It is a real pleasure to visit with old friends like Justice Breyer – whom I wish to thank for his kind introduction – and to make new friends at this lovely event.
It is also a great honour to receive this recognition from WILIG, the Women in International Law Interest Group of the American Society of International Law, at this annual meeting that is devoted to “Confronting Complexity.” I draw from this honour strong support for my own writings, which reflect the non-compartmentalized – some might even say non-academic – way that I look at today’s legal world.
In my research I have continually confronted complexity.
I have looked frequently to comparative law and to international law, of course, but also to other disciplines. In mathematics, I looked to the concept of “fuzzy logic” to help explain movements in legal pluralism. Meanwhile, looking at paintings by artists like Maria Elena Vieira (above), and listening to music by composers like my friend Pierre Boulez, I have found insights into the world order – and disorder. (image credit)
As one of my colleagues put it in French, “Tu mélanges tout” – “You mix everything up.”
It’s true. I mix up different topics, and I look at them through different lenses.
Even within the law, I have looked at different topics, among them criminal law, human rights law, the law of public goods, environmental law, trade law, and labor law – also, laws relating to new technologies, such as the Internet and biomedicine.
The “different lenses” are not only the separate categories of law that interest me – national, or comparative, or even international law – but also, and more importantly, the ways that these bodies of law interact.
According to my observations, the current interaction of these bodies and topics constitutes a new phenomenon, which I call the “internationalization of law.”
The term is meant to describe a dynamic process, one that opens up legal systems and blurs the formerly entrenched borders between what is “internal” and what is “external.”
In French, the term is “internationalisation du droit,” also known by its acronym, “ID.” And so the réseaux, or study networks, that I have established have been named Réseaux ID.(above left).
If I may let you in on a secret, the term has a second meaning.
That acronym suggests this second, hidden meaning, given that “ID” also may stand for “imagination et droit.” In fact, the same is true in English – “internationalization of law” invites the acronym “IL,” which in turn may stand for “imagination and law.”
These thoughts provoke questions:
► How does this phenomenon of internationalization develop?
► And why is imagination necessary?
In looking for answers, I am in agreement with the theme statement for this annual meeting. My starting point, too, is “contemporary reality.” And I fully agree with the way that the statement describes that reality – as “confoundingly complex,” and “marked by rapidly evolving technologies, increasing global interconnectedness, rising population, and deepening understanding of science and the environment.”
Finally, I agree with the statement’s ultimate question. We both ask: Is law capable of responding to the challenges of complexity?
I propose 3 words that summarize – even sonorize, as if making a song – my answers. They are:
► First, ‘diversity;
► Second, perplexity”; and
► Third, “complexity.”
To grapple with diversity – as we must, in my view, because it is the best way to avoid hegemony – and to solve perplexity – necessary because of the risks of arbitrariness and disorder – we have to introduce, into law itself, complexity. And that is why we need imagination.
Let me discuss each of these concepts in turn.
Diversity is everywhere. I will focus on 2 aspects, the “diversity of legal orders,” and the “diversity of global actors.”
“Diversity of legal orders” may be considered by reference to different levels of organization, different fields of legislation, and different speeds of evolution.
The different levels of organization are the national, regional, and global legal orders. The relationship among these orders is vertical. Yet it is not linear. To the contrary, it is discontinuous, incomplete; there are many gaps between these levels of law.
By way of example, consider that there is a prosecutor at the global level – the Prosecutor of the International Criminal Court, for whom I have the privilege of serving as a Special Advisor. And of course there are prosecutors at the national level. But there is no prosecutor at the regional level; even in Europe, this is just a proposal that has not been realized.
To cite another example, consider that while there are several regional courts of human rights, there is no such court at the global level, and many nations also lack such courts.
The different fields of legislation are still quite separate, at every level of organization. Consider global legislation, as realized in criminal law, human rights law, environmental law, trade law through the World Trade Organization, and labor law through the International Labor Organization. Each of these stands in a weak and horizontal relationship with all others – much like the relationship among different nation-states.
Finally, different speeds of evolution are evident in any comparison of the rates at which various types of law develop – think about trade law and human rights law, for example. Compare as well the speeds at which technology and law respecting technology develop – the latter always lags behind the former.
The second aspect of diversity that I would like to discuss is the diversity of global actors.
At the global level, state actors are government officials, including judges. They exist solely in a horizontal relationship with each other.
But there are also interstate actors.
In recent years, Pascal Lamy (below right), Director-General of the WTO, has spoken of the “triangle of global governance.” (photo credit) In his words:
'On one side of the triangle lies today the G-20, replacing the former G-8 and providing political leadership, policy direction and coherence.I do not fully agree with Lamy’s metaphor.
'The second side of the triangle is the United Nations, which provides a framework for global legitimacy through accountability.
'On the third side lie member-driven international organizations providing expertise and specialized inputs be they rules, policies or programmes.'
In my opinion, global governance is even more complex than Lamy admits. It involves not only the triangle to which he refers, but also at least one other – a triangle of nonstate actors, actors who have quite a bit of political power.
► On one side of this triangle may be found multinational corporations, many of them more powerful than small states.
► On the second side are civic actors; for example, non-governmental organizations and trade unions.
► On the third side lie scientific experts.
What are the implications of this analysis? Diversity of legal orders may create fragmentation. Or even disaggregation, as a former President of your Society, Anne-Marie Slaughter (left), has written in her book A New World Order. (photo credit)
As for the diversity of global actors, this tends to create, perhaps even promote, unbalanced power.
Out of these risks of disorder and arbitrary power arise the second concept I would like to examine, perplexity.
As more and more actors enter the arena on account of diversity, they produce more and more legal rules. This has a downside: To quote a French saying, “Trop de droit tue le droit” – “Too much law kills the law.” Thus diversity creates perplexity – to be specific, it creates twin challenges, of legal formalism and of global governance.
With regard to the challenge of legal formalism, we must ask: Is the diversity of legal orders a disruption of the old model, or an irruption into a new model?
If we focus on one of its effects, fragmentation, the answer likely will be “disruption.” Diversity seems unhealthy, a disease of the previous legal order. By this view, diversity causes legal disorder – conflicts and inconsistency, as evidenced by the debate over the relation between the WTO and the ILO. It even may be seen to cause arbitrariness, in that it gives judges more discretion to choose the legal principle on which they will rely – a discretion to engage in what we might call, not “forum-shopping,” but rather “legal-order-shopping.”
But if we focus on another aspect of diversity – its fostering of a plurality of sources of law – our answer likely will be “irruption”; that is, the bursting forth of a new model. Diversity may be good for us, necessary in a transitional period. It opens the way to combining different objectives in a pluralistic and open-minded spirit – something we have seen in the emergence of sustainable development. Diversity prepares legal orders for metamorphosis.
With regard to the challenge of global governance, we can ask the same question: Does the diversity of global actors disrupt the old model, or irrupt into a new one?
Again, our answer depends on our focus.
If we focus on the effect, of actors competing against each other, diversity again seems like a disease – in this case, one that weakens democracy, for the reason that it preserves, or even increases, unbalanced and uncontrolled powers. We see this in the way that leaders use consolidation of power as a means to ensure their own impunity.
But if we focus on another aspect – the fostering of a plurality of actors in the global sphere – diversity wins our welcome. It prepares for metamorphosis, towards a new model of governance, with new forms of shared rulemaking and responsibility. Such positive movement may be seen in the ongoing debates about social responsibility and accountability.
It is impossible to resolve this problem of perplexity without tackling the final concept that I wish to discuss, complexity.
Tacking complexity requires a new methodology, for transforming plurality into a pluralistic legal order. This is what I call “ordering pluralism.”
In today’s world, complexity is a fact.
But to deal with the double challenge generated by perplexity, we need a cultural revolution, a revolution that introduces complexity into the legal world itself.
I suggest two ways to do this. Both require imagination:
First, imagining new techniques for integrating legal orders; and
Second, imagining new guidelines for the sharing of rulemaking and legal responsibility.
New techniques should promote interaction rather than hierarchy. An example is the subsidiary principle, which operates in your own Constitution through federalism. Other techniques include transnational dialogue among judges, use of a margin of appreciation as in the European human rights system, and allowing different legal orders the flexibility to integrate global rules at different speeds. New techniques should focus less on legal forms and more on legal processes, such as cooperation, cross-fertilization, harmonization, and hybridization.
New techniques means new kinds of legal reasoning, like fuzzy logic, that help avoid arbitrariness, in part because they require both more transparency and more rigor in implementation.
With regard to new guidelines, we must endeavor to imagine multipolar governance in our world.
New guidelines are needed for the sharing of rulemaking. Lamy’s triangle of state and interstate actors, and my own triangle of nonstate actors, must be linked into a new hexagon of governance, one that guarantees the independence and impartiality of all global actors.
New guidelines also are needed for the sharing of legal responsibility among all these global actors. This requires not only the soft check of peer review, but also the harder check of judicial review.
To avoid expansion of unbalanced power, judicial review must be organized at the global level, between national and international judges. I would suggest two ways to do this:
For matters that concern states, the complementarity principle, to which members of the Rome Statute adhere with regard to serious crimes, could systematically be extended to other areas of law.
For matters that concern multinational corporations, the principle of universal jurisdiction could be transformed into a new system of accountability.
We see the challenge of this idea right now in the US where the Supreme Court is considering whether to affirm those lower courts that have applied the Alien Tort Statute to corporate conduct abroad.
International Criminal Court
I would like to conclude by looking at the International Criminal Court, which fifteen days ago delivered its first verdict, in the case of Thomas Lubanga (left). (photo credit)
From this example, we may derive two observations and one lesson.
My first observation: From a legal standpoint, complexity seems well-organized. Article 53 of the Rome Statute states that the Prosecutor may decline to investigate if “[a] prosecution is not in the interests of justice.” This establishes a discretionary principle that allows some flexibility in legal formalism. In addition, Articles 1 and 17 establish the complementarity principle, which provides for multi-level governance.
Nevertheless, the result in Lubanga is terribly frustrating. This is both because of the low rank of the accused – a factor that reminds us of cases like Tadić and Erdemović in the Yugoslavia tribunal – and because the indictment, and thus the judgment of conviction, did not cover all the serious offenses for which the accused is believed to be responsible.
My second observation: From a political standpoint, complexity looks like a failure.
Nothing in the complex structure of the ICC replaces Executive power, which still resides in individual states and is lacking at the global level. Nor does complexity strengthen the Rome system, for the states that created it have given it no police. In short, the incorporation of complexity into legal reasoning, though necessary, does not work without political will and shared values.
But we must remember that the ICC is only ten years old. This is a very short period in which to look something as revolutionary as a truly universal criminal justice. And there are signs of growing credibility; for example, in the number of communications sent to the court for preliminary examinations, by nonstate actors and even by non-member states – like Russia, in the case of Georgia.
Finally, here is the lesson I draw: Be patient, but not passive.
We have a duty, first, to improve the ICC’s legal instruments. For example, “the interests of justice” standard in Article 53 must be defined by explicit criteria.
Second, we have a duty to speak of “humanization” rather than “humanism”; that is, to imagine legal humanism not as a static category, but as a dynamic process. We need to imagine, and implement, a process that is not uni-directional and unilateral – not the West civilizing the rest of the world. It must be interactive and, as Tokyo Law Professor Yasuaki Onuma has described it, intercivilizational.
Beyond the challenge of complexity, an ethical challenge is emerging: to protect our common and plural humanity, which is at once so weak and yet so strong, so aggressive and so precious.
Let me again express my gratitude for your invitation to participate at such an exciting conference.