating
voluntary action on behalf of shared interests."
With the end of the Cold War, where the work of international
law could be said to have been distorted by the bipolar division
of the ideological conflict, globalization is such an important
phenomenon. Do you think that the importance of international
law will be more easily recognized and acted upon, or is there
a tension there?
Even during the Cold War, there was a broad range of agreements
with which most states complied most of the time. Most of them
didn't deal with war and peace, they dealt and still deal with
much more mundane things like commerce on the sea and to where
in the sea does national authority extend. International aviation
is all governed by international law. And that was even true
in the Cold War period. People are always looking at the use
of force, but that's just a little piece of international law.
Maybe that's the most problematical piece, but there's a day-to-day
life of international commerce and the use of the sea and the
use of the skies. And that's regulated by law with almost full
compliance. Now you've added new areas like the environment.
Today compared to fifty years ago, there are many more areas
of life covered by international agreement.
The more interdependence you have the more you're like the steel
plant, where you can't produce the steel without pretty consistent
compliance by most people. And the collective interest is sufficiently
strong, and the violations are sufficiently clear. That's one
thing about the international legal system: if you violate usually
it's obvious. You can't do it secretly, you do it openly because
there's no other way to do it. And if you do it openly consistently,
then you are seen as an unreliable partner, a rogue, and other
actors tend to exclude you from cooperative agreements. If violations
are widespread, cooperation breaks down. But the greater interdependence
which we do have today makes it more injurious to more countries
to have the system break down. So I expect more and more subjects
to be covered by more and more elaborate rules which are embedded
in agreements, and a pretty high degree of compliance.
What will be the U.S. role in the shaping of more and more international
regimes? With the end of the Cold War there is all of the cultural
historical baggage we bring, [including] the manifestation of
unilateralism, going it alone, not participating in agreements
or not actually fulfilling the terms of agreements.
Every country is what it is for complex and deep historical
reasons. In the first part of our national history we were protected
largely by geography, the luck of geography, from the threat
of invasion, and we were able to live our national life without
too much concern for what was going on in other countries. In
the more recent phase of our national history we have been the
most powerful country in the world, and that has also enabled
us to act as we deem appropriate without too much reference
to the preferences of other countries. On the whole, I think
we've been a relatively benign hegemonic state, but when you
are clearly the most powerful state in military terms, in economic
terms, in terms of the cultural influences that you project
abroad, there is a natural tendency to carve out exceptions
for yourself not even realizing it fully -- or you say you have
particular responsibilities in the system which make you unique.
Our constitution makes it harder for us, the fact that you need
two-thirds plus one vote in the Senate to get a treaty approved;
well, that complicates entering into treaties. Most countries
have treaty ratification systems that are less onerous. So that
is a problem for us. We're living with the tension it produces.
As citizens of the most powerful country in the world, are the
natural architects of the rapidly expanding international legal
system. We are playing a role, but our ability to do so is definitely
inhibited, definitely limited by this deep history of either
unilateral action or indifference to the opinions and preferences
of other countries. There are regional differences in
the U.S. as well, and there are differences that relate to levels
of education, but that's true of any country. I hope that we
will become more cosmopolitan, because I think it's in our national
interest to participate more fully in these developing systems,
and without accepting the burdens of reciprocity we're not going
to be as effective architects of the international legal order.
We have an unusual coalition here. You have people of the Right
and people of the Left who are hostile to an international organization
like the World Trade Organization. And the World Trade Organization
is quite properly a focus of concern because its decisions,
its activities, do -- I want to use a neutral word ... I was
going to say "intrude"; that's not a neutral word. But they
do affect everyday life, just as the North American Free Trade
Agreement affects everyday life and will do so more in the future.
It affects the decisions of state governments in fields like
the environment and public health and safety because decisions
that states make in these fields can affect international trade.
What precisely are these concerns, and to what extent do I sympathize?
I don't sympathize with the window-breakers in Seattle, but
to what extent are there legitimate concerns amidst the manic
and often irrational manifestations of concern? There should
be concern about what government does or does not do to soften
the impact on ordinary people of very rapid economic change
that generally is positive in terms of increasing the gross
national product. It does appear that there's a direct causal
relationship between an increase in international trade and
economic growth from which most people benefit. But some people
get hurt in the process. Their companies do migrate, their factories
do migrate to lower wage areas. I think we should be generous
to the people who get hurt in that process, because most of
us are benefiting from that process; but it has to be done at
the national level. There's nothing in the WTO that prevents
that kind of generosity; complaints should not be directed to
the WTO but rather to state and national governments. There
we are cutting back on welfare and we're not doing too much
in unemployment compensation and retraining. We're suspicious
of state action to assist people who are having economic difficulties,
but some of those difficulties are connected to the growth of
international trade. Don't look at the WTO, but do look at the
issue.
Then the question of worker rights and environmental rights.
There's some basis for concern here, particularly in the environmental
field. Consider, for instance, the trade sanctions we took against
Mexico, because the Mexican fishermen were using nets which
captured dolphins as well as tuna. We said "We don't want you
using those kinds of nets." And the Mexicans said, "We'll use
any kind of nets that work for our fishermen." Well, the Mexicans
could argue in a case like that that we were barring their goods
from our markets and that we had no right to bar their goods
on environmental grounds, only on grounds that we were retaliating
for Mexican restraints on our exports. We had to look only at
the narrow trade issue.
I think those who say, "We'll accept less growth in the gross
national product in order to use our influence as a country
to protect the dolphins or other living species or do something
else environmentally" do run up against the rules of the international
trade game. Those rules aren't irrational. They are designed
to deal with all of the ploys that countries use to inhibit
the import of foreign goods in the name of doing something for
the environment or other Mom-and-apple-pie purposes. So because
it's not easy to police motives, you try to get rather black-and-white
rules, very bright-line rules, which then may interfere with
good-faith efforts to use your authority to achieve objectives
other than sheer growth in trade and GNP.
Focusing on labor rights, on the one hand you sympathize with
workers in poor countries, but on the other hand, you need to
concede that one of the main advantages that these countries
have is low wage rates. What I would be in favor of is efforts
to prevent countries from harassing workers as they seek to
protect their interests by building strong labor unions. Countries
should be penalized for violating the right to associate freely.
If we think of worker rights in terms of the right to organize
locally, that is, within countries, to try to improve their
position in the economic game, I think those rights should be
protected by international law. In theory they are protected
through the International Labor Organization, but often they
are violated. There are many inhibitions on labor union organizational
activity. So if labor rights campaigns focus only on the right
of association, there's something to be said for incorporating
that into trade agreements. But if you're trying to fix minimum
wages internationally, the result may be that you inhibit the
development of poorer countries. So I'm torn on that. I'm torn,
but in the end, the data indicates that the single most important
reducer of poverty is growth, even if it's in countries which
don't have very good means for distributing growth equitably.
Fast growth itself does reduce absolute poverty -- not relative,
but absolute poverty. And therefore my inclination is to promote
growth through trade, feeling that as long as freedom of association
is protected, the working classes in each country will gradually
improve their position.
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