Issue 27 | Michaelmas Term 2018 LAUTERPACHT CENTRE NEWS Contents International Law in the 3 International Law in the Age of Bilateralism - Professor Eyal Benvenisti 6 Centre News Age of Bilateralism 11 Authors’ Workshops at the Centre 12 Fellows’ News LCIL Director Professor Eyal Benvenisti 14 The Eli Lauterpacht Lecture 2018 by Shaheed Fatima QC 16 5 minutes with.... Mr Tomohiro Mikanagi t has become clear that the world’s two major powers – wishing to reshape the international system,” China has a declining hegemon and an emerging one – are poised not rushed to set up multilateral bodies with global reach. 18 Lauterpacht Linked Ito shun multilateral international organisations and Instead, it designs its external relations based on the instead are pursuing webs of bilateral agreements. The “hub and spokes” model, an architecture that allows it to 20 The Eli Lauterpacht Fund Trump administration has clearly asserted its preference maintain supremacy over its numerous partners who are for bilateral deals while dismissing international organi- kept apart from each other. This model characterizes its 22 Conference on the Use of Force in Relation to Sovereignty Disputes over Land Territory sations as taking advantage of US generosity. Trump security arrangements in Asia, and shapes China’s most regards trade deals as inherently ‘adversarial and ze- ambitious economic (and political) initiative, the Belt 23 Inaugural International Law & Arbitration course ro-sum’, and has blatantly disregarded the multilateral and Road Initiative (BRI) that connects China with more trade rules the US had set during the victorious post-Cold than sixty selected partners that are spread across three 24 LCIL Workshop: International Law and Cyber Security War days. Even the free trade area agreement between continents. America and its immediate neighbours was transformed 26 BRCS/ICRC Customary International Humanitarian Law Project into a bilateral “United States – Mexico Trade Agree- China’s dominance over its spokes is legally secured ment” in a renegotiation process that excluded Canada. through a China-centric web of bilateral treaties, and 27 Major Publications Canada was subsequently rushed to sign on the dotted a newly minted Chinese dispute settlement mecha- line the agreement that “they used to call … NAFTA” (to nism, announced last June, which is designed to resolve 28 The International Law Reports use Trump’s words). investment disputes arising out of the implementation of the BRI. Through this mechanism, arbitrators appointed 29 LCIL Book Launch: Landmark Cases in Public and International Law Those who believe that Trump is an outlier and that, by China can be expected to resolve investment disputes following imminent impeachment, the US would soon and indirectly regulate BRI-related projects within its 30 Other publications by Centre Fellows resume its responsible global leadership position, must partner countries and shape those countries’ regulatory account for the fact the Obama Administration has pur- frameworks. The hub and spoke architecture allows these 32 Legal Tools for Peace-Making sued the same divide and rule strategy when negoti- arbitral tribunals to tailor their norms to suit the unique ating the major TPP and the TTIP economic agreements, situation within each of the spoke countries, consistent 34 New faces at the Lauterpacht Centre when it divided the European Union and 11 carefully with Chinese interests. selected Pacific Rim countries and negotiated with each 37 Events this term group separately. Obama’s predecessor, George W. Bush, The preference for bilateralism is not coincidental. Any promoted reliance on bilateral trade and investment land developer or successful politician knows the effects 40 Visiting the Lauterpacht Centre for International Law agreements, loose partnerships and fluid “coalitions of the old “divide and rule” strategy. In fact, this strategy of the willing,” instead of working within or creating is so obvious that it raises a puzzle: why would powerful 42 Life in pictures @ the Lauterpacht Centre new multilateral institutions. The post 1945 effort by the United States to create a wide array of international organisations was crucial for establishing its dominance and for the rise of the post-war liberal international order. But in the post-post-Cold War era, the superpower, whose hegemony is increasingly being tested, has found multi- lateralism burdensome. Joining our Mailing List It is also unsurprising that the rising Asian hegemon has been following a similar path of bilateralism. In October 2007, during its ascent to global power, China declared FTAs to be its basic international economic strategy. If you would like to receive details of events and news at the Lauterpacht Centre Despite the fact that, as some scholars have noted, please join our Mailing LIst (www.lcil.cam.ac.uk/contact-us). America’s disengagement from multilateralism could not offer “a more favourable scenario for a rising power You can also follow us on Twitter, Facebook and LinkedIn. Image copyright: [Public domain] Wikimedia Commons - Shealah Craighead 2 Lauterpacht Centre News | Michaelmas 2018 Lauterpacht Centre News | Michaelmas 2018 3 states venture to cede authority to multilateral organi- about the outcome of their cooperation in a manner that experience it might be replaced by a myriad of period- ficiently independent regulators; private actors such as sations and subject themselves to collectively-fashioned leaves each of them better off than they would be by ically renegotiated bilateral, often informal and ad-hoc multi-national corporations seeking economic certainty international law that regards all states as formally equal? colluding with S. These can be very difficult conditions to agreements. No single state or group of states will have and a level playing field; and civil society activists. These In an article analysing the ways a hegemon or a group of meet when the preferences of the citizens diverge, and either the incentive or the power to unilaterally commit to actors could limit the discretion of the executive branch powerful states are able to shape international law and even more problematic if instead of individual citizens we multilateral rules or institutions that could bind them and by forging coalitions across political boundaries. Reaching rule international institutions despite their numerical have states that have different preferences (for example, be used against it. the Paris Accord in 2015, for example, can be attributed minority, the late George Downs and I highlight the abil- one state exports oil, the other bananas, the third tour- to a large extent to non-state action and commitments. ity of powerful states to maintain their domination over ism services). In fact, Weingast views these conditions as Herein lies the paradox: globalisation, facilitated by The mighty technology companies seeking to serve more weaker states by blocking the weaker states’ opportunity being so formidable that the most likely outcome of the international law and institutions, operated to diminish users across the globe and ensure confidence in their to cooperate. We used a simple three person devised by game is one in which the citizens fail to cooperate, and S differences among countries and to increase their ability services might find it possible to cooperate on rebuffing Barry Weingast that involves three players: a sovereign, and one of the two citizens exploit the other citizen. to collude against the more powerful states. Yet, as these governments’ demands for access to their data (as S, who is the most powerful figure in the three person powers opt for bilateralism, the prospects for a compre- companies such as Apple and Microsoft have done indi- “society,” and two citizens, A and B. In order to remain in For our purposes, the primary significance of Weingast’s hensive, systemic international law diminish. vidually) and jointly monitor offensive cyber operations. power, the sovereign needs the support of at least one game lies in its message that a hegemon (or small group Such companies may find it both necessary and feasible of the two citizens. If both citizens oppose him, he is of powerful states) that wishes to prevent weaker states This outcome is in line with Mancur Olson’s observa- to set mutually convenient standards to be enforced deposed and loses power. from cooperating within a certain institution or in the tions about the emergence of collective action. As he through institutions that they create. These motives can negotiation of a treaty can do so by using its first-mover suggests, a community composed of unequal members is explain the ‘We Are Still In’ coalition of business and The basic game involves a sequence of two moves. S advantage to 1) limit the perception of weaker parties more likely to overcome collective action problems than other non-governmental leaders committed to US com- moves first and may choose to honour both citizens’ that they are involved in a repeated game, and 2) limit the a homogeneous community, because the powerful mem- pliance with the Paris Agreement despite Trump’s plan rights or to transgress against the rights of one or both. If opportunities that weaker states have to resolve the dif- bers of the heterogeneous community will have both to withdraw, and efforts by coalitions of companies to S chooses to honour both citizens’ rights, the game ends, ferences in their preferences. In our article, we highlight- the ability and the interest to carry the collective burden engage in preventing government-sponsored spying and and S remains in power. If S violates the rights of either or ed a number of strategies that hegemons and powerful unilaterally. cybercrimes, as well as Microsoft’s suggestion of a pub- both, A and B have the opportunity to choose whether states can use to accomplish each goal, among them the lic-private equivalent of the International Atomic Energy to acquiesce or challenge the sovereign. If A and B both creation of a large number of international organisations Life under bilateralism may feel like living under des- Agency to handle attribution of cyberattacks to nations.