MYTHS AND REALITIES OF GLOBAL GOVERNANCE

OONA A. HATHAWAY*

Is more global governance necessary? That was the question

posed to me by the organizers of the 2021 Federalist Society Annual
Conference.1 It struck me when hearing this question that there are
often deep misconceptions about the meaning of global governance
lurking behind debates over whether there should be “more” or
“less” of it. I hope to shine light of some of them today.
Global governance is not one thing, of course. It is a multitude of
different international legal arrangements covering an array of ac-
tivities that states as well as nonstate actors engage in. Yes, there is
the United Nations, but that is simply one of many multinational
organizations—and perhaps not even the most important of them.
Global governance includes well–known organizations such as the
International Monetary Fund,2 the International Criminal Court,3
and the North Atlantic Treaty Organization,4 but it also includes

* Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law
School.
1. This essay has been adapted from remarks delivered at the 2021 Federalist Society
National Student Symposium in a debate entitled “Is More Global Governance Neces-
sary?” with Professor Jonathan R. Macey and, as Moderator, Hon. James C. Ho, United
States Court of Appeals, Fifth Circuit. The original debate can be viewed at The Feder-
alist Society, Debate: Is More Global Governance Necessary?, YOUTUBE (Mar. 20, 2021),
https://www.youtube.com/watch?v=jIh321vyauI [https://perma.cc/4MRT-QYM8].
2. The IMF at a Glance, INT’L MONETARY FUND, (Mar. 2, 2019),
https://www.imf.org/en/About/Factsheets/IMF-at-a-Glance [https://perma.cc/4GSV-
AQYA].
3. About the Court, INT’L CRIM. CT., https://www.icc-cpi.int/about
[https://perma.cc/874J-5PP8] (last visited Aug. 9, 2021).
4. What is NATO?, N. ATL. TREATY ORG., https://www.nato.int/nato-welcome/in-
dex.html [https://perma.cc/23RE-LGV9] (last visited Aug. 9, 2021).
32 Harvard Journal of Law & Public Policy Vol. 45

lesser–known organizations such as the International Coffee Or-

ganization,5 the Court of Arbitration for Sport,6 and the Wassenaar
Arrangement.7 These organizations did not emerge of their own ac-
cord. Indeed, the greatest misconception that exists about global
governance is that international organizations operate at the ex-
pense of states. The reality, instead, is that they are created by states
to serve specific purposes that states find valuable.8 They give states
a way to achieve ends that they could not achieve on their own—or
that they would find much more difficult and expensive to achieve
on their own. To illustrate this argument, this essay examines five
key topics in global governance—international courts and tribu-
nals, trade, use of force, international human rights, and geopoliti-
cal competitition.

International Courts and Tribunals

International courts and tribunals have been a hot–button topic
in debates over international institutions and global governance
more generally. There are different ways in which this debate plays
out. Here I offer a couple of examples to illustrate those differences.
First, consider the Avena case,9 in which the International Court
of Justice ordered the United States to reconsider death sentences
of over fifty Mexican nationals whose rights under the Vienna Con-
vention on Consular Relations had not been observed. When they

5. Mission, INT’L COFFEE ORG., https://ico.org/mission07_e.asp?section=About_Us

[https://perma.cc/23Q9-FD6G] (last visited Aug. 9, 2021).
6. Frequently Asked Questions, CT. OF ARB. FOR SPORT, https://www.tas-
cas.org/en/general-information/frequently-asked-questions.html
[https://perma.cc/R7GP-YTF3] (last visited Aug. 9, 2021).
7. The Wassenaar Arrangement on Export Controls for Conventional Arms and
Dual-Use Goods and Technologies (1995).
8. See Oona A. Hathaway, The Cost of Commitment, 55 STAN. L. REV. 1821 (2003); Oona
Hathaway & Scott J. Shapiro, What Realists Don’t Understand About Law, FOREIGN POL’Y
(Oct. 9, 2017), https://foreignpolicy.com/2017/10/09/what-realists-dont-understand-
about-law/ [https://perma.cc/JE56-JXJU].
9. REPORTS OF JUDGMENTS, ADVISORY OPINIONS & ORDERS: CASE CONCERNING AV-
ENA & OTHER MEXICAN NATIONALS (I.C.J., 2003) [hereinafter AVENA & OTHER MEXI-
CAN NATIONALS].
2022 Myths and Realities of Global Governance 33

were initially charged, their local Mexican consulate should have

been notified that they were being charged with a crime.10 And then
the consulate should have had an opportunity to assist in their de-
fense.11 That was not done, and they did not receive any assistance
as a result.12 After they were sentenced to death, there was a reali-
zation that for a long time, many U.S. jurisdictions had not been
meeting the United States’ obligation under the Vienna Convention
on Consular Relations to notify consuls when foreigners were
charged.13 Mexico brought a case against the United States in the
International Court of Justice.14 The International Court of Justice
decided that the United States had violated its treaty obligations
and ordered the United States to review and reconsider the convic-
tions and sentences of the Mexican nationals who were on death
row.15
Now, you might wonder why the International Court of Justice
had jurisdiction over the case. The answer is that the United States
had signed an Optional Protocol to the Vienna Convention on Con-
sular Relations.16 The Optional Protocol says that if there is a dis-
pute under the Convention, then a state can go to the International
Court of Justice to seek resolution.17 The United States ratified the
treaty and the protocol because they were seen as advantageous to
the United States and its citizens.18

10. Id. at 17.

11. See id. at 26.
12. Id.
13. Id. at 121.
14. Id.
15. Id. at 153.
16. See Optional Protocol Concerning the Compulsory Settlement of Disputes art. I,
Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487 [hereinafter Optional Protocol].
17. Id.
18. Richard Nixon, Message to the Senate Transmitting the Vienna Convention on Consu-
lar Relations and the Optional Protocol Concerning the Compulsory Settlement of Disputes,
UC SANTA BARBARA: THE AM. PRES. PROJ. (May 5, 1969), https://www.presi-
dency.ucsb.edu/documents/message-the-senate-transmitting-the-vienna-convention-
consular-relations-and-the-optional [https://perma.cc/3LSZ-ERFG].
34 Harvard Journal of Law & Public Policy Vol. 45

Here’s why: if you travel abroad, and you get charged with a
crime while you're in a foreign country that has signed and ratified
the treaty (which most states have), you have the right, under the
Vienna Convention on Consular Relations, to have a U.S. consulate
notified.19 And then the consulate can assist in your defense.20 If
you're an American traveling abroad, you want that because that
means you're going to get American support and there is much less
likelihood that you will be railroaded and thrown in jail without
anybody knowing it. If there is a dispute between the United States
and the country that is holding you, you want some place for that
dispute to be able to go other than that country’s own courts. The
International Court of Justice is a pretty good place for that.21 So the
United States signed the treaty and the Optional Protocol, giving
jurisdiction over disputes to the Court, because it was in the best
interest of Americans.
The other court that has attracted a lot of attention in recent years
is the International Criminal Court (ICC).22 This court has recently
been especially controversial because the prosecutor there was per-
mitted to proceed with an investigation of crimes that were com-
mitted in Afghanistan during the war there by the United States,

19. Vienna Convention on Consular Relations art. 36, Apr. 2, 1963, 21 U.S.T. 77, 596
U.N.T.S. 261.
20. Id.
21. The Court, THE INT’L CT. OF JUST., (https://www.icj-cij.org/en/court
[https://perma.cc/V4K7-KYDD] (last visited Aug. 11, 2021). See, e.g., REPORTS OF JUDG-
MENTS, ADVISORY OPINIONS & ORDERS: CASE CONCERNING ELECTTRONICA SICULA
S.P.A. (ELSI) (I.C.J., 1989) (demonstrating the United States using international courts
to sue another country as a way to protect American shareholders’ rights).
22. John Bolton, for example, criticized the ICC in remarks delivered to the Federalist
Society in Washington, D.C. while he was National Security Adviser. National Security
Adviser John Bolton on Global Threats and National Security, C-SPAN, (Sept. 10, 2018),
https://www.c-span.org/video/?451213-1/national-security-adviser-john-bolton-ad-
dresses-federalist-society [https://perma.cc/7GFU-X3Q7]; See Oona Hathaway, The In-
ternational Criminal Court Is No Threat to America, but John Bolton Is, NEWSWEEK (Sept.
12, 2018), https://www.newsweek.com/international-criminal-court-no-threat-amer-
ica-john-bolton-opinion-1115820 [https://perma.cc/JN4L-T2NM].
2022 Myths and Realities of Global Governance 35

Taliban, and other actors.23 That investigation proceeded through

the initial approval process that allows the prosecutor to begin to
move forward.24 Under the Trump Administration, the United
States put in place sanctions against judges, the prosecutor, and
others from the court who were involved in the case, including law-
yers who were just representing clients at the ICC.25
Now, the first thing to keep in mind about both of these courts,
and really all international courts, is that none of these courts have
jurisdiction over Americans without reason.26 The courts them-
selves did not suddenly decide that they want to have jurisdiction.
They're granted jurisdiction by states through various rules, usu-
ally through treaties.27
As I noted earlier, the International Court of Justice had jurisdic-
tion in the Avena case because the United States gave it jurisdiction
by ratifying the Optional Protocol to the Vienna Convention on
Consular Relations.28 And, again, it did so because Americans ben-
efit from the Vienna Convention and the protections it offers.
But what about the ICC? The United States has not joined the
ICC,29 and that has been a key argument against the investigation

23. Situation in the Islamic Republic of Afghanistan, Case No. ICC-02/17 OA4, 4 (Mar.
5, 2020) (rendering judgment on the appeal against the decision on the authorization of
an investigation into the situation in the Islamic Republic of Afghanistan).
24. Id. Subsequently, the ICC prosecutor’s request to authorize resumption of the in-
vestigation, which had been the subject of a deferral request, focused only on the Tali-
ban and Islamic State Khorasan. Office of the Prosecutor, Request to Authorize Re-
sumption of Investigation Under Article 18(2) of the Statute, ICC-02/17-161 (Sept. 27,
2021), https://www.icc-cpi.int/CourtRecords/CR2021_08317.PDF [perma.cc/45AZ-
DJP9].
25. Exec. Order No. 13928, 85 Fed. Reg. 36139 (June 11, 2020) (revoked by Exec. Order
No. 14022, 86 Fed. Reg. 17895 (Apr. 1, 2021). These sanctions were lifted by President
Biden after this speech was delivered. See Exec. Order No. 14022, 86 Fed. Reg. 17895
(Apr. 1, 2021).
26. See, e.g., OPTIONAL PROTOCOL, supra note 16.
27. See, e.g., id.
28. Id.
29. The States Parties to the Rome Statute, INT’L CRIM. CT., https://asp.icc-
cpi.int/en_menus/asp/states%20parties/pages/the%20states%20par-
ties%20to%20the%20rome%20statute.aspx [https://perma.cc/2WZ8-D3G7] [hereinafter
The States].
36 Harvard Journal of Law & Public Policy Vol. 45

of U.S. actions in Afghanistan.30 But what this argument against

ICC jurisdiction ignores is that Afghanistan is a party to the ICC.31
It signed and ratified the Rome Statute, which created the ICC and
gives it jurisdiction over crimes committed by or in the territory of
member states.32 The alleged crimes fall within the jurisdiction of
the Court, then, because they occurred in Afghanistan,33 which is a
party to the ICC.
The idea that a sovereign state has jurisdiction over a person who
commits a crime in its territory is usually taken for granted. If I go
to London and I commit a crime – say, I steal something—I can be
brought in front of English courts even though I am an American,
because I committed my crime in England.34 There is a similar prin-
ciple at work here. The main difference is that Afghanistan has
transferred jurisdiction over the crime to the ICC by joining the
Rome Statute.35 So the ICC has been granted jurisdiction by the state
that has the right to exercise jurisdiction over the crime.
Let me then turn to the question: should we have more interna-
tional courts? It is worth noting that there are already a lot of inter-
national courts and tribunals.36 I just mentioned two of them. There

30. International Criminal Court Officials Sanctioned by US, BBC NEWS (Sept. 2, 2020),
https://www.bbc.com/news/world-us-canada-54003527 [https://perma.cc/JD4V-
TD7R].
31. The States, supra note 29.
32. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90
[hereinafter Rome Statute].
33. The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial
Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Af-
ghanistan, INTERNATIONAL CRIMINAL COURT (Nov. 20, 2017), https://www.icc-
cpi.int/Pages/item.aspx?name=171120-otp-stat-afgh [https://perma.cc/N364-UCE8].
34. Jurisdiction, CROWN PROT. SERV. (July 26, 2021), https://www.cps.gov.uk/legal-
guidance/jurisdiction [https://perma.cc/5FDY-GBW3].
35. Rome Statute, supra note 32. This is true, as well, of the crimes allegedly commit-
ted at CIA black sites in Poland, Lithuania, and Romania, which were also part of the
investigation. See Office of the Prosecutor, Pre-Trial Chamber III, Situation in the Is-
lamic Republic of Afghanistan, No. ICC-02/17 (Nov. 20, 2017), https://www.icc-
cpi.int/CourtRecords/CR2017_06891.PDF [https://perma.cc/8XVY-42BH].
36. See The International Judiciary in Context: A Synoptic Chart, THE PROJ. ON INT’L CTS.
& TRIBUNALS, https://elaw.org/system/files/intl%20tribunals%20synoptic_chart2.pdf
[https://perma.cc/N4YP-GEPT] (last visited Aug. 29, 2021).
2022 Myths and Realities of Global Governance 37

are also a number of international arbitral bodies.37 There are many

more formal and informal dispute resolution bodies at the interna-
tional level than is commonly recognized.
Why do all these bodies exist? Why do states create them? It is
because they need some way to resolve disputes among and be-
tween them and their citizens. These courts, and these arbitral bod-
ies, give states a peaceful way to resolve disputes. Without them,
the alternative would be to go to a foreign court where the state or
its citizen might not necessarily get a fair hearing.38 And so one of
the reasons a state might want to have access to an international
court for certain kinds of disputes is it provides neutral ground on
which to make its arguments.
In addition to the courts I have mentioned, for instance, there are
arbitral bodies that address questions like investment disputes39 or
commercial disputes.40 These are very much favored by interna-
tional business, because they offer an important way in which, if a
business investment is illegally expropriated by a state, a business
can seek recourse.41 It is favored by states, as well, because access
to international arbitration encourages international investment,
especially in countries with less developed legal systems. Under the
New York Convention,42 the party that is harmed can enforce the
decision of that arbitral body pretty much anywhere in the world.

37. Id.
38. Historically, the mode of dispute resolution was for states to go to war with one
another. See HATHAWAY & SHAPIRO, infra note 61.
39. One example is the International Centre for Settlement of Investment Disputes.
About ICSID, INT’L CTR. FOR SETTLEMENT OF INV. DISPS., https://icsid.worldbank.org
[https://perma.cc/B2B2-9ZEY] (last visited Aug. 29, 2021).
40. One example is the ICC International Court of Arbitration. Who We Are, INT’L
CHAMBER OF COM., Who We Are, https://iccwbo.org/about-us/who-we-are/
[https://perma.cc/52HM-ZXML] (Aug. 29, 2021).
41. Id.
42. Convention on the Recognition & Enforcement of Foreign Arbitral Awards, 9
U.S.C. §§ 201–208 (1988).
38 Harvard Journal of Law & Public Policy Vol. 45

And so states, businesses, and individuals benefit from these bod-

ies.43 That is why they have been created, and that is why I expect
we will continue to see more of them.
U.S. courts are the place of first recourse for most Americans. But
sometimes Americans are going to have disputes with foreigners,
and we may prefer to have access to an international court or arbi-
tral body rather than be stuck in the courts of other nations or have
access to no court at all. That is why we see these courts emerging,
evolving, and continuing to expand.

Trade
The key global institution for trade is the World Trade Organiza-
tion,44 the successor organization to the trade regime that the
United States and its allies worked hard to build in the years imme-
diately following World War II. The idea behind this global trade
regime is that we need a robust global economic order if we're go-
ing to keep the peace.45 State economies were devastated after the
war, and expanding global trade was seen as core to the effort to
rebuild them. Not only would that help rebuild societies that had
been devastated by war, but the vision was that if we have robust,
thick trade relations, then we will be less likely to go to war again
in the future.46

43. It is worth noting that arbitration has sometimes been criticized as too business
friendly, and insufficiently attentive to human rights and environmental concerns,
though there have been some signs that could be beginning to change. See, e.g, Fabio
Giuseppe Santacroce, The Applicability of Human Rights Law in International Investment
Disputes, 34 ICSID REV. 136 (2019).
44. Accession in Perspective, WORLD TRADE ORG., https://www.wto.org/eng-
lish/thewto_e/acc_e/cbt_course_e/c1s1p1_e.htm [https://perma.cc/U5VZ-8T7C] (last
visited Jan. 12, 2022) (stating the percentage of world trade accounted for by member
states is 96.4%).
45. G. JOHN IKENBERRY, AFTER VICTORY: INSTITUTIONS, STRATEGIC RESTRAINT, AND
THE REBUILDING OF ORDER AFTER MAJOR WARS (2001).
46. Id.
2022 Myths and Realities of Global Governance 39

Today there are 164 members of the World Trade Organization

(WTO).47 Membership comes with an array of obligations as well as
benefits.48 There are rules that a state has to follow to become a
member of the WTO.49 And once a state becomes a member, there
are rules that govern its behavior: there are limits on tariffs, for in-
stance, that every member state has to follow.50 The upside, of
course, is every state not only has to follow the rules but also bene-
fits from them as well: for instance, no other member state can place
tariffs on their exported goods that exceed agreed levels.51 So mem-
ber states are both constrained by and benefit from the same rules.
And states join because, all things considered, they benefit from
those shared constraints.
The WTO has a dispute resolution process to resolve any disa-
greements that arise between states.52 So if a state breaks the rules
and harms another state as a result, then the harmed state can bring
a complaint to the dispute resolution body.53 That body then will
resolve the dispute.54 If a state loses, it can appeal.55 If that appeal is

47. Members and Observers, WORLD TRADE ORG.,

https://www.wto.org/39nglish/thewto_e/whatis_e/tif_e/org6_e.htm
[https://perma.cc/9YXB-QU24] (last visited Jan. 13, 2022).
48. Overview, WORLD TRADE ORG., https://www.wto.org/eng-
lish/thewto_e/whatis_e/wto_dg_stat_e.htm [https://perma.cc/R5W4-KV2V] (last vis-
ited Jan. 13, 2022).
49. Membership, Alliances and Bureaucracy, WORLD TRADE ORG.,
https://www.wto.org/english/thewto_e/whatis_e/tif_e/org3_e.htm
[https://perma.cc/W3S9-26GG] (last visited Aug. 29, 2021).
50. Tariffs, WORLD TRADE ORG., https://www.wto.org/english/tratop_e/tariffs_e/tar-
iffs_e.htm [https://perma.cc/WPA5-6TVJ] (last visited Aug. 29, 2021).
51. Id.
52. A Unique Contribution, WORLD TRADE ORG., https://www.wto.org/eng-
lish/thewto_e/whatis_e/tif_e/disp1_e.htm [https://perma.cc/X64Z-EZ6Y] (last visited
Aug. 29, 2021).
53. Dispute Settlement Body, WORLD TRADE ORG., https://www.wto.org/eng-
lish/tratop_e/dispu_e/dispu_body_e.htm [https://perma.cc/5PXK-CYHV] (Aug. 29,
2021) [hereinafter Dispute].
54. Id.
55. Appellate Body, WORLD TRADE ORG., https://www.wto.org/eng-
lish/tratop_e/dispu_e/appellate_body_e.htm [https://perma.cc/KV2N-G39E] (last vis-
ited Aug. 29, 2021).
40 Harvard Journal of Law & Public Policy Vol. 45

not successful, then the state that filed the complaint is permitted
to put in place countermeasures against the state that has been
found to have broken the rules.56 This is a way of giving bite to the
legal obligations of membership.
The idea behind this global trade organization was that it would
encourage free trade across all countries who are party to it.57 The
aim of the dispute resolution process was to prevent a trade war.58
After World War II, states wanted to avoid a breakdown in trade
relations in which states might start tit–for–tat trade sanctions
against one another that might get out of control.59 This was the
kind of fiasco that, for instance, preceded the Great Depression: the
U.S. Smoot–Hawley tariffs and the spiraling trade protectionism
that followed.60 The long–standing consensus has been that this is
in the best interests of everyone.61 Yet, we have seen that consensus
unravel in the last several years.62 And I think that there are a few
reasons for that.
Many of the attacks on free trade are not based in fact. But some
of the concerns arise from the failure to fully appreciate that while
free trade is in the interest of the United States as a whole, certain
communities are going to be particularly hard hit, especially com-
munities supported by industries where the United States just

56. Dispute, supra note 53.

57. Introduction to the WTO Dispute Settlement System: 1.3 Functions, Objectives and Key
Features of the Dispute Settlement System, WORLD TRADE ORG.,
https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c1s3p1_e.htm
[https://perma.cc/4KZV-Y8MG] (last visited Aug. 7, 2021).
58. WORLD TRADE ORG., 10 THINGS THE WTO CAN DO 12 (2013), available at
https://www.wto.org/english/res_e/publications_e/wtocan_e.pdf
[https://perma.cc/67F4-PQGF].
59. CHAD P. BOWN, SELF-ENFORCING TRADE: DEVELOPING COUNTRIES & WTO DIS-
PUTE SETTLEMENT 11 (2009).
60. Tariff Act of 1930 (Smoot–Hawley Tariff), Pub. L. 71-361, 46 Stat. 590 (codified as
amended at 19 U.S.C. § 1202 et seq.).
61. See OONA A. HATHAWAY & SCOTT J. SHAPIRO, THE INTERNATIONALISTS: HOW A
RADICAL PLAN TO OUTLAW WAR REMADE THE WORLD 378–80 (2017).
62. See Alan S. Blinder, The Free-Trade Paradox: The Bad Politics of a Good Idea, FOREIGN
AFFS. (Jan./Feb. 2019), https://www.foreignaffairs.com/articles/2018-12-11/free-trade-
paradox [https://perma.cc/Q8TS-5R4V].
2022 Myths and Realities of Global Governance 41

simply cannot compete in the global market. One industry that has
been hard hit is steel.63 The future of that industry has been a subject
of debate for quite some time.64 The United States has, at various
points, put in place illegal steel tariffs to try and preserve steel man-
ufacturing in the United States when, really, there are other coun-
tries that can produce steel much more effectively at lower cost than
we can.65 Even when we compete on a fair and level playing
ground, they beat us. That is just the reality of the situation.
Now, those hard–hit communities have not been sufficiently sup-
ported, and so people are thrown out of work as a result of free
trade.66 It is not just individuals who are put out of work, but it is
whole communities that suffer. And we did not do enough to ad-
dress those costs. We had a very minimal trade adjustment assis-
tance program,67 but it provides nowhere near enough to those in
hard hit industries and communities. We have not offered sufficient
retraining of people thrown out of work so that they could move

63. ANTHONY P. D’COSTA, THE GLOBAL RESTRUCTURING OF THE STEEL INDUSTRY: IN-
NOVATIONS, INSTITUTIONS AND INDUSTRIAL CHANGE (1999); ROBERT P. ROGERS, AN
ECONOMIC HISORY OF THE AMERICAN STEEL INDUSTRY (2009).
64. See Action Under Section 203 of the Trade Act of 1974 Concerning Certain Steel
Products, 67 Fed. Reg. 10,593 (Mar. 5, 2002) (declaring the Bush Administration steel
tariffs of 2002); Elizabeth Becker, U.S. Tariffs on Steel are Illegal, World Trade Organization
Says, N.Y. TIMES (Nov. 11, 2003), https://www.nytimes.com/2003/11/11/business/us-tar-
iffs-on-steel-are-illegal-world-trade-organization-says.html [https://perma.cc/Z787-
ABBB].
65. See Ineffective Steel Tariffs Now Illegal, Too, FORBES (Nov. 11, 2003, 9:50 AM),
https://www.forbes.com/2003/11/11/cx_da_1111topnews.html?sh=139922b3d004
[https://perma.cc/HF2C-RUNM] (describing the tension between American leadership
to enforce international free-trade laws and the Bush Administration’s desire for polit-
ical leverage in the face of rising Chinese steel production); HATHAWAY & SHAPIRO,
supra note 61, at 371–73.
66. Stephen J. Rose, Is Foreign Trade the Cause of Manufacturing Job Losses?, URB. INST.
(Apr. 2018), https://www.urban.org/sites/default/files/publication/97781/is_for-
eign_trade_the_cause_of_manufacturing_job_losses_2.pdf [https://perma.cc/8UK3-
8NKQ].
67. Trade Adjustment Assistance for Workers, U.S. DEP’T OF LAB.: EMP. & TRAINING AD-
MIN., https://www.dol.gov/agencies/eta/tradeact [https://perma.cc/AP4X-W5RK] (last
visited Aug. 7, 2021).
42 Harvard Journal of Law & Public Policy Vol. 45

into other industries where they could earn roughly equivalent in-
comes to the ones they lost. That short–sightedness created real
pain for not only individuals but also communities that were hurt
by free trade. And I think we could have, and should have, done
more to try and address that.
The answer to this problem is not to reduce free trade, as some
have advocated. But we have to be mindful that the costs of a policy
of free trade are real. We should try to address these costs through
much more robust trade adjustment assistance, better education,
thinking about what industries can come in to replace those we
have lost, and stronger unemployment insurance. We need to un-
derstand ways to address real harms that people suffer as a result
of the adjustments that are required as a result of free trade.

Use of Force
The rules that govern the use of force are absolutely foundational
to the modern legal order. Let us start with the United Nations
(UN) Charter. The UN Charter was put in place at the close of
World War II.68 And the fundamental commitment in the Charter
is Article 2(4)’s prohibition on use of force: All members of the
United Nations are obligated to refrain from use of force against
every other state in the world.69
I spend a lot of time providing the background on the Charter’s
prohibition on force in my book with Scott Shapiro, The Internation-
alists.70 We argue that the idea of outlawing war began in 1928 with
the Kellogg Briand Pact and the UN Charter reaffirmed that central
obligation.71 In the book, we try to show that while that prohibition
may seem not particularly interesting or important when viewed

68. United Nations Charter, UNITED NATIONS, https://www.un.org/en/about-us/un-

charter [https://perma.cc/5TZR-YXFF].
69. U.N. Charter art. 2, ¶ 4.
70. See generally HATHAWAY & SHAPIRO, supra note 61 (describing the transformation
from the Old to the New World Order by way of a prohibition on the use of force).
71. Id. at 313–14 (observing empirically a marked decline in the frequency of conquest
after the Second World War); U.N. Charter art. 2, ¶ 4.
2022 Myths and Realities of Global Governance 43

from our modern perspective, it looks very different if you view it

against history. Historically, states were allowed to go to war to re-
solve their disputes.72 If, for example, a state failed to repay its debts
to another, the state that was owed money could go to war.73 Or if
a king of one state stole another king's wife, the king who was
wronged could go to war over it.74 If a state interfered with an-
other's trade relations, the harmed state could go to war over it.75
War was historically how disputes were settled between states if
they could not resolve them amicably.76
The Kellogg Briand Pact and then the U.N. Charter said that
states could not do that anymore—states cannot go to war against
each other if they have disputes.77 There are now very limited rea-
sons that states can go to war. First, a state can act in its own self–
defense if it is attacked, as outlined in Article 51.78 Second, the U.N.
Security Council can authorize an intervention under Chapter VII.79
When Iraq invaded Kuwait, for example, the United States and its
allies were authorized by the Security Council to expel Iraq from
Kuwait for violating Article 2(4).80 Here it is worth noting that the
United States is one of the five permanent members of the Security
Council, each of which has a veto over any Security Council reso-
lution issued under Chapter VII.81 The United States is therefore in
a highly privileged position in that it is able to prevent the United

72. HATHAWAY & SHAPIRO, supra note 61, at 38.

73. Id. at 39 (describing President Polk’s justification for the Mexican-American War
as the collection of debts).
74. See id. (describing Maximilian I’s justification for war with France after King
Charles VIII stole Maximilian’s wife).
75. Oona A. Hathaway et al., War Manifestos, 85 U. CHI. L.R. 1139, 1193–94 (2018)
[hereinafter War Manifestos] (cataloging examples).
76. See HATHAWAY & SHAPIRO, supra note 61, at 44–45 (identifying war as the histor-
ical enforcement mechanism of international law); see also generally War Manifestos, su-
pra note 75 (cataloging examples).
77. U.N. Charter art. 2 ¶ 4.
78. Id. at art. 51.
79. Id. at art. 42.
80. U.N. Sec. Council Res. 678, ¶ 2 (Nov. 29, 1990).
81. U.N. Charter art. 23 ¶ 1; id. art. 27 ¶ 3.
44 Harvard Journal of Law & Public Policy Vol. 45

Nations from authorizing war. Third, and finally, the host state can
consent to the use of force on its territory.82 For instance, as of this
moment, the United States is using force in Iraq with the consent of
the Iraqi government to assist it in counter–terrorism operations.83
One just needs to read the news to know that the prohibition on
the use of force has not been perfectly observed. Lately, we have
seen many ways in which the prohibition on war has been chipped
away. Just to give a few quick examples: Russia invaded and seized
Crimea from Ukraine in 2014.84 That is the first successful conquest
in Europe since World War II.85 We really should be deeply con-
cerned about that and what it signals for Russia’s intent in the re-
gion. Meanwhile, China has occupied contested territory in the
South China Sea, turning a number of islands and rocks that other
states also claim sovereignty over into military installations.86
China also rejected an arbitral panel decision that found its actions
illegal.87 And the United States itself has been responsible for
stretching the idea of self–defense to its breaking point by claiming
a wide range of operations in the Middle East were justified as le-
gitimate acts of self–defense. For instance, the killing of Qasem So-
leimani in Iraq in early 2020 was justified by the Trump Admin-
istration as an act of self–defense.88 But the Administration really

82. Michael Wood, International Law and the Use of Force: What Happens in Practice?, 53
INDIAN J. INT’L L. 345, 352 (2013).
83. U.S. Security Cooperation with Iraq, U.S. DEP’T OF STATE (July 16, 2021),
https://www.state.gov/u-s-security-cooperation-with-iraq/ [https://perma.cc/JDX9-
PGE7].
84. Robin Geiß, Russia’s Annexation of Crimea: The Mills of International Law Grind
Slowly but They Do Grind, 91 INT’L L. STUD. 425, 426–27 (2015).
85. Dainius Žalimas, Lessons of World War II & the Annexation of Crimea, 3 INT’L COM-
PAR. JURIS. 25, 25 (2017).
86. See generally RONALD O’ROURKE, CONG. RSCH. SERV., R42784, U.S.-CHINA STRA-
TEGIC COMPETITION IN SOUTH AND EAST CHINA SEAS: BACKGROUND & ISSUES FOR CON-
GRESS (2021).
87. In the Matter of the South China Sea Arbitration, PCA Case No. 2013–19 (2013),
https://pcacases.com/web/sendAttach/2086 [https://perma.cc/TA37-G5UT].
88. Jean Galbraith, U.S. Drone Strike in Iraq Kills Iranian Military Leader Qasem So-
leimani, 114 AM. J. INT’L L. 313, 316 (2020).
2022 Myths and Realities of Global Governance 45

never provided any evidence that there was an immediate threat

that would have justified an act of self–defense under Article 51.89
Those of us who think that the prohibition on war is a founda-
tional norm of the international order are concerned by these de-
velopments. To reverse the erosion of this norm, it really is up to
the United States to lead the way. As a leading member of the global
community and member of the Security Council, the United States
is in a unique position to do so. The United States has played an
important role in the past. For example, it led the charge in putting
economic sanctions on Russia after the Crimea invasion.90 The
United States has also led the world in the pushback against China
in the South China Sea by refusing to acknowledge formally and
accept the claims that it has made over certain territories in the
South China Sea.91
I would also like to see the United States be more careful about
its own behavior. Pushing the boundaries of self–defense to the
point where the exception threatens to swallow the rule is very
troubling. Unfortunately, the Biden Administration seems to be fol-
lowing in the footsteps of previous administrations. For example, it
recently took strikes against Iran–supported non–state actor groups
in Syria, claiming that it was an act of self–defense because the

89. Oona A. Hathaway, The Soleimani Strike Defied the U.S. Constitution, THE ATLAN-
TIC (Jan. 4, 2020), https://www.theatlantic.com/ideas/archive/2020/01/soleimani-strike-
law/604417/ [https://perma.cc/8BUP-K34Q]. It is important to acknowledge that there
has been an increase in civil wars, or what are often called “intrastate wars” (which are
not regulated by the UN Charter) even as there has been a rapid decline in “interstate
wars”—that is, wars between states (which are prohibited by Article 2(4) of the UN
Charter). See HATHAWAY & SHAPIRO, supra note 61, at 352–70.
90. See generally DIANNE E. RENNACK & CORY WELT, IF10779 CONG. RSCH. SERV., U.S.
SANCTIONS ON RUSSIA: AN OVERVIEW (2021); HATHAWAY & SHAPIRO, supra note 61, at
390-94.
91. Chun Han Wong, U.S. Rejects Most Chinese Maritime Claims in South China Sea,
WALL ST. J. (July 13, 2020, 7:58 PM), https://www.wsj.com/articles/u-s-set-to-reject-cer-
tain-chinese-maritime-claims-in-south-china-sea-11594661229 [https://perma.cc/Q3T5-
WBH9].
46 Harvard Journal of Law & Public Policy Vol. 45

group posed a threat to U.S. troops and coalition forces in Iraq.92

But we have not seen clear evidence that these strikes were justified
as acts of self defense under Article 51.93 Moving forward, I would
like to see the United States do more to reinforce the prohibition on
the unilateral use of force instead of continuing to chip away at it.
The danger in adopting such an expansive interpretation of self–
defense and collective self–defense under Article 51 is that other
states will follow in our footsteps. To take one example: one of the
claims that Russia makes for its continuing military operations in
Eastern Ukraine, where it has continued to foment disruption and
support separatist groups, is that it is defending Russian nationals
in Ukraine.94 The same thing has happened in northern Syria, where
Turkey has argued that its right of self–defense allows it to attack
Syrian Kurdish forces that have received support from the United
States.95 Crucially, once we open the door to an expansive notion of
self–defense and we use it in one context, it opens the door to others
to use it as well. And once self–defense becomes so expansive, the
prohibition on offense threatens to become irrelevant.

International Human Rights

92. Eric Schmitt, U.S. Carries Out Airstrikes in Iraq and Syria, N.Y. TIMES (June 27, 2021),
https://www.nytimes.com/2021/06/27/us/politics/us-airstrikes-iraq-syria.html
[https://perma.cc/84HW-WDHF].
93. See Adil Ahmad Haque, Biden’s First Strike and the International Law of Self–Defense,
JUST SEC. (Feb. 26, 2021), https://www.justsecurity.org/75010/bidens-first-strike-and-
the-international-law-of-self-defense/ [https://perma.cc/45K2-ZTVT] (analyzing the in-
ternational law justifications for the first strike, which took place in February).
94. Ukraine Conflict: Moscow Could ‘Defend’ Russia–Backed Rebels, BBC NEWS (Apr. 9,
2021), https://www.bbc.com/news/world-europe-56678665 [https://perma.cc/GW72-
ZAN3] (quoting Russian official stating that “Russian forces could intervene to ‘defend
Russian citizens’”).
95. Oona Hathaway, Turkey Is Violating International Law. It Took Lessons from the U.S.,
WASH. POST (Oct. 22, 2019), https://www.washingtonpost.com/outlook/2019/10/22/tur-
key-is-violating-international-law-it-took-lessons-us/[https://perma.cc/GWU2-ZT2L].
2022 Myths and Realities of Global Governance 47

My first major law review article was titled, “Do Human Rights
Treaties Make A Difference?”96 It concluded that states that ratify
human rights treaties not only do not generally do better than those
that do not have treaties, but rather they, albeit counterintuitively,
sometimes do worse.97 And that was something of a bombshell in
the human rights community because, of course, a lot of effort had
been put into creating these treaties and encouraging states to ratify
them.98 Part of the reason for that result is that human rights trea-
ties, with only a few exceptions, generally are not internationally
enforced.99
It is very easy for a state that has a bad human rights record and
no expressed intention to change it to ratify a treaty and then not
do anything differently as a result. Does that mean that human
rights treaties are pointless? No. These treaties have a lot of value
even if they are not directly effective in changing the behavior of
states who ratify them. But the next step in the human rights revo-
lution should be to think about how we transform those promises
into reality. How do we give them life? How do we make them ef-
fective?
We need better ways to enforce human rights obligations if we
think they are important commitments, as I do. Countries should
not torture. People should enjoy rights to freedom of assembly and
freedom of speech. People should be free of the threat of genocide.
The basic protections that are included in the core human rights
treaties are fundamental.100 Indeed, many of these human rights ob-
ligations are ones the United States pressed hard for in the years

96. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J.
1935 (2002).
97. Id. at 2021.
98. See id. at 2024.
99. See id. at 2022–23.
100. See, e.g., U.N. Charter ch. IX, art. 55(c) (“[T]he United Nations shall promote . . .
universal respect for, and observance of, human rights and fundamental freedoms for
all without distinction as to race, sex, language, or religion.”; G.A. Res. 217 (III) A, Uni-
versal Declaration of Human Rights (Dec. 10, 1948) (affirming, in the Preamble, that
48 Harvard Journal of Law & Public Policy Vol. 45

following World War II.101 Many of the core human rights instru-
ments are based on commitments that the United States made do-
mestically and wanted to internationalize. For example, the Inter-
national Covenant on Civil and Political Rights really is an
internationalization of the U.S. Bill of Rights.102
If that is right, then we need to develop better ways to enforce
these obligations. As noted earlier, international courts are one op-
tion.103 For instance, in Europe, there is the European Convention
on Human Rights, which is enforced by a European Court on Hu-
man Rights.104 That court has been quite effective in finding that
states have engaged in human rights violations and requiring them
to make changes. Russia, for instance, gets brought in front of that
court a lot and has been ordered to pay a lot of money and to make
policy and legal changes.105 There is also the Inter–American Court
on Human Rights.106 Unlike the European Court of Human Rights,
it does not have compulsory jurisdiction.107 That makes it too easy
for states to evade responsibility. But it is, nonetheless, a widely ac-
cepted international mechanism for enforcing human rights.108

“the inherent dignity and . . . the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice, and peace in the world”).
101. John W. Dietrich, U.S. Human Rights Policy in the Post-Cold War Era, 121 POL. SCI.
Q. 269, 270 (2006); MARY ANN GLENDON, WORLD MADE NEW: ELEANOR ROOSEVELT
AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (2001).
102. See International Covenant on Civil & Political Rights (1976) (Preamble recog-
nizes “that, in accordance with the Universal Declaration of Human Rights, the ideal of
free human beings enjoying civil and political freedom and freedom from fear and want
can only be achieved if conditions are created whereby everyone may enjoy his civil
and political rights, as well as his economic, social and cultural rights . . .”).
103. See AVENA & OTHER MEXICAN NATIONALS, supra note 9.
104. European Convention on Human Rights art. 46(2), Nov. 4, 1950, 213 U.N.T.S.
221 (explicitly prescribing “the final judgment of the Court shall be transmitted to the
Committee of Ministers, which shall supervise its execution”).
105. See Jeffrey Kahn, The Relationship Between the European Court of Human Rights and
the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in
Strasbourg and St. Petersburg, 30 EUR. J. INT’L L. 933, 934 (2019).
106. American Convention on Human Rights, Nov. 22, 1969, OAS Treaty Ser. No. 36,
1144 U.N.T.S. 123 (1978).
107. Id. at arts. 62–64.
108. Id.
2022 Myths and Realities of Global Governance 49

Despite these examples, international courts are likely not the

best answer to the problem of human rights enforcement. Human
rights are best enforced domestically, through domestic political
and legal institutions.109 For example, the Alien Tort Statute is one
way in which human rights law is enforced in the United States.110
The statute was enacted in 1789 by the first U.S. Congress, and it
allows an alien to sue in tort for violations of the law of nations.111
It has been a controversial tool for enforcing human rights.112 And
there has been lots of debate about what exactly it means.113 In June
2021, the U.S. Supreme Court decided Nestlé v. Doe, which it joined
with Cargill v. Doe.114 The plaintiffs were children trafficked from
Mali to Cote d'Ivoire to work in cocoa plantations.115 They claimed
that Nestlé and Cargill were working closely with cocoa suppliers
that were using child slave labor and thereby aided and abetted
child slavery.116 The question in front of the Supreme Court was
whether U.S. corporations can be held liable for aiding and abetting
a human rights violation—here, child slavery—abroad.117 The deci-
sion, unfortunately, was no: the Court decided that the Alien Tort
Statute did not apply to the extraterritorial conduct at issue in the
case.118 That leaves the plaintiffs with no remedy for the human

109. Oona A. Hathway, Hamdan v. Rumsfeld: Domestic Enforcement of International

Law, in INTERNATIONAL LAW STORIES 229 (Foundation Press 2007).
110. The Alien Tort Statute, THE CTR. FOR JUST. & ACCOUNTABILITY,
https://cja.org/what-we-do/litigation/legal-strategy/the-alien-tort-statute/
[https://perma.cc/BS5B-UNHA] (last visited Jan. 13, 2021).
111. Id.
112. See id.
113. See id.
114. See Nestlé USA, Inc. v. Doe, 141 S.Ct. 1931 (2021).
115. Id. at 1935.
116. Id.
117. Id. at 1935–36.
118. Id. at 1936.
50 Harvard Journal of Law & Public Policy Vol. 45

rights violations they suffered.119 These kinds of cases play an im-

portant role in policing human rights violations around the world.
If we do not want international courts to provide the only tool for
human rights enforcement, we need to find a way to provide other
fora to human rights victims.
There are efforts to enforce human rights in domestic courts in
Europe as well.120 There have been more recent cases against corpo-
rations that engage in human rights violations and environmental
violations either directly or through subsidiaries in other countries,
particularly in the Global South.121 There are cases in U.K. courts
and Dutch courts against Shell Dutch Oil Company for environ-
mental degradation caused by oil spills in Nigeria.122 Just in the last
year, both U.K. and Dutch courts have allowed those cases to pro-
ceed.123 That is one way in which human rights could be enforced.
In Europe, there is also an effort to require corporations to engage

119. Lawrence Hurley, U.S. Supreme Court Rules for Nestle, Cargill over Slavery Lawsuit,
REUTERS (June 17, 2021), https://www.reuters.com/business/us-supreme-court-rules-
nestle-cargill-over-slavery-lawsuit-2021-06-17/ [https://perma.cc/873C-QS4N]. The
plaintiffs moved to amend their complaint in order to continue to case, but the district
court denied that motion.
120. Kiobel v. Royal Dutch Shell, Rechtbank Den Haag, ECLI:NL:RBDHA:2019:4233
(May 1, 2019), https://uitspraken.rechtspraak.nl/inziendocu-
ment?id=ECLI:NL:RBDHA:2019:6670 [https://perma.cc/M8NM-DBJ5]; Patrick McAl-
lister, UK Supreme Court Approval of Shell-Bodo Case: Could This Be a Step Towards a More
Equitable Future?, GLOB. RISK INSIGHTS (May 4, 2021), https://global-
riskinsights.com/2021/05/uk-supreme-court-approval-of-shell-bodo-case-could-this-
be-a-step-towards-a-more-equitable-future/ [https://perma.cc/TXA3-HM43].
121. Id.
122. Rechtbank Den Haag, ECLI:NL:RBDHA:2013:BY9854 (Jan. 30, 2013),
https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2013:BY9854
[https://perma.cc/E5NL-QWHX]; David Vetter, Niger Delta Oil Spills: Shell Ruled Respon-
sible in Landmark Verdict, Forbes (Jan. 29, 2021, 10:14 AM),
https://www.forbes.com/sites/davidrvetter/2021/01/29/niger-delta-oil-spills-shell-
ruled-responsible-in-landmark-verdict/?sh=134c674a465e [https://perma.cc/3RRJ-
NJ5N]; Julia Payne & Kirstin Ridley, Nigerians Win UK Court OK to Sue Shell over Oil
Spills, REUTERS (Feb. 12, 2021), https://www.reuters.com/article/us-britain-shell-nige-
ria-judgement/nigerians-win-uk-court-ok-to-sue-shell-over-oil-spills-
idUSKBN2AC16A [https://perma.cc/M9TM-SR5B].
123. Id.
2022 Myths and Realities of Global Governance 51

in due diligence to ensure that there are not human rights violations
taking place in their supply chain.124
Human rights violations could also be enforced through courts in
the countries where they occur. The problem, however, is that
courts in the places where the human rights violations are happen-
ing are generally not particularly friendly to cases being brought by
the victims.125 The government often has some complicity or role in
the violations and is not eager to allow these cases to proceed. And
courts are often not entirely independent. Bringing a case against
human rights violators can also be dangerous. So often the only real
option is for the case to proceed outside of the country where the
violations have taken place. Nonetheless, there could be efforts at
local rule-of-law reform to make local courts more available to
those who have suffered.126
In short, we need to invest in making human rights protections
more effective. That is the next goal of the human rights revolution.

Global Governance and Geopolitical Competitors

Now that our chief geopolitical competitors have joined global
governance organizations like the World Trade Organization, one
might ask whether it is really in our best interests to participate in
them as well. One might wonder if being a member of these global
institutions really helps us all that much if it allows our competitors
to take advantage of the same rules and regulations that we enjoy.127
A prominent theory of political science, Realism, once endorsed
the view that global institutions are incompatible with geopolitical
competition. Realists argued that there could not be a robust and

124. See Gabriela R. Da Costa et al., European Union Moves Towards Mandatory Supply
Chain Due Diligence: Start Gearing up for New Directive, NAT’L L. REVIEW (Apr. 29, 2021),
https://www.natlawreview.com/article/european-union-moves-towards-mandatory-
supply-chain-due-diligence-start-gearing-new [https://perma.cc/339G-AXH2].
125. The Alien Tort Statute, supra note 110.
126. For more on the Alien Tort Statute, see Oona A. Hathaway et al., Has the Alien
Tort Statute Made a Difference?, CORNELL L. REV. (forthcoming 2022).
127. HATHAWAY & SHAPIRO, supra note 61, at 345.
52 Harvard Journal of Law & Public Policy Vol. 45

successful free trade regime between states because although all

states will benefit from a free trade regime, some will inevitably
benefit more than the others. Some states will grow faster than their
competitors, which will change the balance of power among the
parties in a way that is disadvantageous to states that, although ris-
ing, are not rising as fast. Therefore, this theory went, free trade ar-
rangements are ultimately going to break down because the states
that are not benefitting as much as others are going to want to pull
out of the agreement even though they, too, are doing better be-
cause of it.128
The modern era has disproved that theory. A key reason is the
emergence of the prohibition on war, now embodied in Article 2(4)
of the UN Charter.129 This prohibition helps overcome the problem
outlined above, because states need not be constantly afraid that if
other states makes relative gains, they will use those gains to go to
war against those who, while gaining, gain relatively less.130 For lots
of human history, that was a real concern.
Moreover, in this era, the reality is that if a state is not in the
World Trade Organization and benefitting from it, other states are
going to be in it and benefitting from it. So simply pulling out is not
going to do a state any good if it is concerned with relative gains.
All a state will succeed in doing is harming itself and excluding it-
self from the benefits of a regime that is serving the best interests of
its members. At the same time, being a part of these global institu-
tions along with its competitors—for instance, with China—allows
the United States to hold those competitors to account when they
fail to follow the rules. Being in the WTO with China is advanta-
geous, ultimately, to the United States because when China breaks
the rules, which it sometimes does, there is a mechanism under the
WTO for the United States to bring a case against it.131 The United

128. See id. at 343.

129. Id.; U.N. Charter art. 2(4).
130. HATHAWAY & SHAPIRO, supra note 61, at 344.
131. See Jeffrey J. Schott & Euijin Jung, In US-China Trade Disputes, the WTO Usually
Sides with the United States, PETERSON INST. FOR INT’L ECON. (Mar. 12, 2019, 3:15 PM),
2022 Myths and Realities of Global Governance 53

States has done that several times132 and, when it wins, the United
States is allowed to put in place countermeasures in response to
those violations unless they are corrected.133 So the institutions offer
a way for the United States to peacefully police the bad behavior of
its competitors so that they do not take an unfair advantage.
Ultimately, in this world, states have to be a part of global insti-
tutions because the party is going to go on with or without them.
As a result, they are going to lose out if they opt out. Being a part
of these global institutions gives a state tools to enforce the rules,
whereas if they stay out of the system, they cannot police the rules
as effectively. The United States is better off for having those insti-
tutions, and participating in them, even—or perhaps especially—
when competitors are a part of them.

Conclusion
A challenge that we face in the United States at this moment is
that the United States’ relative influence compared to other coun-
tries is in decline. When you look at share of global GDP, for exam-
ple, the United States is declining and others are rising.134 In 1960,
the United States’ GDP made up 40% of global GDP.135 In 2014, it
was roughly half that, and projections are that it will be under 15%
in 2026.136 As a result, the ability of the United States to shape the
global rules is going to be reduced in the future.

https://www.piie.com/blogs/trade-and-investment-policy-watch/us-china-trade-dis-
putes-wto-usually-sides-united-states [https://perma.cc/P3F8-WA2S].
132. Id.
133. Countermeasures by the Prevailing Member (Suspensions of Obligations), WORLD
TRADE ORG., https://www.wto.org/english/tratop_e/dispu_e/disp_settle-
ment_cbt_e/c6s10p1_e.htm [https://perma.cc/79an-c9f4] (last visited Aug. 29, 2021).
134. Mike Patton, US Role in Global Economy Declines Nearly 50%, FORBES (Feb. 29,
2016), https://www.forbes.com/sites/mikepatton/2016/02/29/u-s-role-in-global-econ-
omy-declines-nearly-50/?sh=6498c7e75e9e [perma.cc/Q9W9-STSA].
135. Id.
136. Id.; Aaron O’Neill, United States Share of Global Gross Domestic Product (GDP)
2026, STATISTA (Nov. 23, 2021), https://www.statista.com/statistics/270267/united-
states-share-of-global-gross-domestic-product-gdp/ [https://perma.cc/U3CL-ZWG6].
54 Harvard Journal of Law & Public Policy Vol. 45

One reason it is in our interest to create and invest in global insti-

tutions and global rules of the road now is to shape them while we
still have the capacity to do so. Creating these institutions and
structures to enforce them, structures and institutions that are con-
sistent with our values and our view about the proper way of run-
ning the world, is in our best long–term interests. Pulling out now
is the most disastrous thing we can do, because it leaves it to others
to define those rules—rules that we will ultimately have to live by.
The robustness of the norm against using military force has, for
example, helped preserve the independence of Taiwan. I was con-
cerned, particularly in the period after Trump's defeat and before
Biden's inauguration, that China might take advantage of the diffi-
cult political transition. The fact that it did not makes me hopeful
that those rules still mean something. China understands that there
would be a massive price to pay for violating them. I think it is in
our best interests to continue to make it clear that those are the rules
that we intend to abide by, that other states are with us in believing
that those are the right rules to govern the global system, and that
others will join us in rejecting any effort to violate them.
Global governance serves our interests and our values. It is the
way in which the United States can ensure that its values continue
to govern the global order, even as we look to a future in which the
United States’ relative economic and military strength will not be
as dominant as it historically has been. And that is why it is so im-
portant, now more than ever, that we continue to invest in creating,
strengthening, and growing institutions for global governance.