Introduction
1. Good evening!
2. My task today is an extraordinary one:
Our subject of discussion this evening requires me to do no less than to divine the future of the vast body of norms and principles which serves as the frame within which we organise our ever more interconnected material fates and moral focus as a community of nations!
3. I propose to think with you about our topic today in the same way that lawyers trained in the common law mould think about any question:
We will look closely for continuities and for breaks – for analogies and disanalogies, if you will – with key concepts and categories.
4. We will contemplate the future by understanding where and how international law may break with its past. We will travel through some fundaments of this law and dwell on ideas for which the past will not be prologue, to borrow the old Shakespearean phrase.
5. Areas of change, renewal and re-ordering are to be found in extraordinary abundance in all our laws today. The conceptual ground upon which entire bodies of law rest is shifting at a tectonic scale. This is true in our municipal laws as well as in international law.
6. Here is a sampling of just three of the many changes afoot in the municipal laws:
In constitutional law, as scholars the world over are working to explain and measure democratic backsliding, we are re-assessing our all our assumptions about the elements, efficacy and endurance of democracy.
And with the rise of robots and artificial intelligence, we are even beginning to rethink legal personhood, that is, who counts as a ‘person’ in the eyes of in the laws of our legal systems!
7. This is also a time of great and unusual flux in international law. During the course of my remarks to you today, I will address the future in two clusters to illustrate the reality of a shifting conceptual ground across international law:
The first cluster we can think about is developments relating to place. These developments require us to interrogate how changing realities about our physical spaces and of territory are calling into question our conceptual understanding of such fundamental notions as the elements of statehood and the idea of jurisdiction.
Second, we must think about people. That will entail reflecting on what a just and humane world order must secure to all in the future that awaits us.
Let us look at each of these clusters in turn:
Place
9. To understand how conceptions of place in public and private international law will transform, we can think through the lens of two developments:
The first is climate change.
The second is the consequences of the ever more digitising and dematerialising future that the internet and the increasing datafication of our affairs is bringing.
10. Let us begin with a problem that is brewing not far from the eastern shores of the Indian sub-continent: the fascinating problem of disappearing islands.
11. The archipelago of islands that make up the Maldives is, if the latest science is to be believed, slowly sinking. By the year 2100, the Intergovernmental Panel on Climate Change predicts that the seas could rise by as much as 100 centimetres. It will take only a 90 centimetre rise to sink 85% of Malè, the island that is the capital city of the Maldives.
This is an extremely low lying country: more than 80% of its land is less than one meter above mean sea level. Disappearing into the sea is an existential threat that its population of 530,000 must urgently confront and prepare for.
12. The Maldives is not alone. The Seychelles in the same Indian Ocean confronts a similar future. And in the Pacific Ocean, as the waters rise, entire countries, such as the small island nation of Tuvalu (with a population of 11,646 as of 2019) will sink like the Atlantis of legend!
13. Nation states are the building blocks of the international legal order. And a cornerstone of public international law is the Montevideo Convention on the Rights and Duties of States of 1933. Its Article 1 provides that a state should possess the following qualifications in order to be considered as a person of international law: permanent population, territory, government, and capacity to enter into relations with other states. It is by now customary international law to see all four of these attributes as essential and indispensable, but let us hone in on territory and its particular value to law and history’s imagination of statehood.
14. So, we understand nation states as being nation states, and recognize them as such, only when they are tethered to and situated at some clearly identifiable place. As publicists like James Crawford will attest, statehood is bound up with the existence of some definite territory. In his words, “states are territorial entities”.
15. Now, it is certainly true that public international law is capable of contending with the acquisition or loss of territory by existing states, or with the creation of new states when existing boundaries are redrawn.
16. We also have the conceptual resources by which to think about uninhabited land as we have at the Arctic, for example. But it is a completely new problem when the territory disappears entirely but every other indicia of statehood persists!
17. Without their territories, will these peoples continue to exist as states? If they do not, how must we think about public international law? After all, it is stated which are the bearers of rights and responsibility. States are the units of the international legal order.
18. So, when the threat of sinking islands is realised, we can reasonably say that our idea of statehood and will face a reckoning. But so too will the organizing principles of sovereignty and jurisdiction.
19. Other conceptual reimaginations will be required to address the consequences which follow when entire peoples become unable to qualify for the legal personality that international law accords to states. Among these is the critical need to look at protecting people. I will return to this subject presently.
20. While scholars are at work to untangle how we must remake our conceptual foundations to meet this future, I would aver that an important and incontrovertible idea has nevertheless emerged from this state of affairs: in the face of our future, it will be more important than it has ever before been to think and act in concert – as one – as the world community.
21. Two sequiturs follow:
First, we must embrace the idea that international law is a device by which global solidarities are made and acted on for the benefit of all places and peoples.
And second, for our municipal laws and the daily politics in our countries, a future of disappearing nations is a bracing reminder that national and even regional parochialisms may prove to be a self-defeating frame of thinking. In the face of a future of climate change, our fates are intertwined.
Sovereignty & Cyberspace: The Puzzle of Jurisdiction Without & Beyond Territory
22. Now to a second thought about place.
23. For the greater part of the history of nations and of the rule of law within them, the concept of jurisdiction has operated both to limit and define what it means to be a sovereign state. In turn, the idea of jurisdiction has always been inextricably bound up with territory.
24. The locus of a state’s proper realm of sovereignty is relatable to its territory. Over time, we have allowed that sovereignty extends to a state’s territorial waters. That extension, again, is reckoned with reference to the land off which the waters in question are situated.
25. In 1812, Chief Justice Marshall of the United States Supreme Court put the connection between jurisdiction and territory in this way:
“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction ... All exceptions therefore to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself.”
26. With our world’s shared mercantile history, private international law has been able to evolve to extend outside the limits of the land over which a given state is sovereign. Of course, this country has been an important actor in the development of the lex mercatoria, that is, of mercantile norms of a transnational character as well as of the conflict of laws, since medieval times, when the globalising effects of the maritime trade allowed for the idea of extraterritorial jurisdiction to evolve. In the conflict of laws even today, it is the idea of equal sovereignty within the international order and its offspring, the principle of comity which has allowed municipal courts to see outside their boundaries.
27. In 1996, an extraordinarily important article appeared in the pages of the Stanford Law Review. Two American legal scholars, David Post and David Johnson, argued that with the advent of the internet, a new and unprecedented type of place called “cyberspace” was emerging. In this new place, nations and boundaries were irrelevant, it would call for a new imagination and framework for its law. They envisioned that “the law of Cyberspace [would] reflect its special character, which differs markedly from anything found in the physical world.”
28. Johnson and Post argued that an entirely new law and a new conception of jurisdiction would need to be developed for this special place: one where natural persons can, by the alchemy of the new technology of the internet, be in more than one geographic locations at once, and where one could operate truly anonymously and untraceably. To explain the work the new laws must do to properly have jurisdiction over actors in this new place, they thought that:
“if Cyberspace law is to recognize the nature of its subjects, it cannot rest on the same doctrines that give geographically based sovereigns jurisdiction over whole, locatable, physical persons. The law of the Net must be prepared to deal with persons who manifest themselves only by means of a particular ID, user account, or domain name.”
29. Johnson and Post’s article signalled what we now call internet exceptionalism. It went so far as to argue that “traditional concepts such as "equality," "discrimination," or even "rights and duties" may not work as we normally understand them” in cyberspace. In the years since it appeared, the article and the debate it spawned about what the internet would do to basic concepts in domestic laws and in private international law has reached a status that can only be described as canonical.
30. With the benefit of hindsight, we know that nothing so drastic as Johnson and Post and their discussants envisioned has occurred. For those of us bred in the common law tradition, it is heartening that the idea of jurisdiction has been supple enough to survive in the face the virtual worlds which cyberspace has made possible.
31. Even so, deterritorialised activity which can be performed in many places at once continues to present fascinating puzzles for the conflict of laws to resolve now and in the future.
32. For example, let’s the act of publication of a libel or an obscenity over the internet and available worldwide. Courts in France, the United States, Canada and beyond have begun to grapple with the jurisdictional questions a case like this might raise:
Which state ought to have jurisdiction? Would it be where our hypothetical tortfeasor is situated? Or would it be where the words are read? Or ought we to find other ways altogether to unpack the question?
Solving Custom: The Rise of Comparative International Law
33. So much for the challenges of place to international law’s future.
34. Before I turn to my reflections on people, as I had promised, let us note the rise of interest in international comparative law and the exciting future that it could provide for the thorny process of ascertaining custom.
35. One illustration that comes to mind in order to explain the painstaking way in which international lawyers build up evidence of state practice is Christopher McCrudden’s work in the context of the Convention on the Elimination of Discrimination Against Women. He took up the challenge of the analysis of 324 national judicial decisions from 55 jurisdictions that cite the CEDAW!
36. Three developments that augur that international lawyers will return to comparative law are underway:
First, with the growing globalisation of legal practice and the increased penetration of international law into the domestic realm, there has been a renewed interest in comparativist approaches.
Alongside this, the traditional division between international law and comparative law – which has in the past enabled the application of comparative insights to international law – is coming under considerable strain.
And thirdly, the transnational flow of law students and the increased accessibility of various national legal resources through various electronic research databases.
37. These developments, taken together, have meant that comparative international law is due for a revival, although its contours are unclear.
38. Comparative international law entails the identification, analysis and explanation of similarities and differences in how actors in different legal systems understand, interpret, apply and approach international law.
39. Comparative insights can be deployed in three ways:
a) In identifying what constitutes international law.
b) In explaining similarities and differences in the interpretation and application of.
and,
c) In comparing the approach of national or regional actors to international law.
40. Comparative law methods are evidently very relevant to identifying the existence and content of international law. They can help international lawyers in making customary international law now and in the future, by offering expanding their toolkit for identifying general and consistent state practice and opinio juris.
41. In this way, comparative international law could spur existing efforts at codification and the work of the International Law Commission and other institutions, as scholars like Mathias Forteau describe.
42. In some sense, comparative international law promotes in its field, what Gillian Tett would call an ‘anthrocentric’ vision: a focus on looking closely and deeply at people to build an anthropological understanding of what their behaviours are. All this should also help, I think, in filtering out the high degree of what Daniel Kahneman calls ‘noise’ in latest book.
People
43. Let us now turn to the future of international law as it relates to people. Important challenges arise to be resolved in the coming years both in relation to life and to death:
International Law & Life
44. International law can be a deeply empathetic fount of norms about what it ought to mean to be human and be clothed with the dignity that inheres in every woman and man. As I see it, international law’s future can be and must be one in which it continues to discharge its role as a progressive and life-affirming body of norms.
1. Rethinking Rights: Economic Subsistence & Meaningful Freedoms
45. In constitutional law as also in international human rights law, the most serious issue of our times is that of the wide and growing economic inequality between us all. It is becoming clear, not least in view of the pandemic and the effect that lockdowns have had on the world economy, that the persistence of extreme poverty will be the most significant obstacle to realising the promise of the international order of the Post-War era.
46. In the 1940s, when we gave to ourselves the Universal Declaration of Human Rights, it was assumed that there was great – and even transformative – value in the simple act of declaring the dignity and freedom of every man. Freedom, we imagined, could be achieved if nations held each other to the commitments they made in the International Covenant of Civil & Political Rights of 1966.
47. But against a backdrop of hunger, thirst or of this present plague as well as future ones, it is plain to see that hoary declarations of human freedom mean little on their own. A fuller and truer account of human freedom is necessary. Such an account would combine respect for civil and political rights with a proactive effort toward ensuring no one wants for the necessaries of life, that is, for food, water or shelter.
48. The Food & Agriculture Organisation (FAO) reports the deeply distressing fact that since 2014, the number of people affected by hunger has been rising. In fact, the world is not on track to achieve the basic goal of Zero Hunger by 2030 as the UN General Assembly had envisioned by its adoption of the Sustainable Development Goals in 2015.
49. The future of international human rights law and of the people it protects and speaks for consists of working persistently towards full and true freedom of the kind I have just described. The Sustainable Development Goals, of which the elimination of poverty is the very first goal, are precisely the type of framework within which we must persist. Let us be clear that this will often mean a constant and continuous sort of striving. Given economic scarcity, profound inequality, there are great complexities that accompany efforts to eliminate basic subsistence problems in a sustainable and lasting way. And in the realm of social and economic rights, the more we do, the more remains to be done.
50. In General Comment 3 to the International Covenant on Economic, Social & Cultural Rights, the UN Human Rights Committee uses the language of ‘progressive realisation’ to describe this constant striving: we must make incremental progress; our material futures cannot be transformed all at once.
2. Climate Change & Refugee Protection: Forced Migration & Statelessness
51. Another issue at the intersection of life and international law in the future will be developing refugee protection frameworks to address not only the apocalyptic consequences that sinking islands may have but also for variations on that theme that have already begun to surface.
52. Already, in our times, the idea of ‘environmental refugees’ has begun to take shape. We can think of environmental refugees as the people whose lives and livelihoods in their homelands is imperilled by “drought, soil erosion, desertification, deforestation and other environmental problems, together with the associated problems of population pressures and profound poverty”. Migration forced by environmental causes has created both in Not all of them have fled their countries, many being internally displaced. As early as 1995, their numbers were estimated at some 25 million people!
53. The people of the sinking islands could revive a problem very much like the one that this continent saw in the aftermath of the Second World War. Stateless persons lose their homes, their national identities and the community that accompanies that. But in addition to that wrenching loss, a disappeared or sunk state will leave behind people without even the “right to have rights” as Hannah Arendt put it.
54. If the threshold problem of the right to have rights arises for the application of international human rights law in the sinking islands scenario, then equally challenging problems of intelligibility and coherence arise for international refugee law. For example, how must we understand the requirement for persecution where there is no persecutor to be found and how should we value non-refoulement when there is no home to return the environmental refugee to?
55. Some insightful scholarship has emerged around these questions but these conundrums are far from resolved. Alongside, some positions of principle are beginning to be articulated in the UN system. in September last year, the UN Human Rights Committee pronounced that an islander from Kiribati who had been forced to flee after the effects of climate change had made his home unhabitable due to climate change could not be returned there by New Zealand, where he had sought refuge.
56. What is clear as we face this future is that the international law of the future must proactively develop categories and methods if it must rise to the threats to life that climate change poses to us all
International Law & Death
57. Let us turn now to the subject of what the future of international law may be as it intersects with death. I have two insights:
First, the project at the heart of international law since World War II – the prevention of genocide and crimes against humanity – remains as vital as ever.
Second, in the face of COVID-19 and its global proportions, we are called to think honestly and urgently about how the international order decides which people and which places are allowed to choose life, and which must be left live under the shadow of death.
1. The Abiding Significance of a Supra-National Normative Order
58. As to the first of these insights, it is sobering to note that even as we speak today, the International Court of Justice is seized with the work of re-asserting the profound inhumanity and injustice that genocide entails. It is, to use William Schabas’s words, nothing short of being “the crime of crimes”.
59. In the case brought to the ICJ by The Gambia against Myanmar concerning its widely reported persecution and ethnic cleansing of the Rohingya people, the Court has already heard some arguments, including on the question of whether the Gambia must be put to strict proof of whether the widely reported and recorded acts it argues have taken place.
60. The ICJ ordered Provisional Measures in May last year. It will be some years before a final decision at the Merits stage can be arrived at. But on this front at least, the future of international law remains as it ever was: to bear witness, to shed light on oppression and to deprecate it among the community of nations, and to work as a moral force committed to peace, justice and the dignity of man.
2. Vaccine Equity
61. My last brief thought today concerns the pandemic. The last two years have shown that the profound inequities in wealth and of access to public goods including in healthcare between different nation-states are nothing short of fatal.
62. Viruses evidently disregard borders. We are, each of us, safe only when all of us are safe. In that view, there is little doubt that vaccine equity must be the obvious choice. As doctors writing in the New England Journal of Medial Health last month put it:
“Vaccinating the world is not only a moral obligation to protect our neighbours, but it also serves our self-interest by protecting our security, health, and economy. [Our] goals will not be accomplished by making the world wait for wealthy countries to be vaccinated first.”
63. And yet, all this wisdom and common sense have largely been ignored. As Professor Amy Kapczynski at Yale Law School puts it, COVID vaccines were made possible by free transnational data sharing and R&D made possible in part by public funding. She says:
“Our global R&D system layers privatized control and profits atop a vast regime of open science and public subsidy. Transnational scientific networks enabled the first COVID virus sequences from China to be freely shared around the world, for example, and the US poured billions in R&D funds and made critical scientific contributions to the COVID vaccines. The rules of global markets are not just unequal but extractive. They reproduce colonial dynamics in new forms.”
64. Arguments exist on both sides in debates on the merits of patents. And indeed, more impassioned ones will be had about the patentability of essential and life-saving medicines as this pandemic wanes and we have the room to think about structural solutions to provisioning for similar circumstances in the future.
65. But in the existing scheme of things, in the context of the TRIPS framework, two options are available to states:
66. The first was the piecemeal and partial approach of impoverished states (where the vaccine may or may not be manufactured or sold by pharmaceutical companies) to activate their mechanisms for compulsory licensing, if possible. Evidently, this approach offers no guarantees against unavailability or even critical shortages in the present moment.
67. The second, like India and South Africa, have argued at the WTO since October last year was the Global North’s opportunity to act in a principled manner, to recognize the intertwined fates of the world’s nations at the present moment, and act in solidarity to overcome the pandemic by waiving requirements under TRIPS so that timely and global vaccine availability could be assured to all.
68. By their inaction thus far, the choice seems to be myopic self-interest over solidarity and a sustainable resolution of the pandemic.
69. What this episode foretells of the future of international law is that it will succeed in securing peace and safety at a planetary scale only if we acknowledge the gap between the legal fiction that all states are sovereign equals and the reality that this is merely rhetorical equality which co-exists with great inequalities in material condition
Conclusion
70. For the future, international law will be not only about understanding place and protecting people, but also a third cluster of conceptual and foundational work: that of reordering international laws and institutions to account ethically and honestly for the unacceptable asymmetries of power between states.
71. As BS Chimni, the noted Indian scholar puts it in his Manifesto for Third World Approaches to International Law: “the economic and political independence of the third world is being undermined by policies and laws dictated by the first world and the international institutions it controls.”
72. We must seek out a more equitable distribution of power and responsibility in the international arrangements for the future than Professor Chimni finds in the present.
73. I hope I have been able to leave you with some sense of the challenge and the opportunity that await international lawyers of the present and future.
74. Our challenges will arise at no less than a planetary scale, so the work of shoring up the moral and material resources that international law allows to the community of nations and to all peoples more urgent than ever.
75. As we imagine our future in the world and the future of this body of law, I commend to that you must attend to the work of building up international law’s capacity of serving as a progressive force in the world you live in and also in the world that you will leave behind. Global solidarities will be indispensable to answering the call of future challenges.