ASIL – 100th Annual Meeting

The American Society of International Law held its centennial annual meeting from 29 March to 1 April 2006 in Washington, D.C. The meeting attracted the largest attendance ever and featured top justices, lawyers, and politicians. The theme of 100 years promoted a nostalgic atmosphere. In the plenary address, U.S. Supreme Court Justice Kennedy focused on the Convention on the Prevention and Punishment of the Crime of Genocide, a treaty ratified by the United States in the same year in which Kennedy began his lifetime appointment to the Supreme Court. In a moderated discussion with US Secretary of State Condoleezza Rice, Retired U.S. Supreme Court Justice Sandra Day O’Connor, ICJ Judge Rosalyn Higgins, and ASIL President-Elect Jose Alvarez, the panelists contrasted past world wars with today’s war on terror. Most notably, for the eighth time in its 100-year history, ASIL adopted a resolution at its annual meeting.

Justice Kennedy on Genocide

U.S. Supreme Court Justice Anthony Kennedy gave the plenary address at 4:30 p.m. on Thursday, March 30. By 4:15 p.m., attendees filled the ballroom and the overflow room with a video feed to capacity, forcing the conference organizers to turn additional attendees away. Disappointingly, Justice Kennedy bypassed any opportunity to address the role of international law in U.S. courts. Instead, Justice Kennedy spoke passionately about genocide and the need for international lawyers to take action under the Convention on the Prevention and Punishment of the Crime of Genocide. The United States signed the Genocide Convention in 1945 and ratified it in 1988 during the Reagan administration, the same year President Reagan appointed Kennedy to the Supreme Court. Justice Kennedy challenged the attendees and the world to do “more than watch” genocide occur. He reflected on the minimal world response to the genocide of Rwanda in 1994. He then turned his focus to the genocide of Darfur on the one-year anniversary of the referral of Darfur by the UN Security Council to the International Criminal Court, the first referral by the Security Council to the ICC.

Justice Kennedy deflected a direct question from ASIL’s former president Anne-Marie Slaughter on the role of international law in U.S. courts and told the audience to refer to the text of the Court’s opinions. Kennedy authored the Supreme Court decision of Lawrence v. Texas, 539 U.S. 558 (2003), in which he cited decisions from the European Court of Human Rights, such as Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A)(1981). In Roper v. Simmons, 543 U. S. 551, 564-567 (2005), Justice Kennedy referenced the United Nations Convention on the Rights of the Child in finding the death penalty for juveniles as unconstitutional. As a result of these decisions, Justice Kennedy drew sharp criticism in Justice Scalia’s dissenting opinion in Roper for using international law as a resource when the issue was not treaty interpretation. Justice Kennedy also fell under verbal gunfire last year from House Majority Leader Tom DeLay, who labeled Justice Kennedy a “judicial activist.” DeLay criticized Justice Kennedy not only for using international law in U.S. courts but also for using the Internet to conduct research: “[Kennedy] said in session that he does his own research on the Internet? That is just incredibly outrageous.” (Interview, Fox News, 19 April 2005). Kennedy, then and at this plenary address, remained publicly silent in response to those criticisms.

Panel Discussion with Alvarez, Higgins, O’Connor, and Rice

Journalist Gwen Ifill moderated a 90-minute panel discussion featuring US Secretary of State Condoleezza Rice, Retired U.S. Supreme Court Justice Sandra Day O’Connor, ICJ Judge Rosalyn Higgins, and ASIL President-Elect Jose Alvarez. Unlike last year, when Secretary Rice gave a prepared introduction of U.S. Supreme Court Justice Ruth Bader Ginsburg’s plenary address, Secretary Rice responded this year to an on-going dialog throughout the session.

Gwen Ifill began the discussion with a question regarding the centennial meeting’s resolutions. Although the discussion did not progress sequentially through the resolutions, the following summary presents the panelists’ responses in relation to the seven proposed resolutions, which were adopted successfully by vote at the meeting.

1. UN Charter and the Use of Force

Secretary Rice linked the basis of the invasion of Iraq to violations of UN Chapter VII resolutions since 1991. She asserted that the US invasion of Iraq was justified because Iraq constituted a “threat to international peace and security.” This language mirrors the wording in UN Chapter VII and VIII.

When pressed on the dividing line between the spread of democracy and interference in domestic affairs of a sovereign state, Secretary Rice remarked that the United States can “help to create the circumstances under which people can then take the opportunity to build democracy. We can’t build the democracy.” Next, Secretary Rice turned the attention to the future and the next steps. She related the war to stop Adolph Hitler as similar to the war to stop Saddam Hussein. She stated that the solution to guarantee a permanent peace at the end of World War II was to facilitate the creation of a democratic Germany. Similarly, the United States needs to facilitate the creation of a democratic Iraq to guarantee a permanent peace.

Judge Higgins remarked that no nation is entitled, under the UN Charter, to use force unilaterally to overturn another government, including a terrorist government. She noted that other mechanisms through the UN are the “preferred” route. The use of “preferred,” not “required,” indicates that there may be exceptions to the general rule, but Judge Higgins did not elaborate. Judge Higgins did remark that there are questions of who gets to assess and to decide when the use of force is authorized.

2. Geneva Conventions

In response to whether Secretary Rice would endorse the second proposed resolution to require all countries to adhere to the Geneva Conventions that forbid torture, cruel, inhumane or degrading treatment, Secretary Rice questioned the current applicability of the Geneva Conventions to the rules of interrogation, torture, and surveillance of terrorists and noncombatants. She asserted that the United States faces “a new kind of war in which the conventions do not easily apply.” She concluded by saying, “Think about the dilemmas that the new kind of war actually poses and I think you may come to more complex answers than you might if you only think about the Geneva Conventions.”

3. Torture and Treatment of All Persons Detained

Secretary Rice interrupted Gwen Ifill to respond to statements by ASIL President-Elect Alvarez on the Attorney General’s lack of clarity on controversial interrogation techniques, such as water boarding and mock execution. Secretary Rice assured the audience that the United States will “live up to its obligations” under the Convention Against Torture, which the U.S. ratified in 1994. Secretary Rice did not address directly the legality of water boarding and mock execution. Rather, she spoke of “dilemmas” and posed rhetorical questions: “What are we to do with people who were picked up on the battlefield in Afghanistan, some of whom regularly say that if they are released they will go out and kill more people? What are we to do with them? What are we to do with people who clearly are related to those or have helped or financed or facilitated the killing of innocents? What are we to do with them?” Thus, through omission, Secretary Rice failed to clear up the “confusion” about the United States’ position on the legality of interrogation techniques and the treatment of individuals in the custody or control of the United States in prolonged detention and rendition.

4. Guatanamo and Prolonged Detention

Secretary Rice addressed prolonged detention of unlawful combatants in Guatanamo. She stated that the United States adheres to its domestic laws and the right of review by detainees. The United States, she said, does not want to be “the world’s jailer.”

Secretary Rice deferred to the upcoming case before the Supreme Court on military commissions, but she used favorable language to describe their function to stop “the next terrorist attack” yet be “defensible in terms of due process” under the Constitution. In contrast, professor Alvarez sharply criticized the the military commissions as “an uneven playing field” because of an imbalance of information, even unclassified information. Moreover, he pointed out that the commissions have not ruled out the use of evidence obtained by torture.

5. Adherence to IL – Agencies, Agents, and Forces

The discussion focused mainly on the Geneva Conventions, the treatment of detainees, and the prolonged detention of combatants. The expectation that all branches of government, agencies, and military forces need to comply with standards of international law was not directly discussed.

6. Abu Ghraib – Subordinates Actions

The panelists only briefly touched upon this resolution. Professor Alvarez raised the issue of command responsibility for conduct of subordinates in the field. His nephew is serving in Iraq, and he expressed concern that subordinates are not getting clear instruction from commanders. Secretary Rice’s follow-up response to Alvarez narrowed the Abu Graib abuses solely to a “few people.” She tried to put the minds of JAG lawyers in the room at ease with the comment that she thinks many of the soldiers are “serving honorably.”

7. Security and Liberty

For the United States, maintaining security and liberty under its international law obligations requires a discussion of the role and enforceability of international law in U.S. courts. Professor Alvarez pointed out the different ways people have been using the terms “international law” and “foreign law.” To provide context for “international law,” he referenced the Charming Betsy canon of interpretation, by which the courts will seek to interpret the law to be consistent with international law obligations. “Foreign law,” on the other hand, is generally the domestic laws and judicial interpretations of another country. O’Connor pointed out that the U.S. Supreme Court has referenced foreign law but has not used foreign law as binding precedent in any case.

Judge Higgins took the opportunity to criticize the “major qualifications and reservations” by the United States to recent human rights treaties, which effectively weaken the confidence in the treaties and the shared perception of human rights. She received applause when she stated that it’s important for countries to avoid “the impression . . . that one is keen on human rights and other people being made accountable . . .[but not being open] to scrutiny.”

ASIL’s Centennial Resolution
For the eighth time in its history, ASIL adopted a resolution at its annual meeting. Professor Mary Ellen O’Connell at Notre Dame Law School provides an explanation of the basic legal authority underlying each resolution. (ASIL Insight vol. 10:12, 2006).

100 Ways International Law Affects You
The Society solicited contributions for its members on ways in which international law affects daily life. The compilation is divided into six categories: daily life, leisure, away from home, liberty, public health, public safety, and commercial. Examples include having access to vaccines, driving in a foreign country, and reading foreign books. ASIL published the 100 ways in a booklet distributed with the conference registration materials. The online version requires Flash.

Exhibitors: books, advertisements, and schwag
The main exhibit area outside the ballroom gave attendees the opportunity to receive marketing materials (pens, mints, water bottles, catalogs, etc.) and to browse the latest publications from the following publishers:

American Society of International Law Publications
Annual Reviews, a nonprofit publisher
Ashgate Publishing Co.
Bureau International de l’Edition Francaise
Cambridge University Press
Cavendish Publishing Limited
Hart Publishing Ltd.
Martinus Nijhoff Publishers / BRILL
Oxford University Press
Oceana Publications
The Lawbook Exchange, LTD
Thomson International
Transnational Publishers, Inc.
United Nations Publications
William S. Hein and Co.
Wolters Kluwer Law and Business

About the American Society of International Law (ASIL)
ASIL is a membership-based nonprofit headquartered in Washington, D.C. Membership is not limited to US citizens or professionals residing in the US. Approximately 40% of their 4,000 members reside outside the United States. In 2006, the Society had members from more than 100 countries. To learn more, visit the American Society of International Law online at: www.asil.org

2007 ASIL Annual Meeting

The next American Society of International Law Annual Meeting will be held 28-31 March 2007 at The Fairmont Hotel in Washington, D.C. ASIL provides an early-registration discount.

• Students: the meeting coincides with the Jessup International Moot Court competition, which attracts teams from roughly 100 countries and simulates a case before the International Court of Justice.

• Planning Your Trip: keep in mind the logistical surprises that some first-time international attendees encountered. First, three airports serve the Washington, D.C. area – Baltimore International (BWI), Dulles International (IAD) and Washington National (DCA). All three airports offer ground transportation into D.C. Pack lighter bags or use wheeled baggage – not all airports in the United States have porters or readily available luggage carts. Second, travel within the city can be time-consuming. What appears to be a relatively short distance on the map may take much longer than expected to travel. The Metro (subway system) provides safe, comfortable, and convenient transportation throughout the region, including regular service to parts of Maryland and Virginia, and to Washington National Airport. Metro’s estimated travel times between stations can be found on their website but need to be at least doubled. Taxis in D.C. charge by geographic zone ($4-12 per ride) with additional service charges for each person ($1.50) and each bag ($1-2). Taxis can charge extra during rush hour or for rain. Taxis are required to provide a receipt upon request.

Conference attire is predominantly western business clothes or national dress. Some events require a change of clothes between the day and evening activities. If you take medicines, bring an adequate supply with you; most medicines in the U.S. require a prescription. Smoking is not permitted in most buildings. If you do smoke, check to see whether smoking is permitted and ask people around you if they mind. Lastly, bring more business cards than expected.

• American Society of International Law
• International Law Students Association (ILSA)