Q&A: Raustiala Reflects on the State of International Law

April 17, 2020
Kal Raustiala at speaker podium

Kal Raustiala was recently named the Promise Institute Chair in Comparative and International Law, joining Kimberlé Crenshaw — the Promise Institute Chair in Human Rights — as an inaugural holder of an endowed chair affiliated with UCLA School of Law's Promise Institute for Human RightsRaustiala, also the director of the UCLA Ronald W. Burkle Center for International Relations, is co-host of the American Society of International Law’s International Law Behind the Headlines podcast. David Silverlid LL.M. '19, a former student of Raustiala's who is now a junior legal consultant with Project Expedite Justice, conducted an interview with Raustiala about his work and topics in international law.

David Silverlid: In your 20 years at UCLA, how has the field of international law developed at UCLA School of Law, and what is the Promise Institute adding to UCLA's footprint in international law and human rights?

Kal Raustiala: The creation of the Promise Institute was a huge step forward for UCLA. When I arrived at UCLA Law, we had a much smaller group of faculty in international law. Richard Steinberg was here, as were some older faculty who have retired. Phil Trimble in particular made a big impression on me, and I sat in on his foreign relations course my very first year to learn from someone who really was a master. In the years since, we have grown our faculty and diversified our offerings. Asli Bâli, Maximo Langer, Tendayi Achiume, Lara Stemple, Alex Wang, Stephen Gardbaum, Kristen Eichensehr, our Promise Executive Director Kate Mackintosh, who has deep experience in the Hague — I'm sure I'm missing someone — we now have a very strong group that really covers the waterfront of human rights and international law. And we supplement that with amazing outsiders for visits, such as Richard Dicker of Human Rights Watch and Joseph Weiler of NYU.

Your work has focused on an impressive range of topics, from the territoriality of American law to internet governance, and from copyright law and creativity to the process of treaty making. What is your most important work and how has it influenced your research and teaching interests?

I'm a little uncomfortable saying what my most important work is; I think others really should judge that. I'm probably proudest of my book Does the Constitution Follow the Flag?, if only because it took so much work to write. And it was my first book, and so is seared in my memory. The book looks at how the "map" of American law is often very different from the map of American territory, and connects the dots from the Louisiana Purchase to Guantanamo Bay. It's an international law work because it is fundamentally about how states claim jurisdiction. But it is also a constitutional and statutory law book. Many practicing lawyers are familiar with securities or antitrust cases involving foreign actors on foreign soil. Those are all extraterritorial cases. But there are many others less well known; perhaps my favorite are the cases from the U.S. Court for China, which was a federal court that operated in Shanghai in the late 19th and early 20th centuries.

For better or worse, my most-read popular piece was in Slate a few years ago, about gin-and-tonics and the British empire.

While pursuing my LL.M. degree at UCLA, I had the privilege of assisting you with research for your new book project chronicling the early days of the United Nations through the perspective of diplomat, Nobel Peace Prize laureate and UCLA alumnus Ralph Bunche. How is the project coming along?

I really love this book project and want to thank the Promise Institute for its support. Ralph Bunche was an extraordinary figure who is forgotten to most of us, though perhaps older readers will remember him. As the first African American to win a Nobel Prize, he instantly became a huge celebrity — so big he handed out the Best Picture award at the 1951 Oscars. Can you imagine a U.N. official doing that today? Bunche was also a major human rights figure. His life's work was largely about equality and the process of decolonizing the world. He worked on that from his Ph.D. at Harvard through his career at the U.N. And as a civil rights figure, he always brought a global perspective. My book is not going to be a conventional biography so much as an examination of how Bunche shaped the world we live in today. But there will be many gripping stories, from his playing pool with Moshe Dayan in the first major Arab-Israeli mediation in 1948-49 to being held at gunpoint in Congo during the Cold War "Katanga crisis." I have been fortunate to meet some of the Bunche family in writing this and come to know his grandson, Ralph Bunche III, in the process.

While working at the United Nations for the International Committee of the Red Cross, I observed how states are increasingly relying on multi-stakeholder governance models, in which businesses, academia and NGOs play central roles in the formation of international rules, with the area of cyberspace being the clearest example. How do you see multilateral lawmaking developing in an increasingly digitalized world?

A century ago, diplomacy occurred behind closed doors. Woodrow Wilson sought to make it more open, and by the end of World War II, multilateral cooperation featured more NGOs observing, as it was at the San Francisco Conference creating the U.N. Slowly those observers began to comment and debate, and that became the new norm in multilateral cooperation. The next major step is "multistakeholder" governance, in which non-state actors actually participate in the work of lawmaking and occasionally even vote as states do. The internet has been an early adopter of this, for example at ICANN, right here in L.A., which controls domain names. The challenge going forward is that many autocratic states really do not like multistakeholderism; they prefer more state control. As China gains power in global forums, we may well see a retrenchment back to traditional multilateralism. And the Trump administration has unfortunately accelerated a decline in American power and prestige in global governance, which largely redounds to China's benefit.

With 2019 ending with the collapse of the World Trade Organization's Appellate Body, only to be followed in 2020 by an unprecedented global pandemic, it seems uncertain whether international law and international relations will merely return to "business as usual." What is your assessment of the current moment?

2020 will go down in history as a year of stunning challenges and change. We are only in April now, but New Year's Day seems a decade ago. Your question is an excellent one: Will the world see the value of international law and cooperation more, and band together to fight a common enemy? Or will it instead retreat, in the face of fear and chaos, to self-interested action? That happened under very different circumstances in the 1930s, and we know the outcome there. Already, the last few years have seen a rise in populism and a retreat from internationalism. We are at a hinge point, and political leadership will play a big role in determining which path unfolds. I hope we see the value of international law because on balance we have gained a lot through cooperation. But we are slipping away from that vision in the U.S., and unfortunately it is much easier to destroy existing relationships and institutions than to build them.

2020 will also see a presidential election in November. As a former student of yours in Public International Law, I was impressed by how the course crafted an overarching story about the evolution of the United States from a small isolationist nation to the world's leading superpower, and how that evolution both shaped and was shaped by international law. What do you think the next chapter in the story of the United States will entail with respect to international law?

I've already mentioned how this administration has weakened if not destroyed so many important global relationships and institutions. The WTO Appellate Body is just one example. These are not great outcomes even if you don't like the WTO, since the method is itself corrosive. But it is important to remember that the U.S. has been largely isolationist for most of its history. The postwar system of American global reach, bases everywhere, Leader of the Free World — that is really just in living memory. Even right up to December 1941, many Americans thought European wars had nothing to do with us and we should just ignore them. So that strain of thought is very powerful, and today it is growing almost as powerful on the left as on the right. I personally think not all international law is positive and sometimes nations need to go it alone. Local control can be good (one reason I sometimes wish California, the world's fifth-largest economy, could secede!). But in the contemporary world, there are many things, many outcomes, you simply cannot achieve on your own. International collaboration is essential. Climate change and pandemics are Exhibits A and B.

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