Hello to everyone. It is sometimes difficult to come from Europe and talk about a rather formalistic legal approach to data protection to a legal audience in the United States. I have to say when I read the Wall Street Journal at breakfast, it was a good moment. They are not going to rip me apart.

When I checked in I asked, “Well, where is this session taking place?” and they said, “In the Hall of Battles,” which I thought sounded a little ominous, because there are some tensions involved in this topic of privacy, and particularly privacy and the free flow of information.

Great. Well thank you to ASIL for inviting me, thank you to Joel and Paul for inviting me, and thanks for the chance to read the paper, which I really enjoyed. I thought it was really thought-provoking and it made me want to go through and read all the citations that were cited in the footnotes, which is always a good sign.

Thank you, Paul. It is really an honor to be here, so thank you so much to the family and to ASIL. I also am honored that my mentor and friend, Peter Trooboff is here in the front row. No pressure on me at all. No pressure. But really, Peter is the most intellectually generous lawyer I have ever known, so it is wonderful that he is being honored today.

With the Paris frame laid out and then complicated by the Trump administration announcement, let us widen the frame back out to the international level and ask Jose to discuss the extent to which the Paris Agreement is being implemented by non-state actors in Latin America and, more broadly, in developing countries; in particular, are there any apparent trends or key challenges characterizing the evolving role of non-state actors outside of the United State and the Organisation for Economic Co-operation and Development countries?

Developed countries usually have the means to take action, but face the challenges of politicians debating whether or not climate change is a priority. The case of developing countries is different: because even though they might want to take action toward climate change, most of these countries lack the means to do it, which are mainly having effective institutional arrangements and regulation.

How judges and arbitrators in international courts and tribunals do or ought to judge are perennial topics. For the 2018 ASIL Annual Meeting, we assembled a panel of judges, practitioners, and scholars for an informal conversation on the modern, practical aspects of judging in international courts and in arbitral tribunals.

I do not think those two questions are actually two different ways of putting the same point. I think the job that faces you and to whom you owe your duty are not quite the same thing. But in terms of what is the job of a court or a tribunal, I have no hesitation in saying that the first job is to settle the dispute in front of you. I am rather leery of the idea that the primary function should be to develop international law.

This question is inextricably connected with the first one. The more you think a judge's or arbitrator's task consists in merely resolving a dispute, the more you will insist on judicial economy. The more you regard a judge as an instrument of the international community in developing international law or elucidating its concepts, the more you will favor her or his straying from what is strictly necessary to resolve the dispute. To some extent, the international judiciary serves both of these functions, which was made explicit with regard to World Trade Organization (WTO) dispute settlement in Article 3.2 of the Dispute Settlement Understanding. It obviously resolves disputes with an important role for judicial economy. But it also elucidates the concepts of international law. That function of adjudication gains some importance in international law, because it is a legal system without legislature, where pressures on legal rules can build over time and only the adjudicator can ensure that the system remains operable in a changing world, straying from the path of judicial economy.

The form of deliberations can certainly be significant to how a tribunal approaches the task of coming to a decision. To counsel, or to an outside observer, this may be something of a “black box”: the tribunal goes off after the hearing, reaches agreement (or does not), and comes back a few months later with a decision. What a tribunal does during that intervening period, however, is significantly more nuanced.

I was a silent observer in deliberations and readings at the ICJ for fifteen cases, and my opinion of those was very positive. Laborious, yes, time-consuming, yes. But in the end, it improves the outcome. What I find so striking about the ICJ in comparison to other courts and so important with its status as the principal judicial organ is that it is the judges who hold the pen. There is a drafting committee of three judges, but after that the judges have readings where they engage with the draft paragraph by paragraph for the first reading, page by page for the second reading. In most cases this process leads to a net improvement in the final result, so I can see from an efficiency point of view it may not be ideal, but for the authority and the quality of the judgment I think it is very important.

I have also had the experience of sitting—though not silently—through deliberations in the ICJ. Often professors say, “Oh well you know, they were not quite clear where they were going because they had been ambiguous here.” The common law world of academia often misses the point spectacularly, because in common law courts—even when you have a lot of judges—the tradition is that a judge writes his or her own judgment, and either other judges agree or you have to distill the ratio decidendi of the case from the different judgments. It is a totally different exercise when the judges must produce a collective judgment, especially if they must produce it in more than one language. Had academics been a fly on the wall in the deliberations at the ICJ they would have known we knew exactly what we were doing: we did not all agree on the outcome, and this is a disagreement that has been reduced to writing in order to enable the court to move on.

Just very briefly, I think one of the criticisms—and a valid criticism—that was levied against the International Court for the former Yugoslavia (ICTY) was that when you read some of the decisions which were divided, it appeared very clear that there had never been a conversation between the majority and the minority. The lack of conversation and the lack of deliberation had a significant effect on the case law. When you are talking about individual criminal responsibility that is a major difficulty.

Four features make states potentially different to other litigants. First, states are still the principal player in international law—they are the parties to treaties, members of international organizations, and the makers and breakers of customary international law. They also establish courts, decide on budgets, and elect the judges. Second, states enjoy immunity from jurisdiction and from enforcement measures—courts are obliged to consider such immunity in limine litis and on their own initiative. Third, states, whether they are democracies or dictatorships, are political entities. Fourth, sovereignty is associated with notions of honor, dignity, and comity.

This is one of the issues that is perhaps the most challenging for judges who come to international courts from a national context. It is particularly important that a judge understands the political context in which they are judging. There is a tendency to say—and I have heard many colleagues at the ICTY and International Criminal Court (ICC) saying—“I am going to keep completely out of the politics because that's none of my business, I'm here to just to do my judicial role.” With great respect I think that is a fundamental mistake, because the reality is if a judge is going to defend her independence on an international court, she really has to understand the political context in which she is defending it.

Starting with the state-to-state disputes, my impression is that international commercial arbitration has very little influence on them, if not nil. That is the case for, I believe, two reasons. The first reason is that the arbitrators dealing with state-to-state disputes and state-to-state arbitrations are usually, if not always, public international lawyers, and, further, they are often former judges of the ICJ, with the result that the rules and practices of the ICJ are more present in those arbitrations than those coming from international commercial arbitration. The second reason is that not many, if any, international commercial arbitrators intervene in those disputes. There may, in the end, be some procedural similarities between state-to-state arbitration and international commercial arbitration, due to the fact that both are “arbitration,” but that would be it.

Whenever I get asked this question, I always have to start by mirroring my prime minister, Justin Trudeau. Trudeau said that a perfectly balanced cabinet was 50/50 male/female. When he was asked why, he responded with an answer to the effect of “because it's 2015.” I think there is a lot of merit in that answer—simple but effective.

The theme of the 2018 ASIL Annual Meeting was “International Law in Practice,” and nowhere does international law become more practical than in the attempt to rebuild and/or stabilize fragile and post-conflict states through the means of law. Over the last two decades, the rule of law has become a veritable panacea for the international community. As the World Justice Project claimed in 2014, “[w]here the rule of law is weak, medicines fail to reach health facilities, criminal violence goes unchecked, laws are applied unequally across societies, and foreign investments are held back.” The rule of law is no longer just a political ideal of checking power, it is also increasingly “a transnational industry worth multiple billions of dollars.” Multiple state donors, international organizations and nongovernmental organizations are involved in the business of building the rule of law.

When an international crisis erupts it is common to hear experts say that the situation would be improved if all parties uphold their international legal obligations. From the Syrian war to Burma's massacres to Guantánamo torture, faithful compliance with the law of nations is often prescribed as part of the cure for policies gone wrong. My work is motivated by curiosity about how international law comes to be seen as a universal good and its effects when invoked as “good medicine for bad policies.” Compliance with international law often appears in policy and scholarly analyses like a magical machine that transforms hot disagreements about what should be done into cool solutions that serve the interests of everyone. My work examines this idea with a degree of skepticism and holds it up against some empirical cases. I suggest a return to pragmatic realism regarding the politics behind the international rule of law.

The Rule of Law (RoL) builds peace, contributes to sustainable development, and protects human rights. It is an always evolving outcome and all countries face challenges related to the RoL.