From the Russian invasion of Ukraine to the rising dominance of China as a superpower, a fresh examination of international law’s role in the global division between dictatorship and democracy has rarely been more relevant. This special episode of Borderlines features award-winning scholar Tom Ginsburg discussing ideas and theories from his recent book, Democracies and International Law.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago, where he also holds an appointment in the Political Science Department. He is a Research Professor at the American Bar Foundation, a member of the American Academy of Arts and Sciences, and currently co-directs the Comparative Constitutions Project.
Listen as Tom recounts his formative years in Berkeley, takes us behind the scenes at the Iran-United States Claims Tribunal, and shares first-hand stories about crafting constitutions from Mongolia to Honduras. His unique world view will expand listeners’ perspectives beyond western approaches. As the balance of power between democracies and authoritarian regimes continues to shift in the twenty-first century, issues of human rights, the scope of cooperation across governments, and the comparative concepts covered in Episode Six of Borderlines will impact citizens of virtually every nation.
Borderlines from Berkeley Law is a podcast about global problems in a world fragmented by national borders. Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law.
Episode Transcript
Katerina Linos (00:00):
Have you ever wondered what the rise of China and of authoritarianism globally means for international law? Have you wondered whether the war in Ukraine ushers in a new era for global cooperation and conflict? Welcome to Borderlines, where we will discuss these questions today. I’m your host, Katerina Linos, professor of international law at UC Berkeley. With me today to discuss the rise of authoritarianism globally and its implications for international law is Professor Tom Ginsburg. Professor Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago. His most recent book, Democracies and International Law, tackles these questions. Professor Ginsburg is a triple bear. That means he holds three degrees, a bachelor’s degree, a law degree, and a PhD from the University of California, Berkeley. Since graduating from Berkeley, he’s traveled the world, helping leaders draft constitutions. So in this interview, he will also tell us about Berkeley in the 1960s, Berkeley today, and academia in the US and around the world.
Tom Ginsburg (01:13):
The general background is there’s been a surge of interest, as you know, in authoritarian regimes in the last couple of decades. Getting beyond the idea that the institutions that we see in authoritarian regimes are window dressing, that they’re not real. And what a lot of scholars — Jennifer Gandhi, I think Adam Przeworski’s done some stuff — I’m no doubt missing many names — what many scholars have shown is that institutions in authoritarian regimes, even if they look the same as those in democracies, serve distinct purposes. They also might be slightly transformed in terms of how they’re operating. So we know for example, that constitutions in authoritarian regimes, courts and authoritarian regimes, legislatures, elections — all operate, but with different logic. What I was trying to look at in this book is whether international law institutions were also different in authoritarian regimes. And that’s kind of a subset of authoritarian international relations.
Tom Ginsburg (02:14):
Authoritarian regimes, obviously going back to the Concert of Europe in post-Napoleonic Europe, have had international agreements, international cooperation across borders through the Warsaw Pact, down now to the Shanghai Cooperation Organization. We have many examples of authoritarian international organizations and treaty arrangements. What I wanted to explore is, are those different? And ultimately, are they going to change and have feedback effects on what we would consider international or generally?
Katerina Linos (02:44):
Let me start with Kant and his theory of the democratic peace, that democracies don’t fight one another. It seems that there’s a lot of scholarship that suggests he’s roughly right, democracies don’t fight one another as much as other types of states do. And I think your book shows that there’s also a difference when it comes to other types of agreements, trade agreements, investment agreements. What do we know about how democracies interact with democracies and how they interact with authoritarian states? And also how authoritarian states interact with one another?
Tom Ginsburg (03:20):
Mine is sort of a demand-side theory. The argument goes, you have citizens of a democracy. They get to choose their representatives who are going to make decisions for them. And because a majority of the people are making the decision, that leader has an incentive to provide pretty wide public goods that would benefit the general public as it were. And of course, that’s very different than an authoritarian regime, where one family or one ruling clique runs everything for their own benefit. Of course, some of the things you might want to provide to your citizens can’t be produced at the level of a single nation state. States will be able to do more if they cooperate. And international law and international relations, in some sense can facilitate that kind of cooperation. So the argument is that citizens and democracies and their leaders will — ceteris paribus of course, there’s lots of other things going on — but will have a little more demand for international cooperation.
Tom Ginsburg (04:11):
It will be a deeper form of cooperation. You’ll have things like third party dispute resolution to resolve disputes when they arise. You’ll have presumably more detailed agreements, more structure in terms of the international organization than authoritarians. Authoritarian leaders, generally speaking, want to survive, and they want to distribute benefits to a limited group. And on that point, by the way, we do have some exceptions. I mean, the Chinese Communist Party is a really big organization and its policies seem designed to benefit the average Chinese citizen, if not every Chinese citizen. That’s kind of a relatively exceptional authoritarian regime, but for most of them, it’s really about extraction by a narrow elite. And for those kind of people, they’re very risk averse. They really don’t want things which are going to cause unanticipated political shocks. They really don’t want surprises and they don’t want anything that could empower their opposition. That’s why we see generally different regime structures and probably different levels of demand for the kinds of things that you can do with international law across borders.
Katerina Linos (05:19):
I was thinking a lot about Westphalia and the idea that we had these risk averse, authoritarian leaders, deciding to build peaceful institutions in Europe. And you coined the term Eastphalia. Can you talk a little bit more about that? I thought that was fascinating.
Tom Ginsburg (05:38):
Yes. In fact, it’s not my term. It arose from a graduate student whose last name is Kim at Indiana University who wrote a dissertation. And then we had a symposium on his dissertation. But my argument was I think, distinct, which is that Eastphalia as we called it — which was really asking what international relations would look like and international law would look like in a world dominated by Asia — Eastphalia, I argued would be a lot more like Westphalia, like classic ideas of sovereignty and non-interference and a kind of thinner form of international cooperation. And then for example, what we see as you well know in Europe, where at the time that I wrote the piece, there were a lot of folks saying that Europe was the future of us all.
Tom Ginsburg (06:21):
That is, strong supernational regulatory institutions, courts that can impose their will of the collectivity on individual states, even in kind of loss of national identity, which is what discussions about the European demos often kind of hoped for. And of course, none of that architecture existed in Asia, none of it exists to this day. And so I think that argument that a China-dominated world might actually look a little more Westphalia, was what I was saying at the time.
Katerina Linos (06:49):
But this is fascinating because as we’re recording, Russia has just invaded Ukraine in blatant violation of every principle of international law, consistent with Kant and the idea that we should expect authoritarian regimes to be more likely to go to war. But at the same time, many commentators say what’s going to happen next is going to be scarier as China will take the response of the international community as permission to invade Taiwan. Are you expecting an Eastphalian peace with significant human rights abuses and other negatives, but a peaceful architecture? Or are you expecting that to break down?
Tom Ginsburg (07:33):
In my book, I have a whole chapter on China and the United States. And I really get into Chinese history of thinking about international relations. It’s important; I don’t think most Americans realize that the China dominated international order in East Asia, sometimes referred to as the tribute system or tributary system, was remarkably peaceful. Between the early 1600s, late 1500s and the Japanese war with China in 1895, there’s not really interstate war in Asia, certainly not internally, that was not caused by Europeans showing up. So it’s remarkable and I think we could end up with that kind of world. The Taiwan thing is of course, very idiosyncratic. And I think we shouldn’t conflate China and Russia in terms of their postures towards international law and international relations. Both are similar in the sense that they see that their near abroad is their natural sphere of influence.
Tom Ginsburg (08:24):
Of course, the United States does that too. And the Ukraine war can be attributed at some level to that insisting on control of one’s immediate neighbors. But Russia is historically an imperial power that has taken over entire countries and squelched their self-determination and China has never really done that. Yes, on their frontiers, you have violence, in various times in Chinese history. But it’s not a country that is seeking to extend its borders in any way. Taiwan, of course, being a special case. Taiwan, of course, is acknowledged by both governments to be part of China, as Taiwan has not declared independence. They know that war would probably occur if they were to do so. And Xi Jinping has stated as his goal, to reunify the nation, to definitively recover from the century of humiliation at the Western hands and the Japanese hands, which they saw as trying to dismantle and weaken China.
Tom Ginsburg (09:22):
I don’t think that beyond Taiwan that we would see territorial invasion or anything like that; Taiwan is an idiosyncratic case. And I also think at this juncture, as we’re doing the interview, China’s timetable for taking Taiwan by force, which they are pretty clear about, has actually been pushed back a little by the Ukraine invasion. Because what the international community has shown is that, if you’re going to invade a country that we consider to be an independent country, you’re going to become a pariah, not just from states, but from businesses and banking and all kinds of things. And China’s internal structure and its external capacity is not yet there, where they could do that in comfort. Not that many transactions are dominated in yuan yet; the banking system and such would have to be set up. I’m sure they’re going to now do that. But because it’s not in play, they kind of now know what they have to do in order to carry out integration of the country by force, if that’s what they choose to do.
Katerina Linos (10:24):
I want to ask a little bit more about China, Russia and the US. One theory would focus on the fact that they are large powers. They want to control what’s happening in their immediate neighborhood. Just as we have the Monroe Doctrine, Hitler was inspired by our thoughts to coin his hideous term of Lebensraum. So the Russians want to have control over Ukraine and the Chinese over parts of Asia that hopefully don’t extend further than Taiwan, but might. That’s a theory that prioritizes size and ambition rather than regime type. How are China and Russia different from the US, the UK and other forms of democratic super powers with ambitions?
Tom Ginsburg (11:22):
The US has, of course, gone through various different modes of thinking on this question. You sort of started with spheres of influence and I think that is a pretty powerful predictor of international relations behavior. During the long Cold War, that sphere of influence discourse was accompanied by a fight among regime types. Relatively speaking, not all of them were democracies, but every country in the Soviet sphere was a dictatorship. And of course the Soviet plan was to change entire societies. That is not true of today’s China or today’s Russia. From my point of view and I make this point in the book, both countries are actually quite willing to work with democracies right on their borders. You have Mongolia, of course, which is a democracy, spent some time there and it’s right between those two countries. As long as Mongolia doesn’t do things that go to core Chinese interests — say Taiwan was an independent state or invite the Dalai Lama too often — they’re quite tolerated. Russia too, we have to understand, has been perfectly willing to tolerate a democratic Armenia since 2018. Armenia borders Turkey, and it’s the NATO border. And the Armenian democratically elected government understands that it’s not going to go against Russian core security interest. In fact, Armenia’s prime minister, Pashinyan, was the fellow who led the announcement that forces from that collectivity would go into Kazakhstan or at the end of last year to restore order there. I don’t think it’s democracy versus dictatorship. And I tend to reject new cold war type of rhetoric, especially with China. It’s true that politicians on both sides like to talk that way and Xi Jinping talks this way sometimes. And certainly we’ve had American presidents talk that way and we have policies of decoupling. But it’s nothing like the old Cold War and it really isn’t centered around regime type per se, in my opinion.
Katerina Linos (13:20):
And I know you’ve been asked this question before, but it is an interesting question nevertheless. Is this because the dominant superpower has been a democracy for the last a 100-150 years? If it turns out that Chinese GDP continues to grow at the extraordinary rates it does and more and more authoritarian law begins to be written, more and more Belt and Road projects succeed — do we expect that the form of international law will change or will it be simply used for different purposes and to the benefit of other states?
Tom Ginsburg (14:02):
I think the latter. Remember that in the last four years of the Trump Administration, it was the United States that was the revisionist power. We’re the ones who tried to destroy the WTO. We’re the ones who withdrew from the WHO. So the Americans were the radicals in some sense, and the Chinese were mainstream players. If you look at the United Nations, there’s far more Chinese heads of UN organizations than there are American. They’re the ones that are engaged in the traditional institutions. So I see their approach as being trying to layer their own institutions and interests on top of the existing architecture, rather than transform it frontally. Now as you said, of course, those architectures are going to change to reflect the dominant view. And one sees this already. The Shanghai Cooperation Organization, which I mentioned before, has promoted new norms of international law that we have not seen before. And China has sought to get those norms blessed, and the Shanghai Cooperation Organizations approach to these issues blessed, at the United Nations successfully.
Tom Ginsburg (15:06):
We see the Human Rights Council, which has been subject to a lot of criticism from human rights groups for many years. But that is not taking up issues, which would threaten the Chinese government, for example. So, yes, I think the content is going to change because of greater authoritarian presence, but the basic institutional structure is going to transform much more incrementally.
Katerina Linos (15:29):
So I’m just fascinated that you’ve advised 20 to 25 governments as different as Nepal and Turkey and Ecuador. What are three top tips what not to do when drafting a constitution that could apply across really different context?
Tom Ginsburg (15:45):
I have pretty strong views about this, that the role of an advisor is just first of all, to listen. American experience is often bad, often inappropriate. And the worst thing to do is to go into a country and think that there’s any similarity in terms of how they see problems or what the solutions would be to the institutions we have in the United States. The other thing in my particular angle, as a scholar, I’m free of institutional constraints. So for example, if you were going in with the United nations, you have a certain set of values you have to advance. Gender equity, human rights, et cetera. These are all good things that we’re all in favor of, but they have to be arrived at locally. And I feel like as a scholar, as an outsider, I can be much more responsive to whatever the local demands are of who the decision makers are.
Tom Ginsburg (16:35):
So I guess, listening a lot, don’t presume that we know the answers, but also often what’s most in demand is experience of other countries. I think Don Horowitz once sent to me “every country’s unique, but situations recur.” And so there are things that can be learned. And I strongly believe that as a scholar of comparative law and politics — I assume you do too, as a scholar of the same field — that we shouldn’t just treat each individual situation as being completely unique with nothing to learn from the rest of the world.
Katerina Linos (17:07):
I want to come back and connect that point, that situations recut, with your earlier comment about misunderstanding Trumpism. I had two amazing PhD students who wanted to work on the far right early on. So Kim Twist told me, “I want to work on the Tea Party.” And I told her, “Why would you want to spend seven years of your life on that? I don’t know, but I’ll happily supervise your dissertation.” And then Laura Jakli, who’s Hungarian, told me, “I want to work on the far right.” I’m like, “Okay, you’re Hungarian. I understand why you want to do that.” But it never occurred to me until Trump was elected, that these students were wiser than the rest of us. And that patterns happening around the world were about to happen in this country. And that the Tea Party was not an aberration, but was a bottom up movement. What are we getting wrong about Trumpism? And how does your background as a comparative constitutional law scholar shed light on the US and on populist politics in this country?
Tom Ginsburg (18:14):
First of all, one of the big points that Aziz Huq makes in “How to Save a Constitutional Democracy,” which was written in 2017, published in 2018, is that American exceptionalism is the wrong way to think about these things. That, of course, the United States is exceptional in many ways. The term by the way, was coined by American Marxists to explain to Stalin why we’d had no communist revolution. So it actually comes from the 1930s from American leftists, but of course it’s been used by lots of analysts. And seeing ourselves as outside of history or having a unique role is of course, as old as the United States itself. And so that’s a position we reject. We can learn from the dynamics of other countries. I’m so glad your students are doing the same. If I can make a comment about that 2018 book, I think we were a little optimistic.
Tom Ginsburg (19:02):
We were describing a slow authoritarian turn, a death by a thousand cuts. I don’t think either Aziz and I anticipated January 6th or the fact that at least according to one poll I read from Bright Line Watch, only 27% of Republicans now think that Joe Biden was legitimately elected. That’s a huge assault on American democracy, a frontal assault. And things are in that sense, even worse than I thought. What does the left get wrong about Trumpism or universities in general? I think I come to this slightly differently. I was raised in Berkeley, California. So that’s a far left environment. My family is largely from the Central Valley with very different political views than those I was raised with. And I think that gave me a very early sense that we are products of where we grew up and the particular environments that we happen to be in.
Tom Ginsburg (19:53):
I don’t believe that I would be different from them if I grew up in the Central Valley. I’d probably share many of their political views. And some of them I think are quite legitimate. I don’t think that any country or any population would — how to put this? When people feel left behind, they’re going to engage in populist mobilization. Populism is a kind of natural political phenomenon when elites are too out of touch. And so that’s where I think by demonizing populace and demonizing Trumpists, I think we in universities get it wrong. I demonize Trump, as someone who’s interested in democracy, but we have to understand where people are coming from and why the old elite consensus broke down. And simple descriptions like I hear all the time, that this is just a white nationalist movement are way too simple, because you’re talking about 70 million people of all races who have supported this particular angle on society.
Tom Ginsburg (20:53):
I think there’s something else going on — some political emotions of anger and fear that have to be explained and not just simply dismissed, or we’re never going to get it right. All that said, I don’t want to deny that the attack on American democracy right now is asymmetric. All the retrograde steps at this moment, or most of the retrograde steps at this moment — the various vote restricting laws and such, the attempts to criminalize election officials, the mobilization of poll monitors . . . I think that’s a very dangerous one, where in some states now it’s criminal for election officials to somehow try to control the poll monitors that are in there, yelling at them about “stop the steal.” That’s all very dangerous developments and using mob violence. So I don’t want to pretend that’s not a very serious threat. I’m just saying that I don’t think we in universities saw it coming and I still am not sure that we’re great at analyzing it.
Katerina Linos (21:50):
I want to hear more about your life growing up here in Berkeley and benefiting from the education Berkeley offers, only to come and improve upon it after having gone through so many years at Berkeley. Let me start with what Berkeley did right, either at the high school level or lessons you learned as a graduate student or law student that you carried with you.
Tom Ginsburg (22:15):
That’s a great question. First of all, I love Berkeley. I was born here. I grew up here, went to high school and three degrees from University of California. So I bleed blue and gold, I guess you’d say. I loved growing up here, it was a different time. It was sort of the post-60s ferment, and that was a really open environment. There were all kinds of movements going on, all kinds of interesting stuff. Our parents, as a generation, were mostly checked out. That meant that we were kind of free to explore the city, the campus, anything else we wanted to. My mother might hear this podcast so I don’t want to get into too much detail. But we were kind of feral as a generation. Intellectually, once I got to Cal in particular, it was just such a vibrant atmosphere.
Tom Ginsburg (22:58):
I always wanted to take about 20 courses every single semester. And I felt the same way when I got to law school. And I actually have some regrets of people I didn’t take at Berkeley law. But I was free to explore different stuff and I remember a terrific class in this building on South Asian literature. I took a class in Sufism. I took economics. I took a lot of political science and it really did shape me. And I can talk if you like about how I came to Cal.
Katerina Linos (23:25):
Let me ask a question about feral parenting as opposed to helicopter or tiger parenting. What is your view?
Tom Ginsburg (23:33):
I, of course, have been a parent. I have three kids and we raised them in a pretty distinct way, I guess, because we traveled a lot. They just came around with me til my daughter was about 10. They didn’t live much in the United States. We are the children of the hippie generation. The hippies got together for the Summer of Love, split apart the next week and my generation is the product. Parents just were kind of checked out, but I think it’s probably superior to the helicopter parenting that we see. People are pretty uptight about their kids. This gets to a broader, big topic. We could probably talk an hour just about education in America. I really treasured that I went to a really diverse high school. It was about 40% black, 40% white as the city of Berkeley was. And there was certainly segregation socially among the main groups, but there was a very large group of those of us kind of in the middle that freely roamed across these various lines.
Tom Ginsburg (24:26):
Some of my closest friends are still from high school. So that was an important time for me. And it kind of opened up the world of politics and political science and such through some classes I took in high school. When I got to Cal, I took a class from Nelson Polsby, very famous political scientist here, when I was a freshman. Chance encounters with mentors are so important for all of us. He really did change my life, because he first got me thinking about maybe being an academic, about the importance of ideas, about political science as a field of study. I still and was just talking the other night with a friend of mine, think about Chalmers Johnson, very famous political scientist here, scholar of East Asia. And he also changed my life. I still think about the ideas he talked about in a class I was in 1985. And because of that, I got really interested in Asia and joined the Asia Foundation after graduating from Cal with a fellowship.
Katerina Linos (25:19):
There is a little bit of research on kids that grow up in multicultural environments and about how they learn to navigate different worlds, different bureaucracies better. Do you see any connection between growing up in Berkeley, growing up in a diverse high school, going to a university that by all accounts was very big and not every student would be able to find the right mentors in and then going on to advise leaders around the world? Does it take a special type of person to be able to do that? Or are you trained in managing bureaucracies and finding opportunities?
Tom Ginsburg (25:52):
One thing you learn is an undergrad at Cal is how to manage bureaucracy. And that’s a skill which will serve you for the rest of your life. In those days, in order to enroll in a class, it was like a card system, if I remember. There was not even really computer enrollment and you’d have to go and grab the card from the class you wanted. And there was only a certain number of them and stuff. You had to find your own way through a massive bureaucracy. That’s a great education. I think in terms of my own sense of being multicultural, that’s a really interesting question, I’ve never thought about it that way. I grew up, my father’s Jewish. My mother is recovering Catholic. So all my cousins are quite serious Christians. So I was always going back and forth between those two religious milieu.
Tom Ginsburg (26:31):
I think it gives you a sense of how to look at problems from a slightly external perspective. Certainly growing up in hyper-leftist Berkeley, I was always interested in learning the other side. So in a high school class called politics and power, taught by Steve Teal, he had a model Congress thing and he would assign you a Congressman and then you would go and act like that Congressman for the semester. And the first time I did it, I was Henry Hyde, who was a famous anti-abortion Congressman from Illinois. And so I had to learn all about the arguments against abortion, just to learn the other side. I actually remember trying to find John Noonan, the famous Cal professor who was later a federal judge, who was an opponent of abortion. I never actually talked to Noonan, but I read his book. And being able to look at problems from the other side, that’s something I was given in Berkeley. In terms of the sort of radical environment, I think back, this is the time when the Black Panthers were kind of around and no one was threatened by that, but it was just part of our multicultural world. On my block were people from India and people from Malaysia. It was just a sense that there’s a lot of different ways to live and none of them is necessarily the right one.
Katerina Linos (27:37):
How do you feel about where Berkeley is today? It seems that ideas that were once minority have become mainstream and perhaps even more than mainstream, even dominant. I asked you before about the positives and you turned a lot of what one might call a negative into a positive. There’s a big bureaucracy. You learn how to manage it. This is a useful skill for life. What would you say are the main challenges, the main negatives? Why did we get Trumpism so wrong? Why did all of us fail to predict what would happen and are still misunderstanding?
Tom Ginsburg (28:10):
Those are two different questions. I think the main negative is academic freedom, which I think is under threat. I think it’s under threat from the University of California system. They have an Academic Senate. I just saw their proposal, which is going to, in some sense, encourage departments to take positions on the issues of the day. And I think that’s really negative. The job of the university is to teach people how to think. It’s not to tell them what to think. And every time I see one of these public statements — and it could even be about something where most of us agree, like Ukraine or Black Lives Matter; those are widely held views — I still don’t think universities should be in the business making those statements and imposing those views on the minority or people. I think we should encourage students to learn about these things and find their own way rather than tell them the right answer.
Tom Ginsburg (28:57):
So I know Carol Christ has done a good job on free speech and recognizes it as a core Berkeley value. But I do worry that there are broader forces in society, which are undermining academic freedom, both from the left and the right. From the left, I think it’s from the society. It’s people demanding that others be fired for an extracurricular tweet or something like that, which we see all the time, almost every day at an American university. And from the right, of course, it’s the regulations being pushed in many Republicans state legislatures to control the teaching of critical race theory, which are directed at primary education, but are going to affect universities and have the chilling effect. So academic freedom in general, I think is under attack in the United States and needs people to stand up and not just tolerate viewpoints that aren’t in the mainstream, but to bring them in.
Tom Ginsburg (29:49):
I think it goes without saying that in the United States, elite universities, they’re predominantly liberal places. Obviously, there’s a range of views that are not liberal. Some of which probably don’t belong in universities at all. 41 million Americans believe in the QAnon theory. So I’m not saying that we have to accept every idea in society, but I do think we have a duty to debate the major issues of the day and to provide an environment in which those can be debated without people taking unpopular positions being fired. And yet we see it every day in American universities.
Katerina Linos (30:30):
On the narrow range that is American elite education, the University of California, Berkeley, where you were trained and the University of Chicago, where you’ve worked for decades are perhaps at opposite polls. What does Chicago get right? And what does Chicago get wrong?
Tom Ginsburg (30:49):
That’s interesting. I think we are really good on this academic freedom issues. We have a document called the Calvin Report, which was issued in the aftermath of the Vietnam War, in which our university administrators are prohibited from taking positions on the issues of the day. Of course, they can comment on things that directly affect the university. So our president did speak up about immigration restrictions in the Trump administration and that’s perfectly appropriate. But we don’t have what we see everywhere else, which is anytime there’s some social event, the university administrators go into a room and instead of actually administering, spend their time crafting a basically vapid statement that they hope will keep people off their back. That’s a really important thing that I think we do and I wish more universities adopted. Chicago Law School is a very special place. We have very intense academic interchange.
Tom Ginsburg (31:38):
We, ourselves, probably have to always be working on having a diversity of perspectives. You should have a wide range of political views in order to have an intense conversation. We, I think, do a good job now of trying to help our students do that. I started a program there to bring students who were knowledgeable about a particular issue, but had different views together with professors and we have a little conversation, which we deliberate. I think we do that well. To me, the university’s too small. I like Berkeley in that sense. If I’m interested in Chinese politics, I can talk to probably half a dozen people here at Berkeley any day, including visiting scholars and such. At the University of Chicago, there’s basically one and there are many other fields I’m interested in where there’s zero. So to me, there’s a problem of scale there.
Katerina Linos (32:27):
Is there something from your life that you’ll draw on in your magnum opus?
Tom Ginsburg (32:31):
I’m not sure, but I do think a very critical point in my life was when I was just out of college and working for the Asia Foundation. 1990, I guess; it was the end of the Cold War. And we were contacted by the government of Mongolia to go advise them on their constitution-making process and that’s what got me into constitutions. So I went out there and I met the young people who were writing the constitution, just a little older than me and I was really young. And that was a great time. There was so much sense of hope and excitement, and I’ve stayed in touch with some of those folks, and prime ministers — and one of them is in jail for corruption. And it’s like the whole story of the post-Soviet world, but that was just a really interesting and different time.
Tom Ginsburg (33:14):
So I think going back to that period of the early 90s, it’s hard for people under the age of 40, or to imagine what was China like in 1989? It’s really different. There were no cars, there were bikes everywhere. Mongolia was a Russian economy. It was a Soviet economy where you’d have to get your little pieces of paper to go to the market to get bread and meat and all that stuff. But they also had this herdsman thing going, they’re nomadic herdsman. And so I always felt like their lifestyle determined their political situation in some sense.
Tom Ginsburg (33:46):
That is because they were nomadic herdsman, the state could limit what they did, but it couldn’t really control them. If the state disappeared, they would be fine. And I think that made it a kind of inherently democratic country, a long tradition of freedom. You can go back to Genghis Khan and some of his thinking about religious diversity and pluralism and life on the steppe. That’s a very different lifestyle than most of us grew up with and lead. And I think there may be something there about lifestyle and democratic attitudes that I’d like to explore more further.
Katerina Linos (34:19):
Any other kind of amazing stories that I forgot to ask about?
Tom Ginsburg (34:23):
Working at the Iran-US Claims Tribunal was really interesting. And I was teaching in Japan in 1997 or ’98 and I was working on my PhD and my family was there. We had three daughters. My wife also grew up in Berkeley and she’s a Berkeley feminist. And Japan remains a very gendered society in ways that she didn’t like much. So David Caron called me up out of the blue, the late David Caron, who was a professor at Berkeley Law of international law. He said, “They’re looking for a clerk at the Iran-US Claims Tribunal. I think you’d be uniquely able to do this.” I interviewed with Judge Richard Mosk, the late Richard Mosk, whose father was Stanley Mosk, the California Supreme Court Justice. And Richard hired me and I went off to The Hague for two years. That was an extremely interesting place.
Tom Ginsburg (35:06):
I’ve always wanted to do a kind of fictionalized version of it because it was such a bizarre place to work in many ways, but that was really great experience. And that’s what really got me into international law. I don’t think I can capture in an interview the strangeness of the place, but look for that book one of these years.
Katerina Linos (35:22):
Can you say one or two more sentences?
Tom Ginsburg (35:24):
Well, first of all, the Iran-US Claims Tribunal was set up to resolve these claims between the Iran and the United States at the Iranian Revolution. At the time I showed up, it was already 20 years in and was almost done, but still not finished with those cases. It was going incredibly slow. And the reason is that the Iranian arbitrators slowed down every single case. They would never want to proceed if they could delay. And my judge was a California litigator, he was hyperactive. He was always upset by that. He would call me from LA, where he spent most of his time if there wasn’t a hearing, and say, “Go get them to hurry up, go get them to hurry up.” And of course, they would just laugh. I mean, for the Iranian judges, when this tribunal finished, they had to go back to Tehran. Whereas there they get this nice, very wealthy lifestyle . . .
Katerina Linos (36:07):
So it wasn’t even a strategic delay. It was just, “We want to live in The Hague for as long as possible.”
Tom Ginsburg (36:14):
In fact, if they’d been strategic, they would’ve decided all those cases quickly because the current cases still ongoing there, are ones in which the United States owe Iran money, billions and billions of dollars. Absolutely showed me the problem of agency costs. Anyway, that was a very strange and funny place to work, but it was a great experience to be there for a couple years.
Katerina Linos (36:33):
That’s a very good story. I had not thought of the Tribunal in that way and we teach their cases all the time. It’s good to know the background.
Tom Ginsburg (36:42):
I’ll tell one other story. In 2002, I was asked to go to Afghanistan. This is right after the American invasion, but before the constitution was written. And there’s constitutional stuff going on that I was not directly involved in, but my job was to work for something called the Judicial Commission of Afghanistan. We were trying to design a system or a plan that they could present to the international community, which would allow the spigot of money to start flowing. And of course, that involved an interesting problem of connecting their needs, which they somewhat understood — some of them did, some of them didn’t — with the discourse of the international environment, the international donor community, which has its own thing about plans and objectives and how you’re going to evaluate it and matrices. Annelise Riles has written a little bit about this, an interesting sociology of knowledge point. My job was to connect the two and I did.
Tom Ginsburg (37:36):
But I remember going to meet the Chief Justice of Afghanistan, who at that time was a very conservative Islamic jurist who was trying to make the case that things were very moderate. He said, “We’re a very progressive place. We have 19 female judges on the court.” And I looked at the constitution. The constitution said they had 15 judges on the court. Turns out they were like 120, because of course, if you’re a judge, you get a salary so that giant spigot of money was already happening in the early stages. But it was a very interesting time and I went back to Afghanistan a couple more times. Each time the security situation got worse and worse and I haven’t been back in a decade.
Katerina Linos (38:13):
At least one of those female judges is here at Berkeley because our Human Rights Center has succeeded in finding a way for her to live and work and a lawyer donated his house. It’s pretty great what our Human Rights Center has accomplished concretely for scholars and jurors who are fleeing repressive regimes.
Tom Ginsburg (38:30):
Is that Stephen Rosenbaum?
Katerina Linos (38:31):
Stephen also works, but the Director of the Human Rights Center is Eric Stover and the Executive Director is Alexa Koenig. And they’re both just masterminds at doing work on the ground on information and disinformation and protecting scholars and training hundreds of undergrads to evaluate whether a video is genuine or not, and what can be used as evidence in an ICC prosecution. So very entrepreneurial, very exceptionally motivated and successful people.
Tom Ginsburg (39:03):
Amazing what they’ve done with the Afghans. He was leading the national effort.
Katerina Linos (39:07):
Do you have another good story?
Tom Ginsburg (39:09):
Thailand is the place I like to go the most.
Katerina Linos (39:12):
What do you like best about Thailand?
Tom Ginsburg (39:13):
Well, it’s a free country. It’s a dictatorship, but in some sense, a free society.
Katerina Linos (39:19):
What does it mean to have a free society run by a dictatorship?
Tom Ginsburg (39:23):
I should say this about the book. So the book seems to have a binary at its core, which of course is easy to problematize and probably not very accurate. The United States is a democracy. The Economist calls us a flawed democracy and I think that’s right. But obviously countries are on a spectrum. Dictatorships range from North Korea to a country which maybe was a democracy, but its institutions have slipped enough that it would fall into what we call a hybrid category, an electoral authoritarian. Illiberal democracies are sometimes the term, a place like Hungary. To go to Hungary today is nothing like going to China. If you go to China, you are monitored, there’s cameras everywhere, no doubt as a foreigner, your movements are tracked and who you meet with is noticed, and any electronic communication is clearly censored or shut off. That’s not true in a place like Hungary at all, or a place like Turkey.
Tom Ginsburg (40:16):
Most regimes that we would call authoritarian, basically allow you to do what you want to do as long as you’re not a dissident attacking the regime itself. And until recently Russia was that way too. One of the ironies of what’s happening with all the sanctions is that Russia’s going to become a much more authoritarian place. Their private businesses are going to get taken over. The freedom to voice your views is going to be suppressed even further and we’re going to see some polarization in that regard. But the big point is that societies are going back and forth all the time. And the international community and our policies can make a difference in that regard. So I really do emphasize the importance of regional organizations to defend democracy. There’s good track record, and I think they should continue to do that and do more.
Katerina Linos (41:01):
I’ll ask you a couple questions about that. I’m really curious because on the one hand we have ECOWAS, which has an army. We’ll use it. And then we have the EU, which took forever to cut off agricultural subsidies to Hungary when the regime turned authoritarian. When you say there’s regional success, which of the two models do you have in mind?
Tom Ginsburg (41:22):
I’m thinking most of the OAS, the Organization of American States. And I talk a lot about Honduras. So Honduras is an interesting country. They had a president who wanted to remove the term limits, in violation of the constitution. He wasn’t able to do so and he ended up losing his office because of a provision in the Honduran constitution. The military escorted him out of the country and that in 2009 was considered to be a coup d’etat. So the OAS suspended them. And the way I like to think about it is what the OAS did is force the two sides to negotiate together, the government and this guy. And eventually he was allowed to come back in and the sanctions were removed. And now that fellow’s wife is the new president of Honduras, the first female president of the country. The image here is two parties fighting with each other is the nature of democracy, but what you want to keep is that fighting under control, not escalating enough to attack the fundamental institutions of democracy. And the OAS, I think, played a role in doing that and now they’ve had alternation in power. I think it’s a pretty good story, actually. And if you think about the number of countries that really went full Bolivarian, it’s basically Nicaragua, Venezuela, and Cuba, which are lost in a region. The rest of the countries have a lot of problems. This isn’t like Sweden, where it’s really easy to run a democracy, and yet they’ve been able to maintain it.
Katerina Linos (42:43):
Susan Hyde here writes a lot on elections and election monitoring, and she’s the new chair of the political science department. So hopefully we’ll be doing more on that.
Tom Ginsburg (42:51):
Authoritarians do it too now. Authoritarian election monitoring.
Katerina Linos (42:55):
How does authoritarian election monitoring work?
Tom Ginsburg (42:58):
The CIS did this, the Commonwealth of Independent States, the former Soviet Union bloc. What they would do is go into Kazakhstan and the OSCE, the Western European organization, would show up and monitor the elections, say, “This thing is fraudulent.” And the CIS people would show up and say, “No, no, it’s free and fair.” So they muddy the signals that come from election monitoring. Pretty clever.
Katerina Linos (43:18):
Good strategy.
Tom Ginsburg (43:19):
Good strategy. Nothing if not clever.
Katerina Linos (43:25):
I hope you enjoyed this episode of Borderlines. What stood out for me was Professor Ginsburg’s optimism that Asia has managed peaceful relations for centuries. Thus, for Professor Ginsburg, the rise of a Chinese-led system of international law, while different from the one we now live, could nevertheless be peaceful and prosperous. Please join us for the next episode of Borderlines. Professor Philippe Sands will discuss genocide, ecocide and international criminal prosecutions involving atrocities committed in the Ukraine.