The ASIL Annual Meeting

The Law (and Politics) of Displacement: Migratory & Refugee Crises under International Law

Migration has been a pressing issue throughout 2018 and 2019, from family separation on the southern U.S. border to the ongoing refugee crises in Myanmar, Syria, and Venezuela. States have resorted to the language of international law to address complex questions related to these and other migratory emergencies, particularly with regard to refugee-related issues. How has international law helped them address or circumvent their responsibilities in these crises? What mechanisms have States established in order to comply with international law? What are the consequences of these law and policies on the ground? This panel will tackle three specific migratory crises: family separations at the Southern U.S. border, the Syrian refugee crisis, and the persecution of the Rohingya in Myanmar. The panelists will focus on the way in which States have invoked and established international law rules and institutions in each situation and the actions they have undertaken to comply with or avoid international legal obligations. Panelists will also discuss whether international law instruments such as the UN Global Compacts on Refugees and the Model International Mobility Convention can provide better solutions than the current international legal framework, or work with existing instruments to guide state action in the face of complex situations.

Regional Human Rights Bodies as Instruments of International Law: Contradictions and Fragmentation

Regional human rights bodies function at the center of a paradox. On the one hand, their proximity to the societies they supervise allegedly contributes to their legitimacy and effectiveness. However, this very proximity encourages a regional-approach to universal values that can generate problems of fragmentation, where similar international legal issues receive different, even contradictory, treatment. This panel will focus on a series of topics and cases where regional human rights bodies such as the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court on Human and Peoples' Rights have adopted widely divergent postures in interpreting similar provisions in their respective treaty instruments. These divergences include the areas of reparations, national security considerations, and the treatment of sexual orientation. The moderator will present a series of topics and cases where the jurisprudence of each human rights body might differ. Panelists will discuss reasons for the different approaches adopted by the regional human rights bodies and explore whether they constitute instances of fragmentation or promotion of underlying universal values.

Emerging Accountability Mechanisms: Innovative or Ineffective?

Mechanisms of accountability for serious human rights violations and war crimes have taken a wide variety of shapes and forms, with international and hybrid criminal tribunals as the most visible model, followed by prosecutions in national courts. More recently, particularly when the use of such courts or tribunals has not been possible, alternative accountability mechanisms have emerged, from investigative institutions to transitional justice mechanisms. In Syria, the UN General Assembly created an International, Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for the most serious crimes during the Syrian Civil War. As the IIIM itself states, it is neither a prosecutor's office nor a court, but a collector and analyzer of information and evidence looking to assist future criminal proceedings, whether those occur in an international tribunal or national court. Will this be an effective way to promote accountability? In Colombia, the recent Peace Agreement with the FARC armed group created the Special Jurisdiction for Peace (SJP), which resembles a traditional hybrid court, but is conceived of as a unique transitional justice mechanism geared towards reconciliation rather than punishment. The Agreement garnered criticism from human rights groups as a source for potential impunity for war criminals. Can this non-retributive form of justice appropriately promote accountability? How will this process work in parallel with the ICC preliminary examination proceedings for Colombia? This panel will explore the evolution, current status, and future of these "non-traditional" accountability mechanisms: the IIIM in Syria and the SJP in Colombia. Panelists will respond to a series of questions posed by the moderator addressing the challenges these mechanisms face and their potential to act as international law instruments in the fight against impunity.

International Disability Law and the Experience of Marginality

Disability issues increasingly shape the content of international law, including intellectual property law, humanitarian law, criminal law, and immigration and refugee law. But are disability issues fully integrated into the agendas of international law and institutions? Does disability as a "rights marker" generate normative, theoretical, and empirical avenues to interrogate issues of intersectionality? And are international legal institutions effective instruments for addressing disability, which directly affects at least fifteen percent of people globally? This panel will engage cutting edge questions related to how international law and institutions address disability rights and whether they can do more. Panelists will speak to how international human rights law addresses or evades the interaction of multiple categories of difference or experiences of marginality; critically evaluate international-level efforts to integrate disability concerns; interrogate the ability of international human rights law to address issues of identity or marker intersectionality; and propose measures to strengthen international law to tackle disability concerns and rights intersectionality more broadly.

Courts and Anti-Migrant Border Policy: The Transnational Litigation Landscape

This session will examine how policies designed to restrict migration at the fault lines between the "global north" and the "global south" have been challenged through litigation initiatives. Looking at examples from the US, the European external borders, and the Australian-pacific region, speakers will comparatively examine migration or refugee bans for particular religious or ethnic groups, and the historical origins of such bans; family separations and their review by immigration tribunals, and the extent to which governments are cooperating transnationally to consolidate anti-migrant border governance regimes. Speakers will also reflect on the role of litigation and courts in political campaigns aiming to foster greater transnational movement and regional integration.

Diverse Perspectives on the Impact of Colonialism in International Law

This session, which will be conducted in the form of a panel, will explore diverse perspectives on the impact and effect of colonialism, and the norms created thereunder, in modern international law. Our first speaker will explore theoretical approaches to the interrelationships between colonialism and international law norms. Other speakers will explore the effect of colonial norms on the development of the modern western notion of the rule of law; the colonial experience and its effect on disputes involving sovereignty (Chagos Archipelago dispute); the colonial experience and the development of and the development of commercial law in Africa; and the effect of the colonial experience on Latin American perceptions of development and international law.

The American Declaration on the Rights of Indigenous Peoples 2016: An Advance or Retreat for Indigenous Peoples' Rights?

The American Declaration on the Rights of Indigenous People (ADRIP) was adopted by the Organization of American States (OAS) on June 15, 2016, after 17 years of negotiations. The Declaration is the first international instrument on Indigenous peoples' rights to have been adopted since the 2007 UN Declaration on the Rights of Indigenous Peoples.  It is a major contribution to standard–setting on Indigenous peoples' rights in international law and is likely to be brought to bear on the practices of OAS members through the jurisprudence of the Inter-American system of human rights.  The ADRIP extends the corpus of international human rights law by including protections not found elsewhere This event proposes to discuss the significance of the ADRIP and critically consider the uses that might be made of it as an instrument to further Indigenous peoples aspirations in the Americas and globally.

Preventing Violence and Atrocities through International Disarmament Law

Designing the Investor-State Dispute Resolution System from Scratch

How would or should the investor-State dispute settlement system look if we had to start from scratch? This session will be an Oxford Union style debate with the resolution: "This house would design the investor-state dispute resolution system from scratch." Among other things, the debate will consider various system-design issues such as: (a) ad hoc versus standing body; (b) "double hatting" of arbitrators; (c) unilateral versus institutional appointments; (d) appellate review, and if so by whom. The debate will also consider whether the rules amendments of ICSID go far enough to address current controversies.

Obligations to Negotiate and Consult: Worthwhile tool or exercise in futility?

Are obligations to negotiate or consult a tool of international law which States have at their disposal for helping to resolve their problems? Does the claim of an obligation to negotiate or consult bring States to the negotiating table or does it have the opposite effect? In the same vein, most investment treaties include a clause that encourages or obliges the parties involved in a dispute to engage in consultations and negotiations. In practice, however, is there any evidence, anecdotal or otherwise, that these obligations facilitate settlements? The answers to these questions depend in part on precisely what such obligations actually require States and investors to do. This panel will, through a series of rapid response questions posed by the moderator, consider obligations to negotiate or consult across international legal fora, ranging from the International Court of Justice to investor-state arbitration.

International Courts as a Counterweight to Power/Politics

International law has often been described as the great equalizer, giving States—big and small—an equal voice in international politics. But does international law actually constrain the exercise of power by militarily, politically, or economically stronger States? How well can international courts level the playing field? Under what conditions will they be most effective in this task? Today, there is a widespread sense that the rules-based international order is fraying, that more powerful States are increasingly using strength in international affairs, and that international institutions are less able to restrain actors that decide to work around or opt-out of the system. Revisiting in this new political context the theme of Professor Oscar Schachter's lecture at the 1999 ASIL Annual Meeting, "The Role of Power in International Law," this panel will explore the effectiveness of international law as a counterweight to power asymmetries. Some features of the international legal system actually are based on what Philip C. Jessup called "the inescapable fact of power differentials." But in most respects, international law is built upon the concept of sovereign equality. The panel will explore how less powerful States pursue ways to keep the playing field level, for instance, through the use of contentious cases or advisory opinions at international courts, through resolutions at international organizations, or by the development of new treaty regimes.  

A State's Many Roles in International Adjudication

States have many different roles and interests in international adjudication, which may overlap and vary in importance from case to case. States' sovereignty endows them with a special character and responsibilities in international litigation. States are heterogeneous, comprised of various national and subnational entities, and are often encumbered by laws, national constituencies, or limited resources. States often view their interests and responsibilities as extending beyond any particular dispute, and their pleadings and submissions create state practice and opinio juris. This panel seeks to shed light on States' manifold roles and interests in international adjudication and to examine how governments and their advisers might reconcile and protect these roles and interests.

Assessing Professional and Judicial Integrity in International Tribunals: Problems and Solutions 

Although judges, arbitrators, and counsel in international tribunals face professional ethical dilemmas just like their domestic counterparts, the existing mechanisms in place to maintain professional integrity in international tribunals suffer from significant gaps. The lack of common and agreed upon ethical norms in international dispute resolution raises a variety of procedural and substantive concerns. Procedurally, it is unclear what ethics rules apply and how to resolve conflicts of interest. Substantively, the outcomes of some international court decisions concerning judges' or arbitrators' behaviors have been criticized on the basis of underlying conflicts. Ethical concerns are particularly important in investment arbitration and have prompted calls for reform of the Investor-State Dispute Settlement (ISDS) system. The problems, however, are not limited to ISDS. This panel will address issues of professional ethics in international adjudication. Panelists will explore issues common to all international proceedings, from the perspective of both international judges and counselors and will seek to identify the deficiencies that should be addressed most urgently. These issues would include, among others, conflict of interest, attorney and judicial ethics, and the adequacy of existing codes of ethics.

2019 Brower Lecture: A Century of Dispute Settlement through International Law (1919-2019): The Role of Multilateralism

Presented by Peter Tomka, International Court of Justice

Senate v. President: A Moot Court on the President's Treaty Withdrawal Powers

Recent skepticism of long-standing U.S. alliances and international institutions has reinvigorated the debate over the respective roles of the President and Congress in the withdrawal of the United States from treaties. One area where this issue has arisen concerns the North Atlantic Treaty Organization (NATO), where President Trump reportedly has suggested the possibility of a U.S. withdrawal, which in turn has triggered some calls in Congress for legislation that would preclude him from doing so. Using this as the backdrop, this session will take the form of a moot court to explore the extent of congressional vs. executive control over U.S. withdrawal from NATO. The session will address questions about the evolution of U.S. practice leading to the contemporary mainstream position asserting unilateral presidential withdrawal authority where a treaty itself contemplates withdrawal (as does the NATO treaty), what constitutional limits (if any) there are on that authority, and what may be learned from treaty withdrawal debates in other countries, including the United Kingdom's withdrawal from the European Union. The session will also look at the extent to which the Youngstown framework may support shared, as opposed to exclusive, authority over treaty withdrawal, particularly in light of the Supreme Court's 2015 decision in Zivotofsky v. Kerry.

Federalism Strikes Back: Is the One-Voice Doctrine in Decline?

This panel will focus on the role of the several states and localities within the states, such as cities, in pursuing actions and relationships that shape foreign relations. For example, California, Massachusetts, and other states—on their own or through regional agreements—have enacted laws and regulations seeking to uphold targets and timetables consistent with climate change agreements. On the other side of the Atlantic, in the United Kingdom, sub-federal governments — such as Northern Ireland and Scotland, but also cities like London — have been playing an almost decisive role in the context of Brexit negotiations, holding separate negotiations with the European Union about a potential future relationship. Do these developments signal a new approach to foreign affairs and the end of the one-voice doctrine? The panel examines the current role of sub-federal entities in foreign affairs both within the US and  the UK, as well as in cities across the globe.

International Law and Interstellar Events: Who Speaks for Earth?

This session will examine what international law governs, or should govern, non-commercial State cooperation in space to address threats to global security. Through two hypotheticals, a panel of scientific experts and international and national security lawyers would examine the central question of who is empowered to make space-related decisions that could have profound effects on humankind. Hypothetical one is defensive – if a devastating asteroid is headed towards Earth, do capable states have individual or collective responsibilities to attempt to stop it? What bearing do arms control treaties have on the repurposing of anti-satellite weapons for the global defense? What is the Security Council's role under Chapter VII? If a state does attempt to intervene, may other states cite to Article VI and VII of the Outer Space Treaty or other sources of international law to hold it liable for any harm that results despite its efforts? Hypothetical two is affirmative – looking at previous efforts to reveal Earth and earthlings to sentient alien life forms, such as NASA's Voyager 1 and 2 Golden Records, and potential new attempts including Yuri Milner's Breakthrough Message competition. Does international law speak to whether one state, or a group of states, may broadcast Earth-identifying signals into space or to answer signals detected from an alien source? If it does not, what if any international legal rules or processes should be developed? What actors within a state should be able to speak for it – should government control such actions or are they fair game for private citizens?

Immunity of States and their Officials for Atrocities or Terrorist Acts

This session would explore and assess key national and international developments in the law of sovereign immunity. In 2018, the U.S. Supreme Court decided Rubin v. Iran, barring the attachment of Iranian antiquities located in the U.S. to execute judgments against Iran issued under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA). Furthermore, the Justice Against Sponsors of Terrorist Act (JASTA) was enacted in 2016, essentially broadening the terrorism exception to FSIA. Also in 2016, the Supreme Court decided Bank Markazi v. Peterson, in which it sanctioned the turnover of about $1.75 billion in Central Bank of Iran assets to families of victims of terrorism. Subsequently, Iran brought a case against the United States at the International Court of Justice (ICJ). Finally, [the African Union has successfully spearheaded efforts [are currently underway] at the United Nations to secure an ICJ advisory opinion on the immunity of heads of state and other senior officials, against the backdrop of attempts to prosecute Sudan's President Omar al-Bashir at the International Criminal Court. These developments highlight the tension between immunity and impunity when it comes to states and leaders engaged in terrorism or grave human rights violations. The panel will consider how recent U.S. cases and legislation have addressed this tension, and whether they are consistent with the international law on immunity. Questions will be posed by the moderator for rapid response by speakers addressing whether such immunity ought to be qualified in cases involving terrorism or grave human rights violations, and what, if any, other legal tools are available for addressing impunity in such cases.

The Innovative Structural Features of the Paris Agreement

At the twenty-fourth Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) in December 2018, Parties adopted the so-called Paris "rulebook," a set of key implementation guidelines called for in the Paris Agreement. Following this pivotal meeting, a roundtable of experts familiar with the negotiation of the Agreement, the rulebook, and its implementation to date will discuss the innovative structural features of the Paris Agreement (e.g., a hybrid of legally-binding and non-binding provisions; self-determined national contributions; a role for non-state actors, etc.) and highlight textual compromises that were essential for achieving consensus on the Agreement and the rulebook. Have these innovations and compromises succeeded in achieving buy-in and national action from all countries? Does the structure of the Paris Agreement provide the best framework for addressing the collective action challenges of climate change? Does this model have any drawbacks or room for improvements? Looking at other recent and ongoing multilateral environmental negotiations, is the traditional form of binding multi-lateral environmental agreements a thing of the past? Can the Paris model or variations thereof be useful in tackling other collective action environmental challenges confronting states today?

The Last Drop: Practical Tools for Addressing Transboundary Water Crises

Global water crises are recognized as one of the biggest threats facing the planet, raising concerns about scarcity, environmental impact, and the potential for violent conflict. With more than 270 rivers and 600 aquifers crossing an international boundary, international cooperation is an essential condition for the optimal management and utilization of freshwater resources. Yet, as consumption continues to increase, to what extent are current mechanisms for the governance of transboundary water resources adequate to face the challenges posed by population growth, geo-politics, climate change, extreme weather events, and political instability? This panel, consisting of experts from different regions and institutions, will examine this question by focusing on a few current, real-world case studies. The panel will discuss how existing governance frameworks are faring under crisis and whether – drawing from other transboundary freshwater management mechanisms across the world – there might be other practical tools or best practices that could be applied to help mitigate the situation.

Deep Seabed Mining in Crowded Oceans

Twenty-five years after entry into force of the U.N. Convention on the Law of the Sea, the International Seabed Authority (ISA)'s efforts to regulate deep seabed mining present a salient case study in the challenges facing international organizations with respect to common ocean spaces. Set up to administer what was once regarded as a relatively empty and remote terrain, the ISA must now contend with crowded oceans: crowded with multiple users laying claim to the same areas, with overlapping jurisdictional regimes, and with fundamentally different conceptions of what sharing the ocean commons should mean. These tensions are increasingly coming to a head in the drafting of the ISA's mining code. Here, the ISA must balance a regime that is attractive to investors with one which meets developing States' needs for equitable sharing of benefits.  At the same time, it must respond to NGOs' demands for effective protection of the marine environment and accommodate the growing strategic and political importance which certain States attach to seabed mining operations and other uses in our ever-shrinking oceans, including shipping, fishing, and laying submarine cables. Does the ISA have the capacity to manage these competing legal, economic, and environmental imperatives? Through what means should it engage with parallel and competing regimes of ocean use? Whose concerns will our deep seabed mining regime vindicate?

Who's Minding the Farm? Trade Law and Agricultural Exports

It is widely agreed among economists that tariffs remain a major impediment to the financial security of farmers, particularly in the developing world, with clear corresponding implications for the long-term financial feasibility of agriculture in these countries. World Trade Organization members have agreed to eliminate export subsidies for agricultural products and to restrain export measures that have a similar effect on distorting prices in world agricultural markets ("Nairobi Package" 2015). However, despite these stated objectives, geopolitical realities make it clear that we are moving away, rather than towards these goals. For example, U.S. farmers now find the huge Chinese market partially closed in response to the current Administration's decision to levy tariffs on hundreds of billions of dollars of Chinese goods. In response, the Administration is offering an additional 12 billion dollars in subsidy-like support to U.S. farmers. Such steps raise questions regarding compliance with international trade agreements, which seek to eliminate subsidies that distort global agricultural markets and that have enormous consequences for farmers in the developing world. A roundtable of agricultural and legal experts will assess the commitments made in the Nairobi package in light of these recent geopolitical developments and discuss the implications of these developments for UN Sustainable Development Goal #2, which aims to "end hunger, achieve food security and improved nutrition and promote sustainable agriculture."

The Critical Contribution of Law towards Global Efforts to Mitigate Disaster Risk

The scale and impact of disasters is rising exponentially, with insurance sector cost estimates for 'natural' disasters increasing from $188 billion (2016) to $300 billion (2017). In response, the global shift since the 1990s, reflected in the Sendai Framework on Disaster Risk Reduction (DRR) (2015-2030), has been towards concentrating resources on disaster prevention and mitigation, including through improved preparedness and response mechanisms. The Sendai Framework establishes ambitious goals, exhorting the development of innovative approaches and dynamic cross-sectoral partnerships. Yet, to date, the legal community has largely not been fully integrated into existing efforts or collaborations, including with the scientific, technological or health sectors. This is partly attributable to commonly poor levels of understanding about the dynamic role of law as a tool of disaster risk mitigation, including developing DRR law. As this panel explores, there is a critical need for public/private stakeholders, whether national or international, to more actively draw upon and embed legal instruments (e.g. international human rights, environmental, disaster, health and maritime law) within their mechanisms and responses to reduce disaster risk and impacts: for instance, through improving consistency and coherence of standards, strengthening existing weak governance mechanisms, ensuring greater compliance and accountability, whilst better protecting vulnerable populations.

UNCLOS: a Tool for Peace and Stability?

The United Nations Convention on the Law of the Sea (UNCLOS) has been called a Constitution for the Sea.  The panel will evaluate whether UNCLOS acts as a legal institution to promote order and peace on the sea either in its codified form or as Customary International Law. Is UNCLOS a tool to alleviate ocean disputes and protect the environment? Or, does it fail to fulfill this role and bring order to the ocean? This will be examined in light of maritime disputes and arbitrations. In particular, panelists will discuss the results of the South China Sea arbitration and whether it has assisted negotiations in the area, whether it has fruitfully clarified entitlements, or whether it has led to a de-legitimization of the system.  The panel will also discuss jurisprudence in contentious and advisory cases that have implications for the environmental movement, and broader meaning for UNCLOS jurisdiction. The panel will evaluate whether UNCLOS is a tool to assist the global community on issues that call for a global response. UNCLOS protections for living resources will also be examined; as will conservation of the sea including alleviating pollution and rising sea levels.

Climate Change as a Concern in Negotiating Mine Development Agreements

Anatomy of a Trade War

Following the tit-for-tat unilateral tariff measures implemented by the Trump Administration and U.S. trading partners in 2018, the viability of the multilateral trading regime is in question. The primary objective of that regime has been to promote global economic welfare by increasing the productivity of capital, labor, and agriculture. However, as economic integration and international trade commitments have deepened, the multilateral trading regime has clashed with competing national policy priorities most recently advanced through unilateral trade remedies. Do these recent measures signal a rise in economic nationalism and the downfall of the multilateral trading system? Do unilateral trade measures have any place in a multilateral, rules-based trading system? What is the effect of unilateral trade measures targeting specific industries or regions on the way U.S. trade policy is made? This session seeks to address the impact of the burgeoning trade war on the U.S. heartland, where these tit-for-tat tariff measures are both intended to help and expected to hurt. While the trade war is a moving target, the policies on the table now will continue to raise serious questions about the appropriate balance between national trade remedies and international trade law whether one is watching from the WTO, Washington, or Wichita.

Litigating Climate Change: New Legal Challenges

Numerous lawsuits are being filed all over the world against a host of defendants, including multinational companies and governments, alleging that they are to blame for climate change that results in a violation of either national laws or international law. As examples: (a) nearly 900 Dutch citizens have filed a lawsuit in a district court in the Netherlands seeking that the court order the government to cut greenhouse gas emissions faster; (b) Greenpeace has appealed after an Oslo court rejected its argument that Norway's oil and gas exploration in the Arctic violates citizens' rights to a clean environment; (c) a Peruvian farmer who lives in Huarez, Peru, has brought a lawsuit against a German electricity producer alleging that it knowingly contributed to climate change by emitting greenhouse gases that bore some responsibility for the melting of mountain glaciers located near his hometown; and (d) a number of U.S. cities, such as New York, Oakland, and San Francisco, have filed climate change lawsuits against oil companies seeking to recover the cost of infrastructure needed to protect against rising sea levels. Additionally, the Permanent Court of Arbitration has advocated for the use of arbitration to resolve climate-change disputes, including disputes arising under the UN Framework Convention on Climate Change and the Paris Agreement. The panel will discuss these recent cases, as well as the success or failure of earlier litigation, with a view to understanding the role that international law will play in the climate change debate.

Fragmentation in International Data Protection Law

In July 2018, Facebook experienced the biggest one-day loss of value in U.S. stock market history, which the company attributed, in part, to concerns about its ability to protect user privacy. The European Union has guaranteed its citizens the right to personal data protection since the adoption of the European Data Protection Directive in 1995, which it later enshrined in the EU Charter of Fundamental Rights (2000) and most recently clarified in its May 2018 General Data Protection Regulation. In contrast to the EU's fundamental rights approach, the United States has approached the problem of data protection from various sector-specific consumer protection frameworks. These contrasting approaches to data protection have resulted in significant transatlantic trade tensions most recently resolved through the U.S.-EU 2016 Privacy Shield Agreement. While there may be a growing need for legal rules to protect the processing of personal data, differences in cultural and legal approaches may foreclose greater harmonization or internationalization of legal rules in this area. This panel will explore recent efforts to address the issue of data protection at the national and bilateral level, consider the cost of compliance with these conflicting regulations for U.S. companies, and examine whether any multilateral approach to privacy protection is realistically available.

The European Commission and International Investment Arbitration: innovator, disruptor, spoiler?

The European Commission recently emerged as a dominant actor in international investment arbitration, shaping the reform agenda, urging a new dispute-resolution system, intervening in investment disputes, and requiring Member States both to terminate intra-EU investment treaties and decline to pay arbitral awards arising from them. In Achmea v. Slovak Republic, the Court of Justice of the European Union endorsed the Commission's view that EU law precludes application of an ISDS clause in a bilateral investment treaty between two Member States. Does the court's reasoning extend to all Member State investment treaties, or even to agreements to which the EU itself is a party, such as the Energy Charter Treaty? What are the implications of these developments for States, investors, and interested third parties?

The Remedial Function in International Economic Law

Remedies are a perennial problem in international trade and investment law. Much attention has been given to difficulties with the technical calculation of damages in the context of investor-state dispute settlement (ISDS), or disentangling the remedial possibilities under the World Trade Organization rules or under free trade agreements. These questions are interesting and important. But this session will not linger on this well-trodden ground. Instead, participants will explore, compare, and reassess the remedial standards in both fields from the perspective of function and policy. As a baseline, it is clear that trade remedies are designed to be prospective, while remedies in ISDS are retrospective and compensatory. But to what end? What are the functions of these very different approaches? What policy aims are they designed to pursue? And how effective are they? Beyond mere enforceability, are the remedial aspects of these regimes fulfilling their purported functions? What ancillary legal concepts remain underdeveloped? The session will explore and compare the nature, function, and goals of the remedial systems in trade and investment as designed. The speakers will then turn to how these systems have developed in practice. The panel will consider what kinds of remedies are actually available (such as damages, preliminary measures, specific performance, and countermeasures), and whether they should be interchangeable. The panel will also explore the appropriate and available standards of damages (fair market value, reliance, restitution, etc.), as well as ancillary remedial concepts that may be underdeveloped in international case law (e.g., causation, mitigation, the presumption against speculative damages, and the new business rule). The panel will then turn to how these remedial mechanisms work in practice. The speakers will examine how effective they are in view of their intended ends. The panel will also examine whether these systems have developed new or underappreciated functions in practice.

Regionalism, Trade, and International Law: Asia's Response to the U.S. Indo-Pacific Strategy

In 2018, the Trump Administration declared the "Free and Open Indo-Pacific" strategy as the new U.S. policy on Asia. The new Indo-Pacific strategy is expected to have far-reaching implications for U.S.-Asia relations. This roundtable will explore some of those issues, in particular, the impact of mega-free trade agreements and South China Sea disputes on international trade. Participants will discuss the extent to which international law facilitates or hinders US trade goals; the legal and political responses to U.S. policy available to nations in the Asia-Pacific Region; how recent diplomatic developments in China and the Association of Southeast Asian Nations (ASEAN) might serve as a counter-balance towards perceived U.S. unilateralism; and whether alternative strategies, such as the CPTPP, the RCEP and the Belt and Road Initiative, might shape international law and commercial transactions.

International Law as an Instrument for Development

International law has long been used as an instrument for economic development. Indeed, international rules and institutions have promoted trade and investment across borders, developed traditional and innovative techniques for monitoring implementation and resolving disputes, and helped harmonize development-related rules with other fields of international law, including human rights law and international environmental law. The 2015 UN Sustainable Development Goals set an optimistic agenda for using international law as a tool for accomplishing economic and human development in a sustainable manner between now and 2030. At the same time, studies indicate that while international programs of economic development have improved conditions for the worst off globally, nevertheless global economic inequality remains on the rise. Further, global competition, trends towards protectionism, and rapidly changing technology, all offer significant challenges to the use of international law to promote economic development, with natural disasters and climate change raising the spectre of long-term risk to economic growth, especially in developing nations. As such, leading figures question the efficacy of the use of international law and institutions to promote economic development. The closing plenary of the 2019 ASIL Annual meeting will bring together leading diplomats, practitioners, and academics to consider the past, present and future use of international law as an instrument for economic and human development. What has worked? What has not worked? What changes are needed for the future?

Techniques for Resolving Armed Conflicts with Non-State Actors

In an age when armed conflicts with non-state actors are increasing around the world, often with no clear end in sight, international law and institutions play a critical but often hidden role in resolving such conflicts. From international lawyers negotiating the terms of ceasefire agreements and peace treaties to international institutions facilitating transitional justice and economic stability, international law and institutions are important instruments for addressing today's conflicts. This rapid-response discussion will highlight the unique experience and expertise of a diverse set of players who use international law or institutions to resolve armed conflicts involving non-state actors in a diverse range of entities from ISIS to the FARC. Experts will address such questions as how does one begin negotiating a peace deal with a non-state actor? What role does international law play in such agreements? What security, economic, or political conditions are essential for ending these types of armed conflicts? Are international law and its related institutions effective instruments for facilitating an end to such conflicts or have they failed to adapt to today's conflicts?

Challenges and prospects for international peace and security: UN Peacekeeping, NATO, and the UDHR at 70
 
The end of World War II and the establishment of the United Nations ushered in a new international legal order for the maintenance of international peace and security based on a commitment to multilateralism, non-use of force, and the promotion of human rights. Three important developments emerged shortly thereafter. In 1948, the first U.N. peacekeeping operation was launched, and though such action was not expressly envisaged in the U.N. Charter, it became the dominant means for U.N. efforts to address peace and security. That same year, the U.N. General Assembly adopted the Universal Declaration of Human Rights (UDHR), partially in recognition that the preservation of such rights made inter-state conflict less likely. And in 1949, the North Atlantic Treaty Organization (NATO) was created to counterbalance the Eastern bloc, creating stability through deterrence. These three pillars of the international security architecture now enter their eighth decade, but has the world changed since their establishment in ways that challenge their continued viability?. U.N. peacekeeping is under-resourced and has struggled to end conflict; a backlash against the idea of universality has placed international human rights under immense pressure; and NATO has arguably failed to deter a resurgent Russia. On the occasion of their 70th anniversary, this roundtable will explore how recent developments have affected these pillars, and in particular, assess whether any or all of them can make an ongoing contribution to peace and security through the "rules-based international order." Have they failed to deliver on their original promise or have they adapted effectively to contemporary global realities? Is their future dependent on the continuation of Western hegemony and unity? Can they adapt to the changing nature of security threats, rising powers and a waning commitment to multilateralism? Are they instruments for peace, security and the promotion of international law? What challenges and opportunities lie ahead?

Theft in War: Using International Law to Rein in Pillage of Natural Resources

The prohibition on pillage (theft) during war is a fundamental rule of international humanitarian law (IHL). When thinking about pillage, we usually envision invading armies storming villages for spoils of war. Yet, contemporary wars, and particularly natural resource wars, present complex questions on the scope and potential of the prohibition of pillage. While a belligerent may use natural resources of an occupied territory for the needs of the occupied population and to sustain its own forces, when does such use cross the line so as to constitute pillage? For instance, can pillage include granting concessions to corporations in conflict areas? Likewise, can land use by an occupying power amount, under some circumstances, to pillage? In recent years, the prohibition on pillage is increasingly used to address the growing problem of illegal exploitation of natural resources. The examples are numerous: the International Court of Justice found Uganda responsible for pillage of Congolese natural resources more than a decade ago. Since then, the Canadian and Dutch governments sponsored a major international conference at on pillage of natural resources; Swiss authorities began a formal criminal investigation against one of the leading gold refineries in the world; and Belgian authorities arrested a businessman for allegedly pillaging "blood diamonds" from Sierra Leone. Significantly, in recent months, the International Criminal Court announced a new prosecutorial policy that would give particular consideration to illegal exploitation of natural resources. Finally, the U.S. State Department created a new $2 million project to focus on training Congolese prosecutors on how to pursue these cases. Clearly, the legal fight against pillage is of growing importance in international law. What are the advantages and shortcoming of this development?

Emerging Technologies as a Source of Increased IHL Compliance and Enforcement

Recent discussion concerning emerging technologies and armed conflict have focused almost exclusively on whether these technologies can comply with international humanitarian law (IHL). This is a vital discussion and should certainly continue. However, a useful parallel discussion would contemplate the ways in which emerging technologies could enhance compliance with IHL. Many such technologies may have the potential to provide commanders and other decision makers with increased ability to make key IHL determinations and to conduct hostilities in a way that is more IHL compliant. This panel will be a mixed panel and proceed in two phases. The first phase will be a standard rapid response panel where the moderator will present concise questions or scenarios to the panelists and give each a chance to respond briefly (2 to 3 minutes) on the topic of emerging technologies and how they can assist in IHL compliance. The focus of the panel would be a more general discussion of the capabilities of emerging technologies, though comments on specific technologies would also be welcome. Examples of emerging technologies that have already assisted IHL compliance would be very useful. Phase 1 of the panel will last for no more than 60 minutes. Phase 2 of the panel will center around poster presentations where the audience could then view poster exhibits set up in the same room that deal with specific technologies that might be used for enhanced IHL compliance. These posters might highlight specific technologies such as drones, sensors, webcams, robotics, various autonomous systems and even nanotechnology. These posters would be created by individuals who have responded to an ASIL "Call for Posters." The poster submissions will have been reviewed and selected for presentation in advance. Presenters would stand by their posters and answer questions as the audience members walked around the room, viewing the various posters. The goal would be to have around 15 posters.

San Francisco 2.0: Constructing a Global Governance Architecture for the 21st Century

In 1945, world leaders gathered in San Francisco to sign the UN Charter, which laid the blueprint for the international system in place today. While it was well-suited for the post-World War II era, we now live in a world that is both multipolar and multiconceptual, in which nodes of power do not rest solely with States and the idea of global governance itself is being called into question.Rather than decrying the UN's shortcomings, let's be inventors. If the UN didn't exist, how would we construct it today? With experts from/on government, business, civil society, and international organizations, this simulation explores constitutional questions for a new global governance system. As a threshold matter, is a global governance organization needed? If so, who should be represented? How should it be structured? On the basis of these and other questions, the panel aims to draft a new "Charter" to address current challenges and to explore creative solutions to resolve them.