Private v. Public Internationalism

Julian’s earlier post about his experiences at the Vis International Arbitration Moot competition got me thinking about the rather strained ways in which international lawyers continue to cling to distinctions between private and public interactions, a reflection of an unnecessarily rigid “private v. Public” jurisprudence. (Okay, I will admit his post also got me thinking about my semester in Vienna as an undergrad…But that is another story.) These distinctions between private and public transborder discourse have become less and less meaningful in the past few decades. (In some respects, it is a development that could be viewed as “going backward” to a time when the distinction mattered very little in the discourse between nations and their citizens.) I suppose there is a way you can distinguish the value of two law students from private law schools in different countries from sharing beers and two government lawyers, or — gasp! —two supreme court justices sharing that same cross-cultural beer. But it is a distinction without a difference. When I, for example, as an employee of the state of Missouri engage in a professional exchange with a colleague at a public university in Australia, is that a public or private act? Is the university of Missouri summer program in South Africa (done with Univ. of Western Cape, also a state-funded university) a government-to-government program? I would extend Julian’s praise of the Vis program to these kinds of exchanges. I and our our students gain from them, whether the subject being discussed is how to structure public welfare benefits or private contracting rules.

It is certainly the case that a great deal of the work of multilateral institutions is to facilitate the international flow of capital, goods and human beings (WTO, ITU, UNHCR, ICAO, etc.), all of which could be construed as both “private” and “public” law matters in that they involve rule making for individuals, corporations , governments and international institutions. It is therefore quite limiting to say that governments acting in cooperation with one another internationally should be doing so only to the extent that it facilitates private acts. A lawyer on the staff of ICAO, for example, is as likely to have contacts with FAA agency officials as she is to have contacts with United Airlines, or with a state-owned airline. As we interact with one another, we not only learn new things and gain critical distance on our own legal system, the process of interaction itself creates networks –whether you want to call them “transnational networks” or “epistemic communities”– through which new norms of behavior emerge. That is what legal internationalism looks like, whatever the label.