Susanna Clarke’s Tolkenist novel, Jonathan Strange & Mr. Norrel (2004), imagines an England where wondrous feats of magic were once performed in centuries past but where, by the early 19th century, only pedantic “learned” societies of “theoretical” magicians, based in cities like York, remain.  The early pages of the novel satirize these pitiful, ivory tower bookworms -- who don’t dare to attempt to perform magic and whose formidable learning is unconnected to the real.  Clarke’s novel gently skewers them and their associations for assiduously avoiding the application of their expertise.  The real magicians of her title when they arrive on the scene are, by contrast, immediately recruited by political elites and deployed to assist British forces against Napoleon’s armies.

Given perennial complaints about how judges and other practitioners have ceased to read law review articles (see, most recently, Adam Liptak, “When Rendering Decisions, Judges are Finding Law Reviews Irrelevant,” New York Times, Mar. 19, 2007, available at http://select.nytimes.com ), it would be easy to apply Clarke’s satire to legal academe today.  Yet, international legal academics are not, I think, as fair a target for such criticism as are others.  While it is true that there is much in U.S. law reviews that appears to have little connection to what goes on in our courts, our administrative agencies, our law firms, our MNCs, or our NGOs, I don’t think this is equally true of international legal scholarship.  Our Society and our members, however “learned,” are inextricably engaged with the real world.  Perhaps because international lawyers are still wrestling with an Austinian complex that demands constant affirmations of relevance, much of what we do as scholars tries to “engage” and virtually all that we do as a “learned” society aspires to connect to real lawyers and policy-makers.  (Indeed, some complain that our work is notoriously under-theorized – but that is a subject for a separate column.)

Our 101st annual meeting and two forthcoming ASIL conferences that we are co-sponsoring suggest just how different is the ASIL from Clarke’s “York Society of Magicians.”

Our pervasive attempts to “connect” are evident if we look at just three representative panels from our 101st annual meeting.  Consider the commonalities among panels dominated by academics, such as the session on “Queering International Law,” and those dominated by practitioners, whether human rights advocates (such as the panel on “social justice advocacy in the United States”) or corporate lawyers (the “corporate counsels forum”).  Although the academics of the “Queering” panel could have gone off into theory-land – to indicate just how this “school” differs from “crits” or “TWAIL” adherents or some such – what emerged was an engaged (and engaging) conversation that touched on how the requisites of statehood presume a “permanent population” based on heterosexual reproduction (and how ironically the Vatican’s statehood status upends such assumptions), how scholarly debates on the Iraq war rely on a perceived enforcement and legal “gap” based on gendered conceptions of “weakness” and “masculine” responses, and the complex identity politics driving NGO responses to Egypt’s targeting of  certain sexual practices.  The “Queering” panel’s academics were keen to show why their gendered perspective matters in the real world, including with respect to issues having nothing to do as such with the rights of gay men, lesbians, or trans-gendered persons.  That panel accomplished what many other panels of academics at our meeting set out to do: suggest some of the blind-spots of our policymakers when they respond to perceived “crises” with legal interventions or proposals to fill in “legal gaps.”

The conversation between Aeyal Gross and Amr Shalakany (of the “Queering” panel) addressing whether “Western” conceptions of “gay” identity were both spreading through globalization and encountering resistance had quite a bit in common with debates that emerged among the “practitioner” oriented panels.  Like Gross and Shalakany, Aeyeh Neier, Cifford Bob, Monique Harden, and Walter Kalin (all of the “social justice advocacy” panel) engaged in a lively debate about whether (or when) human rights conceptions born and bred in Geneva were useful to grass roots organizations in the United States pursuing racial equality in the wake of hurricane Katrina.  As noted below, subtle differences also emerged among the general counsels of General Motors, Exxon Mobil, and Wal-Mart about their respective amenability to global legal scripts.

All of these panels addressed the promise and perils evoked by the diffusion of global norms.[2]  Contrary to what some might expect, the panelists, even when they appeared to be members of ostensibly like-minded epistemic communities, were not of one mind about whether such diffusions, even when undertaken to defend ostensibly “universal” conceptions of human dignity, were normatively a good thing.  While Walter Kalin (of the UN Human Rights Committee) praised how his committee had deployed the non-discrimination clause in the ICCPR to introduce social and economic rights into its extensive criticisms of the United States’ report to that body (to the skepticism of Neier on his panel),  Diane Otto in the “Queering” panel was critical of the UN’s “zero tolerance” policy with respect to sexual relations between UN peacekeepers and the populations that they were supposed to protect – a policy that was implemented in response to global  human rights scripts.   Interestingly, the corporate counsels of the three largest companies on the Fortune 500 were more supportive of the development of harmonious global standards, especially with respect to the privacy rights of their employees, intellectual property rights protections, and even labor and environmental standards.  They expressed support for such uniform standards for very practical reasons: because these would make it easier to conduct operations worldwide on a predictable and stable basis and because these would encourage a more equal playing field vis-à-vis their foreign competitors.  At the same time, Exxon’s general counsel, now engaged in litigation under the Alien Tort Claims Act in U.S. courts, was predictably less than enthusiastic about what he described as troubling “uncertainties” in the post-Sosa[3] environment.

There were strong inter-panel differences expressed about the virtues of resort to international law and about proper strategies to “domesticate” such norms.  Neier’s skepticism about whether UN human rights processes have an impact on the United States – reflected in the academic literature by scholars as different as Oona Hathaway and Eric Posner – encountered heavy resistance from other members of his panel, as well as members of the audience long engaged in civil rights struggles within the United States.  Neier’s claim that NGO efforts to influence the ICCPR’s scrutiny of U.S. reports in Geneva are largely a waste of time because no one in the United States hears about what occurs there – his claim that “what happens in Geneva stays in Geneva” – drew vociferous complaints from those less ready to draw rigid demarcations between legal and political strategies to promote change, from litigation to grassroots organizing to media outreach.  Amr Shalakany, an academic based in Cairo, also voiced doubts about the reception of Western conceptions of “gay” rights – at least in societies where many men who have sex with men do not regard themselves as “gay” and where efforts to protect such “identity” rights provoke serious backlash.

Steptoe and Johnson’s Lucinda Low, the moderator of the corporate counsels forum, elicited from her panelists interesting differences with respect to global norms.  At least two of her panelists acknowledged that since their operations were largely self-financed, they did not worry about being “disciplined” by financial markets.  And while Exxon’s general counsel noted the significance of international investment protections given the substantial sunk costs involved in their operations overseas, Wal-Mart’s counsel candidly suggested that they did not usually have to worry about problems of entry or exit from foreign markets because “most countries don’t worry about companies that sell soap.”  It was a sharp reminder that for all the talk, by Grotius commentator Rachel Kyte among others, suggesting common dilemmas faced by global MNCs with respect to corporate social responsibility, not all corporations are alike – and not all host states of foreign MNCs see common threats to their “sovereignty” posed by their operations.

These rich sets of conversations connecting the theoretical with the real are likely to find echoes in two additional ASIL conferences in the offing.  From June 17-22, ASIL is co-sponsoring with the AALS, a conference on “What is Wrong with the Way we Teach and Write International Law?.”  That conference, to take place in Vancouver, Canada, will look at how our discipline appears to some of those outside of it – in economics, sociology, political science, or arts and sciences – as well as from practice and the bench.  See conference brochure at http://www.aals.org/events_2007internationalprogram.php .  The intent is precisely to examine whether what we do as teachers and scholars has value in the real world and to consider ways to do better.  Shortly thereafter, starting on June 27th, ASIL joins forces with the Netherlands Society of International Law for another conference in The Hague devoted to examining issues of international humanitarian and criminal law, also at the intersection of scholarship and practice.  See brochure at http://www.asser.nl/hjc/index.htm .  In accordance with ASIL tradition, the twelve panels for that conference involve the usual mix of academics, practitioners, international civil servants, and judges looking at techniques for handling the very real challenges of transitional justice, mass atrocities, and terrorism.

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As Clarke’s novel itself suggests, there are risks when academics engage in the messy worlds of politics and policy.  After all, her magicians’ services to politicians encompass acts that many would regard as highly questionable under modern international humanitarian law standards.[4]  And being a “pure” academic has its temptations (especially, but not only, if one’s expertise lies with the unreal, such as performing magic).  But I am doubtful that is even possible, much less desirable, for international lawyers to remove themselves entirely from the real world.  Disengagement is, I suspect, not an option for us.

We will, I am sure, explore that issue at next year’s 102nd annual meeting, devoted to “The Politics of International Law.”  For now, given the problems to which we can fruitfully apply our expertise, I am glad that most (if not all) of us regularly practice, and do not merely study, our “magic.”