Wednesday afternoon marked the beginning of the 102nd meeting of the American Society of International Law (ASIL). ASIL is a venerable organization that takes international law seriously, inviting vigorous discussion and rigorous study of a panoply of issues. Which is not to say that its members don’t skew in a particular way on many issues of the day. Generally speaking, cosmopolitans and those who study and promote international law – especially in academia – are toward the left side of the political spectrum. A left-wing bias in this field means a favorable disposition toward universal norms, global jurisdiction by a world court, and otherwise the imposition of elite consensus on domestic courts and polities. Still, the ASIL membership is not nearly as bad in those tendencies as, say, the ABA’s international law practice group – and, as I said, it invites speakers and writers from a variety of perspectives. Moreover, a fair bit of ASIL’s activities relate to private and commercial international law, with which libertarians should have little beef.
In any event, this year’s conference kicked off with the tenth annual Grotius Lecture, given by Jordan’s ambassador to the United States, Prince Zeid Ra’ad Zeid Al-Hussein. Prince Zeid, educated exclusively in the West, has had a truly distinguished career, and seems to be a voice of enlightenment from a dark part of the world. His remarks, however, on the topic “For Love of Country and International Criminal Law,” skewed both technocratic and rhetorical: He implored the world community to overcome legal obstacles to helping the victims of genocide and war crimes while at the same time recognizing that international courts are not welfare agencies. And of course, somehow, yes somehow, we have to reconcile somewhat outmoded notions of sovereignty with a brave new world of globalized crime. I don’t pretend to give his lofty discourse justice, but in the end it was both intellectual and bland.
What was not bland was the commentary of the good prince’s discussant, David Scheffer of Mayer Brown and Northwestern University Law School. Prof. Scheffer, a high-ranking official in the Albright State Department, first drew a round of applause by announcing that the previous speaker was, without doubt “a future Secretary-General of the United Nations.” (Sounds about right.) Then he crescendoed into an excoriation of pretty much every lawyer in the Bush administration for ignoring international law and making the United States into the red-headed stepchild of the community of nations. Again, it would take more time than it’s worth to fisk his entire approach but suffice it to say the learned professor seems to have a hard time distinguishing law from policy and politics. There is much for which to criticize the Bush administration, but violating international law wouldn’t make my top 100 list.
And that is where the rubber hits the rubber on so many of these issues: Much, if not most, if not all, of international law comes down to diplomacy – the willingness of countries to adhere to their obligations and convince others to do so. As described by Jack Goldsmith and Eric Posner in their brilliant book The Limits of International Law, the behavior of nation-states cannot be predicted, and should not be judged, based on whether they sign this piece of paper or that one. For example, states have interests and there is no international mechanism to force states to comply with treaties that at any given time contravene those interests. Period. (It is often in their interest to comply with their international or binational obligations, of course, because few states want to become, literally, pariahs.) There is so much to say on this, and I will certainly be writing about it in future.
And when it comes to the International Criminal Court (ICC) – the chief bone of contention that many of the attendees to this week’s conference have with the American practice of public international law – what’s important is that U.S. troops treat people much better than their Congolese or Indonesian or Venezuelan counterparts, regardless of which countries submit to the jurisdiction of the ICC. That’s some reality-based law for you.
In sum, an eyebrow-raising start to the conference – and a reminder of the strange position of those of us interested and educated in international legal and political issues but skeptical of public international law.