SIEL conference 2025. Hudec Lecture ⏐ “Talking to Robert Hudec about International Economic Law Today”
A
Conversation with Robert Hudec[1]
Jose
Manuel Alvarez Zárate[2]
Good
afternoon to all my esteemed colleagues, practitioners, academics, and public
officials joining us today at the Ninth Biennial SIEL conference at National
Taiwan University in Taipei.
I want
to express my sincere gratitude to the SIEL Executive Council for inviting me
to deliver the Robert Hudec Lecture. I was taken aback to receive the
invitation at my home near Bogotá, Colombia, and I was deeply moved to be asked
to deliver this lecture by such a distinguished group of colleagues, whom I
greatly admire and respect. I am honoured to be delivering this speech today
for several reasons, not least because of the importance of Professor Robert
Hudec's extensive work and legacy in the field of international economic law. But
also, because of the important figures who have delivered this lecture before
me, including Professor John Jackson, Joseph Weiler, Professor Chang-fa Lo,
Donald McRae, Michael Trebilcock, Joel Trachtman, Mary Footer and Padideh Alai.
It is also an honour to share some ideas on the politics of international law
and international economic law with you.
So,
delivering this lecture to this vibrant and broad internationalist community is
challenging because I will speak about ideas and values regarding law, politics
and economics that we all share, albeit with different understandings and
interpretations.
Since
the first conference in Geneva, in 2008, this community, which is with us here
today in beautiful Taipei, Taiwan (or Formosa ‘Isla Hermosa' in Spanish), multiple
conversations have taken place on various issues that posed important challenges
relating to trade and investment law, as well as to the relationship between
these two and their impact on the environment, human rights, security, and
physical and economic warfare.
These
issues, which are being discussed at this conference, continue to resonate in
classrooms, academic corridors and international organisations. To me, the same
issues have not been settled yet in the trade and investment systems, and
scholars, practitioners, and public officials are still working on them with
the same level of intensity, with the distant hope that the main issues will be
solved someday. We do not exactly know
when, but our hopes continue to guide us.
Let's
begin. My lecture today is about power, and law applied to international
economic law and international law. Why these two? Well, because today we are
witnessing permanent tension in international relations between these and
because power behaves no differently in all areas of international law.
I
am sure that these are issues that everyone in this room has reflected on, and that
we all have different ideas about, given the many current circumstances. Many
of us have written articles and given lectures, and in the classroom, we have all
attempted to explain to our students what is happening in the world today.
In
the context of our biennial conference, some of Robert Hudec's ideas help us to
discuss power and law. We acknowledge that the professor's extensive work
continues to educate us on these matters. Thus, for this conference, I will
just discuss a few of his ideas from two publications: Developing Countries
in the GATT System from (1987), written shortly after the start of the
Uruguay Round of GATT negotiations; and Thinking About the New Section 301:
Beyond Good and Evil from (1990). Everything has changed since then.
I
finished law school around the time these publications were released (1987) and
began working full-time at a law firm (1990) on regulatory issues related to
trade, international contracts, and investment in Colombia. At that time, these
areas were studied and worked on jointly, at least in Latin America.
Now,
let us pause briefly to consider the title that serves as the guiding principle
for today's conference: "Navigating New Horizons: International Economic
Law in a Changing World." This title is particularly apt when considered
in conjunction with Robert Hudec's work, "Thinking About the New Section
301: Beyond Good and Evil" (1990), presents interesting concepts that
demonstrate how nations' actions can result in substantial shifts within the
international system. Consequently, as we focus on the imminent future, it is
reasonable to anticipate that more substantial transformations in the economic,
legal, and political domains will occur. The impending modifications will certainly
present significant challenges. Nevertheless, they will also present an
opportunity to enhance and reintroduce serious discussions about the fairness
and impartiality of the international system. The International Economic Law,
as was established, is not a neutral set of rules. It is a politically driven
set of rules, ideologically motivated.
For
several years now, states, international institutions such as the World Trade
Organization (WTO), the United Nations (UN), and the International Court of Justice
(ICJ), among others, which inspire us to write and work, have been facing
headwinds on their paths. In the past, they have overcome these challenges. Despite
this, we are currently facing a hurricane on the horizon. The consequences of
this hurricane will be devastating for many states, and millions of people will
be affected. It threatens our stability and security, and even the survival of
part of the international community.
Now,
let’s give a short review of the inaugural SIEL Conference in 2008. At that
time, Professor David Trubek commented on the relevance of Robert Hudec's work
and his approach to the communicative, facilitative, and coercive functions of
law at the international level and how these concepts could be applied to
international economic law and to international law in general. Hudec did not
express much enthusiasm on the coercive function but had hopes of the
communicative and facilitative ones, as Trubek pointed out.
So,
the role that law could or should play in the global economic order and the
international order in general is clearly defined. However, nowadays, the
repeated failure to comply with the principles and fundamentals contained in
the WTO and UN charter, including commitments on climate change, among others,
shows that those functions have stopped working. But, Hudec had a pragmatic
view of law and politics. We should consider that the concept of politics is
often used to describe a relationship of power between one entity and another.
Robert
Hudec's pragmatic reflections on the linking of law and politics are useful. But
Hudec understood politics as the exercise of diplomacy in negotiations and the
resolution of differences in the old GATT, not as the use of plain power as we
see it today.
So,
my understanding is that for Hudec, diplomatic discussions took place through
legal institutions that have evolved in sophisticated international
organizations such as the WTO and UN. This institutionalization would facilitate diplomatic
conversations between the member states of these organizations, under rules
that are subject to political interpretations. Thus, this kind of diplomacy, as
conceived, has fallen short, and it is failing to resolve today's most pressing
global problems, such as preventing war atrocities, war itself, respecting
human rights, complying with trade rules, and environmental commitments, among
others.
It
is clear that some states are currently abusing their power, and that diplomacy
and law are proving to be ineffective in responding to those countries.
We
are facing a regression, a setback in international relations, where some
states prefer to use hard power, even against the international rules they
freely promoted and accepted not long ago. Thus, disregarding the law,
diplomatic efforts, and criticism from most of the international community. We
are certain that this sailing boat will take us towards a horizon full of
changes, just as the title of our conference suggests.
As
scholars and practitioners, we must keep discussing law and power to
understand—and explain—the current dynamics of these two forces in the
reconfiguration of the international system today. For this, we can recognize three
levels of power in the international arena. In the first level, we find states
with high and diverse resources of economic, military, and technological power.
These states can actively influence the international system. The second level
comprises states with medium power resources and medium capacity to influence the
international system and have medium power to resist changes. The third level
consists of states with low capacity to influence world politics and to resist
the pressures exerted by the two previous levels. In this level we can find
most states.
Let’s
see what happens to the law when different powers collide. It is clear that
recent economic clashes between states that share similar power resources, and
are at the first level of power, lead to diplomatic negotiation between them
and a modification of the international rules that apply to them, perhaps in a
balanced way. But in their conversations, the general international rules that
bind them are breached.
Meanwhile,
the trade confrontation between a state in the first level of power and states
in levels two and three has led to the loss of multiple concessions negotiated
multilaterally during the Uruguay Round to create the WTO, as well as the
bilateral agreements through regional trade agreements. The conversations
between these two groups of states do not seem to have ended with balanced
concessions. On the contrary there are unilateral concessions for the first-level
state power.
One
thing that has sparked my attention is that this diplomatic trade dialogue
between the states involved in the disputes has continued, but governments, at
least in Latin America, have not demanded compliance with the agreed-upon trade
rules. This raises various concerns about the functions of law.
So,
the international community should be concerned about the dilution of the
functions of law, the destabilizing capacity of power actions on international
institutions, and the lack of effective mechanisms in the WTO and the UN to
control the excesses of power.
I also
have concerns that even ethical appeals have failed to ensure compliance with
international law. And that the legitimacy that international law has achieved so
far as in the system to reasonably achieve greater levels of equality and justice
is being lost. However, despite its
imperfections, international law can still be considered morally valid and work
to achieve its compliance. Because International Law has undoubtedly engendered
adherence and respect from most of the international community.
Following
Hudec, who was not only concerned with pointing out states' failures to comply
with international norms, but also proposed analysing the reasons behind these
failures, we could venture to suggest some of the reasons: mainly, the
inability of Western hegemonic states to maintain economic, technological and
military power under the rules designed after World War II.
Also,
the violation of international law could be undoubtedly explained by the
following factors: changes generated by international competition over
strategic natural and technological resources; changes in trade and investment
flows; changes resulting from competition to maintain or access markets; and
the dynamics of the struggle to achieve, consolidate, or maintain power
hegemony.
At
this point, we could ask ourselves: Where has the international law that was
created with the express purpose of controlling power gone? The law is clearly
insufficient and falls short when faced with the necessity to control the unrestrained
exercise of power.
But
more importantly, we need to find solutions: We must identify the necessary
changes to pursue at the global level to ensure that power does not ignore the
progress achieved in multilateral agreements.
To
begin answering these questions, we could offer a glimpse of the historical
background. Pause for a moment to reflect on how states have exercised power
over the last 100-80 years within international legal frameworks. Also,
consider the role of law in achieving some degree of power restraint, albeit in
a limited manner.
The
participation of third-level states —basically developing countries—was
essential in introducing to the UN and GATT the recognition of the low level of
economic and military power of these countries. This helped to limit the
excesses of power, albeit without much success in many cases. But the rules of
law to limit the power against developing countries are there, so the expectation
that the international community as a whole must comply with them is also there.
Such as the right to self-determination, as well as political, economic, and
military non-interference on any state. I am confident that the current decline
in following international law commitments, such as the guarantees of states to
protect human rights is temporary.
On
the other hand, global history proves that the excessive use of power was once
the norm, and that the most abusive actions were justified using a variety of
legal techniques. Francisco de Vitoria, one of the founding fathers of
international law, Juan Gines de Sepúlveda, and others, justified Spaniard
atrocities in America through legal means.
So,
the abuses of power we are witnessing today are the product of historical
continuities. These continuities show us the persistence of patterns of
behavior and common characteristics of power abuse since time immemorial. For
the purposes of this discussion, let’s go back to when the whole world was integrated
into international trade, this is, when the great leap towards modern economic
globalization happened and when the development of international law began in
the 15th century with Francisco de Vitoria.
Allow
me to comment some of these continuities. Remember the ambitious Spanish and
Portuguese navigators who first ventured across the Atlantic Ocean at the end
of the 15th century to reach what they later called America. They set out to
open new trade routes to the East, but without really knowing where those
horizons would take them, whom they would meet and what they would face. These
entrepreneurs were driven by a strong aspiration for finding new markets and
products, and a deep-seated ambition.
The
Spanish encounter with America led to the Portuguese, Dutch, and English
following suit. With them came much of Europe, which consolidated the
colonization process of America—often bloody—while new voyages were undertaken.
These tryps encouraged Spain to reach the territories they called the
Philippines at the beginning of the 16th century. They moved to northern Taiwan
and established the colony of Formosa – Isla Hermosa, meaning "beautiful
island" in Spanish – at the beginning of the 17th century. But the Spanish
were expelled from Formosa by the Dutch a few years later.
On
the other hand, on their way to India to compete in the spice trade dominated
by the Turks and Arabs, the Portuguese and Dutch established ports along the
African coast in the 15th century, which they used to reach Asia and control
the spice trade with Southeast Asia, China and Japan.
These
ports were also used to initiate an infamous era of human trafficking for
slavery until the 19th century. Other European powers joined in this trade. The
African continent was divided up by these powers at the end of the 19th
century, marking a new phase in African colonization.
While
the European powers engaged in a fierce competition to expand their commercial
empires and dominate African, Asian, and American territories, direct conflicts
led to significant wars, including the Seven Years' War (1756-1763), which also
involved North American, Indian, and Caribbean colonies.
In
the case of the Middle East, from the 15th century onwards, when the European
expansion began, the influence of that region on Europe was still felt in
various fields: science, philosophy, art and architecture through commercial
and cultural exchange. The Muslim conquest and settlement in Spain, from 711 to
1492, the latter being the year when Christopher Columbus arrived in America. The
Ottomans established themselves in Sicily in the 9th and 11th centuries and
advanced from the East for five centuries, from the 14th to the early 20th
century, through the Balkans and Bulgaria.
It is crucial to acknowledge that a
significant portion of Hungary was occupied for 150 years, until the 17th
century. The Ottomans even advanced to the gates of Vienna, until they were
decisively defeated at the Battle of Vienna in 1683.
But,
despite the ongoing wars, trade and cultural exchange between Europe and the
Middle East persisted. Trade treaties known as capitulations ensured this
exchange. These treaties granted commercial rights and privileges, including
reduced tariffs and extraterritorial rights for their citizens within the
Ottoman Empire.
The
early capitulations between the 15th and 17th centuries saw the Ottoman Empire,
a major power in the Mediterranean, grant capitulations to European nations
such as France and Venice. This was a clear recognition of these countries as
being friendly powers.
So,
the Middle East colonization was rather different and gradual, until it
intensified at the end of the 19th century, and consolidated when the Ottoman
Empire fell in the First World War and the Middle East was divided between
France and England, who were gaining markets, routes and influence in those
territories since the 18th century.
This
brief account shows the constant dynamics between the widespread use of power
and force to open trade routes and markets, and the fragility of the
construction of law to guide international relations. However, it is clear that
the law was always present in these processes, even if the creation of it and compliance
with it was determined by the most dominant power.
We
have now arrived at the present time. The late 19th and 20th centuries saw the
establishment of a network of international agreements of various types,
including economic agreements. It took two world wars for the powers involved
in the conflict to realize that stronger global institutions were necessary to
promote international cooperation in different areas. Rules were needed to
prevent future world wars, foster international cooperation in the political
arena, and agree on a minimum set of rules.
These
rules prohibited the use and threat of force against the territorial integrity
of any state, and promoted respect for human rights and state sovereignty. It
was also necessary to establish minimum rules to promote international
financial stability and monetary cooperation. These rules were the first steps
towards promoting the stability and predictability of international trade.
The
creation of the UN, the International Monetary Fund (IMF), and the General Agreement
on Tariffs and Trade (GATT) unequivocally demonstrated a commitment to the
guiding force of international law, and confidence in the full and proper
fulfillment of the established international agreements. This was an era of
international hope.
Returning
to Robert Hudec's ideas regarding the intertwining of law and politics in
international relations, history has shown us that, when law and politics are
in conflict, law is usually sacrificed by force. This conflict is understood as
a battle over the different uses of power. This is a historical fact, and it is still
being experienced today. However, we must recognize that the world today is
undeniably better than it was 80 years ago, 100 years ago, and definitely
better than it was five centuries ago. International law has undoubtedly
advanced, driving the global community toward a fairer world. Not perfect, but
a better one.
And
once again, we must ask ourselves a question: What can we do to discipline the
savage forces of power that have been unleashed for so long? What can we do
here and right now in our work as practitioners, academics and officials? The
answer is simple: we must persistently demand respect for the law and work towards
establishing more legitimate international rules to regulate the international
conduct of the international community.
I
endorse Professor David Trubek's and Patrick Cottrell's words in their paper
"Robert Hudec and the Theory of International Economic Law: The Law of
Global Space” where they clearly state that Hudec's work on trade is essential
for addressing contemporary issues in international economic law. Hudec's
general analysis is still a useful way to deal with current issues of
international law and power.
Trubek
says that Robert Hudec was a legalist who maintained his faith in rules.
However, he was also pragmatic because he recognized that general standards and
detailed rules can play an important, but not necessarily a decisive role in a
complex normative process. He demonstrated how actors employ rules in various
ways and how they may reinforce them with other sources of power and
persuasion.
These
ideas would seem to show that there is a certain form of controlled,
non-abusive power that is necessary and accepted to help enforce international
law. However, this view does not seem to be shared by most of the international
community, because experience has shown that usually the use of power is not
compatible with the correct interpretation and application of the law, in
addition to undermining the legitimacy and credibility of the system.
Furthermore, we observe that this practice has evolved into situations such as
those we see today, which have led to a hegemonic excess in the interpretation
of the law.
International
law aims for equality, but reality is often one of power dynamics to gain
different meanings of equality. As Paul Kahn explains in his paper Hegemony and
International Law, power asymmetries shape the global order and influence the
application and interpretation of international law.
Another
work from Hudec serves well for this lecture. The approach in the essay
"Thinking About the New Section 301: Beyond Good and Evil" (1990)
Hudec’s criticism is still pragmatic. For him, criticizing the United States for
claiming that "international law has been broken" is too simplistic
and is not enough to understand how particular states interact, the reasons behind
their positions, and the related benefits.
So,
in this work of (1990) Hudec's views are clear: instead of simply condemning
the United States, he uses the example of Section 301 to argue for the value
and legitimacy of disregarding international rule-making bodies like the GATT. He
argues that one can view Super 301 as 'justified disobedience'
Despite
this controversial thesis, what is interesting to point out now, is that by
unilaterally imposing trade sanctions, imposing trade barriers or raising
tariffs, the United States would be highlighting problematic areas and often
force international organizations to make necessary reforms to their own
rule-making and adjudicatory bodies. Hudec argued that it is possible, and even
likely, that needed reforms would not be made without the forcing function of
justified disobedience.
So,
Hudec ignores the dead end of collective disapprobation and tries to explain
why the United States choses such kinds of decisions; whether U.S. actions can
be justified; and why these actions may benefit international trade law in the
end.
By
accepting the justification for noncompliance with international law for the
purpose of reform, it could be interpreted as accepting that hegemonic powers
may be able to encourage changes in international institutions and rules when
they no longer suit them, rather than promoting changes through the mechanisms
provided for that purpose within the institutional framework.
However,
the justifications for repeated breaches in trade law show that it is necessary
to create an organization other than the WTO, if this organization is not
reformed. Also, because the promises of development, growth, and widespread
well-being for all that accompanied GATT’s negotiations were not fulfilled for
most developing countries. We can also see that the WTO's promoters'
expectations regarding the maintenance of global economic and trade control, as
well as control over information and technology, went out of their control. So,
this is an organization that does not serve anyone anymore and should disappear
or at least radically change.
In
the case of developing countries, following the signing of the WTO in 1994,
developing countries proceeded with the dismantling of tariffs and
administrative barriers to trade, such as import licensing systems, among
others. They also adopted strict knowledge protection regimes without providing
compensation for technology transfer and dismantled their industrial policies
to comply with TRIMS.
After
applying all those policies for more than 30 years, achieving higher levels of
balanced development appears to be challenging for developing countries under
the current trade rules. The likelihood of achieving development is even lower
if the new proposals to create an additional framework of exceptions to
accommodate the monumental and extraordinary subsidies of developed countries to
promote industrial sectors are successful. Consequently, in light of the
challenges posed by agricultural subsidies, the obstacles encountered by
exports from developing countries and the new wave of industrial subsidies, the
rationale for maintaining the World Trade Organization (WTO) is declining
rapidly. Thus, something should be done soon.
In
the words of Hudec’s work in 1987, Developing Countries in the GATT System,
when he argued that “the present regime does not work well for the developing
countries that are its intended beneficiaries, and should be replaced.” Hudec
was somehow pessimistic about the relationship with developing countries
becoming more productive within GATT. However, his hopelessness offered a shine
of hope: 'There are those who believe that the GATT [now the WTO] has become so
committed to the current policy that the only way to change it would be to
start a new organization'
Finally, and to conclude, the brief review of
the current global landscape reveals ongoing challenges such as civil unrest,
international tensions, and fierce competition for resources and markets. We are currently observing various nuances in
the way countries with the capacity to generate change in the global economic
and political order are producing it. Many of these states' actions are
contingent on the exercise of different means of power, including economic,
diplomatic, and military intervention. Furthermore, it is important to
acknowledge that the rationales provided for these actions frequently lack
credibility and are not aligned with the UN Charter, the WTO, human rights
principles and other international commitments.
I
think that if Hudec were with us today, he would likely be advocating for a
reform of the trade system and contributing to the promotion of change in other
international institutions through his work.
Consequently,
we should examine how we can contribute to the advancement of the world legal system
through our academic and practical work.
I
will be happy to hear your comments.
Thank
you
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