31 Mar ASIL Passes Historic Resolution
During the discussion, approximately twelve persons rose to urge the membership to pass the resolution and four urged that the resolution be voted down. The discussion did not address competing views on the content of the resolution. The entire debate was on the appropriateness of this Society taking a step of this nature.
The first to speak was Judge Stephen Schwebel, who rose to argue that the practice of not adopting such resolutions is a sound one and that for over fifty years he has opposed the adoption of ASIL resolutions. The great weight of our tradition is against the adoption of resolutions. He also stressed that the resolution will accomplish very little and will not measurably impact the course of events. Moreover it may divide the membership and may even embarass some of our membership if such resolutions are passed that focus on other countries.
Michael Reisman spoke shortly thereafter to argue that a learned society such as the ASIL should not adopt resolutions. He argued that it is a dangerous practice to pass resolutions. To make resolutions on current events may divide our Society. Moreover, there is ample opportunity to take political stands elsewhere besides the ASIL for those who so choose.
Anne-Marie Slaughter argued that this resolution is not a step we take lightly, for the passage of resolutions is a practice adopted in only very unusual circumstances. She indicated she would have preferred a formal report and a vote by the membership months later. But in the end, she maintained that the best should not be the enemy of the good and that in this case to speak is better than not to speak. In her view, the Society should declare what the law is so that a public debate can occur.
Peter Trooboff argued that if a significant minority of the membership did not prefer to adopt the resolution then the preferred approach may well be to avoid adoption of the resolution. That is the approach taken in his experience in private practice.
Cynthia Lichtenstein argued that in her 50 years as a member of the Society she can only remember a single resolution regarding the withdrawal to the Optional Clause. The tradition of the Society is not to stand up. But this time she argued we should state loud and clear what the law is.
Hans Corell stood as one of the last speakers to argue in favor of the resolution. He said that it was regrettable, but the resolution was necessary and he favored its adoption. He referenced the legacy of Elihu Root and his vision as articulated in his Nobel Peace Prize lecture.
After a failed attempt by Anthony D’Amato to add an amendment to the resolution that included specific language addressed to the United States, the membership voted by a show of hands. The resolution passed by a significant majority. A very large number abstained from voting, but the votes in favor far exceeded the votes against.
Following the meeting I had a brief discussion with Rick Kirgis, who recently published a book on the history of the Society. He indicated that he could recall only five resolutions in the Society’s 100 history. Until today, all of them pertained to the ICJ or the PCIJ. His recollection was one resolution in the 1930s relating to the PCIJ, one resolution in the 1950s relating to the United States signing the Optional Clause under Article 36(2), and two resolutions in the 1980s relating to the United States’ handling of the Nicaragua case and its withdrawal from the compulsory jurisdiction of the ICJ.
My own view, which clearly is a minority one today but appears to be the traditional view if one looks at the historical sweep, is that the ASIL should avoid passing these resolutions. Such resolutions, while perhaps uncontroversial in content, are nonetheless controversial in their choice of forum and timing.
In this case, the clear implication of the resolution is that these norms are being ignored or violated by the United States. The drafting history of the resolution undeniably underscores this fact. It is in this sense a political resolution directed at the United States, admonishing it for its misconduct. It appears to be the first resolution in the Society’s history that relates to broad issues of international compliance with the laws of war and humanitarian law. In the past 100 years, a century in which “mankind experienced some of the most destructive wars of all times,” States have transgressed these international obligations on innumerable occasions. And yet the Society only now sees fit to pass such a resolution. One can only help but ask, “Why now?”
Dear Roger,
If not now, when? Or: better late than never. Perhaps the Society has progressed in its jurisprudential and ethical awareness over the past century. Sometimes tradition, precedent simpliciter, what have you, is a shackle, a fetter, something to be transcended (in an Hegelian sense). Of course your take here is sufficient to make plain that such matters are not to be taken lightly, and should involve frank and lucid consideration of all the possible ramifications (reminding ourselves that there undoubtedly will be unintended consequences as well). In light of this, I would appreciate your response to my comments on your post below regarding the resolution.
Best wishes,
Patrick
Prof. Alford, could you please explain what exactly is political about asserting the law?
The acts of the Bush administration in violation of both international and domestic law are not political acts, they are crimes, and to pretend that such acts fall withing the legitimate bounds of of political discretion is to deny that law is even possible —
A government which will not obey its own laws is no government at all.
The truth is very clear: the Bush administration and the Republican Party are criminal organiozations, and their crimes were obvious long ago.
I would congratulate ASIL for taking this step. Even if you read this as directed at the United States I see nothing wrong, and much right in the *American* Society of International Law speaking to behavior of the US government in particular.
Regarding subject matter, after the past century of most destructive wars isn’t it about time ASIL started to speak to questions of the Laws of War and Int’l Humanitarian Law?
Dear Roger, With increasing global integration, economically and otherwise, there is a commensurate increasing tension between national law and the intrusion of transnational issues into the (formerly) exclusively national sphere. Roger, your article, “Misusing International Sources to Interpret the Constitution,” provides an insightful analysis of some of the associated complex issues for Constitutional law. One can also consider an associated dilemma as follows: giving effect to national law may have extraterritorial effects, but failing to give effect to national law may be viewed as giving extraterritorial effect to another law. The list of resolutions approved by the ASIL membership is an example of the complex interplay, and the corresponding tensions created, between national and international law. When is it proper and appropriate to suggest (at least implicitly) that norms of international law can be viewed as a constraining force on national prerogative? Genocide was cited today by Justice Kennedy as an example of one such norm, whose application works not only interstate, but upon and within States. At a time when the United States is and remains the ascendant power in this culturally diverse yet increasingly economically interdependent world, I take it as a good sign that ASIL has applied… Read more »
I appreciate Roger Alford posting this detailed information about the voting on this important resolution. I think the answer to the question, Why now? is fairly obvious. The current Adminstration of the U.S. has run roughshod over many if not all of those international laws mentioned in the resolution. The fact that other nations have done so previously and ASIL has not spoken out is no excuse for not speaking now. The U.S. is the most powerful nation in the world. If America does not stand for fundamental principles of humanity and law, who will? And if America violates such principles, who will stand for the rule of law then? While I felt strongly that ASIL should have passed a resolution specifically naming the U.S., I nonetheless think that this resolution is indeed historic and important at this time and I thank all those who had the courage to vote for it.
What this means to me is that ASIL is trying to create law. They teach us that artile 38 includes the writings of learned scholars, and it looks like someone at ASIL is trying to more than stand up for what they believe, they are taking advantage of the stature of ASIL to establish a legal norm.
Quandmeme – are you truly going to say that anything stated in the resolution is not already a part of international law??
Dear Colleagues,
I was there. The overwhelming support for the resolution’s substance by persons at the largest ASIL annual meeting in history is significant in ways that we likely will only come to understand possibly many years down the road. The fact that no American or non-American was willing to state they were embarassed by the law as stated in the resolution was a telling moment. The concerns of those who spoke against the resolution were not about the substance but about whether the Society should make one of its rare resolutions. One significant aspect of this is that a statement was made of international law – not US foreign relations law which is frequently confused with international law. Something powerful happened with which we will all have to deal – including all three branches of the US government.
Best,
Ben