Robinson Deplores U.S. Absence from International Criminal Court; Wood, Trooboff, Abrahamson, and Carlton Also Speak at Annual Meeting

In her Annual Dinner address at the Fairmont Hotel in Chicago on May 13, Mary Robinson, former President of Ireland and United Nations High Commissioner for Human Rights, decried the decision of the United States in May 2002 “to withdraw from any legal obligations as a signatory” in connection with the Rome Statute of the International Criminal Court, saying it was “unprecedented” and that it called into question the “seriousness of the U.S. commitment to ending impunity for genocide and crimes against humanity.” Other speakers at the 80th Annual Meeting included Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit; Peter D. Trooboff of the District of Columbia Bar, former President of the American Society of International Law; Shirley S. Abrahamson, Wisconsin Chief Justice and ALI Council member; and Alfred P. Carlton, Jr., President of the American Bar Association.

Observing that she had been “honored to be elected” to the Institute, which was well known to her “as the body that had done such rigorous work in areas such as developing Restatements of the Law and Model Codes,” Ms. Robinson praised the ALI for preceding the Meeting with an ethics session discussing corporate responsibility, thereby demonstrating the relevance of this “learned forum” as a “standard setter and a credible voice in times of rising public disquiet about the activities of some corporate lawyers and their clients.” She also took note of the Institute’s “pioneering and prophetic work” during the 1940s in sponsoring the Statement of Essential Human Rights, which “influenced the drafters of the Universal Declaration of Human Rights under the inspiring chairmanship of Eleanor Roosevelt,” and which, in turn, led more than half a century later “to the creation of the Office of United Nations High Commissioner for Human Rights,” which she held for five years. The Human Rights Statement, she explained, “broke new ground in identifying not only civil and political liberties, but also education, food, housing, and social security as human rights,” and its approach, she asserted, is needed “now more than ever, at the start of this new century.” Likewise, she said, the Institute’s “influential” 1987 Restatement of the Foreign Relations Law of the United States “recognized international human rights as a part of American law.” If the purpose of the war on Iraq, as President Bush has stressed, was “to bring freedom and human rights to the Iraqi people,” then “it is of paramount importance,” she declared, “that human rights in this context embraces” the “broad approach … captured in the Statement of Essential Human Rights,” and the Institute has a “big role to play” in influencing international thinking about the importance of these rights.

Ms. Robinson then went on to discuss “some of the challenges in creating an international rule of law, within which human rights can be protected.” She asserted that the concerns raised by the Institute’s founders in 1923, especially “the problems of reconciling different jurisdictions, and of the many novel legal questions that present themselves at the international level,” “describe the problems that face us in developing an international rule of law,” and would be “very familiar” to “any international lawyer.” For example, regarding the International Criminal Tribunal for the Former Yugoslavia, she indicated that “the task that would have been best understood by the founders of The American Law Institute was the need to clarify international humanitarian law in order to reach a definition of crime against humanity that the prosecutor and the judges could apply.”

Ms. Robinson observed that there has been great international progress in the area of trade, “in no small part because the United States has been fully engaged — both as an architect of the system, and as a party to a number of the disputes” and that “there has also been major progress in developing international criminal law and the administration of criminal justice,” first through the ICTFY, and then “through a second international tribunal to prosecute acts of genocide committed in Rwanda in 1994.” However, she noted that, to the “great regret” of its supporters, the new International Criminal Court has “no U.S. judge.” Concluding that the ICC constitutes “an institutional recognition that certain crimes — because of their nature — affect the entire international community,” and that when such crimes “cannot be prosecuted by domestic courts, an international court must have jurisdiction,” she declared that such a court is a “vital element in the task of building the international rule of law.” Stressing the importance of having American lawyers present “to help shape the decisions of the Court as it prosecutes its first cases,” she urged the Institute, “more needed” now “than ever before,” to “take these issues seriously and make a difference.”

In her remarks delivered at the start of the opening session, Judge Wood discussed the topic of sovereignty, which should concern lawyers, she said, because “it is perhaps the most important legal topic on the table today. It determines who makes laws; … what laws that body may legitimately enact …; and … where those laws might be enforced.” She suggested that the Supreme Court’s “pathbreaking” 1996 decision in Seminole Tribe of Florida v. Florida and the cases that have followed it have only succeeded “in raising a new generation of questions” about sovereignty and its corollary, sovereign immunity, questions that would “richly repay the kind of study that the ALI has given in the past to other topics,” such as the Division of Jurisdiction Between State and Federal Courts and the Model Penal Code, or that it is presently giving in “these very exciting, more forward-looking projects that the ALI has recently undertaken,” such as the International Jurisdiction and Judgments Project, Principles of Trade Law, and others.

Such a study, Judge Wood stated, would begin by considering “what sovereignty is and who has it in today’s world.” An ALI study of the structure of sovereignty might then go to explore the following five points: (1) “What did sovereign immunity cover in the period leading up to the adoption of the Constitution? In particular, how many examples can we find of states engaged in commercial activities in which they were sued for those commercial activities?” (2) Accepting the fact that state sovereign immunity is structurally part of our Constitution, “is that enough to answer the question whether an evolutionary approach or a static approach should be taken?” (3) “What presumption should govern our approach to sovereign immunity?” Should such claims “be construed narrowly, because it is a way of avoiding accountability” or can reasons be articulated to take the opposite approach and “construe claims as broadly as possible”? Does the answer to this question vary depending upon whose immunity is being considered, and does the answer depend on whether it is “an ‘internal’ claim of sovereign immunity” or “an ‘external’ claim”? (4) Should state sovereign immunity “be better aligned with foreign sovereign immunity”? And (5) Are there “points of tension” between U.S. constitutional law, as the Supreme Court has defined it, and the international obligations of the United States? Concluding that sovereignty is “a subject that has tremendous legal content” and one that is vital to “the future of our own federal system,” Judge Wood declared that the Institute would be an “excellent group” to give the subject the serious consideration it deserves.

Later in the Meeting, Judge Wood was elected as one of the three newest members of the ALI Council. See the accompanying article.

As the representative of the new class of life members honored at the luncheon on May 13, Peter Trooboff also took a broad, internationalist view of the ALI and its role as he described what the Institute has been doing in the international realm and suggested what additional transnational projects it might undertake in the years ahead. He declared that the late Professor Richard Baxter of Harvard Law School, who when Chief Reporter for the new Restatement of the Foreign Relations Law of the United States in the mid 1970s nominated Mr. Trooboff for membership in the Institute, would “take pride in the projects that the Institute has undertaken” since completing that Restatement. Besides the two transnational projects on the agenda at the Meeting this year, Principles and Rules of Transnational Civil Procedure and the International Jurisdiction and Judgments Project, Mr. Trooboff noted that the Institute has just published a valuable study of Transnational Insolvency that “will help to coordinate bankruptcies in Canada, Mexico, and the United States,” that it has started work in the area of intellectual property, “focusing on transnational principles governing jurisdiction, choice of law, and judgments,” and that in its “important new initiative,” Principles of Trade Law: The World Trade Organization, it “has adopted a truly multinational and interdisciplinary approach to the study of WTO Panel and Appellate Body decisions.” Remarking that “it will be interesting to see how the ALI critique of the WTO decisions, particularly of the reasoning in several of the decisions, is received in the trade community and whether it changes how the WTO Panels and the Appellate Body craft their opinions,” he said that he hopes the Institute will indeed go on “to restate principles of international trade law,” as is presently being planned.

Mr. Trooboff also observed that the “proper role” of the Institute in this period of great concern about the United States’s role in the world community is to begin “by focusing on our comparative advantage” and to “address issues that utilize the expertise and experience of our members and that lend themselves to a work product that has utility to the bench, the bar, and the academic community.” He then suggested three areas for new projects that the Institute might wish to consider, each involving issues addressed in the Foreign Relations Restatement but that might warrant further attention because of new developments: (1) investment disputes, (2) foreign sovereign immunities, and (3) the Alien Tort Claims Act and universal jurisdiction. The first project proposed “would be a counterpart to the new World Trade Law project and would concern international legal principles governing foreign investment.” Mr. Trooboff asserted that “the body of law relating to the international standards governing foreign investment is so important, complex, and in flux that the Institute should try to find an appropriate way to analyze” the International Center for the Settlement of Investment Disputes and NAFTA “decisions and other foreign investment arbitral awards,” perhaps beginning with a summary of “the results of the new ICSID and NAFTA cases in a format that permits ready correlation with the provisions of the Restatement” and following with “restatement of the legal principles emerging from these decisions.” Like Judge Wood, Mr. Trooboff stressed the importance of developing a greater understanding of the concept of immunity; in particular, he suggested that the Institute consider two projects concerning foreign state immunity: a summary of “the principles emerging from the many American cases decided to date in a fashion that would assist courts and litigants, including other governments,” followed by “a transnational restatement of the law in this field, building on our own work and taking account of the statutes and decisions of the courts of other nations.” With respect to his third suggested project involving the Alien Tort Claims Act of 1789 and related issues, he indicated that the Institute could “play a constructive role” in sorting out the issues that have arisen to date in the ATCA and Torture Victims Protection Act cases as well as consider the implications in the recently decided Yousef case that the Foreign Relations Restatement went too far in advocating the expansion of universal jurisdiction. Whether or not the Institute ultimately determines that it should take up these particular subjects, Mr. Trooboff concluded that it has taken “the right path in initiating transnational projects and should promptly begin identifying new subjects that would benefit from its expertise and take advantage of our working methods.”

At the luncheon on May 14, Chief Justice Abrahamson offered an entirely different legal perspective by providing a humorous yet revealing account of a week she spent presiding over cases in the Small Claims Division of Milwaukee County Circuit Court because the State lacked funds to hire retired judges to take over the courtrooms while full-time judges were on vacation. Explaining that in the Wisconsin small-claims court disputes involving $5000 or less can be decided “without lawyers, without too much delay, and without the mysteries of the evidence code,” she noted that the proceedings in this court have been likened to “a gunfight in the Old West,” since the parties “ride into court …, face off, blast away, and when the verbal smoke clears, the judge declares a winner.” Each day, she said, she heard motions to reopen dismissals for failures to appear, and she presided over numerous trials, including fender-benders, evictions, car replevins, money-damage claims, and “much more.” Observing that by Friday afternoon she was “beat,” she indicated that sitting in small-claims court is “exhausting work,” given the volume of cases, the mental activity of attempting to draw the stories out of the parties, and the need to adopt the unaccustomed role of playing both judge and lawyer while “at the same time trying to adhere to the rules of law and ethical conduct.” Opining that “a court without lawyers poses the risk that justice will not be done,” she concluded by urging the members of the Institute to check up on the small-claims courts in their jurisdictions; to volunteer to assist pro se litigants either directly or by helping the courts to establish forms and procedures for unrepresented persons; to aid immigrants or persons serving in the armed forces; or to deliver lectures on “homeland security and the Bill of Rights,” thereby “making our legal system work better for people who desperately need access to justice.”

In his remarks at the opening session on May 12, ABA President Alfred P. Carlton, Jr., discussed three “constant values and themes” that “are shaping American law and jurisprudence” and that in his view influence and shape “the very thing that is the objective of The American Law Institute”: (1) “the independence of the judiciary”; (2) “the independence of our profession”; and (3) “the leveraging benefit you get when you combine those to protect fundamental American values.” Pointing out the prevalence of contemporary complaints about a “crisis in the federal judiciary” and “the accelerating threats to judicial independence in the states,” where there exist “skyrocketing campaign costs” and “accelerating gutterball tactics,” causing the public to “equate judicial decisionmaking with judicial campaign fund-raising” and see complicit lawyers as attempting to “rig the system,” he stated that the ABA’s job is “to help maintain the public’s trust and confidence in our judiciary.” Mr. Carlton observed that in support of its belief that federal judges “need to be nominated and confirmed expeditiously and paid adequately,” the ABA recently “had a bill filed” for a judicial pay increase “by a bipartisan group of Senators.” He explained that the ABA is working daily with Chief Justice Rehnquist and several legal organizations to help bring about these changes, and that the report of the ABA Commission on the 21st Century Judiciary “will bring to the ABA House of Delegates in August a new policy that goes beyond merit selection in the states” and “takes the money, the politics, and the partisanship out of the system.”

While observing that the independence of the legal profession “is being challenged in many venues and in many theaters,” Mr. Carlton asserted that lawyers “are independent professionals with a time-honored duty to maintain the confidence of a client whose privilege it is we seek to protect,” that “we have hewed to our core values and independence as a profession” and will “continue to do so,” and that he hoped in August the ABA would readopt the old Model Code of Professional Responsibility’s “broader exception to the privilege for economic harm.” “In the end,” he maintained, “the great result, the product of combining an independent judiciary with an independent profession, is the unique ability to protect fundamental American values, to assure the constitutional rights of all Americans,” whether it be “instituting corporate-governance reform to restore investor confidence in the marketplace,” administering the death penalty fairly, or ensuring a “proper balance between national security and individual rights.”

The complete texts of the talks delivered at this year’s Annual Meeting will appear in the Proceedings, as well as in a separate volume of Remarks and Addresses that will be available later this year.