Tom Farer Interview (2000): Conversations with History; Institute of International Studies, UC Berkeley

International Law and Human Rights: Conversation with Tom Farer, Dean of the Graduate School of International Studies, University of Denver, 4/19/00 by Harry Kreisler

Photo by Jane Scherr

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Being an International Lawyer

What does an international lawyer do?

Students often ask me that. They do things as various as the nature of international law.

First of all, international law is one way of looking at foreign policy. It emphasizes the importance of understandings, both specific (between two or more parties) and general. Lawyers call them rules, you can call them laws, if you want to. You don't have to. You can just say they are norms that get accepted by the participants in the game of international relations. In any game there are rules. They change over time, sometimes unexpectedly, and sometimes they change through violations which everybody begins to accept and so a new consensus forms. So one of the things that international lawyers do is actually not international law; they're doing a lot of what I do, which is foreign policy analysis. But they bring to bear a sense of the enclosing structure of rules, principles, and diffuse understandings.

There is a very small group of people who actually litigate cases before the World Court and arbitration tribunals. They make quite a good living out of that, by the way. Then there are people who work for national governments. Every large country, even smaller ones, have legal advisory offices and there are careers to be made there. Then there are careers in the private sector specializing in matters calling for the interpretations of treaties and related national legislation and regulation. There are careers in international organizations. There are some lawyers in each of the various international agencies.

Finally and most commonly, there are lawyers in the private sector who are not really doing public international law, they're doing deals across national frontiers involving parties from different countries. A lot of what people think of as international law is transnational dealing, [but] these deals call more for a knowledge of comparative rather than international law.

You wrote two phrases about international lawyers that I picked up from a couple of your articles, and I presume this is the kind of international law you do. You say, "Practical moral philosophy is a peculiarly appropriate occupation for international lawyers." Farer with human rights activists in Caracas, Venezuela, 1990 And elsewhere you say, "What the lawyers have always offered when invited is specialized historical knowledge, knowledge about previous efforts expressed in formal rules and principles, institutions, and actions."

Let's say you're trying to resolve an ethnic conflict. A lawyer, particularly a comparative constitutional lawyer, would be aware of all sorts of techniques that other countries have used to try to constitutionalize power arrangements that promise to reduce the anxieties and enhance the satisfactions of these competing groups. Switzerland is a case in point: you had three, really four linguistic groups there, and they manage not only to coexist but to prosper. The Swiss constitution is a quite complicated document which balances power. It's something less than majority rule, and indeed, in an ethnic conflict, majority rule means the conflict goes on until the more powerful party wins. Uganda 1994: Farer and Ugandan lawyers discussing the draft constitution So if you're going to compromise a struggle for power, you've got to find some ways to constitutionalize an arrangement where the minority gets a piece of the political and economic action.

A constitutional lawyer is aware of the precedents and therefore is aware of the set of techniques that can be brought to the table and may help forge a compromise. You could say, "Well, you don't have to be a lawyer to be aware of those, you could just be a political scientist who has studied ethnic conflict," and that's true. That's true. But lawyers, just by their very nature, are compelled to be aware of the repertoire of means for resolving disputes, particularly procedural means. Lawyers are very procedurally oriented, and these procedures can be useful to deal with a whole array of conflicts. So I would say lawyers are conflict resolvers and mitigators. They develop, they are trained in, they pick up along the way, multiple techniques for reducing conflict. I think that's one of the more useful things they do.

National laws are easier to understand for the average person, because there's a federal court or a state court and that court has a force behind it so that it can implement its decisions. People have consented to accepting what that court says. But international law is harder to get a handle on. You said that you think of international law as a "system for coordinating voluntary action on behalf of shared interests."

Of course you don't have an international police force, you don't have international bailiffs and you don't even have a court with compulsory jurisdiction; the World Court only gets those cases people want to bring to it. So in what sense do you have law? How can you talk about law in that context?

Well, I think of it this way. Suppose workers in a bankrupt steel plant acquire ownership. Now it's their plant. All right, what do they do? Well, they have to develop rules for running the place, otherwise they can't produce steel. So they sit down and they agree on who will do what and what things everyone has to do -- everyone has to show up at nine o'clock and work until five o'clock and there's overtime: whatever rules you need to run a more or less efficient operation. So they may agree that you can take toilet breaks as often as you want, or maybe you can only go three times a day, whatever it is. Okay, they reach a consensus on that and a million other matters. This is to me very much the way international law functions.

Now, you could say they reached an agreement because they had a common interest, which is in making the steel company profitable again. Sure they had the common interest, but they also have some conflicting interests, don't they? Because some people might prefer to go on vacation a little more frequently; they figure, well, everybody else is working hard, so maybe I don't have to work quite so hard. How will you divide up all of the money that you make? Will you divide it evenly or will you give more to those who worked overtime? Everybody wants as much as they can get out of this deal. Yes, they have common interests, but they also have cross-cutting interests. That's the international system. And that steel company will sometimes work, [but] it will work only if, in general, people accept the rules and act accordingly. Otherwise the system will break down. From time to time you've had great wars which have been a sign of the breakdown of the agreement among states, or failure to reach one in the first place.

That's the analogy I would draw, and the ultimate question about any legal system is not how much power does it have behind it. There are over 30,000 police in New York City, but there are burglaries. Indeed, only about two percent of burglaries ever get cleared up in New York. The key question is: To what extent do the participants in any social arrangement generally comply with the rules? If they do, I can call it a legal system. If they don't, I would call it anarchy; there just isn't a sufficient consensus or community for law to function at that point.

With the end of the Cold War, where the work of international law could be said to have been distorted by the bipolar division of the ideological conflict, globalization is such an important phenomenon. Do you think that the importance of international law will be more easily recognized and acted upon, or is there a tension there?

Even during the Cold War, there was a broad range of agreements with which most states complied most of the time. Most of them didn't deal with war and peace, they dealt and still deal with much more mundane things like commerce on the sea and to where in the sea does national authority extend. International aviation is all governed by international law. And that was even true in the Cold War period. People are always looking at the use of force, but that's just a little piece of international law. Maybe that's the most problematical piece, but there's a day-to-day life of international commerce and the use of the sea and the use of the skies. And that's regulated by law with almost full compliance. Now you've added new areas like the environment. Today compared to fifty years ago, there are many more areas of life covered by international agreement.

The more interdependence you have the more you're like the steel plant, where you can't produce the steel without pretty consistent compliance by most people. And the collective interest is sufficiently strong, and the violations are sufficiently clear. That's one thing about the international legal system: if you violate usually it's obvious. You can't do it secretly, you do it openly because there's no other way to do it. And if you do it openly consistently, then you are seen as an unreliable partner, a rogue, and other actors tend to exclude you from cooperative agreements. If violations are widespread, cooperation breaks down. But the greater interdependence which we do have today makes it more injurious to more countries to have the system break down. So I expect more and more subjects to be covered by more and more elaborate rules which are embedded in agreements, and a pretty high degree of compliance.

What will be the U.S. role in the shaping of more and more international regimes? With the end of the Cold War there is all of the cultural historical baggage we bring, [including] the manifestation of unilateralism, going it alone, not participating in agreements or not actually fulfilling the terms of agreements.

Yes, we think of ourselves as an enormously law-abiding people, but many foreign observers regard us a little on the roguish side, that we use our power to carve out individual exceptions, or we refuse to participate at all in treaty regimes enjoying wide support. We recently refused, for example, to join the land mine treaty because of rather marginal concerns about possible benefits from using land mines in one or two conflicts that we could envision.

Every country is what it is for complex and deep historical reasons. In the first part of our national history we were protected largely by geography, the luck of geography, from the threat of invasion, and we were able to live our national life without too much concern for what was going on in other countries. In the more recent phase of our national history we have been the most powerful country in the world, and that has also enabled us to act as we deem appropriate without too much reference to the preferences of other countries. On the whole, I think we've been a relatively benign hegemonic state, but when you are clearly the most powerful state in military terms, in economic terms, in terms of the cultural influences that you project abroad, there is a natural tendency to carve out exceptions for yourself not even realizing it fully -- or you say you have particular responsibilities in the system which make you unique.

But the deeper point is that if you look at our history, we have a history of being a Lone Ranger in the world. The objective fact is that there are a lot of issues out there that affect our interests which we can't deal with through unilateral action -- environment is clearly one. What can we do unilaterally to prevent the Brazilians from destroying their rain forest, even though it has environmental implications for us? Nothing. So that's just one area where clearly we need to cooperate, to accept cooperative schemes, in order to realize our national interest. But it's a little counter-cultural, it's a little hard for us to do that.

And then our constitution makes it harder for us, the fact that you need two-thirds plus one vote in the Senate to get a treaty approved; well, that complicates entering into treaties. Most countries have treaty ratification systems that are less onerous. So that is a problem for us. We're living with the tension it produces.

We, as citizens of the most powerful country in the world, are the natural architects of the rapidly expanding international legal system. We are playing a role, but our ability to do so is definitely inhibited, definitely limited by this deep history of either unilateral action or indifference to the opinions and preferences of other countries. So we're torn. There are regional differences in the U.S. as well, and there are differences that relate to levels of education, but that's true of any country. I hope that we will become more cosmopolitan, because I think it's in our national interest to participate more fully in these developing systems, and without accepting the burdens of reciprocity we're not going to be as effective architects of the international legal order.

Another phenomenon that we're witnessing after Seattle and now in Washington is the extent to which there appears to be a populist reaction of citizens to the international legal evolution as it develops in things like the World Trade Organization. What is being articulated is a sense of non-representation, of the international forum not being a legitimate one for issues like securing environmental rights, securing worker rights, and so on. What do you make of that phenomenon, and how will the international community respond to it?

You have an unusual coalition here. You have people of the Right and people of the Left who are hostile to an international organization like the World Trade Organization. And the World Trade Organization is quite properly a focus of concern because its decisions, its activities, do -- I want to use a neutral word ... I was going to say "intrude"; that's not a neutral word. But they do affect everyday life, just as the North American Free Trade Agreement affects everyday life and will do so more in the future. It affects the decisions of state governments in fields like the environment and public health and safety because decisions that states make in these fields can affect international trade.

What precisely are these concerns, and to what extent do I sympathize? I don't sympathize with the window-breakers in Seattle, but to what extent are there legitimate concerns amidst the manic and often irrational manifestations of concern? There should be concern about what government does or does not do to soften the impact on ordinary people of very rapid economic change that generally is positive in terms of increasing the gross national product. It does appear that there's a direct causal relationship between an increase in international trade and economic growth from which most people benefit. But some people get hurt in the process. Their companies do migrate, their factories do migrate to lower wage areas. I think we should be generous to the people who get hurt in that process, because most of us are benefiting from that process; but it has to be done at the national level. There's nothing in the WTO that prevents that kind of generosity; complaints should not be directed to the WTO but rather to state and national governments. There we are cutting back on welfare and we're not doing too much in unemployment compensation and retraining. We're suspicious of state action to assist people who are having economic difficulties, but some of those difficulties are connected to the growth of international trade. Don't look at the WTO, but do look at the issue.

Then the question of worker rights and environmental rights. There's some basis for concern here, particularly in the environmental field. Consider, for instance, the trade sanctions we took against Mexico, because the Mexican fishermen were using nets which captured dolphins as well as tuna. We said "We don't want you using those kinds of nets." And the Mexicans said, "We'll use any kind of nets that work for our fishermen." Well, the Mexicans could argue in a case like that that we were barring their goods from our markets and that we had no right to bar their goods on environmental grounds, only on grounds that we were retaliating for Mexican restraints on our exports. We had to look only at the narrow trade issue.

I think those who say, "We'll accept less growth in the gross national product in order to use our influence as a country to protect the dolphins or other living species or do something else environmentally" do run up against the rules of the international trade game. Those rules aren't irrational. They are designed to deal with all of the ploys that countries use to inhibit the import of foreign goods in the name of doing something for the environment or other Mom-and-apple-pie purposes. So because it's not easy to police motives, you try to get rather black-and-white rules, very bright-line rules, which then may interfere with good-faith efforts to use your authority to achieve objectives other than sheer growth in trade and GNP.

Focusing on labor rights, on the one hand you sympathize with workers in poor countries, but on the other hand, you need to concede that one of the main advantages that these countries have is low wage rates. What I would be in favor of is efforts to prevent countries from harassing workers as they seek to protect their interests by building strong labor unions. Countries should be penalized for violating the right to associate freely. If we think of worker rights in terms of the right to organize locally, that is, within countries, to try to improve their position in the economic game, I think those rights should be protected by international law. In theory they are protected through the International Labor Organization, but often they are violated. There are many inhibitions on labor union organizational activity. So if labor rights campaigns focus only on the right of association, there's something to be said for incorporating that into trade agreements. But if you're trying to fix minimum wages internationally, the result may be that you inhibit the development of poorer countries. So I'm torn on that. I'm torn, but in the end, the data indicates that the single most important reducer of poverty is growth, even if it's in countries which don't have very good means for distributing growth equitably. Fast growth itself does reduce absolute poverty -- not relative, but absolute poverty. And therefore my inclination is to promote growth through trade, feeling that as long as freedom of association is protected, the working classes in each country will gradually improve their position.

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