ITA-ASIL 2018 Recap, Part II: Diversity and Inclusion in International Arbitration Conference

By Rachael SmithInt_lComArb_Wordle_Word_Cloud__on_Navy__2016

This is Part II of a two-part series.

Next up at the conference was Defining the Issues, with panelist Professor Anna Spain Bradley, Melinda N. Hodgson, and Professor Anne Marie Whitesell, moderated by Professor Won Kidane.

Professor Anna Spain Bradley (Assistant Vice Provost for Faculty Development and Diversity, University of Colorado Law School, Boulder, Colorado) started with the question, what is the meaning of diversity?  To answer this question, she began with a series of questions.  First, she asked “why is diversity challenging?” Then she questioned why historically people of color are not part of the creation of the arbitration process; instead, men from mainly Anglo-European nations are representing the world.  There is also the issue of party selection, which means that arbitrators’ appointments are not permanent, so each panel creation is a new start.  She then moved on to “why diversity is important?” noting briefly that it is good for business as it cultivates innovation, adds legitimacy to the process, and reflects more broadly the norms throughout the world.  Next she asked, “what do arbitrators look like?”–a hard question to answer as it cannot be answered without talking about identity.  Identity is created in context; after all, who we are is not about discrete boxes, but rather an intersectionality of many categories.  In addition, identity is a legal definition in the United States.

Taking all of the above questions into account, she inquired about “how . . . these factors interact with decision making and implicit biases.”  Professor Bradley examines these issues through the lens of neuroscience.  Especially in the case if implicit bias, the link between fear response, as processed by the amygdala, and the emotions linked with decisions has been clearly documented.  The most familiar example is the Project Implicit, commonly known as the Harvard implicit bias test.  In this context, it is fair to say there are no humans, and no arbitrators, who are truly color or gender blind.  However, there are steps that one can take to relearn this cognitive process to allow for a better decision-making process.  The test, which is open and free on-line, can be used as a tool to enhance the decision-making process and to examine the role power plays in the decision-making process.

Next Professor Anne Marie Whitesell (Professor and Director of International Dispute Resolution Programs, Georgetown University Law Center, Washington, D.C.) addressed the role institutions play in international arbitration diversity.  She started with a brief history of the International Chamber of Commerce (ICC), noting key dates and developments – see the ICC’s website for details of the history.  As part of the historical context, the standard by which those who practiced in the field were judged by was if “he was of good sense and sound judgment.”  Currently the ICC does collect the percentage of women who are selected as arbitrators.  She noted that while institutions like the ICC can and do take the lead in ensuring diversity, they are limited by the requirements of the case – i.e. each case requires a certain set of skills and expertise.  However, when women are not selected, the impact on their future ability to gain opportunities, which will allow them to develop and diversify their skills in international arbitration, are still more adversely impacted; without opportunities to demonstrate their skills and expertise, they cannot gain the needed experience.  Lastly, she noted that while institutions, like the ICC, are an important part of the change, they are not the only actors and that other parties need to address this issue.

Mélinda N. Hodgson (Foley Hoag LLP, New York) reviewed the role of the practitioner.  At its most simple, they need their clients to act on their advice.  Clients will only do so if they trust the experience, qualifications, and substantive and subject expertise of their attorneys, along with their record of accomplishments and ultimately their efficiency in the arbitral process.  One way to address this is to broaden the access to objective data.  This would answer the clients’ need to find a diverse pool of practitioners– as it would address not just gender diversity but also cultural and regional diversity.  This would also provide the type of objective record of experience and the documentation of accomplishment of those practitioners who are unknown to a client.  This added knowledge would also make the pledge of taking an extra five minutes of creating a list of characteristics more powerful.

Professor Whitesell concluded the panel with a discussion of the power dynamics of the arbitral tribunal itself.  Generally, the presiding arbitrator holds a key role.  They are expected to be the most persuasive,  as well as to help create consensus.  They are expected to have experience, professional respectability, and to be held in high regard within the international arbitration community.  If they are not diverse, there is more of a likelihood of lack of diversity.  As previously mentioned, this is a reflection of unconscious biases of choosing those who look like oneself.  Having outlined the problem and various components that lead to a lack of diversity, the next step was how to address these issues.

The next panel, A Critical Look at Solutions, with panelist Lucy Greenwood, Professor Catherine A. Rogers, Professor Nassib G. Ziadé, was moderated by Caroline S. Richard and had many recommendations.  The panel started with Caroline S. Richard (Freshfields Bruckhaus Deringer US LLP), who outlined a list of instructions.  First, take the time to do the needed research and use the tools that are available – everything from the taking an extra five minutes to using institutional databases (e.g., ICC).  Second, take the proactive steps of challenging oneself instead of using the defense of what is already familiar; instead shift focus to who would be the best fit for the needs of the arbitration in terms of the nature of the case and for the needs of the clients.  Lastly, international arbitration has always been “global” as a practical matter, but the representation of regional powers and emerging markets improves particular expertise and adds legitimacy to the arbitration process.

Lucy Greenwood (GreenwoodArbitration, Houston, Texas) reemphasized the points above as the right thing to do in themselves, but also as part of better business practices.  She stated that international arbitration requires cooperation by all the parties.  One way to ensure cooperation and participation in the arbitration process is to reflect the diversity of the case and parties.  Diversity of the groups has the added benefit of challenging groupthink; with a diverse group, the calculations of risk and the mitigation of risk are improved as they challenge underlying assumptions that could be incorrect.

Greenwood also discussed how unconscious biases could be seen in the percentage of women – 16 percent is the diversity ceiling.  This is not to be confused with merit – the 16 percent does not reflect the relative pool of women, in either the number of women or the number of qualified women within that pool.  For an excellent and more detailed discussion of the lack of diversity with statistical information, see Getting a Better Balance on International Arbitration Tribunals (28 J. London Ct. Int’l. Arb. 653(2012) (full text freely available)) and the update to the article above, Is the Balance Getting Better? An Update on the Issue of Gender Diversity in International Arbitration (31Arb. Int’l.413 (2015)).

Greenwood also discussed how inclusion is another way to address lack of diversity, by welcoming newcomers to the field.  Through conferences, moot court competitions, young arbitration groups and publications (most importantly, newcomers as authors and co-authors), the field will reflect more of the pool of qualified women in this field.  This also creates more opportunity for new practitioners to demonstrate their competence in a complex field.

Richard, the moderator, then asked, what role institutions play in creating solutions.  Professor Nassib G. Ziadé (Chief Executive Officer, Bahrain Chamber for Dispute Resolution (BCDR-AAA), Manama, Kingdom of Bahrain), answered first and stated that in fact they do have a role, but it is important not to forget the role of parties and counsel.  He also pointed out that these steps would also address the issue of legitimacy, as more diversity of practitioners means fewer conflicts of interests and less requirements of the wearing of different hats at the same time.  Institutions are also involved in the development of the next generation through training and guidance, which can create diversity based on experience and a solid record of accomplishment.  He next discussed the use of codes of conduct to address the issue of parties reporting their own data.  Institutions can also improve the overall transparency process by making their appointment process more transparent.  He concluded by noting that while there is still a lot of work to be done, notably there is evidence that once an arbitrator from a diverse background is selected they are given a fair chance.

Professor Catherine A. Rogers (Pennsylvania State University – Dickinson School of Law and the School of International Affairs, Founder and Executive Director, Arbitrator Intelligence, State College) agreed with the need for more information.  She went on to discuss how academia and the overall education process can help.  She mentioned how U.S. law students are not encouraged to go abroad as part of their legal education, unlike many law students from other countries.  This means that U.S. law students do not have the advantage of gaining some familiarity with another legal system.  This lack of investment by academia in international arbitration is also reflected by the dearth of scholarships or even the utilization of internships to support and cultivate the next generation.

Professor Rogers next discussed how the use of data about an arbitrator can be problematic; for example, in the law firm context, the same list of names is recycled over and over again.  While using a pre-approved list seems efficient, an important evaluation process is bypassed.  It is important to evaluate the object of the case and consider the needed characteristics of the arbitrators to meet the needs of the case.  This issue can be corrected with better collection of information to address the issue of gender diversity, multilingual competency, and regional diversity.

Richard mentioned how using the Harvard biases test makes it easier for all to see objectively the problem of unconscious biases.  Once this issue is known and objectively verified, it is easier to take concrete steps.  These steps include internet training, but also the use of external groups such as Alliance for Equity to hold training sessions.  This could create better business practices, which tend to generate more business, which is better for all.

Professor Rogers ended the panel with two observations.  One, the meaning of diversity is rapidly evolving, and two, international arbitration is getting more complex and more nuanced.

Due to time limitations, Professor Susan D. Franck (Chair, ITA Academic Council, American University Washington College of Law, Washington, D.C.) remarks were brief but concise.  She stated that there is no one size fits all for solutions to creating more diversity.  Arbitration institutions, as well as clients (either nations or commercial parties), all need to determine how to best utilize the pledge.  Lastly, all in the field of international arbitration can be the change that will bring more diversity to the field.

For some more readings on this topic of diversity and international arbitration, see the Selected Papers and Articles from the conference.  For background and basic introduction on international arbitration, Redfern and Hunter on International Arbitration is an excellent resource.  A resource for more information about practitioners in the field of international arbitration is The Culture of International Arbitration and the Evolution of Contract Law, by Joshua Karton.  Lastly, for a quick oral history about both the book above, and the history of international arbitration, see interviews with Mr. Redfern and Mr. Hunter (freely available online).

ITA-ASIL 2018 Recap: Diversity and Inclusion in International Arbitration Conference

By Rachael Smith

The Diversity and Inclusion in International Arbitration half-day conference presented by the Institute for Transnational Arbitration (ITA) Academic Council, and the American Society of International Law (ASIL) took place on April 4, 2018.  This conference was the first of its kind to examine the legitimacy of international arbitration in the context of the lack of diversity of practitioners selected to participate in international arbitration proceedings.  Does the current selection of practitioners reflect the wide range of regional practices; and do they reflect the pool of practitioners?  If not, what are some practical and actionable steps those who participate can take, in this very specialized field, within the larger field of global commerce?

As noted by the introductory speakers, Abby Cohen Smutny (Chair, ITA Advisory Board, White & Case LLP, Washington, D.C. and Lucinda A. Low (President, ASIL, Steptoe & Johnson LLP, Washington, D.C.), that this conference was taking place was itself an important step, as it moves the discussion of this issue beyond anecdotal concerns.  The approach of this conference was to first have the keynote speaker outline the issues; then to review academic scholarly work on this topic in order to understand why and how the lack of diversity is a problem; and finally, but importantly, develop some practical solutions.

The first question of why diversity is important was addressed by the keynote speaker Lucy F. Reed (Professor and Director, Centre for International Law, National University of Singapore, Singapore).  The answer at its most simple is because the world of international arbitration is global in its application and the world is diverse.  The second question is whether there is diversity; and again, the answer simply put is no.  Alternatively, a more nuanced answer to the same question is not as much as there should be.  To understand the lack of diversity in the larger context, what is the equation that leads to this result of low diversity?

The equation in this case is: caution + habit + bias = low diversity.

“Caution,” in this context, stems from the nature of international arbitration cases.  International arbitration cases are generally of some magnitude in terms of the amounts in controversy potentially at stake, cannot be appealed, and are relatively easily and quickly enforceable.  Parties involved are reasonable in wanting to entrust the arbitral process to those with experience.  Part of the lack of experienced practitioners stems from the history of international arbitration.  Originally the field was not well developed or even seen as a real field due to the view that this field was both very risky and soft (i.e. the law was governed less by the application of law and more by industry practices and commercial considerations–coupled without any surety of success).  There were few who were practicing in this field.  Historically, the pool was small and generally was made up of white, Western men.  This is important, because it leads into the next element in the equation, which is “Habit”.

As matter of habit, one tends to select those they already know and who are a reflection of themselves.  Times have changed for the field of international arbitration.  Bilateral Investment Treaties (BITs) have become more common, and specialized tribunals are not so unheard of (e.g., the Iran-United States Claims Tribunal).  In addition, the number of women who have entered the legal field has changed, yet this fact is not reflected in the selection of arbitrators.  One step that has been taken to address lack of diversity is the Equal Representation in Arbitration (ERA) Pledge.  One of the elements of the ERA pledge is to take an extra five minutes when thinking of that initial list of potential arbitrators – as there are women and non-European practitioners with solid experience, but who may not be as well known and who could be added to the list of names.  Of course, just a name included in a list does not equal diversity.

Another step taken to address lack of diversity being taken by the International Chamber of Commerce (ICC) is to release of all the names of the arbitrators involved in a proceeding, with the identifying information about the case removed.  This is enough information to get an overview of the expertise of those arbitrators involved in the proceedings.  This has resulted in slightly better numbers of women when an institute chooses an arbitrator.  Nonetheless, when a party makes a choice of an arbitrator, women are still underrepresented.  However, the pledge, the five-minute rule, and the release of names are some steps that help remove the issue of habit that is a hindrance without a point.

The last element in the equation is “Bias”.  Biases can be both conscious and unconscious.  Biases stem from what is familiar, especially when it is unconscious, so there is a stronger likelihood of selecting those who are most like oneself.  In international arbitration proceedings, many in the position of making the key choices tend to be white Western men.  Avoiding these biases of selecting those most like oneself requires affirmative research about the pool of arbitrators and public information more readily available about them.

A final point concerns the challenges of the field, as a whole.  There can often be many qualified applicants for few positions.  Newcomers need to know that persistence, patience, and realistic expectations are key to opportunities in this field.  She concluded with the counter equation “Inclusion + Patience + Persistence = Better diversity.”

Next, Conference Commentator, Gonzalo Flores (Deputy Secretary-General, International Centre for Settlement of Investment Disputes (ICSID), Washington, D.C.), started with some history of the lack of women in international arbitration.  Initially there was the lack of women in the field of law, then the lack of discussion of gender issues, and then a lack of transparency of the number of women in international arbitration.  Today, the discussion has expanded to include a combination of issues such as the inclusion of women, newcomers, and non-Anglo/Europeans with solid experience in international arbitration.  One of the steps to address this issue is an example from the International Centre for Settlement of Investment Disputes (ICSID).  ICSID has created a database that allows one to search arbitrators, conciliators, and ad hoc committee members.  ICSID also publishes the statistics of caseloads for each year.  From these reports, it is now easier to track how much the situation is changing.

 

Come back tomorrow for Part II of our recap of the ITA-ASIL Diversity and Inclusion in International Arbitration Conference.

ASIL 2018 Recap: International Law and the Global Governance of Migration

By Rachael Smith

Professor Alexander Aleinikoff  (Zolberg Institute on Migration and Mobility, The New School, New York) started with a brief statement about the progress of the United Nations High Commissioner for Refugees (UNHCR).  He mentioned the seventy years of practice, and billions of dollars spent on resettlement, along with a legal regime for refugees, as signs of progress.  However, what he found troubling was the phenomenon of a “second exile”; that as per established refugee law, the first nation a refugee arrives in is where they must stay.  The legal options for migration to another nation are limited to none, and going back to their country of origin is not a viable option.  While there are legal arguments and policy reasoning for this, these do not address the possible negative impact on both refugees and the nations.  For example, the first country may be ill equipped for resettlement, e.g. Syrian refugees in Turkey.

The UN General Assembly has begun to address this weakness as part of their overall Global Compact on Refugees.  They have drafted for release mid to late this year a way for nations to share the responsibility as one way to address this issue.  Among the possibilities would be special passports that would allow refugees the possibility of travel to resettle.  In addition, there would be something akin to a “full faith and credit” of accepting refugees as part of economic development with other countries, such as in the case of Bilateral Investment Treaties (BITs).  This would balance the questions of national sovereignty in accepting refugees with being a second or third choice for the placement of refugees.  This would also allow those who have jobs and can self-support the ability to travel as a way to encourage self-sufficiency and economic development.  His last point was how this could create a more coherent regional approach to the resettlement of refugees, for not only the European Union nations, but could be used as a model for other Western nations.

migration

The panel for the “international Law and the Global Governance of Migration” session at the ASIL 2018 Annual Meeting.

Alice Thomas (Refugees International, Washington, DC) discussed how climate change could be both a major factor and one of many factors in migration.  In addition, climate change can be both a slow and a sudden process – for example rising sea levels and small islands or extreme weather that produces floods and landslides. Under the current legal framework, many people affected by climate change are classified as either economic migrants or internally displaced people – but not as refugees.  This has meant the approach has been an event-by-event system (e.g. in the United States the Temporary Protected Status granted to Haitians).  Currently, things are slowly changing but the focus has been more on adapting in place – how can nations help their own citizens stay in place (e.g. support to build homes that can withstand storm surges).

Michelle Leighton of the International Labor Organization (ILO) started her discussion with a description of the current conversation around immigration–that for many nations the general nature has been toxic.  She noted that most of the dialog is one of fear and an “us versus them” as a way to frame the debate.

She went on to say that the immigration debate is at a crossroads.  Nations can choose the path of seeing immigration as a benefit.  One way to do this is to focus on the immigration recruitment process for employment.  This is one way to combat issues like global human trafficking and the exploitation of workers.  This would also allow for better knowledge of the national and international employment recruitment processes.  This could mean better collection of data, along with a better matching of skill sets to the labor market needs.  This system could also foster better cross-border cooperation.  In addition, this could help navigate the sovereignty question by emphasizing that this is voluntary. She ended by noting how this would also create a path to social justice, as this issue is global in nature.  The ILO, with its 187 members, represents an already voluntary legal framework and can work in partnership with the UN.

Jean-Christophe Dumont (World Bank) started with how migration can be framed as part of broader issues of criminal justice and crime control.  The use of coercion and exploitation in the migration process has been linked to organized crime and terrorism– especially as they target the most vulnerable in a community, basically ensuring no reports will be made to a nation’s authorities.

Guest worker programs are one way to combat this issue.  Through them, the focus can expand to both skilled and unskilled labor.  This is important as unskilled labor is less regulated than the skilled labor market, which tends to be more highly regulated.  One current issue is that there is no one centralized institution to help monitor and regulate guest worker programs.  Depending on the nation, the regulatory framework may not even be present for local labor markets.  In addition, the current immigration and labor market debates and discussions are not about protections of workers.

One of the vulnerabilities of workers is the use of debt in the employment recruitment process as a way to exploit workers.  Debtors are vulnerable to a wide range of exploitation–both of themselves and potentially family members (either with them or in their home country).  Debtors are also seen as voluntary in their participation–despite the fact that their debt is of such enormity that it will likely never be paid off.

Jean-Christophe Dumont ended by discussing how the Organisation for Economic Co-operation and Development (OECD) has set trends for countries to co-operate by addressing immigration for the long term.  This would allow for better migration policies as well as innovation-–such as the use of Block Chain as a way to verify the identity of refugees.

ASIL 2018 Recap: Legal Education and Professional Training in the Culture(s) of International Law

By Gabriela Femenia

On the final morning of the 2018 ASIL Annual Meeting, Anthea Roberts (Australian National University) moderated a nuanced panel discussion of the significance of global differences in legal education and professional training of international lawyers, considering their evolution over time and their impact on the practice and efficacy of international law, from both Western- and non-Western perspectives. The panel comprised Bryant Garth (UC Irvine School of Law), Lucy Reed (National University of Singapore Faculty of Law), Natalie Reid (Debevoise & Plimpton, LLP), and Carole Silver (Northwestern University Pritzker School of Law).

ASIL Saturday Panel 1.jpg

Panel for the Legal Education and Professional Training in the Culture(s) of International Law at ASIL’s 2018 annual meeting.

The first point of discussion was legal education practice and the channels through which people in different countries come to the practice of law. Anthea Roberts presented some initial thoughts based on her recent book, Is International Law International? (2017), observing that legal education used to be a primarily national endeavor, with a small amount of movement at the graduate levels, but we are now seeing more people crossing borders to study law. While the majority still do so for the LLM degree, there is increasing study at the first-degree level. Roberts made two general points about the flow of students. First, the flow is asymmetrical: students go from the periphery to the core, and from non-western regions to the west, with most returning home to practice and bringing with them both ideas and materials. Second, there are clearly different cores for legal study (principally Anglophone, Francophone, and Russophone), and there are distinctive patterns of students from certain countries going to certain countries. Lucy Reed and Natalie Reid shared their own experiences both as former law students following similar trajectories to the core to obtain the necessary credentials for desired careers, as well as educators working with such students. Reed noted that there is a guided, funded outflow of students from China to the West in all fields, with China particularly interested in bringing back students trained in international economic law and law of the sea. There is no equivalent outflow from the U.S. of students sent abroad or investment in training lawyers in those fields, and it remains difficult to convince law faculty in the U.S. and Singapore that international law should be integrated into instruction. As a result, Asia is more present in international law practice than the U.S., and Reed suggested the consequence of this disparity is a more level but not necessarily more forward-looking playing field in international law.

Carole Silver observed that in some senses law education is wonderfully internationalized, but the program that most students attend, the LLM, is somewhat segregate as a result of being a one-year program, most of which do not allow students to participate in 1L courses, clinics, or moot courts.  LLMs do benefit from being part of diverse international classes, but there are limits on interacting with U.S. students, and there is often pushback from those students to hearing about how things are done in the LLMs’ home countries. As a result, more international students are enrolling in JD programs, and in those cases the flows are not from the periphery to the core. A quarter of foreign JD students go from Canada to the U.S., and 60% of all foreign JDs are from Canada, China, and Korea. Those students face some trouble integrating because they’re not American, and they tend to also distance themselves from LLMs because they’re not “international” students. They also put more effort into course selection, generally choosing business concentrations because transactional practice is easier to break into than litigation. Silver concluded that while there is a huge inflow of students to the U.S., there is also segmentation and social isolation at the micro level.

Bryant Garth reminded those present that, historically, the flow of students reflected colonial relationships, e.g. Commonwealth students getting to know each other in London, with a more recent substitution of the U.S. for those colonial relationships.  U.S.-style law schools are also now being established around the world, so the flow of students is no longer necessarily from one country to another, while there is increasing international competition for students, both in order to impart values and to obtain the tuition revenue.

The panelists then discussed the challenges faced by graduates returning to their home countries from the core. Reed pointed out that international law books are rarely available in Asia in the necessary languages, and many are still by the former colonial masters. Libraries are insufficient in many areas. New academics must also work alongside older colleagues who are not interested in changing their teaching, while at the same time facing pressure to publish in global journals in order to secure tenure, which prevents them from engaging with their local communities. Garth added that publication in international journals is difficult if the young professor does not buy into U.S.-dominated paradigms, further limiting the inclusion of local perspectives. Reid observed that the influence of U.S. perspectives plays out in practice as well; U.S. cases and sources are cited even if they are not the best examples, in order to resonate with an American audience, and most sources will be in English even if they’re not U.S. sources..

Anthea Roberts asked the panelists what could be done to address these challenges in legal education. Silver suggested intentionally requiring international students to offer specific contributions in class. Several panelists offered the Jessup competition as a model for bringing together students to develop a common language and toolkit.

Garth asked the panel to what extent the field of international law had been affected by the globalization of law firms. Reid noted that it depended on the field, e.g. in international investment there has been a significant impact because the multinational firms guide the development of the law by picking the arbitrators who then create it. Reed added that cross-border transactions were more affected by big firm mergers than international law was.

In the brief time remaining, audience members solicited suggestions from the panel on how professors can improve international law classes.

New FCIL Librarian Series: ASIL Annual Meeting

By Jessica Pierucci

This is the fourth in a series of posts documenting my first year as a foreign, comparative, and international law (FCIL) librarian. I started in this newly-created role at the UCI Law Library in July 2017. The aim of this series is to document my year in the hope of inspiring aspiring FCIL librarians to join the field (and hopefully not scaring them away!) by discussing one librarian’s experience entering the field.

[Note: some of the links below open videos]

At the beginning of April, I attended, for the first time, the ASIL Annual Meeting in Washington, D.C. The conference happened to fall right at the peak of the cherry blossom bloom, so the scenery was amazing. But what I enjoyed most were the substance of the conference and the opportunities to connect with fellow FCIL librarians.

cherry_blossoms.jpg

Cherry blossoms in front of the Capitol Building.

Conference Sessions

The substantive sessions are 1.5-hour panels with four to six presenters . I appreciated the diversity of experience on each panel. For example, the panel, The 2018 Global Compact on Refugees: International Law in the Making?, included law professors from the United States and Canada, a political science professor, the president of HIAS, and an officer from the UNHCR. Each presenter was in some meaningful way connected to changes in international refugee laws and brought their unique perspective to a well-rounded discussion of the theory and application of the law.

I attended other similar panels on such varied topics as IUU fishing, peacekeeping, and trade, but also sat in for two panels related to international law education. Teaching International Law in an Age of Global Retreat from International Agreements brought together doctrinal and clinical professors who provided valuable insight on trends in international legal education and how they modify their courses to fit with the needs and curiosities of students. Legal Education and Professional Training in the Culture(s) of International Law had a particular focus on LL.M. students and other international students studying at law schools in the United States.

The keynote speakers provided powerful contributions to the conference’s overarching theme: International Law in Practice. One speaker, Sir Christopher Greenwood, gave an engaging talk discussing the challenges arising from the divide between international scholarship and practice, concerns about specialists in specific fields of international law working in isolation, and ways to inspire trust in international law.

If any of this piques your interest, you can watch videos of selected presentations now, and audio of others should be available soon. You’re sure to learn something new about international law from judges, practitioners, academics, representatives of IGOs and NGOs, and other experts in the field.

Networking

At the conference, I met and reconnected with a number of FCIL librarians, including quite a few who are also in their first few years in the field. I learned more about the International Legal Research Interest Group (ILRIG) by attending the group’s meeting. I attended the librarian dinner, a conference tradition, organized this year by incoming AALL FCIL-SIS Vice Chair/Chair-Elect Loren Turner. At the dinner, I learned about other librarians’ FCIL initiatives and projects at their institutions. At the ILRIG meeting and a subsequent breakfast, I learned details about the resurgence of EISIL and I look forward to serving as one of the editors as it migrates to a new platform on the ASIL website this year.

Now that I’ve attended a few conferences as a librarian, I’m starting to see some more familiar faces, although, there are still plenty of people I have yet to meet. FCIL librarians are a friendly bunch and it’s great to know I’m starting to develop a small network of colleagues I can call on if needed.

library_of_congress.JPG

The Library of Congress Main Reading Room.

Next Year

I definitely plan to attend the ASIL Annual Meeting in future years, and would encourage new FCIL librarians to put this high on their priority list. The exposure to high-level discussions on international law topics by so many experts in the field all in one place is unparalleled. The conference is a fantastic opportunity to meet like-minded colleagues, and its regular location of Washington, D.C. means a chance to visit such historic buildings as the Supreme Court of the United States and Library of Congress, which is an added bonus.

ASIL 2018 Recap: The Use of Force Against Non-State Actors

By Mariana Newman

At 11:00 a.m. on Thursday, April 15, 2018, a panel of international law professionals discussed states’ use of defensive force against non-state actors, specifically in the context of the counter-ISIL military campaign in Iraq and Syria. Monica Hakimi, Professor of Law at the University of Michigan School of Law, moderated the panel, which consisted of Katrina Cooper, the Deputy Head of Mission at the Australian Embassy in Washington; Paul McKell, Legal Director at the United Kingdom Foreign & Commonwealth Office; Asif Amin, the Head of International Law Development at the Ministry of Defence for the Kingdom of Denmark; and Patrick Luna, the Legal Advisor for the Permanent Mission of Brazil to the United Nations.

Prof. Hakimi asked each panelist to articulate his or her state’s position on the use of force against non-state actors. Each country’s representative expressed their position on the question generally and with respect to ISIL in Syria and Iraq.

NonStateActors.jpg

The Use of Force Against Non-State Actors panel at ASIL 2018.

Australia

Katrina Cooper outlined Australia’s position: The “inherent” right to self-defense that is part of Article 51 of the UN Charter applies to attacks by non-state actors, but the defending state can take action against the non-state actor only, not the surrounding state. She explained that the case of using force against ISIL in Iraq was more straightforward legally since Iraq had consented to the use of force by asking other countries to help it defend itself. The case for the use of force against ISIL in Syria was “less clear-cut,” although Australia did conclude that it was legally justified. Cooper also mentioned that the “unwilling or unable” standard applied in the case of Syria.

United Kingdom

Next, Paul McKell stated the United Kingdom’s position: you can invoke the doctrine of self-defense to use force against non-state actors. McKell alluded to the history of the Caroline affair, which involved non-state actors, to argue that this is nothing new. Article 51 mentions an inherent right of individual or collective self-defense, and, according to McKell, it does not require a state to passively await an attack. An attack must be imminent, however, for a state to be able to take action in self-defense. McKell did concede that ideally you deal with non-state actors via law enforcement and the criminal justice system, but that that is not always possible. Like Cooper, McKell talked about the differences between the decision to use force in Iraq versus in Syria. In Iraq, the use of force was based on consent, whereas in Syria, the United Kingdom believed there was “a direct link between the presence and activities of ISIL in Syria and the ongoing attacks on Iraq.” They also determined that the Assad regime was “unwilling or unable to prevent these attacks.” One example that McKell mentioned of the UK’s use of force against non-state actors was the precision strike against UK citizen and ISIL member Reyaad Khan.

Denmark

Denmark’s representative, Asif Amin, explained that Denmark has four exceptions to a prohibition on the use of force: consent, self-defense, the authorization of a UN Security Council Resolution, and humanitarian interventions. In 2014, Denmark was part of the Iraq coalition and, like Australia and the UK, the legal basis for Denmark’s involvement was consent due to the invitation of the Iraqi government. Amin then read from Denmark’s Article 51 letter to the UN Security Council. According to Amin, Denmark is constantly evaluating the situation in Syria.

Brazil

Patrick Luna provided the counterpoint to the other three panelists’ reasoning, offering Brazil’s alternative view. According to Luna, Article 51 is an exception to Article 2(4) of the UN Charter’s prohibition on the use of force: they must be read hierarchically. Luna’s reading of the two articles has lead him to the conclusion that Article 51’s right of self-defense only applies to the use of force against state actors. Luna cited three International Court of Justice opinions, the Nicaragua case, the Wall advisory opinion, and the Congo v. Uganda opinion, all of which he said address self-defense in the context of state actors. Luna further argued that nothing in the travaux préparatoires of the UN Charter leads him to believe that self-defense applies to non-state actors. Luna argued that in order to use force in self-defense, a state needs to identify if the attack can be attributed to a state, otherwise must get consent of the state to act or seek a UN Security Council Chapter VII resolution.

Luna expressed some of Brazil’s concerns with an interpretation of Article 51 that permits the use of force in self-defense against non-state actors. He sees a potentially negative effect to using the term “non-state actors” as a substitute for “terrorists,” since “non-state actors” is a much broader concept. He also sees a risk to multilateralism: why search for multilateral solutions if force against non-state actors is permissible?

Responses

Cooper, McKell, and Amin then responded to Luna’s points. As to Luna’s point about Article 2(4) and Article 51 having to be read hierarchically, Cooper argued that because self-defense is described as an “inherent right” in Article 51, it therefore predates the UN Charter. She commented on the change in the nature and participants in this conflict, saying that “ISIL is a very different actor and the way it acts and mimics a state is new.”  Amin, in his follow-up remarks, agreed that the law needs to “develop to face new threats and new realities.”

As to Luna’s comments on ICJ jurisprudence, McKell replied that the UK position is that there is nothing in the ICJ jurisprudence that prohibits states taking the action they have.

Conclusion

This was an fascinating discussion from legal advisors who were intimately involved in the practical application of this pressing question of international law. At one point toward the end of the panel, Luna expressed the wish that they were “having this discussion at the UN!”

ASIL 2018 Recap: Building Victim-Led Coalitions in the Pursuit of Accountability

By Amy Flick

One of the first programs in ASIL’s 2018 Annual Meeting was a look at how victim-led prosecution efforts after mass human rights events can be more effective than those brought by states. The panel, moderated by Reed Brody of Human Rights Watch, focused on the case against Hissène Habré, the former dictator of Chad. One of the speakers was Souleymane Guengueng, one of the Habré regime’s victims and an activist with the AVCRP, the Chadian Association of Victims of Political Repression and Crime. Guengueng was praised by Brody and the other speakers as a hero.

Building Victim Led Coalitions 3.jpg

Brody and Guengueng told his story of having been imprisoned and tortured and having vowed while in prison to seek justice. Once freed after the fall of Habré’s regime, he worked with Human Rights Watch and the ATPDH (the Chadian Association for the Promotion and Defense of Human Rights) to bring a case in Senegal against Habré and his henchmen. Souleymane Guengueng gathered documents and victim statements, and he and other victims persuaded Belgium to retain the Habré case even after it had repealed its universal jurisdiction law. After Belgium asked the International Court of Justice to order Senegal to prosecute the case or extradite Habré, the ICJ ruled that Senegal must submit the case to competent authorities for prosecution or extradite him. Only then did Senegal and the African Union establish the Extraordinary African Chambers, and Hissène Habré was indicted for crimes against humanity, torture, and war crimes.

Building Victim Led Coalitions 2.jpg

Testimony from victims and witnesses, and the thousands of documents recovered by Human Rights Watch, were crucial to the Extraordinary Chambers case. Jacqueline Moudeïna, a lawyers for the victims, was almost assassinated, but she persisted with the case and was a key to getting witnesses to testify about the acts of sexual slavery committed by Habré and his men. Guengueng concluded by saying that he maintained his story and worked for justice for 18 years and Habré was convicted. He said that torture victims must know what they want to come from their case, and in his case he wanted justice; if he had not seen the case through, he would be dead. Reed Brody noted that the conviction was upheld in April 2017; damages have not yet been paid, but the conviction was still a victory for the victims. Details about the Hissène Habré are in Brody’s paper on the case, Victims Bring a Dictator to Justice: The Case of Hissène Habré.

Kathy Roberts of The Center for Justice & Accountability spoke about the role of lawyers representing victims of atrocities, emphasizing that they are dedicated to the victims, while attorneys for the state have other priorities to consider. She pointed out that in the United States, victims cannot bring a criminal action, but they can find a forum by bringing a civil case under the Alien Tort Statute and the Victims of Torture Act. She discussed the case of Mohammed Samantar v. Yousuf, brought in the U.S. courts against Samantar for crimes against humanity committed during the civil war in Somalia. There was no international interest in the case, and Somalia was a U.S. ally, but victims were active in building routes to justice. After the massacre of the Issa people in Northern Somalia, survivors of torture interviewed fellow survivors and refugees. Amnesty International connected them with attorneys who filed the case in the U.S. courts, and took other actions such as helping to find mass graves and identify bodies.

Roberts noted that victims may have a mistrust of government authorities, including the courts. She compared the cases in the Special Judicial Chambers in Tunisia, which had strong victims and attorneys comfortable with bringing cases in the French-based civil law system, with the Special Chambers in Kosovo, where victims have only recently been allowed as parties to the case under the Criminal Procedure Code, and attorneys involved in international tribunals in Kosovo for years, with relationships to the victims, were not qualified to appear in the Special Chambers courts. In Kosovo, victims often do not know what is happening in their cases.

Building Victim Led Coalitions 4.jpg

Diane Orentlicher of American University Washington College of Law and author of the book Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, spoke last. She described how the lessons learned in the International Criminal Tribunal for the former Yugoslavia on the struggles of victims to be heard were recognized in the creation of the International Criminal Court. Delays in the ICTY meant that justice did not have the impact for victims that it would have coming sooner. The creation of the ICTY was a welcome development, but victims of the atrocities were already working, doing interviews, taking photos, and creating records. Rape victims had begun documenting what had happened to them and gathering testimony before the NATO intervention, even at great personal peril.  The ICTY did not see the survivors as their primary constituency. The ICC was set up with more detailed provisions for victim participation than the ICTY had. The need for victims to be kept informed was recognized. Orentlicher stressed that tribunals need to acknowledge the importance of victim witnesses and their lawyers, and they need to reach out to local communities to convey the message that the tribunal is about the survivors.