ASIL CONSIDERATION OF TAKING POSITIONS ON

ASIL CONSIDERATION OF TAKING POSITIONS ON

INTERNATIONAL LAW ISSUES

A. The current Constitution and Regulations

(1) ASIL Constitution, article IX: “All resolutions relating to the principles of international law or to international relations which shall be offered at any meeting of the Society shall, in the discretion of the presiding officer, or on the demand of three members, be referred to the appropriate committee or the Council, and no vote shall be taken until a report shall have been made thereon. Resolutions may be submitted for consideration by the Executive Council in advance of any meeting of the Society by depositing them with the Executive Director not less than 15 days prior to the meeting.”

(2) ASIL Regulations, Section II, paragraph 3: “The Executive Council shall consider and make recommendations to the Society with respect to resolutions relating to the principles of international law or to international relations referred to it under Article IX of the Constitution.”

B. Summary of the Society’s treatment of the matter in the past

(Sources: Rick Kirgis’ unpublished history of the ASIL, The American Society of International Law: the First Ninety Years and minutes of ASIL Executive Council and Business Meetings.)

(1) At the first annual meeting (1907), a member proposed that the Society adopt a resolution disapproving the use of naval power to collect debts. It was referred to the Executive Committee, and never emerged.

(2) In 1908, 1909 and 1916, substantive matters were referred to the Executive Council, and never emerged.

(3) At the annual meeting in 1923, Frederic Coudert proposed a resolution to have the Society endorse U.S. entry into the PCIJ. After debate over the propriety of such a resolution, the chair (Oscar Straus) warned against hasty action that could split the Society. A resolution was adopted requesting the Executive Council to get the opinions of the membership as to entrance of the United States into the Court, and to make a public statement regarding the opinions. Nothing came of it.

(4) At the annual meeting in 1933, a proposal was made to deal with controversial current events such as the Manchurian question and the Chaco War (not necessarily to take a position on them). An inconclusive debate ensued as to whether the Society should be a popular forum for the expression of heated political views or not.

(5) At the annual meeting in 1943, the Business Meeting debated and adopted a resolution proposed by Amos Peaslee and amended by Percy Corbett, as follows:

“The administration of international justice requires a permanent international judicial system with obligatory jurisdiction; and

“instrumentalities, agencies and procedures should be instituted and developed to declare and make effective the considered will of the Community of Nations.”

The debate focused on the provision on a permanent judicial system. There was no discussion of the second provision, even though George Finch at an earlier stage in the drafting process had voiced concern that it could be read to endorse an international legislature.

(6) In 1946 the Executive Council recommended to the Business Meeting that the Society adopt this resolution:

“Resolved, That the American Society of International Law strongly favors a declaration by the United States Government of its acceptance of the jurisdiction of the International Court of Justice in the types of legal disputes enumerated in Article 36 of the statute of the Court.”

In the debate, several speakers said the Society would be departing from tradition if it were to adopt the resolution, but they nevertheless favored doing so as an exceptional case. George Finch pointed out that the Executive Council had considered the matter and had recommended that the resolution be adopted. It was adopted unanimously.

(7) At the 1948 annual meeting, Charles Martin moved from the floor that an ad hoc committee be formed to report a resolution to the business meeting the next day urging the U.S. government to define aggression and to pledge to resist aggression. The matter was referred to the Executive Council, which effectively tabled it. Another resolution that would have put the Society on record in favor of a conference to draft a convention on total disarmament was tabled as well. Neither resolution was ever removed from the table.

(8) In 1949 a proposed resolution called on the Society to advise the Secretary of State that the time had arrived for an international conference to revise the rules of war. It was tabled, never to rise again.

(9) Also in 1949, the business meeting considered a resolution calling on the President of the Society to appoint a committee to study and report on United Nations practice when a member state wished to have a question of a U.N. organ’s competence under the Charter referred to the ICJ. A question was raised whether this was a procedural or substantive resolution. It was treated as procedural and was adopted. The committee, chaired by Louis Sohn, submitted a draft resolution dealing with the circumstances under which a U.N. organ should seek an ICJ advisory opinion when a state has made a prima facie case that the organ is incompetent to do what it proposes to do. The Executive Council declined to recommend that the Society adopt the resolution, and it didn’t.

(10) In 1950 John Hazard proposed a resolution favoring the negotiation of international agreements on judicial assistance in obtaining evidence abroad for use in civil suits. It was referred to the Executive Council, which approved it for presentation to the Society. The business meeting adopted it unanimously in 1951.

(11) Also in 1950, Quincy Wright offered a resolution from the floor at the business meeting calling on the Society to express its conviction that international law is important to world peace and to urge the Carnegie Endowment to maintain its interest in supporting international law. The resolution was treated as non-substantive, and was adopted unanimously.

(12) In 1953 Edwin Dickinson, the President of the Society, was asked to testify before congressional committees on the then-pending Bricker Amendment. He told the 1953 annual meeting that he could not do so and have it taken simply as a statement of an international law professor, since the requests came from persons interested in getting him into the record because he was the President of the Society. He was applauded (literally) for taking that stand. Some prominent Society members did testify in the hearings on the Bricker Amendment, making it clear that they were doing so in their personal capacities.

(13) In 1959 the business meeting authorized the Society’s President, Herbert Briggs, to testify before the Senate Foreign Relations Committee on a bill that would have withdrawn the Connally Reservation to the U.S. article 36(2) declaration. He was not supposed to present a position of the Society, but rather was directed to give the “sense” of the business meeting’s “warm association” with the recommendation of an ASIL committee that the reservations to the U.S. article 36(2) declaration be withdrawn. Briggs testified, taking a stand in favor of withdrawal of all reservations to the declaration. He said that he was giving his own personal views, “although I am president of the American Society of International Law.” In his written statement he said that although the Society had a policy against adopting substantive resolutions, it had “authorized me to testify before this committee in the sense of its recommendation ‘that the United States withdraw its reservations to the acceptance of the optional clause of the Statute of the International Court of Justice.’” He added that he was expressing his own personal views, “although they are in accord with the Society’s recommendations.” Eleanor Finch, the Executive Secretary of the Society, submitted a memorandum to the Foreign Relations Committee arguing against withdrawal of the reservations, identifying herself as (inter alia) the Society’s Executive Secretary, but saying that the memo reflected only her own views.

(14) In 1965 the Executive Council was asked to take a position favoring U.S. ratification of the Hague Convention on Service of Process Abroad. The Council appointed an ad hoc committee to study the matter. The committee, consisting of Hans Smit (chair), Hardy Dillard and Stefan Riesenfeld, recommended that the Council adopt a resolution to the effect that it would be in the interest of orderly administration of justice for the United States to ratify the convention. There was a debate in the Council about the propriety of adopting such a resolution, but it was adopted. The Council also adopted a resolution directing the Executive Committee to examine the implications of the Council’s taking such positions. After a subcommittee of the Executive Committee reported back, the Council in April 1966 unanimously adopted a policy statement:

“The Council in the future will recommend that the Society adopt resolutions urging action by persons outside the Society in only two types of circumstances:

(i) Resolutions relating to technical matters primarily of professional interest to international lawyers and scholars.

(ii) Resolutions relating to principles of international law or international relations, when all of the following conditions have been satisfied:

(a) The matter is one which is generally considered by members of the Council to involve a matter of truly fundamental importance in promoting the establishment and maintenance of international relations on the basis of law and justice.

(b) The matter is one in respect of which most members of the Society can reasonably be expected to be informed without the preparation of a special committee report.

The Council discussed how to determine whether there was “significant disagreement” within the Society. A mechanical test was suggested, to the effect that the Council would not recommend adoption of resolutions on principles of international law or international relations unless it was favored by all Council members present and voting. There was no consensus, and the test was never voted on.

(15) Two days after the Council had adopted the policy, a resolution was offered from the floor of the business meeting calling on the Council to appoint an ad hoc committee to consider the legality of the use of force by the United States in the Viet Nam War. It was referred to the Council, which took no action. The Society never did take a position on the Viet Nam War.

(16) At the 1969 business meeting, Michael Reisman offered a resolution proposing that the Society establish a committee to consider deviations from accepted human rights standards and to recommend effective means for guaranteeing human rights. It was referred to the Executive Council, which in turn referred it to ASIL study panels on humanitarian law and human rights. The Society itself took no position on the substance of the matter.

(17) At the Executive Council meeting in November 1974, Richard Falk expressed concern that U.S. President Gerald Ford had said he did not know whether international law dealt with covert operations abroad. Falk urged the Council to comment on the apparent insensitivity of the President of the United States toward important international law questions. After debate, the Council adopted a motion affirming the Society’s policy of avoiding positions on public issues. But the Council also adopted a motion calling on a committee to re-examine the policy. The committee affirmed the Executive Council’s policy statement of April 1966, but also proposed that the President of the Society be authorized to refer to the Executive Committee any important substantive matter that might warrant prompt Executive Council action. Under the proposal, the Executive Committee could recommend that the matter be put on the agenda of the next Council meeting, or Council members could be polled if the matter was urgent. If the Executive Committee thought there could be substantial disagreement about the matter, a public meeting to discuss it could be called. The Executive Council unanimously adopted the committee’s report.

(18) At the Executive Council meeting in October 1976, Leonard Meeker urged the Society to take a stand on important questions. He proposed an informal procedure, which would not require obtaining a consensus within the Society. After debate, no action was taken.

(19) In October 1983 the Executive Council considered a request from the Canadian Council on International Law to condemn the forcible abduction from Canada of a Canadian citizen by two U.S. citizens acting pursuant to a Florida bench warrant. The Executive Council did not act on the request, but it did direct the President to appoint an ad hoc committee to re-examine the policy of eschewing substantive policies on controversial issues. The committee was folded into another committee, which concluded in April 1985 that the basic policy was sound, but some way ought to be found for the Society to respond to a strong desire of a significant majority of the members in attendance at annual and other meetings of the Society to record a position or views on international policy issues. The Executive Council took no action on the committee’s suggestion.

(20) The Society’s 1984 annual meeting began a week after the United States tried to amend its article 36(2) declaration to forestall the ICJ proceeding Nicaragua was about to file against the U.S. concerning American support of action against the Sandinistas. At that meeting, the Executive Council presented a resolution to the business meeting, which amended and then adopted it:

“Although the American Society of International Law ordinarily does not take positions on matters of policy, the Society has previously departed from this practice to support the acceptance by the United States of the jurisdiction of the International Court of Justice. The Society was founded ‘to foster the study of international law and to promote the establishment and maintenance of international relations on the basis of law and justice.’ It now reaffirms that international adjudication, and the application of international law, constitute appropriate procedures for resolving justiciable international disputes. The Society therefore deplores, and strongly favor[s] rescission of, the recent action of the United States Government in attempting to withdraw from the jurisdiction of the International Court of Justice ‘disputes with any Central American state.’”

(21) After the United States withdrew from the ICJ proceedings, the Society’s Executive Council met in special session. It recommended, and the 1985 business meeting adopted, another resolution:

“The American Society of International Law, referring to its resolution of April 12, 1984, reaffirms its strongly held conviction that international adjudication and the application of international law constitute appropriate procedures for resolving justiciable international disputes. The Society expresses its concern that developments in the Nicaraguan litigation, relating to and following the decision of the International Court of Justice of November 25, 1984, present major problems for the future of international adjudication and the International Court of Justice itself.”

(22) The Executive Council in October 1985 ducked the question whether to take a position on the U.S. withdrawal of its article 36(2) declaration, by referring it to a Panel on International Adjudication. Meanwhile, a group of Society members formulated a statement identifying themselves as such and expressing concern about the withdrawal of the declaration. The discussion in the Executive Council was disapproving. It was agreed that the statement would be submitted to Society members for signature, but they would identify themselves merely as international lawyers, scholars and practitioners. It appeared as a letter to the editor of the New York Times over the signatures of Anthony D’Amato and Keith Highet, who said they spoke for 40 of their colleagues.

(23) When the U.S. Attorney General ordered the PLO observer mission to the U.N. to close in March 1988 and the United States declined to arbitrate the question whether that would violate the Headquarters Agreement, the Society’s business meeting considered whether to adopt a resolution calling on the United States to arbitrate. After debate, the matter was referred to the Executive Council. Meanwhile, the ASIL Committee on U.N. Relations sent a letter to the Secretary of State and Attorney General asserting that U.S. refusal to appoint an arbitrator would violate the Headquarters Agreement. The issue became moot when the federal District Court in New York refused to order the mission to close.

(24) In November 1989 the Executive Council discussed whether to adopt, as its own, a resolution adopted by the Committee on U.N. Relations asserting that all U.N. members, including the United States, have an international obligation to pay their U.N. dues. Most Council members felt that the Society should stand by its policy of eschewing taking a position on such matters. The Council simply accepted the committee’s report and directed that it be disseminated as widely as possible.

(25) For many years the business meeting routinely adopted resolutions calling on the State Department and the U.N. to hasten the distribution of documents and other official publications. In 1987, the resolution for the first time attributed the lag in publication of U.N. documents to the U.S. withholding of dues, and called on the United States to live up to its obligation under article 102 of the Charter to register its treaties as soon as possible with the U.N. Secretariat. The resolution sparked some controversy as to whether it departed from the Society policy against taking substantive positions, but it was adopted.

(26) In 1990 the annual resolution on State Department publications protested the failure of the Department to grant its own external advisory committee the chance to review material to be excised from Foreign Relations of the United States. The resolution also opposed the discontinuance of the Department of State Bulletin. The Society’s incoming President, Peter Trooboff, then led an effort to get the Department to reinstate the Bulletin.

(27) At the 1995 business meeting, Endicott Peabody said that he was concerned about congressional withholding of U.S. dues to the U.N. and limiting U.S. participation in U.N. peacekeeping. He proposed adoption of a resolution approving formation of a Citizens Committee for Congressional Action to preserve and invigorate U.S. participation in the U.N., and urging ASIL members to join the movement. His proposed resolution was referred to the Executive Council, which urged President Edith Brown Weiss to appoint an ad hoc committee to examine the resolution and the broader question of adopting positions on current issues. She appointed the committee, which concluded that the Society should not change its general practice of refraining from taking positions on matters of policy. The committee said, though, that adherence to that practice would not preclude the President of the Society from making a statement on any congressional action that might jeopardize U.S. participation in the U.N. and might even jeopardize the existence of the U.N. itself.

(28) At the Executive Council meeting of April 5, 2000, Michael Reisman said that he supported outreach by the Society, but he was concerned that the Society may be inclined to offer opinions on what international law is on any given issue. Tom Franck, the President of the Society, said that this had come up in connection with the Insight series, where it was addressed by requiring a vetting with a member of the Executive Committee before an Insight piece is promulgated.

(29) At the Executive Council meeting of October 21, 2000, Art Rovine noted that some of the outreach ideas raised the question as to whether the Society should take positions on international law issues. Tom Franck replied that the Society could promote discourse on international law issues without taking positions.

Rick Kirgis, March 19, 2001

ADDENDUM: DEVELOPMENTS AFTER MARCH 2001

(30) At the Executive Council meeting of April 4, 2001, there was extensive discussion of the policy against taking positions. Opponents of the policy argued that the Society is sometimes asked for its position on substantive issues but has to respond that although it is the leading international law society in the world, it is not allowed to answer; that answering questions like that would not endanger the Society’s scholarship function; and that the Society needs to have an impact, even if only a small one, on policy. Supporters of the policy argued that any position adopted on a controversial matter would alienate some Society members; that no effective procedure has been suggested by which to determine whether a proposed Society position enjoys strong membership support; that inordinate time would be spent trying to agree on whether to take a position on any given matter and on what to say it a position is taken; and that individual members’ scholarship can be a real contribution to policy-making without the need for the Society itself to take positions. After the long debate, ASIL President Arthur Rovine called for a straw vote on whether the policy should go from rare to medium-rare on the matter of taking positions. The vote was 18 to 10 in favor. Rovine then moved that a committee be appointed to examine how to move from very rare statements of position to medium rare. The motion was adopted.

(31) At the Business Meeting on April 5, 2001, Art Rovine reported on the previous day’s Executive Council discussion and on the straw vote. When the floor was opened for comments, the few commenters opposed any change in the Society’s policy.

(32) At the Executive Council meeting on April 5, 2001, there was another long discussion regarding the Second Circuit’s request that the Society file an amicus brief on a forum non conveniens issue pending before the court. Andy Lowenfeld had offered to write the brief if the Society approved of his doing so. After a wide variety of views had been expressed, Art Rovine concluded that the sense of the meeting was opposed to having Lowenfeld do the brief under the Society’s auspices. He said he would tell the clerk of the court that the Society would not file a brief, but that he would be glad to recommend an expert, i.e. Andy Lowenfeld.

(33) John King Gamble, the chair of the committee mentioned in paragraph (30) above, reported at the Executive Council meeting on November 3, 2001, that at Art Rovine’s request his committee had addressed the model used by the Council on Foreign Relations: task forces take positions that are not binding on the entire organization. His committee felt rather strongly that the Society could make use of that model. Thus the ASIL President could appoint a task force that could take a position. The Executive Council decided to hold the matter over until its next meeting.

(34) There was no discussion of the task force idea at the next Executive Council meeting, but in the meantime the Executive Committee considered the matter. At its meeting on December 12, 2001, the Executive Committee approved Art Rovine’s proposal that the Society convene one or two task forces a year. Task forces would be appointed by the ASIL President in consultation with the Executive Director and the Executive Committee. Some concern was expressed about finding the funds to support task forces. In the wake of the events of 9/11, the first task force appointed was the Task Force on Terrorism, chaired by Ruth Wedgwood and Anthony D’Amato. The Task Force posted a set of working papers on the ASIL web site, but did not take a position as a group.

(35) At the Executive Council meeting on November 2, 2002, Jerome Shestack advocated taking positions on some issues, such as endorsing the basic human rights treaties as sources of customary international law. Anne-Marie Slaughter, the President of the Society, replied that under her presidency the issue would not be raised again. She put the matter this way:

Our mission is not to advocate any one position or set of positions, but rather to raise awareness of both the existence and the value of international law and international institutions as instruments not only for advancing the national interest of diverse nations, but also for achieving the collective goals of the international community. Those goals today include assuring our mutual prosperity, health, welfare, and most importantly, survival.

(36) At the Executive Council meeting on April 1, 2004, Douglass Cassel asked if the Society should take a position on proposals then pending in Congress to restrict reliance on international law in U.S. courts. No action was taken. Tom Franck suggested that instead, we appoint a study group to provide objective information about the role of international law in federal cases.

Rick Kirgis, March 24, 2005