Introductory Remarks by Scott Fairley

Good Morning. Thank you all for attending what I think will be a very interesting discussion. My name is Scott Fairley. I am a litigation partner with Cambridge LLP in Toronto and a former president of the Canadian Council on International Law, preceding by some years my good friend Charles-Emmanuel Côté, our current president. Mélida Hodgson, of course, you know, as the current president of this Society, hosting this meeting.

I approached the organizers of this conference a couple of months ago given the sea change in the relationship between our two countries and thought it would be a good idea to have a chat about that; so this is supposed to be a fireside chat between the leaders of our respective societies. Imagine if you will a coffee table, maybe a fireplace without the bright lights focused on this platform. Special thanks to executive director Michael Cooper for facilitating this important get-together.

I have shared a script of questions with our participants that they have agreed to, but I do not know what all their answers are going to be. Doubtless, it will be a very fruitful discussion.

A little bit more about our two discussants: Ms. Hodgson is an accomplished litigator and arbitration practitioner, international commercial arbitrator, and partner in the New York office of Arnold & Porter; Dr. Côté is a full professor of law at Laval University, heads up their graduate program and is an eminent jurist in public law.

What brings us together today is the profound change in Canada-U.S. relations that have run into stormy weather since January 20 of this year, complicated by a Canadian federal election that is going to be held later this month. After April 28, Canada will have a new prime minister that may or may not be the same as the one who succeeded Prime Minister Justin Trudeau when he resigned as leader of the Liberal Party.

The current uncertainty between neighbors appears to be but one element of a seismic shift in U.S. foreign policy globally triggering shifts in the foreign policies of all its allies and trading partners. It appears to be an intentional dismantling of the post-World War II international rules-based order that was first and foremost a product of U.S. leadership in the aftermath of World War II, with the Marshall plan and everything that followed. Our respective presidents will discuss aspects of this challenge and what may possibly be done to meet it from the point of view of two learned societies of international law in aid in aid of that rules-based order. I have some questions to structure the discussion giving each president alternating opportunities to lead off and then mix it up between themselves.

President Hodgson, you issued a statement on February 13 regarding the United States and the international rule of law. President Côté you issued a responding statement later that month on February 21 in support of President Hodgson’s message. Most of this audience will have read at least the U.S. statement; and the Canadians in this audience will likely have read Charles-Emmanuel’s response. I quote in part first from President Hodgson speaking to the state of the international order: “That legal order is now under direct assault both at home and abroad. The list of U.S. initiatives that undermine the international legal order is long….” President Hodgson then mentions quite a number of examples with which this audience is familiar, concluding:

To begin this important conversation, I first invite President Hodgson to elaborate on the content of her statement and comment on why she felt compelled to issue it. I then invite President Côté to follow. In subsequent questions each president will get an appropriate lead except for the last one when I am just going to throw it open.

President Hodgson.

Remarks by Mélida Hodgson

Thank you Scott and thank you Charles-Emmanuel for being here and also for this conversation, and thank you all. I know it is the Friday morning that a lot of people are heading out, so thank you for being here to have this important conversation. In terms of the statement, I have to give credit to our Executive Council, our Executive Committee, and our Executive Director. It was really a community project. On February 13, we were not even a month into the administration, and we were probably all a little bit stunned by the series of proclamations that were coming out of the White House.

It is unprecedented, so we were stunned and then we started to talk with each other and to think about the fact that we really needed to say something. In essence, the list of issues, obviously some of these still persist, and some of them seem to have gone by the wayside. Obviously in terms of the relationship with Canada that is still something to be determined in the sense of we have had the whiplash on the tariffs over the past couple of weeks, and we have seen a strong response from Canada, which also probably was still in shock. At that time, our membership was also clamoring to have some sort of statement. There were comments internally before the Statement went out that called for much stronger language, given the sort of occurrences that were happening. But obviously we also wanted to be moderated because we wanted to be heard, and not only within our own audience—to have the comments not be shrill and taken just as another attack or viewed as partisan. We are non-partisan and we did not want to be seen as doing something partisan. What we wanted to say is “listen, we were founded by a Secretary of State of the United States, and the idea that this is what was coming out of the U.S. government was just shocking.” We wanted to stay true to the goals, the principles, and the foundations that led Mr. Elihu Root and others to found this organization. It was a commitment to the international rule of law, it was a commitment as the United States understood international law, and to having an international, rules-based system where you deal with your neighbor in an appropriate manner, other foreigners in an appropriate manner.

That is consistent with the rule of law and understanding that yes, every state has self-interest. That is not unusual. That is probably their responsibility. But it is also a responsibility to not lose sight of, and to have others understand, that there is a system and a way to do these things. If you want to do something, setting aside as a policy matter whether you should be doing something in particular, there is a way to do this, and this was not the way to be behaving as the leader of the free world, so to speak. Or at least that is the label that we have had for a long time. Certainly, as a leader, a believer in justice and the rule of law, it was not the way to behave. We did not necessarily think it would get the ear of anyone in the administration and have a positive impact in that sense, but what we hoped is that others would see that we were maintaining our commitment to the international rule of law and respecting our neighbors, respecting human beings, whatever their capacity, including refugees and migrants, and respecting our commitments to do things the correct way. We thought it was important to let it be known that we maintain our commitment—we believe in the international rule of law. One of the discussions we had internally at this meeting is the impact that all of this is having on younger people, who have gone through the pandemic and then now are dealing with this chaos, and so to also let our younger members know that we are committed to the rule of law. I think a lot of you know we may not act the same way as others and we are not on social media every day condemning things, that’s not our way and it is not our role, but we want to let our membership know that we are committed to an international system based on the rule of law.

Remarks by Charles-Emmanuel Côté

My reaction to Mélida’s statement was first to find it extremely reassuring. I thought—and I am not the only one at the CCIL—that it was a splendid statement made at a very important time, quite early in fact. It recalled the very reason why international law societies exist and that it is probably even more crucial to do so in times of challenge to the international rule of law. I would add that other international law societies circulated the statement across the world and it was widely read and spread. The CCIL president’s statement that I issued is also a collective work, even though under our rules of governance the position taken by the president does not commit the council itself because we have a diversity of views. But I can tell you that the views of our members and directors were very converging toward that statement and the idea was to simply to support your initiative. I consulted extensively with past presidents of the CCIL, directors, and members. There was a strong feeling that it was important to express our support for two main reasons, in addition to the substance of your statement that was extremely convincing and the reasons to defend the international rule of law that you just presented again.

The first reason to support your statement that is more specific to the CCIL is that we, as an organization, have since our inception insisted on the importance of international scientific cooperation. We have had many cooperation initiatives with other international law societies and especially with the ASIL. I know that past president Scott Fairley sitting next to me played an important role in developing this and we have continued ever since. We had the trilateral project conferences and publications in the 1990s, and we had the four societies initiative in the 2000s and 2010s. These initiatives also involved younger scholars, to which you were referring earlier Mélida. In this spirit of friendly collaboration with our colleagues, I also thought—and it was an immediate reflex in the situation—that despite the turmoil of the state-to-state speech and actions, on our level of scholars we need to keep the channels of communication open. That is a strong belief that I had that we are part of the solution in maintaining respect for the international rule of law. In fact, this very event is a manifestation of that, and I thank you for that because I think that we have an important role to play here.

I should add another reason to support your statement and that is the fact that CCIL has a very long-standing relationship with ASIL. I should perhaps not say what I am going to say because this might fuel the idea that we should be even closer in our cooperation. Canada became an independent state incrementally in the 1920s, and in the early 1930s it gained full independence from the United Kingdom. There was no international law society in Canada before that, but in the 1930s, discussion began in this respect to gather the emerging community of Canadian international lawyers in the government and in universities. The first reflex was to turn to ASIL and there were discussions to create a Canadian international law society as a committee of ASIL. A grant from ASIL was even secured to help in creating a Canadian society of international law. Eventually those projects collapsed in the chaos of World War II. We finally created our own International Law Association branch and later the CCIL was created without being a committee of the ASIL. That is to illustrate that our connection goes back a long way, I would say from the inception of the idea of having a Canadian society of international law. For all these reasons for us it was obvious that we wanted to say that we support and we want to continue our very rich, and deep cooperation with you, and I would say more than ever.

Scott Fairley

Thank you both. My second question does not have the elaborate preface that preceded the first one and I think it has largely been answered but just very briefly, both of you having staked your ground, what can each society possibly do to address the challenge to the international legal order, apart from reaffirming your allegiance to it? President Côté, please begin the discussion.

Mélida Hodgson

I totally agree, and first of all let me say that we also appreciate the support from CCIL of immediately coming out and supporting our statement, because I think one of the things that we have talked about in this meeting in particular is the importance of solidarity—whether on an individual basis or an organizational basis. It is a moment where I think we need to be together and support each other. For example, the importance of education, but also just the personal relationships. I know that one of the things I am hearing or what I have heard over the last couple of days is how important people have felt that they have been able to just talk to each other. We are all concerned about what we are saying on our phones, because you know that apparently if you travel your phone can be looked at. My sense is we have all sort of self-censored, which of course is unfortunate, but that is part of the fear that has been created. It was important for people, I think on a personal level, to have this community to speak to each other, because that is the first part of being able to actually take action—the ability to talk to each other. And also to feel that you are in a safe space to discuss how we advance our objectives of protecting the international rule of law and the international legal order. You have to be in communication and so one of the things that has been important is being here and being able to do that. Now we have to follow through on that and there is a lot of work to be done.

The world is going to go on regardless of what the United States is doing, and I personally think that the big loser ultimately in all of this is going to be the United States. That is unfortunate and something that we who are Americans have to think about, and figure out how we protect against that, but more importantly, we should not be stepping aside, whether in disgust or shame. I think both emotions are probably there. We need to continue to, on our level, engage with our fellow societies, with our colleagues, because I think the “average American” still believes in these principles and certainly we who are involved in the international community do believe in these principles. I think we have to just continue to speak to each other, and to educate, and to relate. It is not just educating the youth, but relating this to people who may not understand some of the details that we understand. And relating it in a respectful way to find common ground. There are people in this country who have legitimate grievances about what has happened to them economically as a result of globalization and some of those voices have not necessarily really been heard in this country, and I think we want to be respectful of that while explaining that this is probably not the answer to that, or even if you think it is the answer, the way it is being done is counterproductive really.

Scott Fairley

Again, thank you both. My next question addresses some of the headlines that have highlighted particular issues. Among them are the tariff war which seems to be morphing on a weekly if not a daily basis; U.S. territorial aspirations not just for Canada as a potential fifty-first state—how to handle ten provinces and territories in that context is another question that hopefully we never even get close to—but also for Greenland and the Panama Canal; departures from existing treaty commitments, such as the USMCA or, as we like to call it in the Great White North, CUSMA; and U.S. alignment in the UN General Assembly, among other places, with strange bed fellows like Russia, not China of late, but a few others. I invite each of you to pick whatever issues you are comfortable with.

As a small preface to this discussion, I quote from my teacher, Tom Franck, a former president of this society writing fifty years ago in this society’s journal, “Who Killed Article 2(4)? Or Changing Norms Governing the Use of Force by States,” 64 AJIL 809, at 836: “The failure of the UN Charter’s normative system is tantamount to the inability of any rule … in itself to have much control over the behavior of states. National self-interest, particularly the national self-interest of the superpowers has usually won out over treaty obligations….” But then he adds, and this is the interesting part, “living by power alone is a nerve-wracking and costly business. To do it much must be surrendered by the citizen: individual freedom, a large part of his national budget and the chance to live in that comparative tranquility which comes of being liked by others and liking oneself, There are increasingly signs that the citizen will not indefinitely pay the price demanded by the conventional national interest.” Now at that point in time, Tom was writing in the latter stages of the Vietnam War and growing American societal discomfort with America’s commitment to that conflict. My question is: are we perhaps in another different but analogous time? President Hodgson you again have the floor.

Mélida Hodgson

I am going to start by making reference to the first time I went to Vietnam, which was twenty years ago, because you bring up Vietnam. What I am trying to say with all of this is that the overarching thing is, you do have to look at the long game. It was 2004, and this was while I worked for the Office of the U.S. Trade Representative, and I was visiting a friend who was there working for U.S. businesses preparing for the normalization of Vietnam’s economic relationship with the United States. I was a little bit nervous about what the Vietnamese attitudes would be toward me as an American, but they were wonderful people, and all was going swimmingly until the night that I was returning. I was picked up by a driver to go to the airport and he said “Oh I hope you don’t mind I have my son with me he speaks better English;” and I said “not a problem.” The kid was probably nine years old and very chatty and at one point he says to me “Do you know why everybody hates America?” And I thought “Ah here it is.” I said “Why?” And he said “Because you’re going to kill them.” And he laughed, and I thought okay, well….

Now if you think back to 2004, we had another war going at that time which did not make the United States popular, and that is an understatement. But I can only think, look where we are with Vietnam today, and now in essence it is twenty years past the Iraq war, there was a lot of U.S. conduct that people were not proud of, so I want to look at it as a long-term thing and we have to just focus on the fact that this too shall pass, which is something my mother used to say. So, when Professor Frank was writing this—how much will Americans tolerate?—it is relevant today. I do believe in the innate goodness, fairness, and kindness, of the American people, and they will tolerate a lot but we are already seeing, pushback, you have Republican congressmen afraid to go to their town halls because of angry people—and it is not just Democrats showing up to crash at those town halls—they are genuinely people who have relationships with Canada, who live on the border with Canada, and for who this is not what they signed up for. Maybe they signed up for tariffs.

As I referenced before, there are people in this country who have been left behind to a certain extent by these trade agreements, who do not feel they are really for the benefit of all. And perhaps there has been poor communication there, fundamentally it is my personal view that those manufacturing jobs are not going to come back, but people have been led to believe that these actions will somehow lead to that, and when it does not happen there will be a backlash. We need to better educate on tariffs and the fact that we are really an interconnected system, not only in terms of our borders but also the economy worldwide—our economy is dependent on having these interactions with our trading partners and 100 percent tariffs or 140 percent tariffs are going to affect everyone. There has been a lot of discussion recently about small businesses in the United States who are dependent on those economic relationships and who cannot afford to pay the tariffs, because it is not really a tax on China or Canada, it is a tax on them. And small businesses live in your community. Sometimes we do not think about simpler things like trade and trade policy, and explaining that to people, because we are more concerned about the international rule of law. But I think one of the things that we need to do—and we do have experts in our societies who can explain this—is to really focus on how do we reach people who need to understand all of this, and I believe we can explain and offer non-partisan views on how to understand these issues. It is important, not only from the economic perspective but again from the personal relationship perspective, because I am hearing that there are Americans who are nervous about going abroad. Our work, whether it be with respect to the international rule of law on a more academic level or on a personal level for the “average American,” is to explain what is happening to help them comprehend their role in ensuring that we do not end up with a disaster. Thank you.

Charles-Emmanuel Côté

Concerning Americans going abroad, I should say that you are most welcome to come to Canada and specifically to the CCIL conference in November 2025. I really hope that we will continue this discussion in Ottawa. I like the idea that you mentioned that the American people feel it is not what they signed for. I will use the same idea to tell you that I think Canadians feel that they did not sign up for that when they signed trade agreements with the United States. When we signed these agreements, we felt that the United States would respect its word, and that trade disciplines that are provided for would be applied, notably with respect to tariff commitments. On that specific point, I cannot stress enough how shocked Canadians are about it. It is a very big shock to realize that we cannot trust the treaty commitments of the United States. Whatever the economic reason, there are ways to change your mind in a lawful fashion. What comes as a shock and a surprise is that when we look at it more carefully, there is actually a selective departure from treaty obligations on the part of the United States. Not all treaty obligations are violated. Actually, what we witness is mostly a collapse of the legalization of trade relations between our two countries.

Specifically in the field of trade, because even in international economic relations more broadly we still have investor-state disputes that are going on and nobody said “well you know, there are no treaties, we don’t follow the treaties on which are based those disputes.” The collapse of the legalization of trade relations is a very specific problem at the moment and it entails a series of problems. First of all, the countermeasures that Canada and other countries have applied are basically adopted outside the applicable legal framework. We are supposed to file a complaint to the dispute settlement mechanism of the trade agreement, wait for a report, see if the losing party has implemented the report, and if and only if it does not can we impose countermeasures. That is now all gone and we are just applying immediately and unilaterally countermeasures to respond to the political emergency to act. That comes as a shock for lawyers as well because we are now navigating in a sea that seems not to be charted anymore by international law in the field of international trade.

I would say that with the breach of treaties came a breach of trust. I think and I know that we are talking and there are people in this room that will be having the important task of dealing concretely with that. But how can we negotiate a deal when the deal that we currently have is not even respected. Thus, beyond the breach of treaty there is a breach of trust and hopefully our international law societies can be part of the solution in creating conditions that are favorable to a restoration of a culture and a climate of respect of treaties. Even the way that the breach of treaties is staged is kind of shocking, using social networks to basically say “we will do whatever we want and not even respect our treaties.” That comes as a shock for our two countries, the relations of which are based since their inception on international treaties in every field possible of cooperation, use and management of water resources to borders, trade, or transportation. This staging of the breach of trade is something that is also quite surprising for Canada. We say that Canada-United States relations will never be the same, that is the mood right now. Let us say that trust will need to be restored first before thinking that treaty commitments can be made and will be respected. It will be difficult to restore that trust and again, I think it is really specifically in the field of international trade that we have this problem. We should not oversimplify things, because I think that the majority of our treaty relationships are unaltered by the current situation, but in the trade field there is something special. From an international rule of law perspective, I think that Canada took the only sound course of action, by challenging every measure that can be challenged before the WTO and panels of the USMCA, or CUSMA in Canadian parlance. I think that even though these processes are maybe not as effective as they used to be, resorting to them is something that is fundamental for building a new trust relationship and saying that we will not just let that go without reacting in using all legal remedies that are at our disposal.

Scott Fairley

Again, thank you both. I have two questions left. My fourth question is a little more nuanced. Both Canada and the United States are single nation states in the eyes of international law but, at the same time, both sprawling federal states. And I think it is fair to say that in our respective countries, there are divergent economic and other interests in different parts of each of our countries. These became apparent in various Canadian delegations to Washington, including, not only federal government officials well represented in this audience today, but also provincial premiers: notably the premier of Alberta, Danielle Smith, who initially quite liked the new president of the United States until the oil tariffs hit: the premier of Ontario, Doug Ford, who was much more bullish in terms of how he thought Canada should respond to U.S. tariffs. On the American side it is a little different, not at this level. You do not have parades of U.S. governors coming to Washington, and Mélida pointed out to me yesterday preparing for today that perhaps there was not much point in that. However, governors of various U.S. states—Michigan, Wisconsin, laterally California to name a few—have voiced their concerns over current U.S. federal trade policy. California governor Gavin Newsom has said that the State of California is going to chart a different course. There is a lot of upset U.S. wine producers, not to mention distillers of Kentucky bourbon, foreclosed from the Canadian market due to retaliation by Canadian provincially administered liquor boards.

President Côté, your turn again to lead off.

Charles-Emmanuel Côté

There are lots of things to say from the perspective of federalism, not to mention the fact that the mathematics change because you have 50 + 10 states and not 51 states if you look at federalism, but I will not go into that. Subnational units may play a role in the current context both internally and externally. Externally, Canadian provinces, including my own province of Quebec, already have several ties with U.S. states and signed agreements on important issues, such as climate change with California. This is an example that when the political dialogue is complex at the federal level between the two sovereign states, at the subnational level, there are ways to further some policy objectives including on climate change. There are some trade agreements that are now signed by U.S. states with the United Kingdom for instance. There is a rising salience of these types of instruments that would be probably labeled adequately as non-binding international agreements. This is a topic that has been picked up by the International Law Commission (ILC) right now, to the exclusion of agreements signed by subnational units for the sake of not complexifying a topic that is already complex. I think nevertheless that this is something that might become a rising trend. Internally, I think that within our respective system of foreign relations law, Provinces and U.S. states do play a role somewhere within the process of either ratifying or implementing treaties. Lawfully withdrawing from international agreements may also leave room for influence by subnational units and that is another role that could be played by subnational entities in the current context in protecting the international rule of law.

Mélida Hodgson

I remember when I was at USTR and we were negotiating the CAFTA Agreement and there was the government procurement chapter, and for the United States there is always an overlay of Buy American provisions, which are laws that were never changed in this country so you had to negotiate consistent with that framework. And suddenly there was a movement by an organization that I will not mention, but we started getting calls from various governors’ offices that they were not going to agree to have their procurement open, and a lot of them pulled out of their commitments. There was a lot of blatant disinformation about what the agreements did and what was allowed, but part of that was also that we were starting to see that some of the states were doing things on their own—they wanted to negotiate it themselves. Whether we call it international law or not, it is a transnational relationship and I think we may see more of it at the subnational level.

Scott Fairley

Again, thank you both. This last question is in some ways the most critical one of the lot going to the long-standing principles of the international legal order advanced by our respective societies. Are these principles essentially up for reinterpretation, dilution, abandonment, or what have you, or should they be assiduously defended as we have originally understood them to be? In conclusion, I am reverting to Tom Franck’s scholarship again not only because I really like the way he writes but what he said in one of his later books, this time twenty years after my previous quote, is compellingly relevant now, The Power of Legitimacy Among Nations, New York: Oxford, 1990, at 173: “No rule may be better than a bad rule or one which has outlived its utility.” Is that where we are now?

Mélida Hodgson

I do not know that we are there yet. I do not think it is all totally gone. Yes it feels very bad because actions are being taken outside of the rules but we are also responding by working within the rules and that is a good thing. The question will be in a year or two whether or not the rules are really functioning right, and so I would not say that it is a bad rule, the problem is you have human beings who can sometimes act badly. I would not discard the rule because we have bad actors or actors who are not willing to live by the rules. I think the rules can survive if others try to reinforce them and to act as consistently as possible with those rules, so I would not give up on the rule yet.

Charles-Emmanuel Côté

I could not agree more. If there is a rule that we cannot give up on, that is the rule of pacta sunt servanda, that treaties must be observed. Even though this rule is currently challenged in the field of international trade, let us see in two years where we will be. But I think that this rule should certainly not be abandoned as it is one of the most basic ones for the building of international law. Every action that will reinforce the obligatory force of treaties must be taken, including seeking remedies before trade dispute settlement mechanism that are available, in a spirit of believing still in the rule that treaties must be observed. If you allow me to just take a minute to bring the discussion beyond Canada and the United States, toward the situation in Ukraine for instance, we are talking right now and about the United States trying to solve the war in Ukraine and having a treaty signed. I cannot help but being saddened by the fact that the mere idea that a treaty would be signed to end an unlawful war is also unlawful since a treaty signed under the threat or the actual use of force is against international law by itself. This is an important rule inherited from the reconstruction of the international legal order after World War II and that I think that it should be saved. I am skeptical that this rule will survive the practice of states right now, because it seems not to be part at all of the equation that there should not even be any discussion on peace treaties as we knew them before, because they are now unlawful and we should not even think of accepting that. I am a little bit worried about the survival of that rule in the current world and that would be my point of worry.

Scott Fairley

Thank you Mélida and Charles-Emmanuel for your very illuminating contributions and thank you to all of you in this audience for listening today. As the title of the ASIL’s recent film on Ukraine’s plight in the face of Russian aggression suggests, “Stand Tall for the Rule of Law.” Thank you all again for attending.