Transnational professional ethics.

Author:Amirfar, Catherine
Position:Inaugural Detlev F. Vagts Roundtable on Transnational Law - Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

This panel was convened at 3:00 p.m., on Friday, April 1, 2016, with introductory remarks by ASIL President Lori Fisler Damrosch, Karen Vagts, and by its moderator Catherine Rogers of Penn State School of Law, who introduced the panelists: Catherine Amirfar of the U.S. Department of State; Christina Parajon Skinner of Columbia Law School; Cecily Rose of Leiden Law School; and Stephan W. Schill of the University of Amsterdam. A summary prepared by Douglas Cantwell is also included, together with the hypothetical discussed by the panelists.

INTRODUCTORY REMARKS BY LORI FISLER DAMROSCH *

As ASIL President, I am pleased to welcome you to the first annual Detlev F. Vagts Roundtable, which has been made possible through the generosity of the family of the late Professor Vagts in commemoration of the life and work of one of the most influential figures in the history of the American Society over the decades spanning the late twentieth and early twenty-first centuries. Det Vagts was a mentor to me personally, as he was to generations of students, practitioners, and professors of international law. In the life of this Society, he played a leading role as a long-time member of the AJIL Board of Editors from 1978 until his death in 2013, as editor of the Journal's book review section from the mid-1980s until 1993, and then for five years as Co-Editor in Chief, together with Theodor Meron.

A Festschrift in Detlev's honor published in 2010 drew together many of his former students and colleagues to celebrate different facets of his career at the intersections of public and private international law, international economic law, transnational law, history, and legal ethics. (1) I recommend that volume to you, along with the memorial tribute by Peter Trooboff published in the October 2013 issue of the Journal. (2)

Among Detlev's many intellectual contributions, today's inaugural Roundtable focuses on the theme of Transnational Professional Ethics. Detlev wrote a leading article on that topic, published in the Journal under the title of "The International Legal Profession: A Need for More Governance?" (3) Although the title carries a question mark, there was no question in Detlev's mind that the need was profound, and that this Society should take up the challenge of beginning to fill it. As a leader of the Society and of the Journal, he raised his voice on numerous occasions to draw attention to the obligations of lawyers in the ethical realm and the special professional responsibilities of lawyers who practice across national boundaries or in international tribunals.

Detlev's father, Alfred Vagts, was a historian and political refugee from Nazi Germany who left Germany in 1933 with his family when Detlev was a small child. Alfred's wife, Miriam Beard Vagts (the daughter of historians Charles and Mary Beard), was herself a talented historian, writer, and journalist (one of the first women to attend the Columbia School of Journalism and frequent contributor to the New York Times). Both Alfred and Miriam were the objects of Nazi decrees terminating their German citizenship and confiscating their property. (Alfred and Detlev Vagts would in due course coauthor an AJIL article on "The Balance of Power in International Law: A History of an Idea," (4) a significant interdisciplinary contribution to the intellectual history of our discipline.) Detlev would eventually write important scholarship scrutinizing the distortions of international law during the Third Reich, with particular attention to the role of international lawyers and law professors during the Nazi period. (5)

In the last decade of his life, deeply troubled by the involvement of American lawyers and law professors in the preparation of legal memoranda in purported justification of techniques of coercive interrogation that the world understands as torture, and profoundly concerned about the professional obligations of lawyers in respect of conduct violative of international law, Detlev took up his pen to recall the lessons of Nuremberg for the present generation. The eloquent editorial comment, coauthored with our 2016 Hudson Medalist Richard Bilder and published as "Speaking Law to Power: Lawyers and Torture," stressed the courage and integrity of German military lawyers who advised the German High Command of the illegality of Hitler's orders on treatment of prisoners of war and who suffered the ultimate consequence for their courage:

[T]oday the places where the Nazis executed those lawyers are national memorials. In contrast, no one visits the graves of those who acted contrary to their legal advice and were later hanged at Nuremberg. Fortunately, American government lawyers can still remain faithful to the law and to their consciences with less dangerous consequences. (6) Vagts's voice speaks to each of us in that passage.

In 2007, Vagts chaired an ASIL task force on International Professional Responsibility, with the mandate of examining what this Society could do to fill some of the gaps in the framework for regulation of the professional conduct of lawyers in transnational contexts. The task force, in which today's Roundtable convener Catherine Rogers participated, issued a valuable report with several recommendations for action by the Society, including that there should be regular attention in the annual meeting and other programs of the Society to the ethical obligations of international lawyers. (7)

Detlev Vagts passed away in August of 2013, survived by his beloved wife, Dorothy Vagts, who died just a few weeks ago, and his daughters Karen Vagts and Lydia Vagts. In 2014, soon after I became President of the Society, the Vagts family proposed to endow an ASIL program that would carry on the legacy of Detlev Vagts by supporting the work of this organization, which he loved so much. I appointed a small committee, consisting of Pieter Bekker, Hannah Buxbaum, and Bill Dodge, who brainstormed together with former ASIL President Peter Trooboff, former State Department Legal Adviser Harold Hongju Koh, and members of the Tillar House staff to develop ideas for a suitable memorial. We discussed with the family a proposal to convene an annual roundtable on a topic in the field of transnational law, with the first such roundtable to be devoted to a topic related to international professional responsibility. The family responded favorably and has made an extraordinarily generous donation to the Society to make possible a series of roundtables over a ten-year period. The Vagts family is represented today by Detlev and Dorothy's daughter Karen Vagts, who together with her sister Lydia Vagts has been centrally involved in developing the concept for the series of roundtables, with the goal of bringing together scholars and practitioners, across national and disciplinary boundaries and across generations.

This first roundtable, on the topic of lawyers' ethical obligations with respect to fraudulent evidence in international tribunals, is a fitting start to the roundtable series. The theme is one that Detlev himself addressed in his work and would have wanted to see further developed in a program of this type. He would have been very pleased with the mix of established and younger speakers, from common law and civil law traditions, with public law and private law expertise, and both scholarly and practitioner backgrounds, who are participating here today.

I would like to extend an invitation to our audience to contribute your ideas to the planning for the 2017 roundtable and the years to follow. Our new President, Lucinda Low, will soon be setting in motion the process for specifying next year's roundtable theme and selecting the participants. Your suggestions will be very welcome.

INTRODUCTORY REMARKS BY KAREN VAGTS

Thank you. It is a pleasure to be here. I am an interloper--I am not a lawyer--but for decades my family knew that there was a certain week in the early spring when our father would be headed somewhere south and nothing was going to stop him from attending an ASIL meeting. And now I know why: This is an exciting event.

Whether it was from modesty or because he felt outnumbered, Dad never really told his daughters or his wife much about what he did. None of us are in the law, and we associated his work with piles of student bluebooks and interesting summer excursions to international conferences.

And then, a few years before he passed, as Lori mentioned, a wonderful Festschrift that was spearheaded by Pieter Bekker was published, and as a celebration for that, we started to get a sense of what he was focusing on. Then when he died, all these wonderful memories were shared, and my sister and I started to feel that there is something good here that we want to make sure gets continued.

My father had at times expressed concern that the issues that his generation of scholars was concerned with would not be carried on, because he felt that they were not resolved. Various folks, some of whom Lori mentioned, pointed us to this organization, and we were very pleased with a proposal that came forth. Not being in the field, having more distance, what stood out to us about Dad was transnational law, corporations, and ethics; his concern about educating new entrants in the profession and recruiting them; and concern about true globalization, which would include involving parties from all nations.

We are very excited to see the fruits of the discussions come forth. It is a bit of a challenge--a little amorphous--what we were hoping to achieve, but my sister and I are very pleased with what Catherine Rogers has taken on to get this going, and we are very excited to hear this year's first Roundtable discussion.

Thank you very much for attending.

INTRODUCTORY REMARKS BY CATHERINE ROGERS **

As the convenor of this Roundtable, I would like to also welcome you. The topic of global legal ethics was a central theme both in Detlev Vagts's life and in some of the most...

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