Go On! ASIL midyear in Los Angeles

(Go On! is an occasional item on symposia and other events of interest)

November 3, 4, and 5 are the dates of the 2012 Midyear Meeting and Research Forum of the American Society of International Law, to be held in downtown Los Angeles and at UCLA School of Law.
For many years ASIL's Executive Council and the Board of Editors of the American Journal of International Law convened in Washington, D.C., in the autumn -- about midway between the last ASIL annual meeting and the next. The Los Angeles gathering will entrench a new tradition of convening outside Washington, for an expanded meeting featuring not only the ASIL/AJIL leadership meetings, but also multiple public events aimed at legal practitioners, professor and students, judges, and others interested in international law.
Welcoming attendees at the 2012 Midyear Meeting will be a new initiative: the inaugural Research Forum at which a global array of ASIL members (including, as the photos in this post indicate, many of our own contributors). Chosen from a highly competitive selection process, they will present and invite focused discussion on works in progress.
The Research Forum is the brainchild of IntLawGrrl alumna Laura Dickinson (left) (George Washington) and Kal Raustiala (UCLA).
Working with them on the Forum Planning Committee have been IntLawGrrl alumnae Nienke Grossman (near left) (Baltimore) and Mary Ellen O'Connell (middle left) (Notre Dame), along with our colleague Mark Drumbl (Washington & Lee).
Scheduled highlights for ASIL's 2012 Midyear Meeting (for the full program, click here and here):

Thursday, November 3, California Club, 538 South Flower Street, Los Angeles

5:30-7:30 p.m.
► Panel on Current Issues in International Dispute Resolution, a roundtable discussion featuring IntLawGrrl and ASIL immediate past President Lucy Reed (right) (Freshfields Bruckhaus Deringer), ASIL President-Elect Donald F. Donovan (Debevoise & Plimpton), and Edward T. Swaine, (George Washington); moderated by ASIL President David D. Caron (California-Berkeley).

Friday, November 4, UCLA

1:45 p.m. – 2:30 p.m.
► Keynote address by International Criminal Court Prosecutor Luis Moreno Ocampo (left) (photo credit). A conference luncheon immediately precedes this address.

2:30-3:45 p.m.
► Panel on Emerging Issues in Alien Tort Statute Litigation

2:30-5 p.m.
► ASIL-UCLA Career Fair

4-5:30 p.m.
► Panel on General Counsels’ Perspectives.
► Forum session on Violence and Conflict. Papers to be presented: "Privatized Sovereign Performance, Counter-terrorism, and Endangered Rights" by IntLawGrrl Fiona de Londras (right) (University College Dublin); "Killing in the Fog of War" by Adil Ahmad Haque (Rutgers-Newark), and "From Gender-Based Violence to Women’s Violence in Haiti" by Benedetta Faedi-Duramy (Golden Gate).
► Forum session on Environmental Scarcity and Sustainability. Papers to be presented: "International Law in a Time of Scarcity: The Case of Bluefin Tuna" by Kristen Boon (Seton Hall); "The Perils and Promise of Indicators in Global Governance: A Case Study of Corporate Sustainability Reporting" by Galit Sarfaty (Wharton/Penn); and "Transnational Oil Companies, Indigenous Peoples, and the Local Construction of International Law" by Pablo Rueda (California-Berkeley).
► Forum session on Interpretive Strategies: Statutes, Treaties, and Customary Law. Papers to be presented: "Jurisdictional Standards (and Rules)" by Adam Muchmore (Penn State); "Is Article 38(1) of the ICJ Statute Outmoded? Toward a New Theory of Sources in International Law" by Noora Arajärvi (University of the West Indies); and "Vision and Technique: Accounting for and Justifying Differing Approaches to Treaty Interpretation Over Time" by Julian Arato (NYU).

Friday, November 4, UCLA

9-10:30 a.m.
► Forum session on The Security Council Today and Tomorrow. Papers to be presented: "Shaming Power of the Veto" by IntLawGrrl alumna Saira Mohamed (left) (California-Berkeley); "Variable Multipolarity and UN Security Council Reform" by Bart Szewyczk (WilmerHale); and "Iran, Nuclear Nonproliferation, and the International Atomic Energy Commission" by Aslı Ü. Bâli (UCLA).
► 1st of 2 Forum sessions on New Frameworks in International Economic Law. Papers to be presented: "Models of International Governance: An Examination of International Financial Regulatory Regimes" by Eric Pan (Cardozo); "Testing Reflexive Governance in the Context of the Social Dimension of the Economic Crisis (with a focus on the ILO and the OECD)" by Anne Trebilcock (Centre de droit international, Université de Paris 10 Nanterre); and "Breaking the Frame between Public International Trade and Private International Business" by Sungjoon Cho (Chicago-Kent) and Claire Kelly (Brooklyn).
► Forum session on International Cultural and Intellectual Property. Papers to be presented: "The Globalization of Cultural Property Law" by Lorenzo Casini (University of Kent); "Unpacking Imperialisms: Traditional Knowledge Rights and Wrongs" by Sean A. Pager (Michigan State); and "Democratic Legitimacy and Identity-Based Citizenship" by Natalie Oman (University of Ontario Institute of Technology).
► Forum session on New Developments in International Environmental Law-Making. Papers to be presented: "Artificial Islands in the Persian Gulf and International Environmental Law Principles" by Seyed Mohammad Mehdi (Vermont); "International Environmental Duty to Restore Ecosystems" by IntLawGrrl alumna Anastasia Telesetsky (right) (Idaho); and "Water in Investor-State Arbitration" by Badr Zerhdoud (Georgetown).

10:45 a.m.-12:15 p.m.
► 2d of 2 Forum sessions on New Frameworks in International Economic Law. Papers to be presented: "Consumer Protection at the World Trade Organization" by Sonia Elise Rolland (Northeastern); "Expertise and Legitimacy in International Investment Law: Governing Access to Investor-State Arbitration" by Jason Cross (Michigan); and "An Alternative Investment Law Framework?: An Analysis of an Investment Treaty/Contract Hybrid" by Ibironke Odumosu (Saskatchewan).
► Forum session on International Law and Institutions in Africa. Papers to be presented: "Between Adaptation and Emancipation: The African Union and the Project of Global Constitutionalism" by Theresa Reinold (Wissenschaftszentrum Berlin); "The Court of Justice for Economic Community of West African States: Building a Human Rights Rule of Law in Africa?" by Laurence R. Helfer (Duke), Karen J. Alter (Northwestern), and Jacqueline McAllister (Northwestern); and "Transitional Justice in the DRC: Insights from the Mobile Courts" by James Wormington (American Bar Association Rule of Law Initiative).
► Forum session on Transnational Networks and Normative Orders. Papers to be presented: "Transnational Legal Orders: Their Rise and Impact" by Gregory Shaffer (Minnesota); "Post-conflict Justice Networks" by IntLawGrrl Elena Baylis (left) (Pittsburgh); and "The International Norm of the Rule of Law" by Philip M. Nichols (Wharton/Penn).
► Forum session on American Foreign Relations Law. Papers to be presented: "Treaties and the Constitution" by David Sloss (Santa Clara); "Congressional Control of U.S. Human Rights Policy: An Empirical Examination of Legal and Normative Effects" by IntLawGrrl alumna Margaret McGuinness (near right) (St. John's); and "Between Law and Diplomacy: The 'Suability' of Foreign Officials iin U.S. Courts" by IntLawGrrl alumna Chimène Keitner (far right) (California-Hastings).

2-3:30 p.m.
► Forum session on Bottom-Up Influences in the Development of International Law. Papers to be presented: "International Law from the Bottom Up: Fragmentation and Transformation" by IntLawGrrl alumna Barbara Stark (left) (Hofstra); "Who Mobilizes for Human Rights? International Law, Social Mobilization, and Societal Inequality" by Justin Simeone (NYU); and "Parochial International Law? Assessing the Impact of National Legal Culture" by Marco Benatar (Vrije Universiteit Brussel).
► Forum session on The Politics of International Courts and Tribunals. Papers to be presented: "The New Terrain of International Law: International Courts in Politics" by Karen J. Alter (Northwestern); "The Perverse Effects of Ideology on International Criminal Justice" by
Shahram Dana (John Marshall); and "Are Arbitrators Political?" by Michael Waibel (Cambridge).
► Forum session on International Organization, and the Evolution of Treaty Regimes. Papers to be presented: "The Interplay of Exit and Voice: How Nations Behave in International Regimes" by Erlend M. Leonhandsen (Scandinavian Institute of Maritime Law); "Treaty Executives" by IntLawGrrl alumna Jean Galbraith (right) (Pennsylvania); and "An Economic Analysis of International Rulemaking" by Barbara Koremenos (Michigan).
► Forum session on Empire, Global Commodities, and Emerging International Regimes. Papers to be presented: "Sugar and the Making of an Early Modern Multilateral Institution: Explicating the 1902 Brussels Sugar Convention" by Michael Fakhri (Oregon) and "Building an American Legalist Empire, 1898-­1919: the Profession and Diplomacy of International Law" by Benjamin Coates (Columbia).

3:45-5:15 p.m.
► Forum session on Statehood and Self-Determination. Papers to be presented: "The Emergence of Indicators of State Failure and State Fragility: Measuring Stateness?" by Nehal Bhuta (New School); "Somalia and the International Legal Imagination" by Noah Novogrodsky
(Wyoming); and "Self-Determination, Statehood, and Unilateral Declarations of Independence: The Case of Palestine" by Robert P. Barnidge Jr. (Reading).
► Forum session on Compliance and Institutional Design. Papers to be presented: "Supply Side of Compliance" by Rachel Brewster (Harvard); "Best Evidence: The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements" by Yonatan Lupu (California-San Diego); and "The International Human Rights Regime: Delaying Democratization in the Worst Offenders" by Peter Rosendorff (NYU) and James R. Hollyer (Yale).
► Forum session on Participation and Politics in Post-conflict Justice. Papers to be presented: "International Criminal Law Expressivism and Global Transitional Justice" by IntLawGrrl alumna Margaret de Guzman (left) (Temple); "Unspeakable Memories, Unattainable Truths: Victim-Witness Testimonies in the Khmer Rouge Trials" by Laura Marschner (Zürich); and "Transparency And Amicus Participation In Investor-State Arbitration: An Account of Inter-Dependence, Structural Disincentives and the Democratic Deficit" by Jarrod Wong (Pacific McGeorge).
► Forum session on Hard and Soft Law in International Law and International Relations Theory. Papers to be presented: "International Law and International Relations: Taking Stock, Looking Ahead" by Jeffrey Dunoff (Temple) and Mark Pollack (Temple) and "Soft Law at Work: International Standards and the Design of National Human Rights Institutions" by Katerina Linos (California-Berkeley) and Thomas Pegram (Loyola Maryland).
Registration information, full program, and other details here.

Guest Blogger: Jean Galbraith

It's IntLawGrrls' great pleasure to welcome Jean Galbraith (left) as today's guest blogger.
As a Sharswood Fellow in Law and International Affairs at the University of Pennsylvania Law School, Jean teaches and has published in the areas of international law and foreign relations law.
She received her undergraduate degree summa cum laude from Harvard University and her J.D. from Berkeley Law (Boalt Hall). After law school, she clerked for Judge David S. Tatel at the U.S. Court of Appeals for the D.C. Circuit and Justice John Paul Stevens at the Supreme Court. Following her clerkships, she was an Associate Legal Officer at the International Criminal Tribunal for the former Yugoslavia, where she worked for Judge Theodor Meron.
In her guest post below, Jean presents a creative proposal to speed up the pace of U.S. treaty-making while at the same time enhancing the executive's credibility in treaty negotiating.

Heartfelt welcome!

Prospective Advice & Consent

(Many thanks to Diane Marie Amann and IntLawGrrls for inviting me to contribute this guest post!)

Under the current U.S. treaty-making process, treaties are first negotiated and signed by the executive branch, then sent to the Senate for advice and consent, and then ratified by the executive branch.
For important multilateral treaties, the Senate stage of this process can move slowly and sometimes endlessly. The oldest treaty in the Senate's queue of pending treaties arrived in 1949, and the backlog includes treaties supported by administrations from both parties, such as the Law of the Sea Treaty (prior IntLawGrrls posts). (credit for above left photo of Capitol's wing)
During an interview last year the previous the Legal Adviser of the U.S. Department of State, John Bellinger, described this backlog as weakening the credibility of current U.S. negotiators because

'our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate.'

Our negotiators, he suggested, were in a situation akin to “the boy who cried wolf.”
In an article forthcoming next year in the Yale Journal of International Law, I propose a new approach to treaty-making that would alleviate these problems – an approach that I call “prospective advice and consent.”
Briefly, I argue that under certain conditions, the Senate can and should give its advice and consent to treaties in advance of their final negotiation. Specifically, the Senate could give its advice and consent through the passage of a resolution that, by a two-thirds vote, authorizes the President to make a treaty or multiple treaties that conform to whatever conditions are set out in the resolution. Provided that the negotiated treaty or treaties ultimately conform to these conditions, the President could then ratify without further action by the Senate. This approach would both speed up the treaty-making process and strengthen U.S. credibility at the bargaining table, thus potentially allowing the United States to obtain more favorable treaty terms.
The article takes up two main questions: First, would prospective advice and consent be constitutional? Second, would it be workable and desirable? My answers are yes and yes, with some qualifications.


Constitutionality
The constitutional question centers on the Treaty Clause of Article II of the Constitution. I show that the text, historical context, and evolving practice of that clause leave the President and the Senate with the flexibility to determine the timing and specificity of the Senate’s advice and consent. The Treaty Clause simply gives the President the

'power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.'

Once we accept – as we currently do – that “advice and consent” can come at the same time, nothing in the text dictates when this must occur. Indeed, on several occasions President Washington received the Senate’s advice and consent to negotiate treaty amendments and then, following successful negotiations, ratified these amendments without returning again to the Senate.
I also see no constitutional problem in the Senate giving its advice and consent to negotiating objectives rather than to the specific text of a treaty, provided that the negotiating objectives satisfy the intelligible-principle test. As I show, the Senate did this several times in relation to a series of treaties extending the U.S.-Mexico Claims Commissions in the 1920s and 1930s. In any event, this is how Congress authorizes the ex ante congressional-executive agreements that are the bread-and-butter of U.S. international agreements.

Practicality
On the practical side, I argue that prospective advice and consent would work well for certain types of treaties. In this post, I’ll discuss one type: major multilateral treaties where U.S. negotiating power would otherwise be reduced because other negotiators doubt the President’s ability to deliver the Senate. (credit for below left photo of White House)
Why might the Senate be willing to give prospective advice and consent to such treaties?
For one thing, to the extent that the United States can negotiate better terms if it can credibly signal the Senate’s agreement, then the prospect of better terms might in turn make the Senate more willing to act. The Senate can set tough terms in a resolution of prospective advice and consent.
For another, this approach would give the Senate a long-desired formal role at the negotiations stage, thus potentially making the inter-branch relationship more collaborative and less adversarial.
In terms of timing, I argue prospective advice and consent would best come late in the negotiating process, when the overall contours of the treaty are in shape but important points of contestation remain.
A few caveats:
► First, I don’t think prospective advice and consent would always work. Sometimes the Senate would not give it or the President would be unable to succeed in negotiating a treaty along the Senate’s terms. Instead, I make the modest claim that prospective advice and consent might sometimes work where post-negotiation advice and consent would not be obtainable (or would take many years to achieve).
► Second, I recognize that the Senate may be leery of ceding final review of a treaty. In response, I argue that the Senate could condition its resolution of advice and consent in a way that would preserve some form of post-negotiation review.
► Third, I don’t think prospective advice and consent is desirable for all types of treaties. There is a broad scholarly debate over how U.S. treaty-making can and should be legitimately accomplished (e.g., through the Treaty Clause, congressional-executive agreements, or executive agreements). I don’t think there’s a single answer to this question, and my article does not offer prospective advice and consent as a sole solution. Rather, I argue that it is a legitimate option that would work well in some circumstances.
Comments on this work-in-progress would be most welcome!