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).

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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.

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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.

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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.

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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: International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery

By Jessica Pierucci

The Friday, April 6, 2018 ASIL Annual Meeting panel International Law as a Tool in the Fight against IUU Fishing and Seafood Slavery provided a look at illegal, unreported, and unregulated (IUU) fishing and seafood slavery issues from the perspectives of esteemed panelists who engage with these topics from different vantage points. Nick Renzler, Foley Hoag LLP, moderated the panel.

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Judge Tomas Heidar of the International Tribunal for the Law of the Sea speaks at the ASIL Annual Meeting on Friday, April 6, 2018.


Judge’s Perspective: Background on IUU Fishing

Judge Tomas Heidar, a member of the International Tribunal for the Law of the Sea (ITLOS) since 2014, provided background on IUU fishing issues. Judge Heidar explained there is no universally accepted definition of IUU fishing, but the most widely adopted definition is contained in the IPOA-IUU, 2001. IPOA-IUU contains measures aimed to deter and eliminate IUU fishing through state cooperation.

One way to combat IUU fishing is port state measures blocking vessels engaged in IUU fishing from unloading at a state’s docks. If widely adopted, this can make IUU fishing not profitable by forcing IUU fishing vessels to travel great distances to find a dock that will accept them. This is one of the general purposes of the 2009 FAO Port State Measures Agreement. The agreement broadly defines terms, such as “fishing related activities,” to encourage expansive enforcement. States were initially slow to ratify so the agreement only entered into force in 2016 once 25 parties had ratified, but since entry into force ratification has sped up and there are now 53 parties.

One agreement to keep an eye on is the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. Negotiations just concluded in November 2017 and signature is expected in 2018.

Academic Perspective: ITLOS 2015 Advisory Opinion

Nilufer Oral, Istanbul Bilgi University Law Faculty and United Nations International Law Commission, focused on a major recent development in IUU fishing, the ITLOS 2015 Advisory Opinion. This is a landmark opinion for a couple reasons.

First, this is the first time the full tribunal has issued an advisory opinion.

Second, the opinion clarifies flag state responsibilities under UNCLOS, in particular explaining that flag states must meet due diligence obligations in exercising control over the ships flying their flag. IUU fishing is not specifically mentioned in UNCLOS, but the advisory opinion seeks to include IUU fishing under UNCLOS, although some commentators believe more detail would have been helpful on this point.

While this is a landmark opinion, it is only an advisory opinion. Oral believes it’s time to bring a contentious case to more powerfully use international adjudication to combat IUU fishing.

State Perspective

Alexa Cole, U.S. NOAA, Office of General Counsel, Enforcement Section, spoke about IUU fishing from the state perspective. NOAA is fortunate to have thirteen prosecutors working in this area. This relatively high number allows NOAA to attend Regional Fisheries Management Organizations (RFMO) meetings and be directly engaged in negotiating enforcement measures. This, in turn, better allows NOAA to engage in enforcement. RFMO goals include encouraging management of relevant species; creating monitoring, control, and surveillance (MCS) measures, such as expanding high seas boarding and inspection; and creating compliance monitoring schemes.

In the big picture, Cole believes major international agreements play an important role setting global standards, but they suffer from being tough to negotiate. This challenge leads them to become stale as they are not renegotiated to address new issues. For example, UNCLOS’s discussion of “hot pursuit” does not take into account new technology. As a result, new issues need to be addressed in alternate ways. For example, the Western & Central Pacific Fisheries Commission (WCPFC) coordinates sharing vessel monitoring data, which allows sharing on hot pursuit and other issues.

Corporate Perspective

Anbinh Phan, Director of Global Government Affairs, Walmart Corporation, provided the corporate perspective. Walmart takes a multi-stakeholder approach. The company is a Seafood Task Force member and committed to only selling seafood from sources certified by a third party by 2025. They also supported an International Justice Mission study. Looking to the future they hope to work toward preventing forced labor in the first place, use technology to disrupt the industry, and see the need for international and national law to create solutions.

Litigator Perspective

Agnieszka Fryszman, Cohen Milstein, LLP, provided the litigator’s perspective. As background, Fryszman pointed to the ILO Caught at Sea Report. Fryszman shared frustrations with how trafficking aboard seafood vessels may not be discovered at U.S. ports because of U.S. laws prohibiting those on board from exiting the boat.

Fryszman recently litigated Sorihin and Abdul Fatah v. Thoai Van Nguyen dba Sea Queen II, Case No. 16-5422, in the U.S. District Court for the Northern District of California. In this case two Indonesian men jumped ship in San Francisco, California to escape and then sued the ship’s captain for horrible working conditions. They settled the case and included in the settlement requirements that the captain establish a code of conduct and distribute a help card to employees to prevent similar incidents. The Associated Press is following up on implementation and Fryszman is waiting to hear if the captain has implemented the settlement requirements.

Fryszman noted one of the major challenges with this litigation is jurisdictional. They were only able to assert jurisdiction over the ship’s captain because he’s from San Jose, California, even though there were many other culpable parties. Fryszman sees jurisdiction as a major barrier to successful seafood slavery litigation.

Fryszman located just two other related cases: one in New Zealand and one in Thailand.

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An audience member asks a question to the panel at the International Law as a Tool in the Fight Against IUU Fishing and Seafood Slavery session at ASIL 2018.

Closing

In Q&A, one attendee asked if more international agreements are needed. The panelists generally agreed there isn’t a strong need for more international agreements on this issue right now. Instead they want a focus on domestically implementing the agreements already in place to effectively impose liability. It appears the next frontier for IUU fishing and seafood slavery is finding the best ways to use courts to implement the law in these areas.

ASIL 2018 Recap: New Technologies in International Criminal and Human Rights Investigations and Fact-Finding

By Susan Gualtier

On Thursday, April 5th, I attended a panel entitled “New Technologies in International Criminal and Human Rights Investigations and Fact-Finding.”  The panel explored the increasing use of new technologies, such as social media, satellite data, mobile phone apps, and drone technology, in human rights fact-finding, particularly where sites are inaccessible or pose an especially high risk to human rights investigators.

The panelists first discussed their work with various technologies.  For example, Brad Samuels, of SITU Research, works with visual, panoramic, and geospatial representations that must be optimized for use in court. As Mr. Samuels explained, there might be many videos that capture the same moment in time, but from different viewpoints.  Part of his job is to use these videos to create an event reconstruction.  Jonathan Drake, from the American Association for the Advancement of Science, explained that part of the AAAS’s mission is to engage scientists in human rights and to further the use of science in advancing human rights.  The AAAS has performed grave site analysis and environmental analysis, using images to uncover lies by foreign governments.  They are currently considering how to integrate drones into human rights fact-finding and advancement.

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The panel then discussed issues surrounding the use of new and emerging technologies in human rights fact-finding.  For example, the use of smartphones to take videos and post them to social media has allowed more crimes to be exposed.  At the same time, it can be difficult to verify the accuracy of the information contained in the videos.  One way this problem has been addressed is through mobile phone apps, such as the eyeWitness to Atrocities app, which collects location data on the user from three different sources, provides a verified chain of custody for the video, and makes the user’s footage not editable.  However, there are benefits and drawbacks to such app technology.  On the one hand, it helps human rights workers to overcome access issues in situations where on-the-ground fact-finding would be impossible.  It also gives agency to the victims of the atrocities, rather than taking an imperialist, top down approach.  Nonetheless, the panelists all noted the need to be cautious when it comes to use of these apps.  While initial users have acted in good faith while generating evidence, several of the panelists expressed their concern that later users may have less noble intentions than the early adopters.  The panelists also noted the problem of visual bias (the preference for video representations, even in fields like politics where video cannot adequately capture much of the overall picture).  Scientific studies suggest that visual bias and the use of video evidence can introduce a host of problems into the courtroom.  What happens if we move toward mostly visual evidence, but that evidence is not necessarily representative of the situation as a whole?

Despite these and other issues, the types of evidence that can be captured using technology are extremely valuable to lawyers, judges, and other players in field of human rights work.  Technology has led to better results in investigations by providing access to witnesses and to physical documents that would otherwise be impossible to obtain.  It allows judges to see the violence for themselves when travel to the site of an atrocity would be impossible.  It even allows for more complete crime scene investigations.  Nonetheless, the panel urged that we proceed with caution.  There will need to be some guidelines or minimal standards for technology-generated evidence so that it will be admissible in court.  Tech designers are still much more risk-friendly, and perhaps too willing to let technologies fail, than are human rights attorneys, who need to protect witnesses and victims and to meet the demands of tribunals.  Moreover, we must remember that not everyone has access to technology; many of the places where we find human rights offenses are also places where people simply do not have access to mobile phones, apps, and social media.  And some of the worst accountability issues occur where there’s awareness anyway.  Ultimately, it is critical that those using the new technologies remain aware of its limitations.  We should not overemphasize the technological tools just because they are “cool.”  In the end, we should use them to bolster cases that are already based on traditional human rights fact-finding.

ASIL 2018 Recap: Rule-Making By International Organizations

By Caitlin Hunter

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Rule-Making By International Organizations, on Friday, April 6th, explored the key role specialized international organizations play in creating highly influential soft law. A wide variety of international organizations create rules, including:

1. The International Labour Organization (ILO): Tomi Kohiyama (Deputy Legal Adviser, ILO) described how the ILO sets labor standards that protect the basic rights of workers, including their 1998 Declaration on Fundamental Principles and Rights at Work and 2008 Declaration on Social Justice for a Fair Globalization. The ILO standards are routinely incorporated into trade treaties. Additionally, the ILO supervises member states’ reports on their compliance with labor standards. José Alvarez (Professor, NYU Law) said that ILO was also a pioneer in its efforts to challenge state centrality, regulating private organizations and individuals directly through documents such as the Maritime Labor Convention.

2. The International Organization for Standardization (ISO): Mary Saunders (Vice-President for Government Relations and Public Policy, American National Standards Institute) explained that the ISO has developed over 2000 standards, including anti-bribery and social responsibility standards. National standards bodies from over 161 countries participate in creating standards that are designed to function in both mature and developing economies.

3. The World Health Organization (WHO): Both Alvarez and Nicola Bonucci (Director for Legal Affairs, Organisation for Economic Cooperation and Development) noted the influence of WHO guidelines. Although WHO guidelines are not directly binding, they are routinely cited in both national and international adjudication. In particular, WHO guidelines and amicus briefs played a key role in obtaining judgments against Phillip Morris. Fearing a similar negative impact, the sugar industry strenuously attempted to initiate a backlash against WHO sugar guidelines.

4. The Organisation for Economic Co-operation and Development and the International Finance Corporation, which provide guidance on economic and social development issues that include agriculture, the environment, and gender equality.

5. The Basel Committee, which sets widely followed banking standards.

6. The United Nations High Commissioner for Refugees, whose refugee status determinations are binding in all but name.

The panelists made the following points:

1. The distinction between soft and hard law is weakening. Hard law is softening, as treaties increasingly provide non-binding guidelines and allow states to achieve the substantial equivalent of obligations. On the other hand, soft law is hardening due to the increasing organizational obsession with benchmarking. It’s no longer accurate to claim that courts and police are necessary to enforce international law. Monitoring, reporting requirements, peer pressure, and naming and shaming are often (although admittedly not always) effective in ensuring compliance. When advising client or seeking to establish international norms, attorneys must consider both hard and soft law.

2. Inclusiveness is vital to maintaining legitimacy. Many traditional international organizations are not necessarily effective at consulting and informing stakeholders and decisions may be dominated by the stakeholders with the loudest voices. In contrast, ISO strives to include all materially interested affected parties from all of its member states. Standards bodies from developing countries make up the vast majority of ISO members and serve as a key source of ideas. Of course, inclusiveness is not always easy and Saunders acknowledged that some countries were better at getting stakeholder input than others. Likewise, Kohiyama noted that ILO members have a mandate to collaborate but sometimes lack the political will.

3. Responsiveness to change is also vital to maintaining legitimacy. ISO reviews its standards every five years to ensure that they are current. The ILO recently reformed its constitution and standing orders to better reflect the modern world, abrogating obsolete standards for jobs that have not existed since the early 1900s.

4. Coordination between soft law organizations is not always easy. Alvarez noted that international organizations have differing paths and goals and often attempt to defend their turf. He also pointed out that many organizations that create soft law ignore soft norms intended to regulate international organizations. In contrast, Bonucci defended the importance of competition, emphasizing that the free market of ideas creates a wide variety of options.

Clearly, the details of soft law rule-making are continually evolving. Just as clearly, however, soft law is taking on an increasingly important role in international law.

ASIL 2018 Recap: 2018 Annual Grotius Lecture

By Charles Bjork

The American Society of International Law (ASIL) began its 112th annual meeting in Washington, D.C., on April 4, 2018, with the 20th annual Grotius Lecture delivered by Judge Joan E. Donoghue, who is serving her second term as a member of the International Court of Justice (ICJ) in The Hague.  After earning her J.D. from the Boalt Hall School of Law at the University of California at Berkeley in 1981, Judge Donoghue worked as an associate attorney at Covington and Burling prior to joining the State Department as an attorney in the Office of Inter-American Affairs.  During her distinguished career at the State Department, she represented the United States before the ICJ in Nicaragua v. the United States and eventually rose to become the Principle Deputy Legal Advisor from 2007 to 2010.  On September 9, 2010, the U.N. General Assembly and the Security Council elected Judge Donoghue to serve out the remainder of Judge Thomas Buergenthal’s term on the ICJ.  On February 5, 2015, she was elected to serve a full nine-year term as a member of the Court.

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Judge Joan Donoghue gives the 20th annual Grotius Lecture at ASIL 2018.

Judge Donoghue’s lecture was entitled “International Adjudication:  Peaks, Valleys, and Rolling Hills.”  She chose this title to make an analogy between the evolution of international dispute settlement and a group of explorers that sets out to discover a previously uncharted territory.  Media coverage of the explorers inevitably focuses on the dazzling images taken from the summits that they scale or on the calamities that they encounter along the way.  Although little, if any, attention is paid to the many days the explorers spend trudging up and down through the rolling hills between the peaks and valleys, it is the day-to-day choices that the explorers make outside of the media spotlight that ultimately determine whether or not their voyage of discovery is successful.

Judge Donoghue discerns a similar pattern in the way in which the practitioners of international law approach international dispute settlement.  Whenever a new dispute settlement mechanism is proposed to remedy the perceived shortcomings of existing mechanisms, the proponents of the new mechanisms are motivated by lofty and ambitions goals, not unlike the peaks that the explorers aspire to climb.  Once a new dispute settlement mechanism is established and begins to operate, shortcomings inevitably emerge, not unlike the valleys encountered by the explorers.  Criticisms are voiced by some who are frustrated by the mechanism’s failure to fully realize their lofty aspirations and by others who are hostile to the new mechanism and wish to destabilize it.   This phenomenon can be seen in the diverging assessments of the International Criminal Court and of the World Trade Organization’s Dispute Settlement Mechanism.

Using the explorer metaphor as the framework for the remainder of her remarks, Judge Donoghue went on to describe the aspirations of those who advocated for the establishment of a world court, to assess the shortcomings of ICJ that have emerged since its establishment, and to examine the challenges and opportunities faced by the practitioners of international dispute settlement as they trudge through the rolling hills between the peaks and valleys, before concluding with a brief overview of the evolution of investor-state dispute settlement.

As Judge Donoghue noted, the origins of the ICJ can be traced to the international peace conferences that were held in The Hague in 1899 and 1907.  The aspirations of those who advocated for the establishment of a world court at these conferences were bold, to put it mildly.  They wanted a tribunal with the following characteristics:  1) a permanent, standing court; 2) with the authority to settle the full range of disputes on all matters governed international law; 3) whose decisions would be binding on the parties; 4) whose decisions would be made public and lead to the development of a body of jurisprudence; 5) one with independent and authoritative adjudicators, whose decisions would be widely adhered to; and 6) one with compulsory jurisdiction that states would routinely use to settle their differences.  Although the peace conferences at The Hague did not result in the immediate establishment of a world court, they did lay the foundations for the establishment of the Permanent Court of International Justice (PCIJ) after the First World War, and for its successor, the ICJ, in the aftermath of the Second World War.

In Judge Donoghue’s view, the Statute of the ICJ fulfills four of the six aspirations voiced by those who campaigned for the establishment of a world court at the turn of the twentieth century.  The ICJ is a permanent court.  The scope of its jurisdiction is broad and does not exclude subjects that might be perceived as “too sensitive” for adjudication.  Its decisions are binding on the parties.  Both the proceedings and the decisions of the ICJ are open to the public, resulting in a jurisprudence that has the potential to influence the behavior of states which are not parties to a particular dispute.

With respect to the aspiration of creating an independent, authoritative bench of adjudicators, Judge Donoghue characterized the ICJ’s record as mixed.  The Statute of the ICJ entrusts the process of nominating qualified candidates for appointment as judges to individuals who are supposed to have expertise in international law and be able to act independently of national governments.  However, it is the member states of the United Nations who elect the judges by means of simultaneous secret ballots cast in the Security Council and the General Assembly.   The Statute of the ICJ also calls for a bench that has a representative geopolitical distribution.  What this has meant in practice is a more or less fixed allocation of seats among geographic regions.

The final goal of establishing a world court that would have compulsory jurisdiction over all states is where the ICJ has most clearly fallen short of the aspirations articulated at the Hague conferences.  U.N. member states are not required to accept the ICJ’s jurisdiction, nor are they required to submit disputes to the Court.  Member states may accept the Courts jurisdiction generally, or they may do so subject to reservations, or only with respect to certain treaties, or only with respect to known disputes, and they may change their consent to jurisdiction over time.  Although critics of the Court tend to overstate its shortcomings in this regard, there is no doubt that those who advocated for the establishment of a world court would be disappointed by the reluctance of states to consent to the ICJ’s jurisdiction and to rely on the ICJ to resolve disputes.

Judge Donoghue then turned her attention to two additional shortcomings of the ICJ that threaten to undermine its effectiveness:  the process of judicial selection and the working methods of the Court.  With respect to judicial selection, Judge Donoghue asserted that the processes in place at the national level for vetting judicial candidates are often inadequate.  As a result, relatively few qualified candidates are nominated.  When it comes to voting, the nationality of the candidates overtakes all other considerations.  For many states, vote trading dominates the process to such an extent that a state’s decision to support one candidate over another often has nothing to do with the candidate’s qualifications.  With respect to the Court’s working methods, Judge Donoghue acknowledged that they are too slow, too passive, and not amenable to change and adaptation. As the late David Caron noted in an article he published in the American Journal of International Law in 2000, the respect accorded to the ICJ and the willingness of states to consent to its jurisdiction depend on the quality of the ICJ’s judges and on the process by which they collectively reach their judgments.

Having acknowledged these shortcomings, Judge Donoghue insisted that genuine progress has been made in the evolution of international dispute settlement over the past century.  Both the PCIJ and its successor, the ICJ, have resolved significant cases of importance to the parties and to the international community.  Some highly respected jurists have served on both courts.  The ICJ currently has a full docket of diverse and important cases.  Thanks to the proliferation of international tribunals during the past half century, coupled with the revival and reinvention of the Permanent Court of Arbitration, states have more options for peacefully resolving disputes than ever before.  A healthy competition among these tribunals can help to allay misgivings about having a single world court and encourage states to submit their claims to adjudication or arbitration.

Turning her attention back to the ICJ, Judge Donoghue offered four suggestions for what practitioners, who work in the “rolling foothills” of international dispute settlement, can do to enhance the Court’s legitimacy and attractiveness as forum for states to resolve their disputes.  First, practitioners must work within the confines the ICJ Statute, despite its limitations, because there is no realistic prospect of the Statute being amended any time soon.  Second, practitioners must not overload the ICJ with expectations for which it was not designed, particularly the expectation that the Court should actively engage in more lawmaking beyond the scope of its mandate to adjudicate disputes and issue advisory opinions.  Such an approach would entail substantial risks for the Court, as David Caron warned in last year’s Brower Lecture.  Third, the members of the Court must be more energetic in improving the ICJ’s working methods and more willing to adapt innovations and reforms that have been successful in other tribunals.  Finally, practitioners of international law throughout the world should take the initiative to re-energize and re-invigorate national group vetting procedures for the selection of candidates to serve on the Court.  Nominating highly qualified candidates with expertise in international law will enhance the Court’s legitimacy and help to dispel the still widely held misperception that judges serving on the Court are merely the representatives of their respective national governments.

Before concluding her remarks, Judge Donoghue offered a brief overview of the peaks, valleys, and rolling hills of investor-state dispute settlement (ISDS).  The perceived inadequacies of litigating investor-state disputes in national courts provided the impetus for the World Bank to create a new mechanism for the direct settlement of such disputes in a neutral forum under the ICSID Convention.  Just as the ICJ Statute does not require U.N. member states accept the Court’s jurisdiction, neither does the ICSID Convention require states and foreign investors to resolve disputes through arbitration.  In practice, most states and the vast majority of foreign investors have embraced ICSID arbitration.  Nevertheless, many observers perceive the current system of ISDS to be entering a valley of doubt, as critics question the system’s infringement of state sovereignty and the right to regulate.

Judge Donoghue concluded her remarks by emphasizing that the proposal to create a world court and the proposal to create a new mechanism for resolving investor-state disputes were both big, bold ideas and remain so.  Nation states do not easily place their trust in third-party dispute settlement mechanisms.  At a time when powerful voices are launching strident attacks on international agreements and international institutions, it is incumbent upon those engaged in the practice of international dispute settlement to fight back against these exaggerated criticisms and, at the same time, candidly acknowledge the need to improve international dispute settlement mechanisms and the institutions that support them.  Instead of abandoning the lofty aspirations that motivated the advocates of a world court, Judge Donoghue urged practitioners to pull out their compasses, make some course adjustments, and continue to work their way forward through the rolling hills of international dispute settlement.