Incoming ASIL President Lucy Reed put some questions to out-going President José E. Alvarez.

Q: In my view, one of your greatest public contributions as President has been your President’s columns – some 20 strong, translated into Spanish for the first time. Having re-read them, I am struck by the breadth of the subjects, your commitment to teaching and improving teaching, and your willingness to tackle controversial subjects. At the time of writing, which column was your favorite? Now that you are looking back?

A: I would like to take this opportunity to thank the wonderful Columbia law students who assisted in the translations of my columns: José Manuel Simian (columns 1-12), Pablo Falabella (column 14), Elizabeth Briones Gomez (columns 16-18), and Noemí Abasta-Vilaplana (columns 19-20).

The most fun was “The Magic of International Law.” Law and literature is not my field and, for obvious reasons, at least in my time as President and full-time law professor I rarely had the time to read for leisure. That column was written after our Annual Meeting and after spring classes when I finally had a few days to read just for fun. It generated some lively comments from readers (including some from Spanish-speaking readers which drove me to do a second, better translation of the original). It was even cited in a fascinating website devoted to law and magic that I had never heard of. It also generated a comment from a European academic who marveled about how I could remain so sanguine about the “magic” of a field that had lately been rendered less than magical, including by our own government’s actions. While the point of my column was not that we ‘live the best of all possible worlds,’ I concede that my column may have seemed Panglossian to some. I guess my favorite today would be the one that immediately followed it, my Presidential address (“The Future of Our Society”). That one includes my notorious list of “50 Ways International Law Hurts Our Lives.” That list, my much less sanguine (David) Kennedy-esque moment, is the dark yin to the earlier sunny yang.

Q: You have written columns on “The ‘Society’ in the ASIL” (June 2006), “The ‘American’ in the ASIL” (November 2006), and even a Newsletter column on “The Society Of International Law” (Winter 2007). Care to say anything about the “international law” in the ASIL?

A: I always intended to write a column, perhaps two, on the “International” and the “Law” parts of our name but never got around to it. Perhaps it is just as well that I didn’t since what I would have said is only too obvious. The “International Law” part of our Society’s name is just as misleading as the “American” part. Our field is no longer about only ‘inter-national’ or inter-state law in the sense Jeremy Bentham intended. Today’s ‘law of nations’ embraces virtually every topic reached by national law and is no longer just about the relations between sovereigns. Its objects include non-state actors (from NGOs to individuals to multinational corporations), its domain is both public and private (from the home to the factory floor), and its law-makers include international civil servants, international organizations, transnational government networks, and diverse epistemic communities (from free traders to aeronautics regulators). And we are not talking just about “law” in the sense John Austin meant. To the distress of positivist critics of “soft law,” like Prosper Weil or Jan Klabbers, the ASIL has experienced as much ‘mission creep’ as has the IMF or the World Bank.

Q: Looking back to the beginning of your presidency in spring 2006 today, what remain the most pressing issues in international law?

A: My Presidential term effectively began when, as the least distinguished member of a panel consisting of Secretary of State Condoleezza Rice, Justice Sandra Day O’Connor, and Judge Rosalyn Higgins, I dared to suggest that “some of our members” were dubious about our government’s commitment to the national or international rule of law in the wake of our actions in the “war” on terror. Alas, as is suggested by my Notes from the President column on “Torturing the Law (Again)” (ASIL Newsletter, Oct/Dec. 2007), we, and the world, are still wrestling with how to “balance” national security concerns with the rule of law. I still believe that the best way to achieve the former is to adhere to the latter. The most pressing issue for the United States now is to regain its stature as a law-abiding nation willing to respect others (and their nationals). Only if we achieve that will we be able to exercise the leadership needed to reform global governance in ways that will better enable the law to be used to address pressing challenges, from environmental threats to mass atrocity. But the next generation will also need to make the new forms of global governance more accountable and responsible. We can’t expect to solve the legitimacy issues of institutions like the WTO, the UN, the World Bank, or ICSID merely by adding in and stirring a few NGOs and pretending this will respond to the poorest of the poor or to the needs of ‘international civil society.’

Q: Sticking with your President’s columns, a personal favorite is “The ‘Society’ in the ASIL,” in which you highlighted Judge Higgins’ Centennial keynote focused on the “unavoidable complexities of our discipline” and the parallel complexities of being a Society of international lawyers with “often intensely divergent points of view.” Among the many diversity challenges we face is the “old guard” versus the “upstarts.” Any words of wisdom on whether we do enough, or too much, to open opportunities for our young scholars and practitioners?

A: In another recent column I suggested that our invisible college is democratizing (“The Democratization of the Invisible College”). The “upstarts” now have many new avenues to express their views, especially on the web, and we need to continue to adapt ASIL communication methods to recognize and encourage this. We have not done nearly enough to take advantage of the web. My columns were a modest step in that direction and I hope that future ASIL Presidents will find ways to reform our other publications, including the AJIL and ILPost, to take better advantage of the web’s opportunities for timely interactions among all of our members, new and old. At the same time, we need to be aware that some members of the “old guard” understandably resent some of these intrusions, along with the occasionally irreverent ways these are expressed. While I can hardly call myself an “upstart,” I experienced some of this when a particularly distinguished member of the “old guard” told me after my Presidential Address that I had “besmirched” the dignity of my office by making too many “unfamiliar” pop culture references (e.g, to South Park). Another pre-eminent voice of the “old guard” passed on to me recently a criticism that he had heard: namely that our annual meetings have lately resembled “try-outs for the junior league.” I explained that our Society has shifted to more democratic, bottom-up, processes with respect to how we organize our Annual Meeting. At least since I have been President, our Annual Meeting Committee has put together our 38 annual meeting panels by drawing from as many as 200 members’ and interest groups’ proposals. Neither that Committee nor I either can or want to dictate the results. I remain convinced that this shift is healthy if we are to remain a membership organization that seeks to engage and to attract the whole of our members, here and abroad. It is a way to convey to prospective members and to our student members that they need not wait decades before they too will be accorded the privilege of addressing their peers. Given that our “old guard” is dominated by white males from the Northeast corridor, the shift is also necessary to the extent we want our programs to reflect the geographic, ethic, racial, and gender diversity of our profession. For all those reasons, I hope that this pro-democratic shift – which I think may be spreading to everything else the ASIL does -- is permanent. At the same time, it is true that many of us, including our “upstarts,” are attracted to our Annual Meeting by the prospect of seeing (and being mentored by) our field’s most distinguished practitioners and academics. As the current U.S. Presidential campaign suggests, many of us yearn for a balance between the wisdom of “experience” and youthful hopes for change. Some years our Annual Meetings will err on one side or the other.

Q: Your first President’s column (May 2006) was “Lessons From a Resolution,” recounting the resolution addressing post 9/11 issues adopted at the 100th Annual Meeting after a not uncontroversial process. Under your leadership, we have developed regulations for consideration of resolutions from the general membership. Where do things stand now?

A: Adopting these regulations was in itself controversial since some members of the Executive Council believed that merely having them would encourage resolutions to be submitted. My executive committee pressed for adopting them because we were convinced that so long as the ASIL Constitution continues to envisage the prospect of such resolutions, we needed to have orderly procedures for handling them. Absent a formal amendment to our Constitution indicating that resolutions were never to be adopted (which few of us supported), we saw no alternative. An organization devoted to the rule of law can hardly do anything else. In addition to dealing with formerly unresolved questions, such as the posture of those ASIL members now serving in positions that would make it difficult for them to participate in such a process, the regulations anticipate a three stage process, requiring first an “admissibility” determination by a majority of our executive committee, a 2/3 vote by our executive council, and a comparable vote by at our annual meeting. Significantly, the regulations require that those voting in favor of adopting a resolution do so only if they are convinced that the resolution would not encounter significant opposition by our members as a whole. Consistent with the Society’s history, the regulations purposely impose high hurdles on adopting resolutions. They reflect the views that I expressed in my first column that unlike the ABA, we are not usually in that game. I am very grateful to Diane Amann in particular who took the lead on developing those regulations and I think the ASIL is stronger for having them in place.

Q: Last question, combining your teaching and your service to the Society: what do you tell people, including your students, to encourage them to join the Society?

A: At the risk of sounding like an ad on public television, I remind them that like college generally, the invisible college is not free and cannot sustain itself without ‘financial contributions from viewers like you.’

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