I am deeply grateful to the American Society of International Law—especially to its president, Lucinda Low—and to the International Legal Studies Program at American University Washington College of Law—in particular, to the Dean of the College, Camille Nelson, and to its program director, David Hunter—for their generous invitation to deliver the nineteenth Annual Grotius Lecture. Grateful, but more than a little intimidated. Nobel laureates and heads of state, eminent judges and leading diplomats have given this distinguished lecture, but never, I think, a humble historian. As Isaac Newton might have said were he in my shoes, “[i]f I can see far, it is because I stand on the shoulders of these giants.”

It is a pleasure and an honor to comment on the work of David Armitage, a historian of unparalleled reach and impact. His topic could not be more important. “Civil war has gradually become the most widespread, the most destructive, and the most characteristic form of organized human violence,” he writes in his elegant and masterful recent book Civil Wars: A History in Ideas. Examining the history of the idea of “civil war” is not simply an academic enterprise. Understanding its history, he explains, “reveals the contingency of the phenomenon, contradicting those who claim its permanence and durability.” Armitage's purpose is “to show that what humans have invented, they may yet dismantle … what intellectual will has enshrined, an equal effort of imaginative determination can dethrone.”

When the Annual Meeting Committee began its planning process a year ago, they could not have foreseen the challenges that would confront international law and institutions following the U.S. elections, but both the committee and the Society's leadership felt that it would be important to adjust our plans to take account of this new landscape. And this is taking place throughout this annual meeting and most particularly through the three panels we're hosting at this same time each morning on “International Law and the Trump Administration,” and the first panel, as you know, today is on “National and International Security.”

Thanks very much, Lucinda. Good morning, everybody. It's my pleasure to welcome you to this special session on “International Law and the Trump Administration,” with a focus on national and international security.

So I would be remiss if I didn't begin this panel by just pausing for a moment over the name of it, which is “International Law and the Trump Administration,” and if that doesn't bring a smile to your lips in some form, I think we may as well pack up and go home.

Well, thank you very much, and good morning, ladies and gentlemen. Actually, I have to have a disclaimer. I am not a lawyer, and actually, probably the reason why I am here is to provide a dose of political realism and so really show a little bit still the limits of international law and to what extent actually international law governs international relations and why.

Great. Thanks, Ben. So we have a fantastic moderator who knows more about this subject than any of us, so I'm going to try to be brief and let Ben ask us some questions.

Okay. Thanks, Ben. Its an honor to be here. I wanted to also say a special thank-you to Saira Mohamed for organizing this panel, and thanks to all of you for being here. It takes a special kind of person to come into a cold, dark basement on a beautiful spring day to talk about international law, but good on you.

Welcome to our roundtable discussion on the balancing of rights and obligations of states and investors. In the past fifteen years, the number of investor-state disputes has grown exponentially, mainly as a result of arbitration clauses contained in investment treaties. The significant number of publicly available decisions and awards has allowed us to form views—and concerns—about both process and outcomes. Some of the concerns have led to the introduction of changes, not only in treaties but also in underlying investment policies. In some instances, states have issued interpretations of particular provisions. In recent years, multilateral initiatives have developed recommendations on how future investment treaties might be improved.

In the last several years there has been a trajectory of negotiating more and more comprehensive trade and investment agreements—the Canada-EU Comprehensive Economic and Trade Agreement (CETA), the Transatlantic Trade and Investment Partnership (TTIP), and perhaps the most comprehensive, the Trans-Pacific Partnership (TPP). But that trend may have come to a halt with the difficulties over CETA ratification, the apparent end of the TTIP, and the uncertain future of the TPP.

The debate over rebalancing the rights and duties of states and investors requires a broader view of the actors implicated in investment disputes. Rebalancing also requires addressing asymmetries apparent in the legal mechanisms of accountability.

Other panelists have talked about the increasing relevance of human rights to bilateral treaty arbitrations between governments and foreign investors. This is a very important development. However, my focus is on how to prevent the disputes that give rise to those arbitrations in the first place. If human rights are not addressed up front, in host state/foreign investor contract negotiations, they will come back to bite people, states, and investors. To do so, I want to talk about the 2011 UN Guiding Principles on Business and Human Rights, and their addendum, the Principles for Responsible Contracts.

It is a privilege to participate in the ASIL Annual Conference. My hope in doing so is to learn from the other panelists, and to provide a perspective that does not appear to be well represented in ASIL discussions—that of the corporate investor. The practical realities seen from that perspective are often missing from academic presentations, and are not fully covered by presenters from the private bar who represent investors. When ASIL convenes panels to discuss international law topics that involve business, including a corporate participant may add value to the discussion.

The classical approach to investment protection is that states have obligations and investors have rights. However, there are emerging trends in favor of a rebalancing of rights and obligations of states and investors. In the context of this recalibrated approach, more attention is given to the definition of substantive provisions, such as the fair and equitable treatment standard. There is also a move from investor protection to investor responsibilization. This emerging responsibilization trend can be observed, for example, in recent treaties negotiated on the African continent, and it is also making a foray into customary international law.

The growing use of cyberspace by state and nonstate actors is testing the limits of our international legal rules. And the recent issuance of the Tallinn Manual, both in its first iteration and now in its second version as Tallinn 2.0, attempts to identify the emerging law in this area. But many of the principles it asserts are controversial. This panel grapples with some of the key contested issues in this emerging domain.

First, I should note that I am speaking today in my personal capacity only, and my views do not represent those of the U.S. government, the Department of Defense, or U.S. Cyber Command. At the outset, let me provide a brief overview of U.S. Cyber Command. It is a relatively new command within the Department of Defense. Established about seven years ago as a subunified command, it is an operational headquarters at the strategic level but at the moment subordinate to U.S. Strategic Command, one of the combatant commands within the Department of Defense. The 2017 National Defense Authorization Act included a provision stating that there shall be established a combatant command known as U.S. Cyber Command. As a result, there is now a lot of movement afoot to see how we will meet that legislative intent. In all likelihood, U.S. Cyber Command will elevate at some time in the future as a full combatant command.

We are still in the early days of the relationship between cyberspace and international law. In many respects, it is a relationship off to an unsteady and uncertain start. But a slow and sporadic trickle of governmental efforts to express or even to shape that relationship has emerged. To date, the most significant multinational clarification from states has been the deceptively modest concession that international law applies fully to cyberspace. States have at least made clear that the novelty and seemingly virtual nature do not exempt cyberspace from existing in international law.

I come to this subject to talk about the unique intersection of state-sponsored cyber-activity with the private sector. Many of the costs of that activity are borne by the private sector that is domestically located in the United States, and there is often a disconnect between what is framed and developed in conversations and discussions by the United States and the reality on the ground within the private bar representing individual U.S.-based companies.