Favourite Readings 2022 – Pursuing International Law and Human Rights Outcomes

As in previous years, EJIL review team, Gail gail.lythgoe {at} manchester.ac(.)uk" data-hovercard-owner-id="98">Lythgoe and Christian J. Tams, have asked colleagues to offer short reflections on their favourite books of the year.  No strict rules apply — the posts are meant to introduce books that left an impression, irrespective of their genre. Today we have selections from Diane Desierto. You can read all the posts in this series here. 

In a year that made crises so routine and ubiquitous – from unrelenting escalations and violations of international law and human rights atrocities in Russia’s aggression and invasion of Ukraine to the European Commission rhetoric advocating some kind of forced or unilateral redistribution of frozen Russian Federation and private Russian assets as some kind of unilateral ‘reparations’ for Ukraine, to a cascade of ongoing challenges of global food insecurity, energy scarcity and price volatility, mass displacement of populations, and the paralysis of multilateralism and intergovernmental governance at the United Nations, amid a continuing pandemic unevenly experienced by Global South and Global North, to the continuing prevalence of unabated natural disasters in Pakistan and elsewhere around the world — I settled into the trenches of 2022 looking for quiet spaces within the international legal system (and far from its fissures and fraying edges already made de rigeur in international law scholarship) where we can still pursue the hard work of realizing international law and human rights outcomes.  Four books helped reinforce my own thinking that building the daily cooperation necessary to realize those outcomes remains possible, even if more pages are written these days prognosticating the demise or irrelevance of international law.  These four books reinvigorated my own thinking that building global, regional, and national cooperation is not necessarily an elusive aspiration, but remains the unsung work of a global collective of international law and human rights advocates, lawyers, counsels, policymakers, and operatives who both draw on the international legal system as well as nudge its course from within.

Jason Rudall, Altruism in International Law (Cambridge University Press, 2021)

This book does a noteworthy account of the making of altruism in international law, defined by Rudall as “an action or an intention to take action at some cost to the actor” (p.20).  Rudall latches on to the making of altruism in international law through state obligations (whether under treaty or customary international law, or as articulated in the teachings of significant jurists as publicists, or as advanced by international institutions and international courts’ roles in enabling rule-making environments) that encapsulate altruistic commitments.  Rudall does extensive research into his framing of altruistic international law in four major areas: 1) “cooperation for the other”; 2) “protection for the other”; 3) “development for the other”; and 4) “environmental justice for the other”, traversing vast areas of treaty and customary international law throughout lex specialis regimes in international environmental law, international human rights law, international humanitarian law, and international economic law and development. In one sense, this book confirmed my own thinking that we are not lacking in any international law standards to vindicate our altruistic values and solidarity impulses into collective legal commitments.  What the book does not do is provide an empirical account of how well or how poorly these altruistic commitments are realized in the international system.  What it does well is to establish that the international law baseline for altruism does indeed exist, and the professional challenge for international lawyers is how to mediate legal texts into actionable outcomes, whether in justiciable disputes or the everyday operative implementation of international law in the topographic as well as the granular, in the grandiose projects as well as the subtle ethical changes to decision-making.

Tommaso Soave, The Everyday Makers of International Law: From Great Halls to Back Rooms (Cambridge University Press, 2022)

This book reads as a historical-sociological set of narratives of international law decision-making, formally and informally, primarily from the lens of adjudication in international courts and tribunals and the judicial deliberative process.  It is unabashedly Hague and Geneva-centric, and almost wholly Global North in its anecdotal approach to decision-making at the International Court of Justice, the World Trade Organization, international arbitration institutions, and the phalanx of seen and unseen players (lawyers, law firms, registrars, administrative personnel, paralegals and support staff, etc.) within these adjudicative institutions.  Written not as a monograph but almost in the style of a set of internal reflections-as-narratives, this book provides a seeming fly-in-the-wall contextual account to the many considerations that suffuse international judicial decisions and deliberations.  To me, it was a significant reminder of what I had already seen from my own experiences of international practice at courts and tribunals — that such institutions remain very conscious of their judicial functions, while remaining quite unconscious of the complex humanity that drives all the seen and unseen players, hierarchies, and interactions within these august institutions that strive to provide international justice.  The book reinforced my own lived experience of international law’s embedded asymmetries, and how little genuine access for all of humanity remains the reality for the consequential decisions taken in great halls, backrooms, and corridors of power reserved for the few elites who are either of, from, or somehow connected in a significant professional or personal way to the Global North.  What this book did not do was capture both diplomatic and informal influences from non-Global North actors — whether developing country States, grassroots civil society mobilization movements, or innumerable other groups and advocates that strive to impact international decision-making.  Soave unabashedly concludes that this book reveals the international judgment “for what it really is: the humble fruit of collective practices marked by epistemic uncertainty, social interactions, and professional struggles” (p. 304).  Perhaps someday future work will widen to situate where the majority of the rest of the world is in those uncertainties, interactions, and struggles.

William Nordhaus, The Spirit of Green: The Economics of Collisions and Contagions in a Crowded World (Princeton University Press, 2021)

This book is possibly one of the best I have read in recent years on the interwoven ‘big picture’ questions of ethics, environment, and the global economy.  Nobel Prize-winning economist William Nordhaus provides a refreshing turn to the “question of balance”, rather than the hard surge to unworkable situations of hard right-rejection of environmental priorities and deep left-denial of economic realities.  While Nordhaus is skeptical of achieving mitigation targets (as the small island developing States already are by switching focus from mitigation to adaptation and loss and damage, and only 8 small countries thus far have actually achieved net zero emissions targets as of December 2022), he puts a significant premium on carbon pricing and carbon accounting mechanisms to a necessary restructuring of the global economy.  Certainly, Nordhaus’ long-standing proposal for a “uniform global carbon price” has not yet been at the forefront of contemplated policy options yet at any of the Conference of Parties.  Neither has there been a debate on Nordhaus’ proposal to reconceptualize taxation as “taxing bads” rather than “taxing goods”. Nordhaus’ proposals provoked me to contemplate the kind of public-private, States-and-markets, civil society, and intergovernmental cooperation required to produce the architecture necessary to make this an effective proposal for decarbonization in our shortened horizon to get to 1.5 degree Celsius levels, especially within the already existing framework of international climate change law and international cooperation provisions in international environmental and human rights treaties.

John McGreevy, Global Catholicism: A Global History from the French Revolution to Pope Francis (WW Norton, 2022)

I had the privilege of receiving a personal signed copy of this book, and it was my last reading for the year that intensely sparked my own optimism about social justice and common good endeavors voluntarily (and perhaps astonishingly) taken by Catholic faith communities in the Global North and the Global South — from Europe to Latin America to sub-Saharan Africa to Asia to North America and Oceania.  I read this epic history of the compelling work of so many individuals, groups, and peoples — who belong to one church comprising over one billion members of humanity — in 9 straight hours by my fireside this winter, riveted by both the experiences of internal and external failures and triumphs (rinse and repeat through centuries) in the pursuit of a shared common good. In the wake of the sexual abuse crisis and the many perceived or actual ills and popular commentaries expressing disenchantments with the Catholic Church and its papacy, it was edifying to read McGreevy’s sober appraisal of a church and a global community that has done far more to seek and realize social justice outcomes on the ground than ever acknowledged, or which has done infinitely more to provoke me to think of human love — willing the good for the other — as the real and enduring basis for building international cooperation to realize the outcomes we seek in international law and human rights.  I came out of reading this book more motivated to examine where, beyond our doctrinal and interdisciplinary preoccupations with treaties, structures, norms, and institutions — our international law and human rights teaching, research, and practices can advance the battle for lasting inner change in the human heart that leads us to peace, equality, and justice.  As Dostoevsky famously reminds in Brothers Karamazov, “the awful thing is that beauty is mysterious as well as terrible.  God and the devil are fighting there and the battlefield is the heart of man.” As this book shows masterfully, crisis has always been part and parcel of the human condition.  And it does call men and women of any race, belief, nationality, language, age, ability, or culture to rise in the battlefield for the common good we all seek in our shared humanity.

A Postscript

My own aspiration, desire, and sense of urgency in these times to aid in building cooperation that pursues international law and human rights outcomes stems from the initial understanding that the international legal system has to be one truly owned and driven by all in the Global North and the Global South, despite the glaring challenges of historically unredressed injustices, pervasive inequalities, and the prevalence of social ills that disproportionately impact the most vulnerable according to race, sex, belief, birth, nationality, poverty or property, culture, or any other meaningful demographic. It is all too easy in times of crisis to yield to the seeming inevitability of man-made destruction laid at humanity’s door through war, injustice, poverty, climate and natural disasters.  The four books above provoked me to remember that man-made destruction can also be halted in its tracks by man-made cooperation.  It is in this that I conclude 2022 with a fundamental hope in both the invisible college of international lawyers and all constituencies we seek to join with to realize the human rights and common good of all. Crisis or not, we can never cede an inch of this real battlefield of our time.