Proceedings of the Annual Meeting-American Society of International Law

Articles from Vol. 100, Annual

A Conversation with Secretary of State Condoleezza Rice
The panel was convened at 4:30 p.m., Wednesday, March 29, by ASIL President James H. Carter. Conversationalists included Retired Justice Sandra Day O'Connor of the U.S. Supreme Court; Judge Rosalyn Higgins of the International Court of Justice; and...
A Just World under Law: An African Perspective on the Status of the Individual in International Law
The panel was convened at 10:45 a.m., Friday, March 31, by its chair, Alexandre Ch. Kiss of the National Center for Scientific Research, who introduced the panelists: John Cerone of the New England School of Law; Vincent O. Nmehielle of the University...
Anatomy of an International Criminal Tribunal
The luncheon began at 12:30 p.m., Friday, March 31, and the succeeding lecture was presented by the 2006 recipient of the Manley O. Hudson Medal, Judge Theodor Meron of the International Criminal Tribunal for the Former Yugoslavia. Professor Michael...
Application of Human Rights Treaties Extraterritorially during Times of Armed Conflict and Military Occupation
The panel was convened at 10:45 a.m., Thursday, March 30, by its chair, Anthea Roberts of Debevoise & Plimpton LLP, who introduced the panelists: Orna Ben-Naftali of the College of Management Academic Studies, Rishon LeZion, Israel: Michael Dennis...
Assessing the Relationship between Jus in Bello and Jus Ad Bellum: An "Orthodox" View
The relationship between jus ad bellum and jus in bello is both fascinating (because it challenges some fundamental concepts of international humanitarian law) and of crucial importance (because current "attacks" against the absolute distinction between...
Assumptions of Legitimacy and the Foundations of International Territorial Administration
The question I seek to examine is whether or not it should be assumed that international organizations are more legitimate than states when it comes to the specific task of territorial administration. I adopt the definition of international territorial...
Between Rogues and Liberals: Towards Value Pluralism as a Theory of Freedom of Religion in International Law
How are we to think about the seemingly endless series of antinomies and contradictions to which the relationship between religion and human rights gives rise, and to what extent accordingly do we have a coherent notion of religious freedom in international...
Beyond "Globalization": A Call for the Reinvention of International Environmental Law in the 21st Century
I would like to begin by proposing that IEL suffers from a foundational problem having been structurally hampered by its birth in the heyday of "globalization" hype. Conventionally, we trace the history of the discipline back to the early 1970s and...
Book Discussion: 'The Dark Sides of Virtue'
The discussion began at 12:30 p.m., Thursday, March 30, and was chaired by Rebecca Irwin of the Department of Prime Minister and Cabinet, Australia. Commentators included Professor Emmanuelle Jouannet of the Universite Paris I, Pantheon-Sorbonne,...
Comparative Dimensions of Law and Development
Beyond the precise relationship of law and development as distinctive and interdependent social phenomena, an investigation of how best to achieve development through law is profoundly comparative. Reform interventions carry two, often implicit, comparative...
Considering Some Consequences of "Calling in the Troops"
In a recent article, Catharine MacKinnon poses a question that sounds as though it were written for this panel: Should the U.N. Charter be revised so that what have been humanitarian crimes of jus in bello or human rights violations can also...
Debate: Adjudicating Operation Iraqi Freedom
The debate took place at 9:00 a.m., Thursday, March 30, and was convened by Dino Kritsiotis of the University of Nottingham and Anne Orford of the University of Melbourne, who introduced the participants: the presiding judge, Diane Wood of the U.S....
Development: Its Place, Treatment, and Meaning at the WTO
Our panel invited us to explore the place for and proper treatment of "development concerns" within the WTO legal regime. Three broad questions were raised. How should development be defined at the WTO? Whether S&D treatment was a useful strategy?...
Disciplining the Discipline: Roles and Responsibilities of International Lawyers
This plenary panel was convened at 11:15 a.m., Saturday, April 1, by the Annual Meeting Co-Chairs, Hilary Charlesworth of Australian National University, and Donald Francis Donovan of Debevoise & Plimpton LLP, who introduced the panelists: Elisa...
Distinguishing from or Integrating into - What Is the Relationship between International Environmental Law and Public International Law?
I would like to begin my comments by addressing the theme regarding the "distinct" nature of IEL. The idea of being distinct stands in contrast to the integration of IEL into general public international law. Is there a tension between having distinct...
Does One Need to Be an International Lawyer to Be an International Environmental Lawyer?
IEL is a relatively young field. In 1945, when the United Nations was created, environmental issues did not even rate a mention in the Charter. Indeed, as recently as 1964, when Wolfgang Friedman wrote The Changing Structure of International Law,...
Empowering the Human in Human Rights Discourse
In a recent article, Abdullahi An-Na'im wrote: "The universality of human rights means that they are the rights of every human being, everywhere, without any requirements of membership or location other than being human." (1) Starting from this premise,...
Evidence as an Issue in International Legal Practice
President John F. Kennedy shocked the citizens of the United States on October 22, 1962, when in a television speech to the nation he revealed that the United States had clear evidence of Soviet installations of missiles on Cuba--missiles that contained...
Feminist Reflections on the Use of Force
In an era when the laws on the use of force are being reappraised, placing the laws on the use of force forward for normative assessment is a vital aspect of the quest for a just world through law. Likewise, appreciation of women's perspectives, feminist...
Framing Political Theory of International Courts and Tribunals: Reflections at the Centennial
The lecture was given at 9:00 a.m. on Thursday, March 30, by David D. Caron of the University of California at Berkeley School of Law. Moderating was Thomas Buergenthal of the International Court of Justice. Providing commentary was Christine Van...
Genocide from Multiple Perspectives: Same Law, Different Meanings
INTRODUCTION Almost sixty years have passed since the Genocide Convention was opened for signature. Its symbolic importance and customary status are firmly established. We may think that we know what the Convention stands tot and what genocide...
International Criminal Courts as Fact (and Truth) Finders in Post-Conflict Societies: Can Disparities with Ordinary International Courts Be Avoided?
I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal...
International Environmental Law: Rising to the Challenge of Common Concern?
We were asked whether IEL is up to the challenge of common environmental concerns: whether its norms are "precise enough to influence states' and other actors' behavior," and whether it is "forceful enough to impose itself in the face of important...
International Institutions and Global Environmental Governance
Global environmental governance serves to address two inter-related governance issues: common interest problems and the South-North context. Addressing common interest problems, including the protection of the environment, requires cooperative action,...
International Institutions, International Legal Norms, and the Millennium Development Goals
INTRODUCTION In this article I analyze the causal link between international institutions, international legal norms, and the Millennium Development Goals. While the link may appear tenuous, even precarious, it does nevertheless exist. International...
International Judicial Lawmaking: The Yugoslav Tribunal and the Laws of War
In the past ten years, international criminal law has effected a large-scale reorientation of the laws of war. The ICTY has been at the forefront of these developments. The establishment of the ICTY and that court's ensuing jurisprudence have altered...
Is Fair and Equitable Fair, Equitable, Just, or under Law?
The panel was convened at 9:00 a.m., Thursday, March 30, by its chair, Stephen M. Schwebel, former judge and president of the International Court of Justice, who introduced the panelists: Rudolf Dolzer of the University of Bonn; Florentino Feliciano,...
Judicial Enforcement of Treaties: Self-Execution and Related Doctrines
The panel was convened at 9:00 a.m., Saturday, April 1, by its chair, Carlos Vazquez of Georgetown University Law Center, who introduced the panelists: Robert Dalton of the U.S. Department of State; Vasan Kesavan of D.B. Zwiru & Co.; and Ann Woolhandler...
Jurisphilia/jurisphobia: U.S. Approaches to International Law Theory
My remarks are confined to a broad account of specifically U.S. approaches to international legal theory; they do not have a wider American focus. Another self-imposed limitation is that I shall only address instrumental approaches to public international...
Jus in Bello and Jus Ad Bellum
"Humanitarian intervention" as a rare case where bringing jus in bello and jus ad bellum closer makes sense. I realize suggesting a rapprochement between jus in bello and jus ad bellum may not be the most obvious thing to do at a time when that...
"Just Ad Bellum", "Just in Bello", "Just Post Bellum"? Rethinking the Conception of the Law of Armed Force
Since Grotius' De Jure Belli ac Pacis, the architecture of the international legal system has been founded upon a distinction between the states of war and peace. At the beginning of the 20th century, it was taken for granted that "the law recognizes...
Killing Her Softly ...: HIV/AIDS and the Right to Health Care for Women in Sub-Saharan Africa
He used to force me to have sex with him. He would beat me and slap me when I refused. I never used a condom with him ... When I got pregnant I went for a medical check-up. When I gave birth, and the child had passed away, they told me I was HIV-positive....
Law-Dependent Public Goods: A Proposed Strategic Framework for a Results-Based Approach to Legal and Judicial Reform
Notwithstanding more than a half century of international assistance for legal and judicial reform--which has now grown into a global project covering nearly all donors and some ninety-three recipient countries--legal and judicial systems in developing...
Morality, Law, and the Relation between Just Ad Bellum and Jus in Bello
The distinction between jus ad bellum and jus in bello was drawn in the traditional theory of the just war long before it appeared in modern international law. The theory of the just war is a theory about morality, not law--although most of its earlier...
New Principles for Cooperation in the Mutual Protection and Transfer of Cultural Material
The history of art has recently been described by Holland Cotter of the New York Times as "in large part, a history of theft." Contemporary events tend to confirm this assertion as ethnic conflict--often involving the use of force--continues to physically...
On Being Curious about Fundamentalisms and Human Rights
In her recent book, Cynthia Enloe writes about curiosity. (1) She explores the differences to scholarly enquiry when we are curious about the obvious. She gives as examples, the words "natural," or "always," or, my favorite, "cheap labor" (she questions...
"Open for Business": International Financial Institutions, Postconflict Economic Reform, and Rule of Law
International institutions are using the concept of the rule of law to encompass overlapping world visions of good governance, economic development, and international peace and stability. Two of its most important new promoters in postconflict zones...
Parsing the Commander in Chief Power: Three Distinctions
The panel was convened at 2:45 p.m., Friday, March 31, by its chair, Curtis Bradley of Duke University of Law, who introduced the panelists: David Golove of the New York University School of Law; John Harrison of the University of Virginia School...
Peace V. Justice: Contradictory or Complementary
REMARKS BY H.R.H. PRINCE ZEID RA'AD ZEID AL HUSSEIN * It is with great pleasure that I join you today to share some thoughts on what remains the dilemma bedeviling our age, as countries continue to attempt the transition from conflict to peace....
Plenary Address: A Just World under Law
The program was introduced at 5:30 p.m., Friday, March 31, by Dean Frederick M. Lawrence of the George Washington University Law School. Judge Thomas Buergenthal of the International Court of Justice introduced the plenary speaker, Judge Rosalyn Higgins,...
Power, Democracy, and Participation: The Gender-Neutral Notion of Trade and the Exclusion of Women from the Table
The centennial celebration of the American Society of International Law is an appropriate and exciting occasion during which to have a conversation about international legal theory. This discussion provides the framework within which internationalists...
Purity or Danger? Human Rights and Their Engagement with Fundamentalisms
As the city blazes, the watchman Sleeps happily, thinking "My house is secure. Let the town burn, as long my things Are saved." The fifteenth-century poet Kabir, who is cherished across South Asia for his challenge to caste and religious...
Questions of Fact and Evidence and the Laws of Force
The panel was convened at 9:00 a.m., Thursday, March 30, by its chair, Dino Kritsiotis of the University of Nottingham, who introduced the panelists: Thomas Franck of New York University School of Law; Marie Jacobsson of the Foreign Ministry, Sweden;...
Reflections on Force and Evidence
Monday's New York Times (March 27, 2006) carried yet another embarrassing story based on leaked British government papers that purport to summarize discussions between President Bush and Prime Minister Blair. This time it was a memo written by...
Reflections on the Theory and Practice of Cultural Rights
The notion of cultural rights has received relatively little attention, despite its importance in international human rights law. Although cultural rights are crucial for the maintenance of individual and group identities, domestic legal systems have...
Rereading Root
Elihu Root was a Wilsonian living at the dawn of a new century, a time that he perceived as an age of globalization and democratization. "The greatest change in the conditions of national life during the past century," Root wrote, "has been in the...
Response to Professor Weiler's "Geology of International Law"
The panel was convened at 10:45 a.m., Thursday, March 30, by Carolyn Lamm. The commentator was Liliana Obregon of the University of the Andes, Colombia. The panel's lecturer, Joseph Weiler of New York University School of Law, was unable to attend....
Roundtable - War, Force, and Revolution
The roundtable was convened at 10:45 a.m., Friday, March 31, by its chair, Anne Orford of the University of Melbourne, who introduced the panelists: Philip Allott of the University of Cambridge; Nathaniel Berman of Brooklyn Law School; Ruth Buchanan...
Rules of Evidence for the Use of Force in International Law's New Era
International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism, (1) Such renewal will...
Scope of Presidential Power: Military Commissions - America's Domestic War Crimes Court
On September 11, 2001, the hijacking of four commercial airliners resulted in the death of over 3,000 innocent civilians. Congress reacted swiftly and, on September 18, issued the "Joint Resolution to Authorize the Use of United States Armed Force...
Security Council Resolution 1530, Evidence and the United Nations Security Council
EARLY DAYS Following the Madrid terrorist bombings the United Nations swiftly responded with Security Council Resolution 1530 (2004) [hereafter Resolution 1530] condemning the "ETA" attacks as a threat to peace, urging states to comply with their...
Sex, Gender, and International Law
The panel was convened at 10:45 a.m., Friday, March 31, by its chair, Cynthia Lichtenstein of Boston College Law School, who introduced the panelists: Lama Abu-Odeh of Georgetown University Law Center; Fareda Banda of the School of Oriental and African...
Spreading Weeds beyond Their Garden: Extraterritorial Responsibility of States for Violations of Human Rights by Corporate Nationals
In his novel The Constant Gardener, John Le Carre shows a government knowingly allowing its corporations to violate human rights in another state because the government's key priority is to assist its corporations to make money. Indeed, a British...
Substituting International Law
INTRODUCTION In 2000, the federal German ministries were ordered to avoid international obligations as much as they could. The directive, addressing all ministries, stipulated that negotiators should explore alternatives to formal international...
The Challenge of Treaty Structure: The Case of NAFTA and the Environment
My remarks will focus on the challenge that treaty structure poses to addressing the tension between trade, investment, and environment. The question I ask is whether trade, investment, and environment are closed boxes not only to each other, but...
The Danger of Conflating Just Ad Bellum and Jus in Bello
An old-fashioned red woman's bicycle, with a tan leather seat and wicker basket. A half-packed black canvas suitcase and a silver Ipod. The everyday stuff of war. At the American War Museum today in Hanoi, Vietnam, the red women's bicycle...
The Development of International Cultural Law
The panel was convened at 1:00 p.m., Friday, March 31, by its chair, James Nafziger of Williamette University College of Law, who introduced the panelists: Mark Janis of the University of Connecticut School of Law; Robert Paterson of the University...
The Extraterritorial Application of Human Rights to Occupied Territories
Once upon a time, in that by-gone era known as modernity, we had some clarity: boys were boys; girls were girls; the private sphere was distinct from the public sphere; war was distinct from peace; wars were fought between states and against combatants,...
The HIV/AIDS Pandemic and Human Security
The panel was convened at 2:45 p.m., Friday, March 31, by its chair, Ellen Walker, who introduced the panelists: Obijiofor Aginam of Carleton University; Nikki Naylor of Interights; and Noah Novogrodsky of the University of Toronto School of Law....
The International Court of Justice at 60: Performance and Prospects
The roundtable was convened at 9:00 a.m., Saturday, April 1, by its chair, Stephen Mathias of the Multinational Force and Observers, who introduced the commentator, Bruno Simma of the International Court of Justice, and the participants: Daniel Bethlehem...
The Iraqi High Tribunal and Rule of Law: Challenges
The panel was convened at 10:45 a.m., Thursday, March 30, by its chair, Rosa Ehrenreich Brooks of the University of Virginia School of Law, who introduced the panelists: Mark Drumbl of the Washington & Lee University School of Law: Greg Kehoe,...
The Move from Institutions? Examining the Phenomenon in Africa
INTRODUCTION The recently issued National Security Strategy of the United States (March 2006), reaffirms the preference for informally created institutions or networks with selective membership increasingly favored in U.S. policy. It describes...
The Move from Institutions: The Case of the World Trade Organization
I want to address briefly what I consider to be two possible reasons for the move by states in some circumstances away from acting within international organizations. First is the question of values and second is the problem of accountability of these...
The Mutual Supportiveness of Trade and Environment
INTRODUCTION The trade and environment relationship has become a most contentious issue involving concerns, fears, misinterpretations, and, of course, a rich and rapid growing list of academic and non-academic publications. While some are afraid...
The New American Encounter with International Human Rights Norms: The Road after Abu Ghraib
In this research, I paint a canvas of how international human rights norms have entered American civil society-governmental contests over torture and detainee rights policies after Abu Ghraib and assess the extent to which efforts by select media...
The Position with Regard to International Humanitarian Law
The panel was convened at 1:00 p.m., Thursday, March 30, by its moderator, Andrew Clapham of the Graduate Institute of International Studies, who introduced the panelists: Kenneth Anderson of Washington College of Law; James Gathii of Albany Law School;...
The State Oflaw and Development: Challenges after the Second Generation Reforms
At least since the appearance of the Comprehensive Development Framework (CDF) in 1999, international financial institutions have incorporated a range of social and democratic objectives into their development projects and elevated the rule of law...
The Status of the Individual: A Critical Appraisal
I have been given the unenviable task of performing a critical appraisal of the status of the individual in international law one hundred years after the founding of the ASIL. As such, this presentation is not intended to be a neutral examination...
The WTO and Developing Countries
Developed countries have more ability to deal with lengthy processes with high direct costs and coordination costs than most developing countries, but that is not the entire story. Developing countries are also prejudiced by the lack of capacity to...
The WTO and Law and Development: The Domestic Connection
INTRODUCTION When I first heard that the title of this panel was "How to Make the Doha Round a Genuine 'Development' Round," I was skeptical. Many economists seem to believe that the economic benefits for developing countries of further trade...
The WTO Is NOT a Closed Box
I am honored and delighted to be here today. This is the first time that I have spoken at the ASIL Annual Meeting, which fulfills an old professional dream of mine. And this is the ASIL Centennial, which is so nice. I would like to thank the organizers,...
Trade and Development(s): Many Concepts, Different Approaches
The panel was convened at 9:00 a.m., Friday, March 31, by its chair, Welber Barral of Federal University of Santa Catarina, Brazil, who introduced the panelists: Kevin Davis of the New York University School of Law; Teresa Genta-Fons of the World...
Trade, Development, and the Legal Practitioner
INTRODUCTION The objectives of this presentation are: first, to identify three important lessons that emerge as serious challenges to the successful achievement of development: second, to discuss how law, justice, and legal institutions are...
Understanding Current Assertions of Executive Power
In terms of their implications for existing U.S. and international human rights and humanitarian law, the Bush administration's activities have been most significant in the detention, treatment, and trial of detainees held in connection with the "war...
UN Perspectives on "Business and Humanitarian and Human Rights Obligations"
I have been asked to summarize and reflect upon the role of the United Nations in establishing the humanitarian and human fights obligations of business. My remarks will trace the history of this topic at the United Nations and then focus on the latest...
U.S. Judges and International Courts
The current debate over enforcing the judgments of the International Criminal Court through federal court litigation is fundamentally confused. The legal issues raised by the Medellin case have little to do with U.S. compliance with its international...
What's So Special about Transitional Justice? Prolegomenon for an Excuse-Centered Approach to Transitional Justice
"Transitional justice" asks what successor regimes, committed to human rights and the rule of law, can and should do to seek justice for widespread and institutional atrocities perpetrated by and under their predecessors. Although the challenges of...
When Two Visions of a Just World Clash: International Humanitarian Law and Islamic Humanitarian Law
With the rise of new challenges in the aftermath of September 11, the emergence of new types of war and the changing patterns of conflicts and the wars in Iraq and in Afghanistan, the uniformity of international humanitarian law is questioned; a debate...
Why Trade Law Needs a Theory of Justice
I. DOES TRADE LAW NEED A THEORY OF JUSTICE? I'd like to begin by noting what today's question itself might imply. It may suggest to some that trade law does not already have a theory of justice, and to others perhaps even that it does not need...