The future of international law.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

MEMBERS' RECEPTION AND PLENARY PANEL, GEORGETOWN UNIVERSITY LAW CENTER

The reception began at 6:30 p.m., and the panel was convened at 7:30 p.m., Thursday, March 29, at Georgetown University Law Center, by its moderator, Anne-Marie Slaughter of the Woodrow Wilson School, who introduced the panelists: Barry Carter of Georgetown University Law Center; Lori Fisler Damrosch of Columbia Law School; Hisashi Owada of the International Court of Justice; and Antonio Augusto Cantado Trindade of the Inter-American Court of Human Rights.

INTRODUCTORY REMARKS BY ALEXANDER ALEINIKOFF *

I am Alex Aleinikoff, the Dean here at Georgetown. I want to welcome you to Georgetown University Law Center. We are delighted to be hosting this reception and this wonderful presentation tonight. I would like to recognize a few people today who have helped us make this possible--ASIL President, Jose Alvarez, and Betsy Andersen, the ASIL Executive Director. Thank you very much for your help. I also want to thank the co-sponsor of the event tonight, the law firm of Fulbright & Jaworski, for their very generous contribution.

It is my pleasure to introduce the panel's moderator, someone who needs no introduction to you all Anne-Marie Slaughter, who is Dean of the Woodrow Wilson School of Public and International Affairs, and Bert Kerstetter University Professor of Politics and International Affairs at Princeton, and as you all well know, the former President of the American Society of International Law.

REMARKS BY ANNE-MARIE SLAUGHTER ([dagger])

Thank you. It is wonderful to be here and to see lots of old friends in the audience and to have the honor and the pleasure of moderating this panel. I should also like to add my thanks to our ASIL President and to the Program Committee this year, and particularly to William Aceves who put together this panel. Those of you who have served on program committees understand the joy of herding cats--which is similar to the process of bringing a panel together to the actual state of happening.

What I would like to do is to say two of three words very briefly about my own thoughts on the future of international law. In a recent article Bill Burke-White and I put forward the claim that the future of international law is domestic. (1) We were not making an argument about the intermingling of domestic and international law. That debate, about the blurring of the boundaries of domestic and international law, is a perennial for international lawyers. Indeed, I daresay that, for the more senior members of the audience, you could tell us that the blurring of the domestic and international border was probably on the agenda at the first ASIL meeting.

I actually think that the border between the two bodies of law is quite distinct. Indeed, we currently have a backlash against any further blurring of that border precisely by domestic actors who reject the idea that international law is invading domestic law. We have seen something of that in this country.

I suggest instead that the future of international law is domestic, not in the sense of intermingling with domestic law, but in the sense of becoming evermore intertwined with domestic politics. International law will increasingly work to strengthen the hand of various domestic actors. Think about the International Criminal Court and its prosecutor, who says that he thinks his job will be best accomplished if there are no prosecutions in The Hague but, rather, that he has succeeded in strengthening the hand of domestic prosecutors in all countries where war crimes, or genocide, or crimes against humanity are perpetrated. His ultimate goal is to strengthen the domestic legal system.

Politically, the possibility of an international trial can reshape the domestic political environment by making local prosecutors look like the champions of a national solution to national problems rather by contrast with an international prosecutor. Absent the possibility of an international prosecutor, national would-be prosecutors are typically cast as disturbers of a carefully negotiated peace or troublemakers who wish to wash the nation's dirty laundry in public. Law and politics interact in ways that benefit the domestic rule of law as much or more than the international rule of law.

Other ways of strengthening state capacity include creating international institutions whose job it is to strengthen domestic actors, whether in the area of health, environment, or securities regulation. There again, I put to you that the future of international law lies in the capacity of those domestic actors through technical assistance, exchange of best practices, and ongoing psychological and political as well as technical support.

Finally, resolutions like UN Security Council Resolution 1373 highlight the role of international law in compelling domestic action, mandating that domestic actors take action directly--not through the classic treaty mechanism of ratification and passage into domestic law, but by command of a standing international body. Imagine the emulation of the EU's directive system, whereby an international organization reaches a decision on overarching goals in a particular issue area but then mandates domestic government agencies and legislatures to determine how best to reach those goals. This last area is quite problematic. It makes it possible to strengthen the hands of various domestic actors who can choose to cite UN resolutions for purposes quite contrary to international law.

All in all, the picture I am painting thus has dark shadows as well as bright horizons. Still, I put as a starting proposition for our panel discussion that the future of international law will not be to blend with domestic law but rather to strengthen the hand or engage in various ways the actors in domestic politics.

I now turn to my role as moderator with great pleasure; I will introduce all of our speakers in turn. They are all well-known to you. Our opening speaker is Judge Hisashi Owada, a very distinguished Judge on the International Court of Justice. I think it fair to say that there is no position that Judge Owada has not held. If I were to give you his entire biography, we would be using up all of our precious time. He has served as Japanese Ambassador to the United Nations and as Vice Minister for Foreign Affairs. He has been the President of the Japanese Institute of International Relations, the equivalent of our Council on Foreign Relations. He has been a very distinguished academic teacher at Tokyo University. In all the time that I have known him, he has blended all of these functions. He is a superb diplomat; he is an exacting scholar; he is a jurist with all of the qualities of temperament that all of this implies. We are truly delighted to have Judge Owada as our first speaker.

Our second speaker is also well-known to you as Vice President of the Society and one of the co-editors of the American Journal of International Law and the first woman to hold that position, Professor Lori Damrosch. Professor Damrosch is a professor at Columbia Law School where she has been since she started teaching. She worked at the Office of the Legal Adviser in the State Department before going to Columbia and also at Sullivan & Cromwell. She has written on the entire spectrum of international law, including on the International Court of Justice. She has written a great deal on the use of force in international law. She has written on the subject of sanctions in international law. She has given courses at the Hague Academy. And since we are talking about the future of international law, I note that she admirably spends a portion of her time writing amicus briefs on important issues of international law in domestic courts--amicus briefs in the true sense of the word, as a true friend of the international legal system.

Our third speaker is Professor Barry Carter, courtesy of our wonderful host institution. Professor Carter has also held many different political and academic roles. From my perspective as Dean of Princeton's Woodrow Wilson School, he holds a Master's in Economics from Princeton. He also went to Yale Law School, but that is much less important. He then worked in the office of the Secretary of Defense and on Henry Kissinger's National Security Council staff. He went to the Kennedy School of Government and was an international affairs fellow at the Council on Foreign Relations. Finally, he turned to academia, out of government and into a very distinguished academic career. Many of you have taught from his casebook with Philip Trimble. I certainly have found it to be a wonderful casebook, and we are delighted to hear from him from both the legal and political perspective.

Our final speaker is Judge Ant6nio Augusto Cantado Trindade. He is known to you as this year's winner of the Butcher Medal. He comes to us from the Inter-American Court on Human Rights. He has been the Executive Director of the Inter-American Institute on Human Rights and the Legal Advisor on Foreign Relations in Brazil. He has also acted as the United Nations expert and lecturer at the UN Right to Development Conference. He is a Permanent Professor--I like this title, it is better than tenure--he is a Permanent Professor of International Law at the University of Brasilia and also at the Diplomatic Academy in Brazil. He has lectured at many distinguished locations and has written widely; given our time constraints, I will not go through his publications. As I said at the outset, we are flanked by two very distinguished jurists.

REMARKS BY HISASHI OWADA **

Thank you, Dean Slaughter, or should I say Anne-Marie, who used to be my colleague at Harvard until several years ago. What she said about me immediately reminded me of an English expression, "Jack of all trades and master of none." Naturally, Anne-Marie kindly put it in a much nicer, sugar-coated form. That is the reality of it so please do not expect too much...

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