ASIL 2017 Recap: International Law and the Trump Administration: National and International Security

By: Loren Turner

During these first 100 days of a Donald Trump presidency, the American Society of International Law (ASIL) has led efforts to bring together experts from both sides of the political spectrum to talk about international law under the Trump administration. ASIL has produced a series of freely-available webinars that analyze the Trump administration and (1) the future of international agreements; (2) U.S. engagement with the United Nations; (3) U.S. participation in global trade agreements; and (4) the future of environmental agreements.

On Thursday, April 13, 2017, during ASIL’s annual meeting, experts assembled once again to discuss international law under the Trump administration, but this time through the lens of national and international security.  The program was certainly timely, as it occurred the same day we learned the United States had dropped the “Mother of All Bombs” on Afghanistan and accidentally bombed allies in Syria.

Benjamin Wittes of the Brookings Institution served as moderator to a panel of three experts on international law and politics: Shireen Hunter of Georgetown University’s School of Foreign Service; John Bellinger, legal adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration; and Elisa Massimino, the President and Chief Executive Officer of Human Rights First.

In her opening remarks, Shireen Hunter identified herself as the voice of “political realism.”  She said laws are the outcomes of social and political processes.  Law is important but it is politics that change things and the laws change when society and politics change.  International law succeeds when there are common interests.  For example, even during conflict, the mail still gets delivered.  Maritime trade continues because those common interests remain.  But international relations and the rule of law are based on power.  Those nations with power, use that power to get what they want and there is no enforcement mechanism that stops them.  Saddam Hussein bombed Saudi Arabia with impunity.  Russia annexed Crimea and the international community did nothing to stop it.  No one abides U.N. Security Council resolutions, which are supposed to be binding.  The ideal is to implement the rule of law but the reality is that international relations is based on power and is skewed. We need a balance of power before international law is respected. We need creative ways of encouraging international cooperation and hence strengthening international law.

On the topic of human rights and Syria, Ms. Hunter said that she witnessed the abuse of human rights rhetoric when she served on the United Nations Human Rights Committee.  The United States would claim to honor human rights, but then sell bombs to nations that routinely violate human rights.  We had waterboarding under the Bush administration.  Trump doesn’t really care about the Syrian people.  Syria is a test case of which nation is going to be the next hegemon in that part of the world. Humanitarian intervention is a new phenomenon and it causes a lot of deaths.  Look at Libya, at Iraq.  Bombing Syria for humanitarian reasons is a smokescreen.  If the Trump administration wanted to follow international law, it would conduct an investigation to make sure Assad really did employ those chemical weapons.

John Bellinger first identified Trump as a danger to national security in a blog post he wrote for Lawfare in 2015.  In August 2016, he joined a group of 50 other former G.O.P. national security advisers to publicly state that “Trump lacks the character, values, and experience to be President.”  Mr. Bellinger said there is significant cause for alarm, but there may also be rays of hope.  According to Mr. Bellinger, there are some serious lawyers that could be joining the Trump administration and, if they do so, the administration may begin to settle down.  Mr. Bellinger noted, however, that Trump is dividing the country and that it is extremely destabilizing when Trump says he doesn’t support the international obligations of the United States.

As to the topic of Syria, Mr. Bellinger said that Trump might have recklessly gotten to the right place.  We all know the Syria strike is not legal under international law.  Is it justified though? One of the most troubling images associated with the Syria strike is the photo of Trump getting briefed about the strikeThere were no lawyers in the room.  Did international law inform the decision at all?  Mr. Bellinger would not have wanted to wait for the results of a full investigation to confirm Assad released the chemical weapons, but international lawyers need to be consulted before a reaction like this.

Elisa Massimino began her remarks with the question: we haven’t reached 100 days yet, right?  Feels like 100 years.  According to Ms. Massimino, the Trump administration’s budget proposal for the United Nations speaks volumes as to what the administration thinks of human rights and norms. The administration’s focus is on hard security.  Yet, the foundation of human rights is the best way to achieve peace and security in the world.

Ms. Massimino argued that the refugee policy is a huge threat to the national security of the United States and also our allies in Europe.  Additionally, the administration’s rhetoric on refugees, torture, and increased prosecutions for illegal entry, all pose real concerns to those who want adherence to international law and national security.  Trump’s tweets are a big deal and “we are really concerned.”  It is not a coincidence that Assad attacked civilians with chemical weapons right after the administration said that removing Assad was no longer a priority.

According to Ms. Massimino, the Trump administration’s slogan of “America First” is code for isolationism.  The America First campaign might mean America, alone.  Launching missiles is not a strategy.  When the United States withdraws, others scramble to fill the void, and these others (Russia, China, etc.) are putting forth alternative views of how the world should work and these views are not based on rules and norms that promote international law and human rights.

So, what can we do, as international law practitioners and academics?   Both Mr. Bellinger and Ms. Massimino urged audience members to get out and educate the American public – at local, regional, and national levels.  Explain the value of international law, especially how it helps people in their daily lives (airline travel, receiving mail, buying goods at reasonable prices, etc.).  According to Ms. Massimino, “this is our moment as international lawyers and it is up to us whether we can rise to the occasion.”

[Visit ASIL’s YouTube channel to access the full video of this program and others from ASIL’s 2017 annual meeting].

ASIL 2017 Recap: Grotius Lecture: Civil War Time: From Grotius to the Global War on Terror

By: Amy Flick

The American Society of International Law (ASIL) kicked off its 111th annual meeting in Washington, D.C. on April 12, 2017 with its 19th annual Grotius Lecture. The 2017 Grotius Lecturer was David Armitage, Lloyd C. Blankfein Professor of History at Harvard University, and Distinguished Discussant Mary L. Dudziak, Asa Griggs Chandler Professor of Law at Emory University School of Law.

The program was introduced by Camille Nelson, Dean of American University Washington College of Law. She remarked that Professor Armitage and Professor Dudziak have each published on the subject of civil wars. Since modern conflicts do not fit into a classical international law model of conflicts between states, a discussion between historians on whether international law applies to civil wars is an appropriate topic for annual meeting.

Professor Armitage’s book is Civil Wars: A History in Ideas, which Professor Armitage acknowledged was inspired by Professor Dudziak’s book War Time: An Idea, Its History, Its Consequences. Professor Armitage observed that civil war is a recent field of study. History has traditionally been separated into war and peace times, with war considered temporary, but with modern conflicts, it is difficult to determine when wars begin or end. Civil wars are not declared, they resonate even after a conflict ends, and they are prone to recur. Post World War II has been an age of civil wars, with 20 on average at any one time, and consequences arising from internal wars becoming international through intervention and outside combatants.

Professor Armitage explored the history of the study of civil war, beginning with the Romans, who likened them to natural phenomena like volcanoes. Grotius distinguished between public and private wars, classifying civil war as a public war against the same state, and finding any peace preferable to civil war, with civil wars never categorized as just wars. By contrast, Vattel disagreed with Grotius on the existence of private war, and positing that a civil war could be a just war if evils within a state are intolerable. His book The Law of Nations influenced 18th and 19th century United States thought and was cited in the Prize Cases, 67 U.S. 635 (1862). “When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” The Lieber Code, though, did not distinguish between insurrection and civil war, and defined the 1860s U.S. conflict as a rebellion, not a civil war, allowing the suspension of habeas corpus.

Professor Armitage brought the lecture to the current era with the extension of the Geneva and Hague Convention protections to internal conflicts with Article 3 of the Geneva Conventions and the 1977 Protocol II. In discussing the current Syrian conflict, he addressed the problem of language. Assad has called the conflict of 2011-2012 an insurrection, not a civil war. The ICRC confirmed it as an “armed conflict not of an international character,” covered by international humanitarian law. Professor Armitage pointed out the political reluctance to call a conflict a civil war, with definite declarations and peace treaties, even though since World War II there have been more peace treaties for civil wars than for inter-state conflicts. He concluded by calling this an urgent moment in history to define what is a civil war and what we value, as more political disputes are being described as “civil wars.”

Professor Dudziak found the categorization of war in categories of civil war and its opposite inter-state war as useful, but remarked on another category of war, with examples from 1864 of the United States Civil War and the U.S. Indian Wars. The U.S. Civil War was considered a “real war” in legal history and treated as fitting in the Lieber Code definition of civil war as an appropriate example of the use of war powers. The carnage of the civil war created widespread suffering which the public had to respond to by creating a “community of suffering” and humanizing the other side. By contrast, the Indian Wars of the 19th century have not been considered civil wars. Native Americans were considered barbarians, outside the borders of civilization and outside non-combatant immunity. The Lieber Code limits did not apply to “savages.” The exception of uncivilized people from protection culminated in the Sand Creek massacre of the Cheyenne.

Professor Dudziak concluded by declaring that in the late 20th and early 21st centuries, peace is not a time, it is an identity for people isolated from the battlefield. The absence of shared suffering has created an American apathy about war. Ending on a more hopeful note, she asked “Wouldn’t it be great if people could be brought together in peace instead of suffering?”

[Check out ASIL’s YouTube channel for the full video of the 2017 Grotius Lecture].

 

Seeking Bloggers for ASIL’s Annual Meeting!

Are you attending ASIL’s Annual Meeting next week?  DipLawMatic Dialogues is seeking volunteers to blog from and about the meeting.  If you are interested, please contact Loren Turner at lturner@umn.edu.  Thank you for considering and see you soon!

EISIL Update

The Electronic Information System for International Law (EISIL), sponsored by the American Society of International Law (ASIL) experienced outages last week.  Upon request, Don Ford agreed to update the FCIL-SIS on his knowledge of EISIL’s status.

By: Don Ford

EISIL Update: In 2012, shortly after ASIL eliminated its librarian position, Barbara Bean (Michigan State University Law Library) and I volunteered to serve as EISIL’s general factota.  Barbara continued training EISIL editors and I continued accumulating potential new sources for EISIL.  However, since early 2013, ASIL has allowed no updating of EISIL because to do so might crash the EISIL system, which is superannuated.  This has caused the database to become seriously outdated, as no new content has been added, and existing content has not been updated.

Barbara and Don also tried to keep EISIL alive.  During the period 2012-2016 there were a number of discussions, both with Elizabeth Andersen, ASIL’s former Executive Director, and with Mark Agrast, ASIL’s current Executive Director, about migrating EISIL to a new platform.  In addition, repeated attempts were made to include EISIL within the broader framework of the ASIL website redesign project, to no avail.  This spring, Don and Barbara felt they had to recommend to ASIL that the database be suppressed until it can be properly updated.

An article on the history of EISIL and on the efforts to keep it alive will be published in the fall 2016 issue of the Informer, the electronic newsletter of ASIL’s International Legal Research Interest Group (ILRIG).  In the meantime, please let ASIL Executive Director Mark Agrast know your concerns.  He may be reached at magrast@asil.org.

 

It’s Time For Chicago!

Registration is now open for the 2016 AALL Annual Meeting and Conference in Chicago!  In addition to member-discounted pricing, deeply discounted registration rates are available for students and retirees. Nonmember conference registration packages also include a complimentary one-year AALL membership – by joining us in Chicago, you’ll be joining AALL as well!

The FCIL-SIS looks forward to welcoming all attendees to its 2016 Schaffer Grant for Foreign Law Librarians presentation, which will take place on Monday, July 18, from 4:30 p.m. until 5:30 p.m., in Hyatt-Columbus GH. This year’s recipient, Ms. Rheny Pulungan, is Liaison Support Librarian at the University of Melbourne’s Law School Library. As Liaison Support Librarian, she supplies reference services, teaches legal research workshops, and completes collection development projects. Ms. Pulungan holds a Ph.D and Masters degree in International Law from the University of Melbourne, and a Master of Information Studies in Librarianship from the University of Canberra. Previously, Ms. Pulungan received her Bachelor of Laws from Gadjah Mada University in Indonesia, and served as Law Faculty Lecturer at Bengkulu University, where she specialized in international law. Ms. Pulungan’s experience in both Indonesian and Australian law, as well as law librarianship, will be reflected in her presentation, which will treat comparatively access to legal information in both countries.

In addition to the Schaffer Grant presentation on July 18, the AALL Conference will feature the following FCIL-related programming:

Sunday, July 17th

4:00 p.m. – Asian Legal Information in English: Availability, Accessibility, and Quality Control

Tuesday, July 19

8:30 a.m. – Roman Law, Roman Order, and Restatements

11:00 a.m. – Vanishing Online? Legal and Policy Implications for Libraries of the EU’s “Right to be Forgotten”

The FCIL-SIS is also working with the American Society of International Law to co-sponsor a pre-conference workshop to be held on Saturday, July 16 at 9:30 a.m. ($50 additional registration fee applies.)  The workshop, which is entitled Two Sides to the United Nations: Working with Public and Private International Law at the UN, is designed to equip all law librarians with foundational knowledge of the United Nations and CISG (both of which have recent significant changes to their online databases), and to increase their fluency with the major U.N. and CISG documents, information, research resources, and strategies.

If you are presenting on an FCIL-related topic in Chicago and would like your program to be featured on DipLawMatic Dialogues, or if you are interested in blogging about the conference programs listed above, please contact blog administrators Susan Gualtier (susan.gualtier@law.lsu.edu) or Loren Turner (lturner@law.ufl.edu). We look forward to seeing you in Chicago this summer!

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The Stagnation of International Law: 2015 ASIL Conference Program Report

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by Evelyn Ma

I’ve just returned from the annual ASIL meeting in Washington D.C., which coincided with the Jessup International Moot Court Competition.  The Hyatt Regency Hotel where both conferences were held was bustling with international lawyers, jurists, students and scholars, many of whom juggled their schedules to take in programs at both venues.

The first full day of programs on Thursday, April 9th provided one of the more memorable events entitled “The Stagnation of International Law”.  The panel discussion was moderated by Kal Raustiala from UCLA with panelists Ayelet Berman from the Graduate Institute of International and Development Studies of Geneva, Dinah Shelton and Edward Swaine from George Washington University, and Ingo Venzke from the University of Amsterdam.

The moderator began the session by noting that the number of multilateral treaties has declined since 2000.  He asked if this phenomenon signifies stagnation of international law.  Professor Shelton noted that stagnation only applies to multilateral treaty making. Other panelists noted that bilateral treaties, informal law and normative documents signed by parties with no formal treaty-making powers were on the rise. The decrease in the number of multilateral treaties concluded, however, as noted by the panelists, does not take into consideration the number of provisions concluded in individual treaties, their relative importance, as well as the number of parties entering into each treaty. A discussion followed as to whether the rise of soft law would replace multilateral treaty law-making.

Causes proposed by the panelists to account for the decline of multilateral treaty-making include both internal and external factors.  Domestic pressure, more players in the international law system, and few remaining unincorporated customs were issues discussed by the panelists.  Professor Shelton noted that in the international environmental law regime, the change of environmental standards has accelerated dramatically and some issues are not mature yet (while some, too mature) for judicial adjudication and is thus best decided on a case by case basis.  Professor Venzke noted that another cause for the decline in multilateral treaties was a decline in hegemony, of the United States in particular, as in the field of international economic law. Professor Shelton also talked about the cost and effort in the process of concluding a multilateral treaty. There will still be a need for more global standards in economic and technological areas, but non-binding agreements will come to be preferred.  The need for flexibility and the uncertainty of obtaining domestic approval will continue to disfavor multilateral treaty-making.

ASIL-ILA 2014 Wrap-Up

by Kristina Alayan

10168143_10101375365777866_2769768667846167479_nFor the first time since both the American Society of International Law (ASIL) and the International Law Association (ILA) were founded, the two organizations came together for an ambitious joint conference. The successful event took place April 7 – 12, 2014 at the Ronald Reagan Building and International Trade Center in Washington, DC. Scholars, practitioners, judges, and students from around the world came to enjoy the outstanding programs and networking opportunities. Moreover, the timing of the conference coincided with the blooming of the famous DC cherry blossoms, which were out in full force. Conference participants who stayed through Saturday (and who were willing to brave the crowds) also enjoyed the Cherry Blossom Parade on Saturday, April 12 – the final weekend of the annual National Cherry Blossom Festival.

Speakers ranged from former U.S. Supreme Court Justice Sandra Day O’Connor to Radhika Coomaraswamy, former UN Special Representative of the Secretary General on Children and Armed Conflict on Violence against Women. Judges from the International Court of Justice were in attendance both as honorees and as panelists along with numerous distinguished and accomplished scholars and practitioners. For those who were unable to attend the conference or a particular panel, the program is available for download on the ASIL website. In addition, ASIL Cables continued to provide commentary on the programs and events that took place over the course of the conference. Volunteers ably reported on the 55 panels and ensured comprehensive coverage of the events in an effort to disseminate the content to a wider audience.

10151851_10101375380193976_2748864400896446422_nThe programming at the conference focused on various aspects of the effectiveness of international law. Though the theme was broad, the programs often focused on more discrete issues, ranging from the anticipated ramifications of the recent Kiobel decision to whether forced feeding in response to hunger strikes is a violation of the Prohibition of Torture and Cruel, Inhuman or Degrading Treatment. Lively discussions took place among panelists, and participation from the engaged attendees served to further these conversations during the Q&A sessions and often long after the programs had concluded.

The International Legal Research Interest Group (ILRIG) has continued to build upon the leadership of its founders with a current roster of dedicated and inspired law librarians from across the country. It’s hard to believe that the group was only recently founded in 2010. In a short amount of time, the group’s biannual newsletter, the International Legal Research Informer, has already been formally recognized by ASIL as a newsletter to follow, and the International Research Kiosk staffed by ILRIG volunteers continues to be a popular resource for attendees. For the second year, ILRIG has sponsored a successful and well attended program, which was described in an earlier DipLawMatic Dialogues post by Joan Policastri. One of the most recent developments spearheaded by the ILRIG leadership is an initiative to recognize important contributions in the area of providing and enhancing legal information resources in international law. This initiative is still in the developmental stages, but ILRIG members are looking forward to hearing more about the award. The current name under consideration is the Jus Gentium Research Award, though ILRIG members are welcome to offer additional suggestions. The hope is to be able to honor a recipient in time for the meeting next year. The ASIL conference is a unique opportunity to catch up with colleagues and welcome new attendees while enjoying stellar programming that addresses current (and often controversial) issues in international law. Time permitting, attendees can also enjoy some of the amazing sights found only in Washington, DC. We hope to see you at ASIL next year!

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