Columbus sailed for India, found Salvador instead.
Shook hands with some Indians; soon they all were dead.
They got tuberculosis, typhoid, and athlete’s foot, diphtheria and the flu-
Excuse me; great nations of Europe coming through.

—Randy Newman, The Great Nations of Europe†

Every year, when it comes time to celebrate Columbus’s “discovery” of the Americas, I am reminded that the “American” in the name of our Society has always been something of a problem for me.

Don’t get me wrong.  I strongly believe in national societies of international law.  Despite globalization’s challenges to sovereignty (or perhaps because of them), the sovereign state is not dead.  Far from it.  Lou Henkin’s dreaded “s” word is making, as I suggested in my last ILPost column (see The Post-9/11 Law School), a comeback as peoples from around the world rally around their respective governments to protect them from contemporary harms—from those posed by terrorists to the inequities of IMF-dictated economic policies.  (See, for example, from the left, Benedict Kingsbury, Sovereignty and Inequality, 9 EJIL 599 (1998), available at <http://www.ejil.org/journal/Vol9/No4/art1.html> ; from the right, Jeremy A. Rabkin, Recalling the Case for Sovereignty, 5 Chi. J. Int’l L. 435 (2005), available at  <http://www.allbusiness.com/legal/international-law/994876-1.html>; and from the fuzzy liberal middle, Jeb Rubenfeld, Unilateralism and Constitutionalism, 79 N.Y.U. L. Rev. 1971 (2004), available at  <http://www.law.nyu.edu/journals/lawreview/issues/vol79/no6/NYU603.pdf#search=%22%22Unilateralism%20and%20
Constitutionalism%22%20rubenfeld%22>.) It should scarcely surprise if renewed tendencies to “rally around the flag” are accompanied by revivals of “national” or “regional” “schools” of international law—as is suggested by recent efforts by Europeans to demarcate “European” approaches to international law, often by contrasting it to “American” perspectives.  (See, e.g., Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 EJIL 113 (2005), available at <http://www.ejil.org/journal/Vol16/No1/art5.pdf>; for my own modest contribution to the Euro-American scholarly wars, see José E. Alvarez,
The Closing of the American  Mind: Reconciling law, Justice and Politics in the International Arena, Proceedings
of the 32nd Annual Conference of the Canadian Council on International Law, Ottawa, October 16-18, 2003, at 74.

Nor do I consider such associations a distraction from the study or practice of truly universal international law as described by the late Jonathan Charney, among others.  (See, e.g., Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993)).  All of us, even international lawyers, are simultaneously members of national communities as well as numerous other “clans,” and we can and should gravitate to any number of associations corresponding to our various self-identifications.  A national association of U.S.-based international lawyers is a legitimate, even necessary, enterprise—especially, but not only, because U.S. international lawyers have made substantial contributions to the field through their practice and scholarship.  We are, for good or ill, substantially responsible for highly influential and distinctive “schools” of thought—from those associated with the “Yale School” to “liberal” and IR-influenced theories.  Indeed, on the other side of the world, at the recent Australian-New Zealand Society of International Law Conference, there was considerable (albeit strongly adverse) attention focused on Jack Goldsmith’s and Eric A. Posner’s  The Limits of International Law (2005). What U.S. legal scholars produce and what they do, particularly when in apparent accord with our government’s policies, often seizes the attention of much of the world.  It is natural and appropriate that it should seize our own.

My problem is partly linguistic.  The term “American” encompasses an entire hemisphere, and yet our Society, despite its cosmopolitan membership, surely cannot claim today to represent the views of all of those living between Vancouver and Tierra del Fuego.  I would have considerably less difficulty with the name “the United States Society of International Law” but I appreciate its stylistic awkwardness.  I recognize that it has become routine, even among those living in the Caribbean or in Central or South America, to permit U.S. nationals to call themselves “Americanos.”  But a few moments of conversation with many of those who live in this hemisphere but who are not from the United States reveals distaste for this appropriation of the term—despite long-standing usage.  (This is reflected in the strong social practice of not using the term “American” (when “United States” is actually meant) in diplomatic and UN circles.)

I suspect that the non-U.S. residents of our common hemisphere infrequently protest this appropriation because, from their point of view, allowing relatively rich U.S. nationals act as if they possess both North and South America (and everything in between) reflects a historically accurate view of what has actually happened in the wake of U.S. expansion pursuant to its “Manifest Destiny.”  For most of those living in the Americas but not in the United States, the United States has always acted, including within the governance structures of the Organization of American States (OAS), as if it were first among not-quite-equals.  Resentment of this U.S. view of itself undoubtedly stems from U.S. interventions prior to the turn of the last century—muscular attempts to enforce the Monroe Doctrine or the Platt Amendment (on Cuba) early in the twentieth century, and Cold War military interventions in the Dominican Republic, Cuba, Panama, Nicaragua, and Grenada—and ongoing attempts to “throw our weight around” in colorful and distinct ways, such as crude pressures on Latin American members of the Security Council in order to get them to vote in favor of Operation Iraqi Freedom in 2003.

Our country is today paying a price in this hemisphere for the perceived arrogance of our government.   And that price is not limited to incendiary speeches like the one delivered by Venezuelan President Hugo Chavez in September before the UN General Assembly.  The “leftward,” and sometimes virulently anti-U.S., tilt in the current leadership and (if polls can be believed) elite and popular opinion of the peoples of countries as different as Bolivia, Brazil, Chile, Nicaragua, Uruguay, and, of course, Venezuela; the contested and polarizing recent presidential election in Mexico; our apparent incapacity to use our “soft power” to good effect even with respect to a fossilized regime in Cuba reminiscent of Gabriel Garcia Marquez’s Autumn of a Patriarch—all of these are only the most recent manifestations of the possibility, increasingly suggested in Washington circles, that we may be “losing” Latin America.  (See Peter Hakim, Is Washington Losing Latin America?, Foreign Aff. 39 (Jan./Feb. 2006) available at <http://www.iadialog.org/publications/oped/jan06/hakim_012006.pdf#search=%22%22Is%20Washing
ton%20Losing%20Latin%20America%22%22>).  The prospects of intra-hemispheric cooperation on matters vital to many in Washington—from liberalized trade or investment to counterterrorism efforts—are not as good as they could be.

My own decidedly modest attempts to encourage our Society to reach out to relevant organizations among our OAS neighbors (such as the OAS Juridical Committee), as well as to maintain our friendly ties with the Canadian Council of International Law, stem at least partly from a sense that the ASIL, like our nation, has tended to ignore the views and aspirations of those who are geographically proximate.  Our members, who include many from all the Americas, would surely benefit from exchanges that do not presume that the U.S. national perspective is the only relevant one to consider.  Nativism is not an attractive feature for any Society devoted to the study of inter-national law.

In some respects, the early years of our Society, as described by Frederic Kirgis in his ASIL history, may have achieved a sense of greater inclusion than we do now.  I was fascinated to learn in that history that from 1912–1922 the AJIL appeared in English and Spanish editions, was distributed to foreign ministries in the region, and included 250 paid subscribers in Latin America.   These facts inspired me to translate these columns, as well as the President’s Notes in our quarterly newsletter, into Spanish on our website.  But Kirgis’s account of the early years of the Journal and of the attitudes of those who led the Society in those years inspires a suspicion that these efforts were intended to be a one-way ratchet whereby our members and its Journal would be leading the hemisphere instead of a bottoms-up effort whereby the entire hemisphere’s legal elites would learn from one another.  To its credit, the AJIL did sometimes publish articles by some of the leading Latin American legal scholars of the day; however, I suspect that the Spanish edition of the AJIL was produced principally from a sense of noblesse oblige.  We did not do it primarily to learn from others but because we thought we had a duty to reach the uneducated—or to put it more politely, to teach those whom we viewed as less advanced in the “science” of an international law originating in Europe.

I would hope that our Society’s current attempts to reach out to the broader hemisphere are free of such imperial condescension, but the contemporary state of attention to legal developments in the rest of the Americas by the U.S. legal profession gives me pause.

My own familiarity with the legal academy in the United States suggests that at least U.S. law schools’ attempts to embrace the rest of the Americas continue to be a work in progress.  As far I can tell, law school courses and centers relating to the other Americas tend to be relegated to a handful of U.S. law schools, most of which are geographically proximate to our southern border.  Many of these efforts are, not surprisingly, tied to the NAFTA and relate principally to Canada and Mexico and concern only cross-border trade and investment.  I am not confident that many such courses consider codes or other developments emerging from Central or South American or Caribbean practice as models to be emulated in the United States— as opposed to the other way around.  My own work while I was still in the U.S. State Department in the early 1980s and working on “rule of law” projects in Central and South America does not give me confidence that either the academy or our government really understands these civil-law systems or the limits of our ability to influence them.  (See José E. Alvarez, Promoting the “Rule of Law” in Latin America: Problems and Prospects, 25 Geo. Wash. J. Int’l L. 281 (1991).

In any case, few courses or programs on the rest of the Americas appear on the bulletins or websites of the “elite” U.S. law schools, namely the top dozen that regularly appear in U.S. News and World Report.  (My own law school, Columbia, does better than many, with an offering on Latin American Business Law (offered in alternate years in English and Spanish), an occasional course on the NAFTA or other aspects of Latin American law by visiting professors, a speaker series featuring notable legal figures from the region, and a number of public interest programs with prominent law schools in South America, but, despite substantial numbers of alumni throughout the Americas, still lacks a center or program devoted to studying the rest of the hemisphere, although it has prominent ones on Korea, Japan, Europe, and China.)

Analogues to the strong European-United States legal axis that operates throughout the academy on a number of subjects (and not just international law) generally do not exist with respect to the Americas among U.S. law schools.  This reflects certain practical realities, such as relatively less well-developed archival and research resources in Latin America (relative to, for example, the European Union).  It undoubtedly reflects trends in U.S. legal practice and therefore differences in the relative pressures exerted by law school alumni.  It may also stem in part from the relatively low numbers of Latinos admitted to our nation’s law schools—at least relative to what is the United States’ fastest growing minority group—even though the composition of the typical U.S. student class is far more cosmopolitan than it used to be.  (Indeed, at Columbia, approximately one in four of our current students resided abroad at the time he/she applied to our degree programs.)

The lack of wider hemispheric interest among U.S. law schools may also be due to the relatively low number of U.S. law school professors who regard themselves as “Latino.”  While at last count there are 185 such tenure-track professors in the United States, these numbers show that such faculty  remain particularly under-represented, even among minority law professors.  (When I entered the academy in 1989, I was only the 49th Latino law professor and a decade later, by moving through three different law schools, I single-handedly managed to take all three off the Hispanic National Bar Association’s annual “Dirty Dozen/Sin Vergüenza” (“Shameless”) list, consisting of the top dozen U.S. law schools with the highest number of Latino law students then lacking a single Latino law professor.  The list has not been produced for the past five years.).   The most recent AALS Committee Report on Recruitment and Retention of Minority Law Teachers (at <http://216.203.210.230/racialgap.html>) also paints a very grim picture with respect to the tenure rate among Latino law professors, the worst among minority law professors. 

All of this suggests that it will take a considerable period of time before the “American” Society of International Law, although dedicated to a field premised on “sovereign equality,” will be able to regard its name as something more than a reflection of an imperial legacy.  Sadly, the “American” Society of International Law (or for that matter, the “American” Bar Association), to the extent that it looks abroad, is, even today, more likely to see Randy Newman’s “Great Nations of Europe” than those within our hemisphere.