The 103rd Annual Meeting of the American Society of International Law (ASIL) took place 25-28 March 2009 at the Fairmont Hotel in Washington, D.C. This year’s theme, “International Law as Law,” focused largely on state responsibility, including R2P, domestic enforcement of international tribunal decisions, treaty ratification and compliance, nuclear nonproliferation, law of the sea, and the role of human rights. Special interest sessions addressed feminism, the global financial crisis, intellectual property rights in China, the future for Guantanamo detainees, legal empowerment of the poor, whaling, and the 2005 Hague Convention on Choice-of-Court Agreements. The following are highlights and event summaries from the plenary, special, and a few of the 30+ regular sessions.

This year, 1,200+ leading legal scholars, practitioners, and officials from roughly 75 countries attended the annual meeting.

Congratulations to the conference co-chairs for their excellent work in putting together this year’s conference: Stephen Mathias, Office of the Legal Adviser, U.S. State Department; Anthea Elizabeth Roberts, London School of Economics, Department of Law; and Carlos M. Vázquez, Georgetown University Law Center.

Annual Grotius Lecture

Focusing on the Good or the Bad: What Can International Environmental Law Do to Accelerate The Transition Towards A Green Economy?

Dinah Shelton, Achim Steiner (lectern)

Wednesday, 25 March 2009, 4:30-6:00 p.m.
Featuring: Achim Steiner, UNEP Executive Director and UN Under-Secretary General
Discussant: Dinah Shelton, Manatt/Ahn Professor of International Law at the George Washington University Law School
Co-sponsored by: American University’s Washington College of Law and the ASIL International Environmental Law Interest Group

Achim Steiner stated that his talk was intended to explore: “To what extent can laws and regulations accelerate the green economy or slow it down?” The sub-context, he continued, is how to focus on good ways to promote the green economy and to avoid punishment. He called for incentive-based systems rather than deterrence or punishment. To that end, he cited the environmental, financial, social, and human rights benefits of investing a major portion of the $3 trillion bailout funds in renewable energies and environmentally-focused recovery strategies. He called for reform of international institutions and international environmental legal instruments. He also argued for a strengthened role of UNEP as the environmental pillar of the United Nations. Dinah Shelton, Manatt/Ahn Professor of International Law at the George Washington University Law School, then provided remarks. Read a more in-depth summary with analysis.

Plenary Session

International Law as Law at the International Court of Justice

Left to Right: ICJ Judge Bruno Simma, ICJ Judge Thomas Buergenthal, ICJ President Hisashi Owada, Ralph Steinhardt, Lucy Reed

Friday, 27 March 2009, 4:30-5:45 p.m.
Featuring: International Court of Justice President Hisashi Owada, ICJ Judge Thomas Buergenthal, ICJ Judge Bruno Simma
Moderators: Lucy Reed, Freshfields Bruckhaus Deringer US LLP, and Ralph Steinhardt, George Washington University Law School
Co-sponsored by: George Washington University Law School

“I know the danger of being the warm-up band,” Ralph Steinhardt began, to much laughter. The audience greeted the three judges from the International Court of Justice as if they were indeed “rock stars.” One attendee said, “This is like a rock concert for legal geeks.” The judges did not disappoint the crowd, in substantive reflections on international law and the ICJ and in moments of lively banter and laughter.

Among the highlights, Judge Simma asserted that no other audience was in greater need of hearing about international law, referring to the U.S. audience and obliquely to the Avena case. President Owada observed that a “remarkable evolution of law” is changing how the court functions in the context of the “public order of the international community.” Judge Buergenthal remarked that the ICJ makes “new law” through “normative accretion.” Buergenthal also stated that the cross-fertilization of international courts and institutions has law-making significance that has yet to be understood fully in academia. Read a more in-depth summary.

Special Sessions

ILSA-ASIL Gala Dinner Celebrating the 50th Anniversary of the Philip C. Jessup International Law Moot Court Competition

Jessup 50th Anniversary Celebration
Friday, 27 March 2009, 6:30-11:00 p.m.
Featuring: Judge Rosalyn Higgins, the outgoing President of the International Court of Justice, and Judge Stephen M. Schwebel, Former President of the International Court of Justice and author of the 2009 Jessup Competition Compromis.

This special dinner event at the Ronald Reagan Building and International Trade Center commemorated the golden 50th anniversary of the Philip C. Jessup International Law Moot Court Competition, the leading international law advocacy contest in the world. The competition is named after Philip C. Jessup (1897-1986), an international jurist and professor of international law. The annual competition is administered by the International Law Students Association (ILSA). In 2009, 2000+ students at 560+ law schools in more than 80 countries participated in the competition, with 114 teams advancing to the International Rounds in Washington, D.C. The proceeds generated by the Gala dinner will help Jessup teams with limited funds to participate in the Jessup competition.

I shared my table with Ireland’s Jessup team from the Law Society of Ireland; Anne Holliday, the UK National Administrator of the Jessup; and her husband Keith Holliday.

The Atrium, with its high ceilings soaring 125 feet upwards and granite floors, created a spectacular feeling of grandeur befitting the occasion. The architecture, however, reverberated sound and made it difficult for most people to hear the speeches. Many attendees continued to talk throughout the speeches, seemingly unaware that there were even speeches being given or having resigned themselves to the fact that they would not be able to hear the featured speakers.

Judge Rosalyn Higgins

Judge Rosalyn Higgins, the outgoing President of the International Court of Justice, spoke on what has and has not changed at the Court during her time on the bench. First, she stated that the ICJ, as the official judicial organ of the United Nations, remains dependent on state parties. The ICJ is still the court of the UN, representing the diversity of the world’s legal systems: civil, common and other forms. The court also reflects the world’s diversity in the range of states before it. In 2009, all regions of the UN had cases before the Court. Further, even recent efforts at UN reform have not required a change in the judiciary. Rather, reform at the ICJ is optional. The Court, she said, is on equal footing with the other main organs of the UN. The quality of judges also remains consistent and thus so does the quality of the decisions. She referred to Bruno Simma’s remarks at the Plenary about how other international courts’ judgments are written by others. At the ICJ, the judges write their own opinions. While the judges value the Registry and law clerks, they do not delegate the task of writing decisions. Delegation of that task would bring the benefit of increasing the number of cases decided by the ICJ each year, but it likely would change the quality of the decisions. If the quality would suffer, states would be less likely to accept and implement the decisions.

She highlighted the financial constraints on the ICJ. The ICJ has a very limited “shoestring budget” of $20 million annually. In comparison, the ICTY receives $175 million, and the ICC receives 100 million euros. As a result, the ICJ judges find it financially difficult to treat visiting judges to dinner, to hold judicial seminars, or to travel to professional events. The small budget has the upside of making the ICJ one of the most efficient entities in the UN, yet it receives less than 1% of the total UN budget.

She next identified four main changes at the Court. First, the scope of countries using the Court has increased. Compared to 1960-1980, cases have increasingly been brought by countries in Africa, the Far East, and Eastern Europe. Second, the types of cases now involve genocide, environmental law, universal jurisdiction, and unilateral declaration of independence. Third, human rights is no longer on the fringes of international law. This embracing of human rights as a core element, she said, reflects a change both in the Court’s composition of judges and within international law. Fourth, the ICJ has used technology to reach a wider audience. Prior to the ICJ’s website, the Court would print hardback copies of decisions and send them to a limited number of people. When the first decision was published to the website, there were 80,000 downloads. The judges were surprised to learn that their decisions were so popular. The website currently receives 160,000 hits per month.

The court also has worked hard to eliminate the backlog. As of October 2008, there was no backlog. Applicants are ensured a timely proceeding after all the written pleadings are submitted.

Higgins next reflected on three concerns. First, with respect to the threat of fragmentation of international law from the proliferation of international courts, she said that the ICJ stands aside from the debate. She advised that the best way forward is to have regular communications across the courts, including the exchange of case summaries, seminars on legal topics of interests, and informal discussions to ensure that the various courts are on “the same song sheet.” Second, she cautioned that the ICJ should not lose progress. The quality of the Court depends on UN member states nominating qualified jurists. She asserted that jurists should not be nominated merely because they are women. They must be the best qualified. Lastly, she recommended that the ICJ maintain appropriate relations with the media.

In concluding, she endorsed President Hisashi Owada and his ability to lead the Court, particularly through future uncertainty. She smiled broadly as she wished everyone well and remarked that she will be thinking of them and the Court as she enjoys her retirement.

Philip C. Jessup, Jr.

Philip C. Jessup, Jr. spoke about the history of the Jessup, its evolution, his father, and the role of Jessup competition. He reminded us how Senator Joseph McCarthy accused his father of being a communist and tried to block his nomination as a member of the U.S. delegation to the United Nations. His father was one of nine that McCarthy accused of being disloyal to the United States before the subcommittee of the Senate Foreign Relations Committee. The investigations and hearings became known as the Tydings Committee. He also recounted the story about how his father survived a plane crash in Brazil in 1941, walking through the night with a wounded crew member and passenger to make sure they received medical care. He lead the search party back to the wreckage only to find everyone had died in the night. His father received a medal for bravery from the Government of Brazil.

Philip C. Jessup, Jr. was modest in his remarks and excluded comments about himself and the outstanding contributions he has made during the past 30 years to the continuation and expansion of the Jessup tradition.

Judge Stephen M. Schwebel, Lucy Reed (with plaque), Elizabeth Anderson (with birthday cake)

Judge Stephen M. Schwebel, a former president of the International Court of Justice (1997–2000) and ICJ judge (1981-2000), was honored with a plaque and a birthday cake in celebration of his 80th birthday. The crowd sung “Happy Birthday to You” and toasted him in a variety of languages, all at once.

Lucy Reed announced that many benefactors contributed to the creation of a new fellowship in Stephen M. Schwebel’s name, with office space and support to be provided at ASIL’s Tillar House in Washington, D.C. Specific details are not yet available.

Lucy Reed also announced that the “Best Oralist” award at the Jessup Competition shall be renamed in his honor. Judge Schwebel presented the award to the best oralist the following night at the conclusion of the Jessup Final Round. Schwebel wrote the first Jessup Compromis in 1959 about agrarian reform in Cuba.

Interest Groups

Women in International Law Interest Group’s Luncheon (WILIG)

Left to Right: Elizabeth Anderson, Susana SaCouto, Lucy Reed (behind), Justice Unity Dow, Ruthanne Deutsch, Edith Brown Weiss

Justice Unity Dow and Renee Dopplick

Thursday, 26 March 2009, 12:30-2:30 p.m.
Featuring: Remarks by Justice Unity Dow of the High Court of Botswana.

Note: I arrived slightly late and missed part of the opening remarks due to concurrent obligations with the quarterfinals of the Jessup competition.

I had the fortune of sharing a table with Justice Unity Dow, ASIL President Lucy Reed, ASIL Executive Vice President and Executive Director Elizabeth “Betsy” Anderson, ASIL Executive Council member Edith Brown Weiss, WILIG co-chair Susana SaCouto, and Ruthanne Deutsch, the new WILIG chairperson and current steering committee member.

Justice Unity Dow was presented the Prominent Women in International Law Award for her achievements. Lucy Reed provided opening remarks. Susana SaCouto presented the award.

In her remarks upon receiving the award, Justice Dow described a divorce proceeding from her courtroom. An HIV-positive wife, Amelia, wanted to divorce her non-HIV husband. The couple had two children, one of whom died of HIV/AIDS. The second child was still living but had not been tested. The father did not want to have the child tested. Dow concluded by stating that she was accepting the Award in honor people like Amelia, as well as all those who stories have not been told. Justice Dow invited and answered several questions off-the-record. The topics related to HIV/AIDS in Botswana, violence against women, cultural attitudes toward women in society-at-large and as judges, and domestic legislation.

Justice Dow will be retiring from the bench at the end of April 2009. She will be starting and managing a human rights nonprofit in Botswana dedicated to the prevention and elimination of violence against women. In 1998, she became the first women appointed to the country’s highest court, the High Court of Botswana. Prior to being appointed Justice, she founded and served as the director of the Metlhaetsile Women’s Information Centre. She also was the co-coordinator of the Women and Law in Southern Africa Research Project. She co-founded and served as president of the Botswana chapter of the International Association of Women Judges (IAWJ).

The ASIL Women in International Law Interest Group has 330+ members and is open to ASIL members. To join, login to your ASIL membership and opt-in under the “Interest Groups.”

ASIL President Lucy Reed (2008-2010) has established “Women and International Law” as one of the themes of her presidency.

International Environmental Law Interest Group Meeting: Scientific Whaling and International Law

Left to Right: Kate Cook, Laurence Boisson de Chazournes, Cymie Payne, Alberto Szekély, Dan Goodman

Friday, 27 March 2009, 1-2:30 p.m.

• Kate Cook, Matrix Chambers
• Laurence Boisson de Chazournes, University of Geneva
• Alberto Szekély, Permanent Court of International Arbitration at The Hague
• Dan Goodman, Institute of Cetacean Research, Tokyo
• Cymie Payne, Co-Chair International Environmental Law Interest Group

The meeting began with open discussions about possible future directions for the International Environmental Law Interest Group. One attendee recommended virtual meetings through webcasts to reduce attendees’ carbon footprint associated with travel to conferences. With the announcements and open discussion out of the way, the group turned its attention to Japan’s whale research program in the Antarctic (JARPA). Under Article VIII (Article 8) of the International Convention for the Regulation of Whaling, the International Whaling Commission may grant special permits for scientific purposes. The permits provide legal permission for grantees to kill a specified number of whales during a limited season. Permits are reviewed at the annual IWC meeting. Since a moratorium went into effect in 1982, Japan, Iceland, and Norway have received special permits.

Alberto Szekély started by framing the discussion in terms of the UN Law of the Sea, the Convention on Biological Diversity, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). He and Kate Cook then followed with a more probing discussion, both in theoretical and pragmatic terms, on how treaties should be interpreted. Should the 1946 Convention be considered lex specialis? How should the Convention be interpreted, if at all, with respect to the other treaties mentioned, as well as the VCLT. Should Article 8 of the Whaling Convention be interpreted with respect to the original purpose of the convention to reduce waste? Should the Convention be interpreted with respect to new obligations evidenced in related treaties? Cook also reiterated the importance and the need to understand the distinctions of the London Report (“The Taking of Sei and Humpback Whales by Japan,” 1 November 2007) and the Paris Report (“Report of the International Panel of Independent Legal Experts On: Special Permit (‘Scientific’) Whaling Under International Law,” 12 May 2006).

Goodman presented the opposition viewpoint, arguing the legitimacy of Japan’s scientific whaling efforts. He asserted that the Scientific Committee in 2006 reviewed and approved Japan’s proposals as “not unlawful.” He stated, “Japan’s research whaling is not commercial whaling.” In support of his argument, he quoted specific language from a 2006 Report by the Scientific Committee in favor of JARPA:

The International Whaling Commission website was not working so I could not verify the above text. Looks like the IWC is using Microsoft Office Web Server and currently have it misconfigured.

Goodman further argued that the ICW has unnecessarily adopted risk-averse methods to establish quotas and that the current moratorium has not been implemented in good faith with respect to treaty interpretation. Reminded multiple times of his limited time, he asked for additional time to rebut the arguments of the other panelists, prompting the other panelists to ask for equal time.

There was blood in the water with Goodman’s conclusion. He suggested that the sponsors of the panel chose to advance their anti-whaling agenda through a biased selection of panelists.

Regular Sessions

International Aspects of the Global Financial Crisis

Thursday, 26 March 2009, 9-10:30 a.m.

Left to Right: David Zaring, Eric Pan, Sean Hagan, Mark Weisbrot, Michael Barr, Robert B. Ahdieh

Panelists:

• Robert B. Ahdieh, Georgetown University Law Center (Moderator)
• Michael Barr, University of Michigan School of Law
• Sean Hagan, International Monetary Fund
• Eric Pan, Cardozo University School of Law
• Mark Weisbrot, Center for Economic and Policy Research
• David Zaring, University of Pennsylvania Wharton School of Business

The roundtable of practitioners and scholars was to offer perspectives and proposals on market regulation, global finance, economic development, transnational networks, and other international questions implicated by the financial crisis. The panelists expressed divergent views on institutional and legal approaches to the crisis. Eric Pan asserted that treaty law is too limited for the crisis and lacks flexibility for emergent and future market, political, and economic conditions. Sean Hagan disagreed with Pan on how much sovereignty states would be willing to forgo for the sake of economic gains and coordination. Michael Barr said all institutions – domestic, regional, and international – need to be strengthened, but he provided no specifics. Barr did endorse the building of alliances by Susan Rice, the U.S. Ambassador to the UN.

The panelists disagreed on which institution(s) should serve as the central forum for global reform to stabilize the financial markets in the near-term and for long-term financial regulation to prevent a future crisis. Suggestions included the World Trade Organization (WTO), the Financial Stability Forum (FSF), the International Organization of Securities Commissions (IOSCO), the International Monetary Fund (IMF), and the G-20. Nor did the panelists agree on whether the approach should be decentralized or centralized. Michael Barr seemed to be the only panelist calling for reform of the status quo by strengthening the existing legal mechanisms and institutions.

During question and answer, Barbara Woodward asked why the panelists were considering “elite organizations” as the solution for today’s crisis and tomorrow’s financial market regulation rather than the global forum of the United Nations.

US Implementation of the 2005 Hague Convention on Choice-of-Court Agreements

Left to Right: Peter Trooboff, Keith Loken, Alejandro Carballo, David Stewart, Louise Ellen Teitz

Friday, 27 March 2009, 2:45pm – 4:15 p.m.
Co-sponsored by the Private International Law Interest Group
Panelists:

• Alejandro Carballo Leyda, Lauterpacht Centre for International Law (Moderator)
• Keith Loken, US Department of State
• David Stewart, Georgetown University Law Center
• Louise Ellen Teitz, Roger Williams University School of Law
• Peter Trooboff, Covington & Burling

Keith Loken said he hopes the treaty will be submitted for ratification by the Senate in 2009.

Louise Ellen Teitz identified three issues: (1) uniformity of language across state, federal, and international legal instruments, (2) state compliance, given the federal question of monitoring, and (3) state standards, particularly if the outcome focuses solely on federal law. She pointed out that jurisdiction is usually part of substantive contract law in state courts, whereas it is procedural in federal courts under Erie. She also expressed concern about situations where a state is unable or unwilling to accept a case. Will choice-of-court agreements clog courts’ dockets or result in increased financial burdens on certain courts? If the United States seeks a declaration to the treaty to limit forum non conveniens, would it be discretionary? What would be the impact on global trading partners’ perceptions of the United States and the treaty?

Peter Trooboff asserted that the focus should be on “mid-class” citizens and businesses. Foremost, it needs to be “clear and simple.” He cautioned that the lawyers who drafted the Foreign Sovereign Immunities Act (FSIA) of 1976 thought it was “simple and clear” at the time.

Trooboff asserted the treaty should do no harm and should not be the “lawyer relief act” (laughter). He also argued that the existing language should not be changed unless one of three conditions is met: (a) could have avoided litigation, (b) expressly clear in the Report, or (c) language can be clarified without creating confusion. He concluded that the “devil is in the details.” He recommended that the U.S. government should consult broadly internally and externally beyond the people involved thus far.

David Stewart stated that the treaty is good for U.S. interests. He challenged the assumptions of implementation, asking, “Do no harm? How?” He also questioned whether we can structure a balance between each state’s interest in its domain of authority with the federal interests in treaty compliance. He stated, “It’s all about Article 6.” Next, he raised the question of the impact of the 2008 Supreme Court decision in Medellin, particularly with respect to textualism and the political question doctrine. He also pointed out that this treaty has broader legal implications because the concerns are shared by other legal areas with possible federalism conflicts, such as trusts, estates, and securities. Thus, future treaties in those areas face similar treaty implementation problems. He also observed that, even if we fast-track the treaty for ratification or implement it directly into law, such action does not completely solve the federalism issue. He concluded that we need to resolve the state-federal issue or the United States will not be able to join treaties with benefits for U.S. citizens.

Changing Concepts of State Sovereignty

Left to Right: Daniel Philpott, Ruti Teitel, Oona Hathaway, Rosa Brooks, Judge Rosalyn Higgins

Saturday, 28 March 2009, 9-11 a.m.
Panelists:

• Oona Hathaway, University of California-Berkeley School of Law (Moderator)
• Rosa Brooks, Georgetown University Law Center
• Daniel Philpott, University of Notre Dame
• Ruti Teitel, New York Law School
• Judge Rosalyn Higgins, International Court of Justice (former) (Commentator)

Daniel Philpott gave the historical viewpoint. He progressed from the Westphalian system of states to today’s possible return to religious wars. He remarked that World War II produced the Universal Declaration of Human Rights that led to an era of human rights. These human rights norms were evidenced institutionally in streams of commerce governed by the World Trade Organization (WTO), the International Chamber of Commerce (ICC), and the European Union (EU). He asked whether there are shared values for interference into state sovereignty. He then asked, “Is religious freedom being violated more than human rights?” He believes so. This erosion, he asserted, could result in a pre-Westphalian chaos that led to the violent religious wars that killed more than one-third of the German population in the 1660s.

Ruti Teitel spoke on the emergence of R2P, the elements of R2P, and the need to close the gap between legitimacy and legality. Implicit was the theme of the fragmentation of international law. She highlighted that the International Criminal Tribunal of the former Yugoslavia (ICTY) has primary jurisdiction over domestic crimes. She referred to the ICTY’s appellate decision in Tadic to suggest the state approach is possibly being supplanted by an individual approach. Where, she asked, is the balance between the sovereign and individual values? She said that there was not enough time to delve into universal jurisdiction.

Rosa Brooks highlighted the historical division between two areas of discourse: (1) humanitarian intervention and (2) national security. Humanitarian intervention largely has focused on the normative legal shift to state sovereignty as a privilege not as a right. The security community, in contrast, has focused on the affirmative right of self-defense, such as against states harboring terrorists. Inherent in the national security dialogue is the obligation by states to eliminate terrorists within their territories. The point of convergence is state sovereignty as a privilege that can be waived when a state is unable or unwilling to take action. Are we, she asked, at a point of a descriptive and normative change in sovereignty without legal consequences? Is there a divergence between (a) humanitarian intervention as premised on a robust, multilateral, rule-based framework, and (b) national security and the traditional notions of self-defense? She referred to the comment by an unnamed U.S. official who said that if Syria will not clean up its own backyard, the United States will. She then referred to remarks by U.S. Secretary of Defense Robert Gates that the United States will act to protect our troops. Where are the limits, and what will be the outcome? Will it become a free for all?

Judge Rosalyn Higgins provided her remarks on the fly. First, she agreed with Hathaway that international law is predicated on state sovereignty. The issue is whether emergent trends impact more traditional issues and organizations. For example, the World Trade Organization and the International Chamber of Commerce may erode sovereign entitlements. Can governments agree on limits in: (a) form and (b) reality. The more technical the issue, the easier it is for negotiations on state sovereignty. In this new era of human rights, governments claim the right to monitor others but are less inclined to want to be monitored. What is the legality and legitimacy of interventions, such as by NATO in Kosovo or the United Kingdom in Sierra Leone?

She referred to then-Secretary-General Kofi Annan’s three-legged stool analogy. He said the first leg is state sovereignty; the second leg is the problem of the use of force; and the third leg is the problem of getting the UN to close the gap to action. She illustrated her point with the example of the Sudan. The Government of the Sudan contends that a Western plot wants to interfere with the domestic affairs to bring about a regime change. Sudan claims the arrest warrant is politically motivated and an abuse of power. She did not give her personal viewpoint. She also said that governments have accused universal jurisdiction as being the “fig leaf” of abusive power by the West.

Moreover, Higgins continued, it is easy for small states to continue bad behavior, i.e. Darfur, Burma, and Zimbabwe. Consider that large states generally choose to use force and then ask courts to approve the conduct. This post-facto accountability could save lives, but are we confident in the outcomes? One emergent issue, she said, is the silent acceptance by states of other states’ actions, such as U.S. drones over Pakistan. She concluded that she is not confident of the outcomes of contemporary intellectual and political discourse.

Transatlantic Views of International Law: Cooperation and Conflict in Hard Times

Jane Stromseth and Daniel Bethlehem

Saturday, 28 March 2009, 10:45 a.m.-12:15 p.m.
Featuring: Daniel Bethlehem, Legal Adviser, U.K. Foreign and Commonwealth Office
Discussant: Jane Stromseth, Georgetown University Law Center (Moderator)

Despite this being the last session on the last day, this session attracted one of the largest crowds. I was talking with Judge Higgins during the break and missed the beginning 5-10 minutes of the session.

Daniel Bethlehem asserted that international law, like domestic law, is policy – “special policy.” He identified two major roles of a government legal advisor: (1) advises on the law proactively and reactively, and (2) safeguards the bright lines of law. These bright lines include things such as the prohibitions of torture and targeting civilians and the affirmative duty to disclose exculpatory evidence and to provide due process. Guarding the bright lines is not an easy job. He described the bright lines of law as analogous to digital images. The closer you get to the image, the more pixilation you see.

He then remarked how pleased he was with the appointment of Anne-Marie Slaughter. He stated that John Yoo brought his ideological intent to his role and inappropriately took the law in those directions. Bethlehem, in contrast, believes that the legal adviser should think very carefully before providing policy advice. One may provide advice on whether the conduct may be legal and the consequences.

He identified four commonalities and shared values of democratic governments: (1) constitutional governance, (2) no one is above the law, (3) equality of people, and (4) nondiscrimination. Still, our differences are beneficial. Further, multilateralism and engagement in the international community is preferable over isolationism. The United States, he observed, views engagement differently. Specifically, he stated that the United States treats international cooperation with less importance and is more willing “to go it alone.” He used the example of Guantanamo Bay and its violations of the Geneva Conventions.

Fundamentally, he argued, law is an “instrument of change.” In the future, we must have a balance of interests, if not a balance of power. The Obama administration inherits a sphere of influence and obligation. He then gave the following specific advice to the United States:

• Ratify Protocol I of the Geneva Conventions
• Create guidelines for the lawful detention of detainees
• Cooperate with the International Criminal Court
• Work with the United Nations, particularly with regards to due process and antiterrorism

Jane Stromseth posed two questions: (1) How different are US-EU viewpoints? and (2) How do legal advisers guard the bright line yet develop law in emergent areas when international courts may adjudicate on those areas of advice?

In framing the distinctions of U.S. legal practices, Stromseth began by quoting Carlos Vasquez: “Treaties are the supreme law of the land.” She observed that the United States, after World War II, ushered in global reform under international law. Further, until recently, the United States had been the champion of human rights within the international community. The constitutional structure, she continued, is designed to channel power. Through its internal checks-and-balances under the separation of powers doctrine, the United States has demonstrated the ability of self-correction domestically. The United States, she observed, denies the jurisdiction of international courts over its actions without its explicit permission.

She next turned to contrasting the US-EU approaches to contemporary conflicts, terrorism, and the use of force. The European Union, she said, has approached conflicts and terrorism using a law enforcement paradigm. The United States, in contrast, generally pursues a war paradigm. The United States has learned the hard way the lessons of legitimacy and post-conflict reconstruction. She remarked how one of her military students said that the United States needed cooperation in Afghanistan. Can the United States learn from states confronting terrorism using the law enforcement approach? The future requires governmental capacity and willingness to abide by internationally agreed upon norms. She concluded that strengthening the rule of law will require, in part, a ground-up approach.

As to the guarding of the bright lines, she asserted that legal advisers need to provide honest assessments and not advocacy briefs. Crossing the boundary from legal advice into policy advice creates a real risk of blurring bright lines.

She also raised the question of self defense, particularly the potential right of lawful anticipatory self-defense. When is the paradigm of self-defense applicable? I construed her line of thought to ask: Has the legal sentiment of self-defense, as authoritatively expressed in Article 51 of the UN Charter, changed to become more permissive?

With 10 minutes remaining for the question and answer session, Bethlehem joked that he had a trick up his sleeve because a 10-minute filibuster was well within his skills as legal adviser. (laughter). He observed that self-defense is problematic because states do not agree. He referred to the Wall Advisory Opinion, UN Security Council Resolutions 1373 and (1360?), and Nicaragua. He stated that most terrorism events do not occur as one large-scale event, like the attacks of 9/11. Rather, terrorists tend to conduct multiple, smaller events. Thus, one is more likely to see terrorism events of varyng magnitude with temporal and geographic elements. How does one make such conduct referenceable to law? He asserted that we should not make law more permissive – conduct should abide by and conform to the law.

His remaining remarks included praise for U.S. legal advisers and the JAG lawyers whom he has met. He stated that, 99% of the time, his experience with them has been positive. He offered no details about the other 1%. He also encouraged the United States to re-engage with the International Criminal Court, suggesting that Amb. Susan Rice could play a key role.

2010 ASIL Annual Meeting

The 104th Annual Meeting of the American Society of International Law Annual Meeting will be held 24-27 March 2010 at the Ritz Carlton in Washington, D.C. ASIL provides an early-registration discount.

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. The Society has members from 100+ countries. To learn more, visit the American Society of International Law online at: www.asil.org

Inside Justice

• 2009 ASIL Annual Grotius Lecture: International Environmental Law with Achim Steiner
• 2009 ASIL Plenary: International Law as Law at the International Court of Justice
• International Law Book Publishers
• 2009 Jessup International Moot Court Competition

Sponsor

• American Society of International Law