Interview with ASIL's 41st President, James Carter

James H. Carter began his two-year term as president of The American Society of International Law on April 1, 2004, and he will serve through the major commemoration of ASIL’s 2006 centennial. He has been with Sullivan & Cromwell since 1970, became partner in 1977, and is the firm’s Arbitration Practice Coordinator. A Fulbright Scholar and graduate of Yale Law School, Carter clerked for Judge Robert Anderson of the Second Circuit Court of Appeals before joining Sullivan & Cromwell.

Upon assuming the presidency, Jim Carter answered a few questions, below, from ASIL Deputy Director Rick LaRue. Much of this interview originally appeared in the May/July 2004 issue of the ASIL Newsletter.

Q: During the last ten years, what development do you think has had the most profound effect on international law generally?

A: Emphasis on the rights of non-governmental actors under international law has been the most far-reaching change. This has had consequences for individuals, particularly as regards international human rights, and also for other non-governmental actors, such as private organizations, in ever-expanding ways. Important among those has been the growth of fora for assertion of private rights. I was a junior lawyer on the international team representing Kennecott when its copper mine in Chile was expropriated in 1971, and it was difficult to find a legal forum then in which a private company could get a hearing. I remember visiting the Legal Adviser’s office in the State Department to discuss the possibility of governmental espousal, which at that time seemed virtually the only remedy available. Kennecott invited the Government of Chile to participate in an international arbitration, but without success; there was no established forum, and countries did not then generally litigate on an equal footing with private companies. Eventually, after various procedural adventures, the dispute was settled. The choices would be different today.

Q: In the particular realm of international arbitration, what change has been the most consequential?

A: As one aspect of the explosive development of rights for non-state actors, we have seen a rapid multiplication of tribunals to which investors and others may go to have their rights determined. Much of this began with the Iran-U.S. Claims Tribunal, from which an entire generation of American lawyers learned. NAFTA, too, expanded the possibilities for international disputants. There is now something of a backlash against such bodies because of the relinquishment of sovereignty that they involve, which destabilizes domestic political groups. But I think the backlash will prove limited.

Q: The war on terrorism and the Iraq conflict has brought increased public attention to international law issues. What has been the effect of this attention on the work of private practitioners generally and the arbitration community in particular?

A: The war on terrorism and the Iraq conflict of course have affected private practitioners in specialized areas such as criminal defense, immigration law, and international sanctions advice. For the arbitration community, the first Gulf War led to an Iraq Claims Commission that has been at work for several years. Unlike the Iran-U.S. Claims Tribunal, however, relatively fewer private practitioners have been involved in the Iraq claims process as it now exists. The increased public attention to those matters, on the other hand, has sharply increased public dialogue on international law generally.

Q: There are concerns that a schism of sorts is emerging in the west between purported multilateralists and unilateralists. Do you think it exists and, if so, how have you seen it manifest itself?

A: In my view, anyone with any sense of history, on either side of the Atlantic, is well aware of the limits of unilateralism. There is and always will be a division between those in a hurry to get important things done and those more likely to be cautious about upsetting stability. The unilateralists are those in a hurry. In the past, those representing the party of caution and inward-lookingness sometimes have been the unilateralists. There are people of both sentiments in the United States as well as in Europe.

Q: What has surprised you the most in international law these past five years?

“ . . . [T]he United Nations, in spite of manifest difficulties, has come through financial and other crises to a position of relative stability compared to five years ago and now represents a unique standard of international legal legitimacy.”
—James H. Carter

A: I have been surprised that the United Nations, in spite of manifest difficulties, has come through financial and other crises to a position of relative stability compared to five years ago and now represents a unique standard of international legal legitimacy. Whether that situation can be maintained, and whether representatives of the United States government will support continued strengthening of the UN, remains to be seen.Q: In what direction do you think international law is most likely to move in the coming decade, and what challenges do you think the field as a whole will confront?

Q: In what direction do you think international law is most likely to move in the coming decade, and what challenges do you think the field as a whole will confront?

A: I think we will see new institutions developing on a continuing basis, as already is apparent. International organizations will be tested severely in their ability to respond to rapidly changing developments. Some will be able to do so, but many will move too slowly and find themselves crowded by new entrants. The new players may not all be traditional multi-governmental organizations but may include new mixtures of public/private or even private international cooperative ventures.

Q: What do you think is the most important contribution the Society can make to the field of international law in this changing environment?

A: Our most important contribution should be education in the broadest sense, transforming the Society so that it becomes the hub of a network of policymakers and members of public groups interested in international relations and law. This will make us a more externally oriented organization, reaching out to non-international law and even non-law audiences.

Q: Scholarship in any discipline is challenged by the need to engage the non-scholars involved with the subject, whether as contributing actors or affected constituencies. The Society has a number of outreach and educational programs designed to meet this challenge. Are there particular steps you think the Society can take to enhance its effort?

A: The Society’s Insights into particular international law issues fill a unique niche. They provide learned but concise analyses, without partisan viewpoints, of individual issues of the moment for the benefit of both lawyers and the general public. No one else does this as effectively. I would like to see the program expanded.

Q: As ASIL President, what are your goals for the organization over the next two years?

A: First, I would like to see the Society’s public outreach program, now under way, brought to a higher plateau. Second, I want to reinvigorate interest of the practicing bar in the activities of the Society. This will involve providing additional incentives to interest international practitioners in our work. Third, at the time of our Centennial, I would like the Society to reach out broadly to sister organizations in other nations, to learn what their current perspectives are on international law and to build a more extensive network of communications among us.

Q: As you note, the Society will mark its 100th anniversary during your presidency. Why do you think such centennial observances can be particularly meaningful to an organization like ASIL?

A: A Centennial, like any important birthday, is an occasion to look back on what has been done right, or could have been done better, and also forward to new plans and opportunities. A look at the Society’s origins already has led us to think more broadly about our educational mission and what that will mean in the second century of the Society’s activities.

Q: How did you first become interested in international law?

A: My interest in international matters preceded my interest in law. I was a student of U.S. and British imperial history and international relations in college and graduate school, decided against a professional career in those fields and headed for law school. I signed up immediately for the first course available in international law. That proved interesting, but I still was not sure how to find a career that related to international legal activities. I chose to go to work for a law firm that historically had been closely involved in international matters, assuming without any particular design that it would make me an international lawyer if anyone would. I soon found myself involved in highly publicized international expropriation problems involving first Chile and then Libya that raised challenging issues of both substantive international law and international procedure, setting me on a course that I have been happy to continue.

Q: What prompted you to join the Society in 1973?

A: As a young lawyer practicing at Sullivan & Cromwell, I was impressed that leaders of the firm, such as John R. Stevenson, a former President of the Society and former State Department Legal Adviser, felt that this was an organization of significance to practicing lawyers and were active in it. I have remained active because, as in many things, it turns out that Jack Stevenson was right.

Q: If you could say one thing to a first-year law student who is interested in international law, what would it be?

A: I do in fact have a daughter who has just concluded her first year as a law student. She is interested in international law and, I am happy to say, is a member of the Society. I say to her and her friends and contemporaries that this is the most interesting and challenging field of law I know and that, as their professional interests develop, they should keep in mind how likely it is that international aspects of the law will be important in whatever they do.