As all members of the Society probably know, our recently concluded Annual Meeting made history not only by reaching a historic centennial. At its general meeting on March 30, 2006, the Society adopted a resolution dealing with high-profile legal issues emerging from the ongoing “war” on terrorism, including the applicability of the UN Charter’s rules on use of force, the prohibition on the use of torture and cruel, inhuman, or degrading treatment, the continued applicability of the Geneva Conventions and rules on command responsibility, as well as the responsibility of governments, their agents (such as private contractors), and non-state combatants to abide by relevant standards of international law. (Click here for the full text of the resolution; an Insight addressing the contents of that resolution is expected for a forthcoming issue of the ASIL Newsletter.) Passing this resolution required overcoming two principal objections: first, the claim that such resolutions accomplish nothing, and second, that the Society should not be in the business of taking substantive positions. , While I believe that the first objection lacks merit, I substantially (but not entirely) agree with the second.

I disagree with those who argued that this resolution was an ineffectual “feel good” measure and nothing more. International lawyers should know, as readers of Chayes and Chayes’ The New Sovereignty , that the vast bulk of international law is “enforced” through discourse, including through the “socialization” and “internalization” of international rules prompted by the mobilization of shame. The Society is as much an interlocutor in this discourse as is the Human Rights Committee or Amnesty International. Like the reports issued by those other bodies, a Society resolution can also serve to strengthen the hand of those who demand good faith compliance with existing law, including beleaguered lawyers in our own government trying to do the right thing. While I have no illusions that the Society’s resolution will have an immediate real-world impact, I am not ready to dismiss its potential impact as a small, but potent, reminder of the long-term interest all nations have in behaving.

On the other hand, I am grateful to the many conscientious Society members who reminded us, in the course of discussing this resolution, of the risks such resolutions pose. They reminded us, as does Rick Kirgis’s invaluable history, The American Society of International Law’s First Century, 1906-2006, that the Society has passed resolutions only on a handful of occasions, most notably in 1946, when it urged the United States to accept the “compulsory” jurisdiction of the ICJ, and in 1984 and 1985, in the wake of U.S. actions in the course of the Nicaragua case before the same court. The Society’s aversion to doing what the ABA does as a matter of course is all the more remarkable given the numerous occasions when external developments, including the behavior of the U.S. government, have provoked Society members to urge action. Commencing with the Society’s first annual meeting in 1907, proposals for Society resolutions have been perennial – as have appointments of ad hoc committees, which in nearly every instance have buried the proposals that led to their formation. Despite lobbying from its membership and many of its leaders, the Society avoided endorsing what became the Kellogg-Briand Pact. It never took a position on the legality of the Viet Nam war (and indeed even refused to appoint the usual ad hoc committee to study the matter). It refused to indicate that international law standards applied to U.S. covert actions abroad (despite Gerald Ford’s suggestion to the contrary in 1974). Moreover, its Executive Council and several of its Presidents have affirmed on a number of occasions that the Society simply does not adopt resolutions. At least this was what then-President Herbert Briggs said to the Senate Foreign Relations Committee in 1959, what the Executive Council affirmed in 1974, and what then-President Anne-Marie Slaughter indicated as recently as four years ago. As Slaughter put it: “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.”

When I was asked by the Society’s nominating committee for my own views as a prospective candidate for President, I responded that the Society should not be in the resolution-generating business. I explained to the committee that this could threaten the Society’s credibility as a non-partisan source of scholarly expertise and its ability to serve as objective interlocutor with respect to U.S. judges, the Congress, the media, and the general public. In addition, since most proposed resolutions could be expected to be contentious – indeed, if they were not, there would be some question as to the need for the Society to make any pronouncement – the mere process of attempting to pass them could threaten the Society’s inclusiveness, its goal to welcome all points of view. I argued that unless we wanted our Society to serve only as a networking vehicle for those of a similar mind – and not a place where those of different views could challenge each other through civil discourse – we should not become a resolution mill.

But developments in the real world have a way of testing our beliefs. When in January 2006 Ben Davis, supported by some 100 co-signatories, submitted, a resolution for consideration by the Executive Council in conformity with the ASIL’s own constitution (which anticipates such resolutions in its Article IX) and the ASIL’s resolutions (which contemplate that the Council can make recommendations to the Society “with respect to resolutions relating to the principles of international law or to international relations” in its section II, para. 3), I was forced to reconsider. Even prior to the Davis proposal, I had been inclined to eat my own words and urge some action by the Society with respect to the issues raised by the on-going “war” on terror. It seemed to me that the actions of the United States government and its allies in counter-terrorism – from formal memoranda written by high-level officials that misinterpreted the Torture Convention or dismissed the applicability of Geneva law to alleged secret flights involving the rendition of “ghost” detainees to countries that our own State Department brands as regular practitioners of torture – appeared to constitute more of an affront to the international rule of law than had the actions that had motivated Society resolutions in the 1980s.

Like many Society members, I learned a great deal from the ASIL forum in which the Ben Davis (and subsequent draft) resolutions were debated. Thanks to the world-wide web, it is now possible to gather – nearly instantaneously – the reactions of many across the planet. The responses that I read resonated with the many discussions that I have had since 9/11 in my travels as President-Elect and previously, as a member of the Society. It became clear to me that some version of the Davis resolution ought to be adopted, not only because the vast majority of our members expected it, but also because the world – including our fellow societies of international law – were also sitting in judgment. On this occasion – when the actions of many governments, including our own, seemed to be testing not only the existence but the value of the most fundamental precepts of international law, including the foundational instruments of the post-war world order – it seemed to me that the Society could best “raise awareness of both the existence and the value of international law” (in Slaughter’s words) by adopting a resolution that affirmed that such instruments remain legally binding and in the national interest. (A particularly galvanizing moment came during the General Meeting when no one responded to the challenge presented by two supporters of the resolution who asked for those who disagreed with its contents to indicate their disagreement.) The Society needs to protect its legitimacy as a Society that stands for international law and adopting the rare resolution on matters of truly fundamental importance may be essential in this respect.

But I continue to have concerns about how the Society takes decisions in respect of proposed resolutions. Given the risks to the Society’s interests posed by such resolutions, I hope that, despite the availability of the ASIL forum, adoption of Society resolutions remains a rare event. While I appreciate that, thanks to this resolution, the General Meeting portion of the 100th Annual Meeting became a lively, substantive, and not merely celebratory, occasion (for which I am grateful), I hope that the Society can find alternative ways of making this part of the program eventful (and of energizing our members), even when such resolutions are not on offer. To be meaningful, the adoption of Society resolutions ought to be reserved for truly unprecedented challenges to international law.

Mindful of the flawed process that produced this resolution, I have appointed a task force to consider how best to provide timely consideration of future resolutions proposed by the general membership, along with a meaningful accompanying report for consideration by the Executive Council. I hope that this task force will provide guidance on whether the April 1966 policy statement adopted by the Executive Council (see text below) remains a useful procedural guide for how future resolutions ought to be handled and also hope for more concrete guidance as to what constitutes “no significant disagreement” when such resolutions come up for vote.

Text of April 1966 policy statement adopted by Executive Council:

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:

• Resolutions relating to technical matters primarily of professional interest to international lawyers and scholars.
• Resolutions relating to principles of international law or international relations, when all of the following conditions have been satisfied:
• 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.
• 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.
• there is no significant disagreement within the society as to the desirability of the proposed action.