Symposium: Discussion of Osofsky’s “Climate Change Litigation as Pluralist Legal Dialogue?”

by John Knox

[John Knox is Professor of Law at Wake Forest University Law School and a discussant in the Opinio Juris Symposium]

Hari’s paper describes the contributions law-and-geography and legal pluralism can make to understanding climate change litigation and, by extension, other important international problems. She contrasts this pluralist vision to a traditional view of international law, which is much more state-centric. Just how state-centric she sees it I found a bit unclear, but the gist seems to be that under the traditional approach, “formal nation-state consent” is necessary for the creation of international law, and that, perhaps, states are the only subjects of international law. Hari also refers, more approvingly, to a “modified Westphalian” approach, which seems to differ from traditional law in recognizing that non-states can be subjects, too.

Almost no one today believes that only states can be subjects of international law. To believe that, one has to close one’s eyes to fairly large areas of the law, like human rights law and international investment law. The modified Westphalian view, however, is very much alive and well, and in fact I think nearly every international lawyer is a modified Westphalian. I am, at least (although I prefer post-Westphalian, because that sounds cooler), since I believe both that state consent is the basis of international law and that non-states can and do have rights and duties under international law. (Actually, I have a human-rights vision of international law, according to which the true basis of international law is popular support, but I’m pragmatic enough to accept the existing system’s reliance on national-government decisions as proxies for the will of the people until and unless better proxies can be developed.)

The question, then, is how the pluralist approach is different from the modified Westphalian approach to international law. If I understand Hari correctly, she considers but rejects a version of the pluralist approach that would expand the concept of “international law” to include non-state actors in its creation, as too radical a change; instead, she would leave “international law” unchanged, but build (or recognize) a larger structure of “international lawmaking” around it. The idea is that non-states like California (in its climate change cases) and the Inuit (in their petition to the Inter-American Human Rights Commission), could be considered international lawmakers, even if the end-result of their activities wouldn’t be formal international law. For me, several of these terms call for greater specificity. It’s unclear, for example, whether under the pluralist approach the end-result of California’s and the Inuit’s actions could be considered law, but not international law; or international law, but not formal international law. Putting that aside, however, Hari’s main point is that the traditional approach is too constrained, and “seems to fit poorly how international law is actually made.” The pluralist approach, in contrast, provides an “expanded vision of how those relationships [e.g., between formal and informal dialogue”] might count as law.”

This argument seems to depend on the premise that there is an underlying reality that legal pluralism recognizes and that the traditional and modified Westphalian approaches don’t. But Hari sees the modified Westphalian position too clearly to claim that it doesn’t recognize a role for non-state actors; in fact, she describes how it does recognize such a role. The real difference therefore seems to be only in what we call what’s going on. And this is the nub of the problem, for me: I don’t see how merely calling California and the Inuit international law-makers “has the potential to be more effective than the existing, limited treaty regimes,” as Hari claims. She correctly says that international law as it exists today hasn’t solved the climate-change problem, but how would the pluralist approach be any better?

I could understand an argument for expanding the sources of binding international law, so that (for example) the IAHRC could issue legally binding decisions on governments (and, presumably, on the Inuit, too – why leave them out?) to do something about climate change. I could understand that argument, but not necessarily agree with it – I’m not sure I would trust the IAHRC, as much as I respect it, to do a better job than the existing system, with all of its problems. (For one thing, if the IAHRC had that kind of power, you’d start to see very different people appointed – by governments, naturally – to the IAHRC. Out with the Reismans, in with the Rehnquists.) But, as noted above, Hari doesn’t seem to be arguing for this change. Instead, she seems to be saying that enormous benefits would follow from merely calling California and the Inuit law-makers, even though the law they’re making isn’t what we would necessarily consider binding international law, or binding at all.

But why would that make such a difference? Again, the modified Westphalian approach can and does take into account what non-state actors do. And just because it doesn’t call bringing domestic cases, or petitions to expert bodies without the authority to make binding judgments, law-making doesn’t mean that it ignores the effects of those actions. More importantly, the modified Westphalian approach doesn’t deny that non-state actors can make international law. It recognizes, for example, that a differently empowered IAHRC could make binding decisions in cases originally brought by non-state actors. And hey presto, there’s already an IAHRC that does! The American Convention on Human Rights allows the other IAHRC – the Inter-American Human Rights Court – to issue decisions binding on parties to the Convention, and those decisions can arise in cases brought by the Commission in response to petitions like the one brought by the Inuit. Of course, the Europeans, more internationally minded here as elsewhere, have done away with the middle-commission and now allow non-state actors to bring cases directly to the European Court of Human Rights, which can issue binding decisions. I don’t think any competent international lawyer would deny that those decisions are international law, and that bringing cases to that court is part of a process of making international law, even though the petitioners are not states.

My point is that international law is already plenty diverse. It has many entry-points for non-state actors not only to influence the creation of international law, but to cause the creation of international law through institutions like international tribunals, treaty bodies, etc. I don’t see how the pluralist approach better captures what’s going on, or will necessarily accelerate the creation of such entry-points.

So what’s the problem? You call it tomato, I call it tomahto . . . . If Hari and other pluralists think their description is more accurate, what difference does it make? I see one possible adverse collateral effect. Despite Hari’s efforts to say California and the Inuit can be international law-makers even though they’re not resulting in (formal) international law, it seems to me that if you have an international law-maker, what they produce is by definition international law. And if we start calling non-binding decisions and norms “international law,” then we will cheapen the term. It’s completely understandable that Hari and others (including me, actually) want to make sure that groups like the Inuit have ways of entering the big tent of international law-makers. But we have to be careful not to devalue the very thing that they’re trying to get access to: the bindingness of international law.

The main benefit of international law – its raison d’être – is that it is binding, and that in particular it constrains governments. Governments aren’t the center of the international law universe for no good reason; they’re the center because they’re the loci of greatest power. Governments are the ones with the armies and the police forces, the courts and the prosecutors, the prisons and the interrogators. Creating a body of international law that constrains governments, even to the relatively small, inadequate degree that it does, has taken an immense amount of effort, and even that effort is under constant assault from those who argue that international law is meaningless. If the meaning of “international law” is expanded to include non-binding norms, then the effect will be that eventually all international law will be treated as non-binding. If everything is international law, then nothing is . . . which is exactly what the realist and “fortress America” critics of international law have argued all along.

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