ASIL
American Society of International Law
Newsletter
ISSUE #43: January 2012
UN21 Interest Group
formerly
United Nations Decade of International Law
Contact Information:2223 Massachusetts Avenue, NW Washington, DC20008-2864
Chair: Itzchak E. Kornfeld, Esquire
Hebrew University of Jerusalem
Mt. Scopus, Israel
• e-mail:
Vice Chair:Martha Trofimenko, Barrister and Solicitor
Wilmington, DE, USA
• e-mail:
Editor: William Slomanson
Thomas Jefferson School of Law
• e-mail:
• telephone: (619)961-4309
ASIL Admin: Elizabeth Andersen Exec. Dir. ASIL
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• telephone: (202) 939-6000
• facsimile: (202) 797-7133
Dear colleagues:
This may be my last “Message from the Chair”, as we will shortly hold elections and I will step down as the Chair of the UN21 IG. With this forecast in mind, I’d like to share some thoughts about the role of the United Nations, among other issues.
However, I must first concede that I have been privileged to chair our IG over the past few years. One has had the pleasure of meeting our remarkable members, and making friendships that I am sure will endure. Ladies and Gentlemen, we have in our ranks academics, some of whom are leaders in their fields of study, from across the globe, ambassadors, consular legal staff, legal officers at the U.N. and at tribunals, a QC or two, numerous students, and up and coming stars of international law, whether in private practice or otherwise. A group of nicer and collegial colleagues you will not meet.
Indeed, being a nominal member of the ASIL leadership, I am compelled toconfess that we are part not only of a remarkable IG, but also of an impressive Society - one that is imbued with a rich history and leaders that I my humble opinion are unmatched. One of those leaders is my mentor, Bill Slomanson, a founder of the IG. Thankfully, he has been there to guide me over and across the rough waters that I have faced when I took over the reins of our IG, and has remained the steadfast editor of our IG’s newsletter. Thank you, Bill.
But for Bill, my time as chair would have been more difficult and I certainly would have been the poorer as I escorted our IG over the past six years. I will offer more thanks later. Nevertheless, I feel compelled at this juncture to declare that I owe a special note of thanks to the following people, who in one way or another enhanced my tenure and make our IG such a wonderful cluster of like-minded people: Ambassador Hans Corell, Simon Chesterman, Lilian del Castillo-Labord, Mary Fan, Noemi Gal-Or, Djurdia Lazic, Verlee Prybyloski, Kilaparti Ramakrishna, Marie Soveroski, and Ralph Wilde. Now, onto another topic.
In October of last year I was fortunate to attend the International Law Weekend in New York, which our Society co-sponsored. The plenary session, on Thursday evening, included a number of the Society’s luminaries: Past President, José Enrique Alvarez, Dean Christopher Borgen, Kate Gorove (U.S. Dept. of State Office of Legal Counsel), and Sean Murphy (newly elected U.S. Representative to the ILC), who addressed the topic “Is Sovereignty Dead?” As you know, Art. 2 of the U.N. Charter addresses the issue of sovereign States, as members. My primary interest in that article was what I will call the “equal footing” paradigm that is the“sovereign equality” of all member states. While each of the speakers made their presentations, I got to thinking that although the text of Art. 2 asserts the term equality, some States are more equal than others. For example, The P-5 are certainly more equal in power at the U.N., than let’s say Malawi, or the recently created South Sudan. And, of course the United States is probably more powerful that the other P-4.
The U.N. leadership and membership have to navigate through these cordons of power. Indeed, given the number of international organizations that the United Nations has spawned over its 67 years of existence, e.g., the ICJ, UNICEF, UNEP, WHO, ILC, etc., the organization does a great deal more for humanity than is apparent on a day to day basis. Of course, with so many bodies there is always room for mistakes and for complaints.
Simply stated, the U.N. is as perfect as people are, i.e., rather imperfect. For example, one action that the organization undertook in 2001 is the Millennium Development Goals.[1] When the Goals were first announced, I scoffed at them, as being plainly unrealistic. I also wondered to myself: how did the fashioners of the MDGs think that they would be able to push the governments of the Least Developed Nations—the poorest in the world—to provide potable water to 2.4 billion peoples within a decade? See e.g., Target 7C: “Halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basicsanitation.” Having worked in Africa the challenge alone seemed like some folly that a politician pulled out of thin air.
However, by 2005 or 2006 I began to rethink my skepticism. It dawned on me that if we don’t try nothing will be accomplished. And then it hit me: that is the real power of people. People who try to make a difference, a change, for the better in the world they live in. There is always room for cynicism, apathy, pessimism and ridicule. Not only is there always room for it, it is always there as a pall.
I am the child of Holocaust survivors. And as children of that ilk are want to do I have asked myself more often that I care to admit, could I survive under the conditions that my parents face in the concentration camps: knowing that they lost their families – my mother lost 98 uncles, aunts, and first cousins, for example, and she was separated from her younger brother by Dr. Mengle at the gate to Birkenau, the camp attached to Auschwitz? I would be devastated, and thus wonder how they retained hope in the darkness of hopelessness; how did they survive the physical labor and the lack of food. I certainly don’t know if I would survive under those conditions. But, they did. And they normalized their lives, just like those who survived the butchering of the millions of Cambodians by the Khmer Rouge, or the survivors of the million that were hacked to death in Rwanda, the woman raped by the Janjaweed in Darfur, and the survivors of brutal dictatorships, e.g., today’s Syria and North Korea, among others. They all, each survivor in her or his way, march on to remake their lives, and as best as they can.
That is the greatness of humanity and ergo the U.N. We survive the macro to make a difference in the micro, and we slog and progress onward. Each of you has a mission in life. You may not yet know what it is, or you may be lucky enough to have previously uncovered it. We—each of us—has been provided with talents and tools that are unique to us and to us alone. Please use them, or use them more, whether you are at the beginning of your career or near its end. Go out into the world, whether it is your neighborhood, your country, or some other place, and do good with what you have. That gift can change the world, if we allow ourselves. Help our new IG’s leadership, help the ASIL, help spread your knowledge to the ignorant. And, they are in the billions. Each, with his or her own opinion about what international law and relations are or should be, even if they are dead wrong. Tell them before they tell you. Nip that ignorance in the bud!
I now close. But as I noted above I have some other people to thank. I have been fortunate to lead our IG across the tenure of four of the Society’s presidents, each of whom has in his or her own way, through their lack of hubris, good cheer and veritable font of knowledge, helped me to grow. They are in reverse order, David Caron, Lucy Reed, José Alvarez and Jim Carter. I also owe a debt of gratitude to Director of Communications and Membership, Sheila Ward, to Veronica Onorevole, Executive Office and Programs Manager, and to Jimmy SteinerWeb and IT Support for their assistance;and to the two Executive Directors that I have had the good fortune to work with, also in reverse order, Betsy Anderson and Charlotte Ku.
Finally, I wish to express my gratitude to the three members of the ASIL’s 2011 IG Committee, Greg Shaffer, Chair, Janie Chuang, and Susan Karamanian, for giving our IG another lease on life. Well, now I'm off to philosophize and write two books. Send coffee, and sanity, if you have some to spare!
Ciao, and looking forward to seeing you soon,
Itzchak
We have completed the task of transferring the section’s website from Cornell Law School to ASIL. Because of the comparative inaccessibility of our website to non-members, there is now a mirror site which effectively continues the “Cornell” appearance of our richly adorned newsletter website. That way, section members can more quickly access back issues, by bookmarking the following webpage. Non-members may also access them, as well. Go to:
The section especially thanks ASIL webmaster, Jimmy Steiner.He is responsible for converting our Word-based newsletter into the html format appearing on our Newsletter webpage. He thus makes us shine on the above webpage!
With the arrival of Newsletter #43, our news letter is now in its 20th year!
The following is the original (and current) section mission statement, which we decided to include in each issue:*
• Promoting acceptance of the substantive principles of International Law;
• Promoting peaceful settlement of disputes, including greater use of the
International Court of Justice (ICJ);
• Encouraging progressive development of International Law and its
codification;
• Encouraging the teaching, study, dissemination, and wider acceptance of
International Law.
* Thanks to UN21 member and staunch supporter, Howard Meyer (NYC), for making the proposal that this listing be mentioned in each issue of our Newsletter. The members present at an annual business meeting of UN21 adopted at our 1995 Business Meeting in New York, on the occasion of the 50th Anniversary of the United Nations. Since then, I have included it in each issue of our UN21 Newsletter.
Notice: This prominent feature of every Newsletter was the subject of an attempted revision. While several revisions were suggested, forwarded via Newsletter and e-mail attachments, the former Chair (me) was not charismatic enough to convince members to respond and participate in altering our already quite serviceable statement of purpose. So it is not my intent to push further on this project, unless another UN21 member decides to renew interest in this project—i.e., via e-mails via our group listserv at >.
“Jerusalem, Israel?”
William R. Slomanson
Ari Zivotofsky was born in Jerusalem. He is a United States citizen by virtue of his parents’ citizenship. Ari’s parents applied for a United States passport and a Consular Report of Birth for Ari at the United States embassy in Tel Aviv. They unsuccessfully requested that both documents record their son’s place of birth as “Jerusalem, Israel.” State Department policy permits the recording of “Jerusalem.” But it prohibits the addition of “Israel,” because that entry would result in “Jerusalem, Israel” appearing on these government-issued documents. The United States has never articulated an official view on the unsettling issue of whether Jerusalem is a part of Israel. Its unwavering neutrality on Jerusalem’s status has been a central feature of American policy since Israel achieved statehood.
Congress enacted the United States Policy with Respect to Jerusalem as the Capital of Israel Act in 2002, the year of Ari’s birth. Its members directly challenged presidential neutrality on the status of Jerusalem. For requests like the Zivitofsky’s, Congress demanded that the State Department record the place of birth as “Jerusalem, Israel.” Congress also urged President George W. Bush to relocate the United States embassy from Tel Aviv to Jerusalem—an act which House Speaker Newt Gingrich then characterized as an overdue recognition of Israel’s de facto sovereignty over all of Jerusalem.
Adding to the confusion, President Bush signed this veto-proof bill into law, although his signing statement characterized the legislation as being merely advisory. Bush therein cautioned that this congressional demand on the executive branch impermissibly interfered with the president’s power to remain neutral on the issue of Jerusalem’s status. Bush emphasized that the Jerusalem as Capital of Israel legislation did not change the six-decade, hands off policy of the United States. He claimed that this recognition issue is governed by the Constitution—and that the express presidential power to recognize foreign governments impliedly resolves whether he must recognize Jerusalem as being within Israel, and whether it is Israel’s capital.
Ari’s parents dragged the judicial branch into the fray. They sued Secretary of State Hillary Clinton, seeking a court order requiring Clinton to comply with the Jerusalem as Capital of Israel legislation. The lower federal courts dismissed the Zivitofsky complaint on various grounds, such as the judicial branch not possessing the power to involve itself in recognition matters committed to the executive branch by the United States Constitution. Another justification for dismissal was that such disputes are committed to the political branches of the government, rather than the judicial branch. The Supreme Court recently decided to review the opposing legislative-executive positions, given that Clinton was not complying with the congressional directive to list Ari’s place of birth as “Jerusalem, Israel.” The Court will consider this incredibly sensitive issue during its new term commencing in October.
The Jerusalem as Capital of Israel legislation spawned intense criticism abroad. That no nation maintains an embassy in Jerusalem (as opposed to consulates) suggests the scale of international opposition to this legislation. Palestinians especially resented the anything but neutral congressional embrace of Israel’s sovereignty over all of Jerusalem. When Israel annexed all of Jerusalem in 1980, the United Nations General Assembly resolved that this was an illegal assumption of sovereignty over the entire city. About 100 nations have recognized Palestine, often in varying degrees short of de jure statehood. Further support for the Palestinian position will likely surface in the United Nations General Assembly in New York City in September. The Palestinian Authority has announced its intent to then declare de facto statehood. Israel threatens to respond by also annexing the West Bank as sovereign Israeli territory. Palestinians could one-up Israel by claiming to secede from their new mother state.
The Jerusalem as Capital of Israel legislation has placed the president in a more vulnerable position. Congress tainted the United States’ position as an honest broker in this ever-sensitive Middle East conflict. It provided legislative cannon fodder for the emergent perception that the United States—Israel’s number one ally—intends to debunk the “Jerusalem, Israel” neutrality policy adopted by every president since Harry Truman. Each of them has unfortunately been sidetracked by major domestic or international distractions, thus marginalizing the sustained focus necessary to end this key Arab-Israeli conflict. The Jerusalem as Israel’s Capital legislation added to the distractions that Presidents Bush and Obama have encountered, while pursuing an integrated United States approach to the Middle East conundrum.
One hopes that the U.S. Supreme Court will neutralize the above “Jerusalem, Israel” legislation by rejecting the Zivotofsky case against the State Department. This case will be uniquely politicized, assuming Palestine decides to go forward with its September statehood declaration. That turn of events will occur not long before the Supreme Court rules on the Zivotofsky governmental balance of power issue. In any event, Ari’s claim is premised upon an unwarranted congressional intrusion into the presidential executive power to recognize foreign entities. That governmental power will hopefully be characterized as falling within the sole province of the executive branch of our government. We cannot afford to speak with multiple voices in such critical affairs of state.
Courts / Economics / EnvironmentalLaw / HumanitarianLaw / Human RightsOrganizations / Religion / Statehood / Treaty Law / Publishers Info
Format: Book titles are listed alphabetically, rather than via the conventional alphabetical listing by author.The number contained with the “[ ]” provides the number of book pages.
The number appearing at the end of each entry is the book’s ISBN. Price: EUR = Euro; GBP = British Pounds; and USD = US Dollars.
A “•” bullet signals an unsolicited book that was received, not reviewed because of time/space restraints, but definitely worthy of mention. (We rarely review unsolicited book submissions.)
Courts
Bert Swart, Alexander Zahar, and Göran Sluiter (ed.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (Oxford: 2011) [550]. ISBN: 978-0-1995-7341-7 Price: $180.00 USD.
This collection contains seventeen individually-authored essays. Each reflects on the impact of the ICTY on international criminal jurisprudence.
The five parts begin with the chapters in: I. A Distant Court. Its fresh perspectives assess the ICTY’s role in striking the balance between local and international prosecutorial options. Part II. Process and Rights: Three Views analyzes the court’s international criminal procedure, lessons learned, and the comparison between the ICTY and the ECHR. Part III: Battlefields focuses first on unity and division among the justices in their opinion writing. It then addresses specifics regarding the crimes of persecution and genocide, excuses, regulating defense counsel, and sentencing. Part IV: Improvisation and Discovery neatly culls the literature and diverse perspectives on self-representation, command responsibility, a wide range of issues regarding agreements between the parties to a conflict, and proportional sentencing. The final Part V. Legacy in Bricks and Mortarcovers the mechanisms for ending the work of the ICTY.
This collection is especially timely, given the anticipated completion of ICTY trials in 2012. Its contents provide unique insights about this test tube for international criminal jurisprudence. Its authors and editors have done a splendid job of capturing the letter and the spirit of this ad hoc court’s interim handling of the major International Criminal Law developments—drawing from the work of the Nuremberg Tribunal, to positively influence that of the permanent International Criminal Court.