Philip Alston

Talking about great personalities, I don't know if you mentioned this to the United States officials when you came through Immigration this time, but I understand that you also had a number of meetings with Che Guevara.

Georges Abi-Saab

Yes.

Philip Alston

Would you like to apologize now, or—

Georges Abi-Saab

No. Che Guevara has become a saint. They hang his pictures everywhere.

But my meetings with Che Guevara were rather innocent. I started teaching in Geneva in 1963, and in '64—

Philip Alston

You met him in the jungles of Geneva?

Georges Abi-Saab

Yes—a very big conference was held there, the United Nations Conference on Trade and Development, or UNCTAD. I was a Third World freedom fighter, if that's what you asked, so I was very, very interested, in UNCTAD. There was that fabulous report by Raúl Prebisch and many other excellent ones as well.

It was a momentous event. In fact, I wanted to write a book about UNCTAD. It was the biggest conference convened by the United Nations until then, with more than one thousand delegates, and it lasted for three months. That was before the unending Third UN Conference on the Law of the Sea, etc. And among the delegates was the Minister of Industry of Cuba by the name of Ernesto Guevara. In the evening, he would have a kind of what the Swiss call a stamm, a gathering around a table, of young delegates and intellectuals, basically from the Third World, to discuss with him. And that's how I met Che Guevara, several times, yes.

Philip Alston

Guilty as charged.

Georges Abi-Saab

I even met, not met, but saw in person and heard Fidel Castro, but guess where? In the stadium of Harvard University; because he visited the United States in April 1959, just after the triumph of the revolution, and came to speak at Harvard.

Philip Alston

Did he speak for six hours, as usual?

Georges Abi-Saab

No, it was less, because it was rather chilly that early spring evening, so the speech couldn't last that long. I saw him with Dick Falk, who was also in the Graduate Program of the Harvard Law School at that time, and we both went to hear Castro, who spoke in English!

Philip Alston

So for a last bit of historical interest, I gather that this is not your first visit to the ASIL annual meeting?

Georges Abi-Saab

No. I came for the first time when I was a student, again at Harvard, and it was in 1960, fifty-seven years ago. I even gave a small paper. At that time, let me tell you, it was a very different affair. It was much smaller and more intimate, held in a hotel called the Mayflower—I don't know if it's still there—and Washington was a small, provincial city. At night there was nowhere to go. And there was one event at a time. I gave this paper, entitled “The Newly Independent States and the Scope of Domestic Jurisdiction.” So it was already the Third World. And I had the great privilege of being, I would say, attacked but, anyway, commented on by both Myers MacDougall and Quincy Wright.

Imagine what student would now get such attention? I don't know whether the spectacular expansion of the Annual Meeting is a good thing, but as a participant I enjoyed it very much in 1960, and, of course, I came several times in later years.

Philip Alston

That's great. Let's move on to substantive issues. Your major single scholarly contribution to the field of international law is your General Course at The Hague Academy. Is it outrageous to ask you, in the space of a minute and a half, to sum up the theory that's reflected in the initial pages of that treatise?

Georges Abi-Saab

Yes. It's difficult. But I'll try. The problem with international law today is that it is perceived so diversely by those who deal with it, like a group of blind men trying to visualize the elephant by touching different parts of it. On one hand, there are the hardened professional practitioners who deal with it in a very direct, down-to-earth way: what is the rule, is its existence proven, what's its ambit, etc. Others, mainly academics, engage in grand theory, what is international law, is it simply rhetorics, is it a dependent variable of economics, is it this, is it that, by reference to all these so-called new schools. In fact, one of my younger colleagues in Geneva has just published a book entitled Theories of International Law, and when you open it, you get a tour not just of critical legal studies, law and economics, but of twelve different approaches to international law. You get lost in all that and you wonder whether it all boils down to subjective representations and preferences.

Of course, everyone has his or her own preferences—and because I had given a shorter course before at The Hague on wars of national liberation and the laws of war, and I had published several articles about the position of the Third World in international law—I preferred to say at the outset “I'm giving this General Course not from the perspective of one group of states but I'm looking at international law from above to try to show how I see the system work”—I'll discuss that further in a minute—but then I added: “However one tries to be objective, he is always objectively somewhat subjective, because one always travels with his own luggage. So what is the nearest thing to being objective?” And here I adopted the adage of the great economist Gunnar Myrdal—because I had just studied economics before coming to international law—and Gunnar Myrdal says, “The best way in social sciences, the nearest to objectivity, is to reveal one's subjectivity, to say where one stands, so people know from where you start.” And my premises are “my firm conviction that things are perfectible, that the sense of justice or rather the feeling of injustice is a potent motor of social dynamics and that international law, like all law, is neither oblivious of this objective nor absent from these social dynamics.” In fact, it is its close proximity to social objectives and dynamics that intrigued and attracted me from the outset to international law. For, as I just told you, I went to the law school not because I wanted to become a professional lawyer, but because—it's a long story.

Philip Alston

What is the story, briefly? You went to do a Ph.D. in economics, so how did you end up studying instead in the law school?

Georges Abi-Saab

Because my grandfather was a famous doctor, when I was born I was given his name, Georges—not like George Kahale, here, who is number three; I was only number two—and from day one I was meant to be a doctor. I mean, my destiny was sealed. But, as it turned out, I didn't want to be a doctor. I developed a literary taste and then in high school I started to be socially and politically conscious and a little bit of a radical. So I didn't want to. My father said, “Okay, you do what you want.” When I got the baccalaureate he asked, “What do you want to study?” I said “philosophy.” He told me “With a degree in philosophy you can only be a school teacher. What do you want to be?” I answered, “I want to be a writer, a journalist, someone who deals with ideas.” He said, “Why don't you study law?” I asked, “Why?” He responded, “Because, as Voltaire said, La loi est la culture de l’ honnête homme,” literally “law is the culture of the honest man”; but it means really, in French, the good well-rounded citizen. He then cited the names of many writers and journalists he knew I liked because he saw their books and reviews with me, concluding, “All these have studied law.”

So I went to law school and I liked, first, civil law—contracts, torts, property, etc.—not only the present one, but going back to Roman law and Islamic law, because of the beauty and profundity of the intellectual constructions. But it was too abstract. We also studied economics in law school, and I thought economics explained things better, explained how society works. I was attracted to international law as well, because of its direct relevance to world events and close interaction with international trends. So I kept hovering between the two, and after I graduated from law school I wanted to do a Ph.D. in economics. I got a fellowship from the University of Michigan and did my M.A., and then I qualified for the doctorate and started writing a thesis. But by a freak of circumstance I got into Harvard Law School.

In the fall of ’57 or early ’58 I attended a conference on Middle East law held at Michigan Law School. There was a great boom in Middle Eastern Studies after the Suez crisis. People were spouting so much nonsense. I was a very young man and rather shy, but I couldn't stand this, so half an hour into the discussion, I started correcting the wrong facts…

Philip Alston

Whose “facts” were you correcting?

Georges Abi-Saab

Those who spend a week or two in a country or region, then claim to be experts. I couldn't tell them that their analysis was nonsense. But facts are facts, so I could at least correct them. Over lunch, I was sitting beside someone who was an egghead, like Adlai Stevenson. He asked me, “How do you like studying law here?” I said, “But I'm not studying law.” “What are you studying?” “I'm studying economics.” “But then, how do you know all that?” So I explained to him.

Several weeks later, I was auditing the course of international law of Professor Bill Bishop, who by the way was the one who had told me about the conference. After class, Professor Bishop hailed me, “Abi-Saab, I have a letter for you.” I thought, “Who would write to me through Professor Bishop?” I opened the letter and it was this gentleman who was sitting beside me at the conference lunch. His name was Milton Katz. He was the Director of the International Legal Studies Program at Harvard. He explained that to me. “I'm Milton Katz. I was a professor at Harvard and after the war I directed the Ford Foundation, and then came back with a big grant”—$5 million at that time was a big grant—“to establish the International Legal Studies Program, and I was very impressed by you. Why don't you join the program? I will offer you a fellowship.”

Of course, as a silly young man I thought I could ride two horses at the same time. I had finished my requirements for the Ph.D. in economics and had started preparing my thesis proposal. I said to myself, “Of course, I am going to Harvard, and will write my economics thesis on the side”; because there is this Harvard mystique, you know. Somebody wrote a book about the Harvard mystique. Much of it is humbug, but still it was a mystique, at least for me as a young student coming from Egypt. And I went there, and I was quickly caught up in international law.

What interested me in international law is something unique about it. For, unlike civil law or administrative law or whatever, it has a very peculiar quality. Why? Because—as I tell my students now, that which I felt confusedly from the beginning but didn't articulate then—international law as a living organism is a creature without a skin, a kind of a crab; unlike the crab that is now in season, it doesn't even have a soft shell. It is directly pervious to its environment. But what is the legal skin of which it is deprived? It is precisely the shell or the dome that protects the other legal systems from total and unfiltered exposure to their environment, in the form of the state and its traditional institutions of law creation, implementation, and enforcement. So you can study law to some extent from within, in isolation from social context, in the abstract. In international law you can't, because the interaction between law and society is so direct, so intense and interwoven.

This poses a great challenge to those who are serious about dealing with international law as a real legal system, a corpus separatum distinguishable from its environment, though highly sensitive and permeable to it. They have to visualize and trace the imperceptibly fine and tangled line—or frontier—that permits one to distinguish the international legal system from its social environment. Otherwise, we fall into the trap of considering international law simply as a rhetoric of justification: if you can make a case in legal terms for any position, then it is legal; and I am sorry to say that many lawyers, international lawyers, adopt this attitude. They think it's merely a question of being clever at formulating a case in legal terms. It's not. This case has to correspond or rather conform to something objective, which is the international legal order.

To effectuate this delicate mapping exercise—and this brings me back to the General Course—sorry I wandered a bit. I found a very useful tool in systems analysis. One can look at international law in three different ways, corresponding to three levels of analysis. First, from the widest angle, one can look at it as part of a larger whole, a subset or subsystem of the international system, which encompasses all the forces and influences—cultural, economic, political, military, whatever—that make up and shape international relations, part of which are international legal relations, or the international legal system.

But this vast perspective depicts international law from the outside as part and product of a larger unit. It postulates, but does not show, how international law interacts with the other components of the larger system, particularly, how the social forces and influences work themselves out into specific legal outputs or prescriptions.

Second, one can reduce the angle and focus on international law itself as the unit of analysis, the larger system being treated merely as its environment. It's a different level of analysis, at which one scrutinizes the international legal system from the inside—how it works, how it is structured, but not in abstraction from its environment. For, as a mechanism, it gets its inputs from the environment, then it feeds its output back into it. Moreover, a particularly interesting aspect of the analysis at this second level is the scrutiny of the internal processes by which the system digests and transforms the social inputs into legal outputs embodied in norms and institutions—not rules and procedures in books, but norms and institutions in action, that is, as living law with very special characteristics.

This is why, in the General Course, I concentrated on this second level of analysis, while recalling all along that the system is the product of its environment, which explains its specificities and weaknesses—weaknesses that Jackson highlighted in the quotation Philippe Sands read to us yesterday. That which explains in turn why the rules, which are the final products of this system, somehow do not always correspond to what one would have wished them to be.

It is very current today for people, particularly the proponents of the “new schools,” to tell you that you have to look outside the box. It's a very popular formula. And I tell them, yes, look outside the box, but you should first look at what is in the box and understand how it works, before seeking the answers or the solutions outside the box. Just looking outside the box doesn't specifically explain anything. You have to be a good technical lawyer or legal mechanic first, in order to understand the instrument you handle—that it is a car, for example, that doesn't run quickly enough, or why it cannot be used to fly. You have to know that first, before trying to repair it or to boost its powers, which cannot be done by merely looking outside the box.

At the third level of analysis, one reduces the angle further to focus only on the final product, the rules, as many lawyers do. Though useful as a first approximation, this is too narrow and static an approach, merely taking a legal snapshot of the rules at a certain moment of time. So in the General Course I didn't put much emphasis on the rules as such, but rather on how the structure of the system emerged from its environment and how, as a result, or rather in spite of this noncentralized structure—the absence of skin or shell that I mentioned earlier—how the system managed, in varying degrees and diverse, sometimes peculiar, manners, to perform the vital functions of a legal system in terms of law creation, implementation, and enforcement.

Philip Alston

That's all very straightforward and easy.

As you were talking I was sitting here thinking—but you mustn't answer this—I wonder if he used to speak like this to people on the Appellate Body of the WTO or in some of the other benches on which you sat—whether they ever got these talks about the need to situate themselves in the—

Georges Abi-Saab

Yes, of course.

Philip Alston

Yes? Really?

Georges Abi-Saab

As long as you mentioned the Appellate Body, I'll tell you. My view from the outset was simple. You know, WTO law is very technical. When I first read the reports I was baffled. I said it's like Chinese to me. It's speaking in cipher. So first of all they had to be made more accessible. Napoleon decided to codify all law in a small volume and confined all the major jurisconsults together in a castle until they produced the “civil law code” that every citizen could put in his pocket, read and understand what his rights and obligations were. This is the main purpose of written law, to make it available to the citizen. But my efforts at greater legibility remained in vain, because the Covered Agreements themselves are very badly drafted: too lengthy, convoluted, and over-detailed.

Second, because of that, people within the dispute settlement system got very absorbed in the details, searching for relevant words and their dictionary meaning. I kept repeating that interpretation is a holistic exercise and that this is not a closed or self-contained system, but part of a larger one. In fact, the Appellate Body developed good instincts early on, without always putting them into words, declaring in its very first report that WTO law cannot be interpreted “in clinical isolation” from customary international law.

But what is the relationship between WTO law and the “rest,” beyond the law? There is a famous article in GATT, Article 20, entitled “General Exceptions,” which is an oxymoron, because if it's general, it's not an exception. In fact, these general exceptions constitute, in my view, jurisdictional limits to the trade regime. Throughout my eight years on the Appellate Body, I kept reiterating that there are limits set by the other social values outside economics; that economics is not the ruling that prevails overall; and that, in terms of law—this is the transformation function of the legal system—these are jurisdictional limits that bound the ambit and reach of the trade regime. I don't know if this message stuck, but that was my idea.

Philip Alston

I understand. So did you go for the United States or China?

Georges Abi-Saab

Depending on the case. And that's another thing, you know. You cannot judge a judge on his general attitude, because a good judge has to decide on the specifics of every case.

Philip Alston

Sounds good to me. The most striking part of your career is the link between theory and practice. This is what our conversation now has been illustrating. You have a very deep theoretical conception and understanding of how the systems work, but you've also been working in the coal mine, whether in the Yugoslav Tribunal, the Appellate Body or in a huge array of other different bodies. You've written harshly about critical scholars who, as you say, criticize the existing rules vehemently while refusing to propose any alternatives. You've said that that's the height of cynicism. You've said that deconstruction must be accompanied by reconstruction. But does it follow that all theorists have to actually engage in practice?

Georges Abi-Saab

No, no, no. Reconstruction is not necessarily practice. If you deconstruct something in theory, you have to say what is the right approach or solution instead. It's not enough, like Martti, to say “it's not my job.” Every time I find myself with Martti Koskenniemi and I try to pin him down, “What do you propose as an alternative?” he says, “It's not my job.” I think this is really the summum of cynicism. I refer frequently to an article in the German Constitution, which tells you that you can have a vote of no confidence in a government, but that the government will stay on until you constitute another one. I say to those who criticize vehemently all or part of the rules of international law that these rules may be deficient but you have to know why they are deficient, as that deficiency may not be in the rule itself but in the machine that produced it.

So before trying to shoot down the rule, you should know what other better rule should replace it and how you can make it work efficiently. Otherwise, what do you have? You destroy the law, you remain with no law, or rather you remain with another law called the law of the jungle. The largest will eat the smaller ones, like the fish. In the final analysis, criticism without constructive suggestions leads to the destruction of the rule of law, and a defective but perfectible law is better than no law at all.

Philip Alston

There are a great many questions that I'd like to ask but I think we've got time for just one more, which tries to capture the trajectory of your evolving career. After your days plotting in the jungles with Che Guevara, you then worked on the New International Economic Order and did a major study for the United Nations on how that could be implemented legally and so on. So you've always been associated very much with a progressive, Third World economic agenda. But then, in more recent years, you might be accused of having sold out completely and started working for the Appellate Body and in a lot of investment arbitrations and so on. How can you sleep at night?

Georges Abi-Saab

Yes. You know, there are many stories I can tell you, starting again from my days at Harvard Law School, where I worked for some time as a research assistant to Professors Sohn and Baxter in a project on the rules of state responsibility for injuries to aliens. We had one article each, as we were many students working on it, Ted Meron and Keith Highet among others. We had to compile all the precedents of nineteenth-century and early-twentieth-century mixed arbitral commissions, et cetera. At the same time, I was very interested in the subject of domestic jurisdiction in economic affairs, and went frequently to the United Nations where delegates were discussing permanent sovereignty over natural resources. After several months’ work on the research project, I abandoned what I did; didn't even claim for work done; as I thought that law should go forward, not backward.

About the study that I did for the United Nations, it was published as an “Analytical Study” annexed to a Secretary-General report on an item with the interminable title “Progressive development of the principles and norms of international law relating to the new international economic order.” I did something similar earlier about wars of national liberation and the laws of war. When one tries to deal with such controversial subjects, the first reaction of others is to dismiss them as political. This is legal nonsense, for any subject can be approached legally, provided it is done seriously. The real challenge for the international lawyer is to chart the ground and draw a legal blueprint demonstrating in detail how such controversial subjects can be legally conceptualized and effectively regulated. Without showing the nuts and bolts of how this can be made to work as part of the system, to integrate it into the international legal system, they can be very easily pushed aside as being political rhetoric. And that's what I tried to do all along. For wars of national liberation it worked well and we brought them into the First Protocol Additional to the Geneva Conventions of 1949.

As for the study on the New International Economic Order, it came out too late; just after the upsurge of the neoliberal tide triggered by the access of Thatcher and Reagan to power. But I did what I could.

Philip Alston

I hate to tell you the Grim Reaper is here, but we think we can take two more minutes.

Georges Abi-Saab

Briefly, I did a blueprint in the form of two inquiries: first, what is the legal content of the relevant principles and norms; second, to what extent has this legal content hardened into law, which is obviously a different matter. You identify the normative proposition of each: who owes what to whom. Then you scrutinize each to determine to what extent it is already part of the law, that is, of positive law; of soft law; or a mere proposition de lege ferenda. In this way, you draw a broad picture of the principles and norms that represent a credible legal rendering of the New International Economic Order; a blueprint and a road map detailing what is still legally needed to bring it about.

This blueprint is still on the table. And who knows? The vicissitudes of international life may suddenly thrust the subject back to the forefront.

As for my recent practical activity, I endeavored to stay on the same path of aiming at the perfection and the preservation of the integrity of the legal system, while inching it toward more inclusiveness and equity. Thus, when I got on the Appellate Body, I first thought I was parachuted behind the enemy lines and I would do what I could from there. As I mentioned earlier, I was a staunch UNCTADien and I considered GATT as a rich man's club, and later the WTO as a relentless machine of economic globalization. But, in fact, I was pleasantly surprised, because—and that is the link to investment arbitration—if you have a standing organ, it develops—consciously or unconsciously—over time, a judicial policy. This judicial policy, by logical necessity—provided the people on that organ are perceptive enough—should take into consideration as one of its major objectives the good functioning and sustainable development of the organization to which this organ belongs. It is a matter of public or collective interest of the organization as such and of its membership as a whole. But this objective cannot be maintained unless there is a reasonable balance of interests between the members of the organization which permits it to sail on an even keel. Thus, even if the texts one is interpreting are convoluted and somehow slanted, one has to keep that consideration in mind, for example when handling the wrinkles and tilts of the Covered Agreements. Of course, one cannot change or tinker with the texts; one cannot go beyond a certain limit. But within the margin of interpretative discretion, it gives you a cue. That's what I tried to do, and I have to say that the Appellate Body did, to some extent, go that way.

When we come to investment arbitration, it's a very different proposition. It's ad hoc, and ad hoc arbitration is fraught with danger, because the composition of panels changes every time, it carries with it an ominous and omnipresent moral hazard: that an arbitrator, rather than approaching the case with an open mind and no commitment but to the rule of law, thinks “I should be careful and attentive to the prospects of future appointments, avoid going against the flow or taking unpopular positions be they dictated by principle, lest I burn my reputation.” Countering such attitudes brought me down physically and compelled me to take very strong positions, writing fiery dissenting opinions, as I didn't mind burning my boats.

Philip Alston

Thank you. Lucinda, I should have said this at the beginning. Georges is actually the first African ever to get the Hudson Medal, and I think, in fact, only the second from the global South, and his predecessor was the then president of the International Court of Justice, Jiménez de Aréchaga. So it's a huge feat and a great tribute to him.

Lucinda Low

Philip, I've been called many things, never the Grim Reaper before.

I think we'd all agree, however, that this was a conversation that could have gone on for a long time, from topic to topic with concepts and images that will stay with us. The creature without a skin is one that I am going to carry with me. So, Philip, thank you for leading us in a most engaging conversation, and Georges, we are deeply honored that you would spend this luncheon hour with us, conversing on this range of topics. And thanks again to Foley Hoag and to Paul and his colleagues for their sponsorship and participation. And we have more topics to address this afternoon. Thank you.