20 May 2010 - 22 May 2010

The Condition of International Law

Chair: Dame Rosalyn Higgins DBE QC

2010’s first weekend of blazing sunshine set the scene for a conference, generously sponsored by the American Ditchley Foundation, to check the health of the international legal system and to suggest ways of increasing its effectiveness.  With fourteen different nationalities and (alongside the strong showing of international lawyers) a variety of professions represented, we covered an enormous amount of ground.  But we had to acknowledge that the North far outnumbered the South and that we needed to leave room for the different perspectives of the larger emerging economies in particular, as an international structure largely established under the management of the West was bound to have to face some challenges.  We also spent less time than we should have on the expanse of laws, treaties and agreements on international trade and investment.  Nevertheless there was a vigorous discussion, and many differing views expressed, within our in-depth examination of law and politics.  This Note cannot possibly do justice to the richness of the debate. 

While we tried to cover in a reasonably disciplined way the health of the international legal system, the contribution of the United Nations to international order and, more broadly, the changing political environment, it might help to summarise the product of the conference by describing our reaction to a number of central questions.

1  To what extent does the system of international law have to be built around states?
Participants accepted that nation states remained the principal actors in the international structure, but other voices and influences – NGOs, civil society more generally, the corporate sector, leading individuals – were creating an impact in a more open world with multiple channels of communication.  Taken together with the evolution of multilateral institutions over the past sixty years, to which states have delegated a number of functions and responsibilities, this made for a very complex picture.  It was pointed out that the system was rooted in control of territory, whereas many of the world’s new problems, touching on the environment, health, open communications in the magnetosphere and natural disasters, did not recognise borders.  This sharpened the requirement to adapt the structure to these realities of universality, global credibility and broad effectiveness.  It also set into sharp focus the need for domestic legal systems to be better attuned to the international sphere;  and this brought up the capacity of national capitals to implement and apply international law and to shape their national interest in a more strategic context.  If powers concentrated only on their immediate interests, a vicious cycle was created when others followed their example.  No international system of law could work effectively unless states acted in good faith and showed comity in considering the interests of others.   As will be shown below, we tried to tease out the implications of this.

2  Is consent a necessary basis for an international legal system to work?
This innocent-sounding question touched on the heart of the relationship between national sovereignty and international order.  Many participants pointed to the impressive accumulation of international norms, principles, treaties, rules and laws as having established a compelling collection of obligations for each member of the United Nations to comply with the system.  Others maintained that in practice the consent of states was essential to any working system, because only in capitals could law and policy be brought together in a way which regulated the behaviour of states.  Perhaps it is not too much to claim that by the end of the conference we had established, more implicitly than explicitly, that there need not be a tension between these two perspectives.  Since there is no global governance, nor any final arbiter of international law having compulsory jurisdiction, the consent of states cannot be dispensed with as new norms are made.  Politics come into everything.  But we were clear that the corpus of international law, which was being constantly adapted to fit new circumstances, was an indispensable and close to comprehensive instrument for realising every state’s interest in international peace and order.

3  Is the current international legal architecture adequate or are there identifiable gaps?
On the whole, the conference avoided quibbling over definitions, but “gaps” got some people going.  The word seemed to mean different things to different people.  Was lack of clarity, or difficulty in interpretation of a law, a “gap” just as much as an area not covered by a legal principle?  And some areas were clearly still insufficiently addressed.  Participants pointed to the difficulty of formulating rules on climate change or an international agreement on the nature of terrorism.  We shall cover below the problems in preventing humanitarian abuse or establishing an agreement on “the responsibility to protect”.  Yet the discussion helped to shape a sensible description of what was working in international law and what more was needed.  A huge amount was already covered by the laws, treaties, conventions and regulations we already had;  and the combination of these and familiar domestic and criminal law provided a basis to deal with almost any circumstance with good sense.  But there was no doubt that tensions existed between sovereign prerogatives and the implementation of human rights norms;  and no-one disagreed that a gap existed between international law itself, together with the decisions of the UN Security Council, and the international community’s success in implementing or enforcing those texts.  We imagined for a moment having to start from scratch today in writing the UN Charter and quickly understood what had been achieved in the last six decades.  Yet there were a number of areas where some hard discussion, not to say firm action, was going to be necessary to keep the system relevant to the evolution of events.  Just to say that the system was adequate and that there were no gaps would be a disservice to the multilateral agenda. 

Almost all participants pointed to the need for more effective implementation of legal rules or undertakings, including of the Security Council’s decisions.  Pressure would need to continue on governments to align their policies more consciously to international legal requirements.  Where there were discrepancies between declaratory and performative approaches to principles of international action, balances would need to be struck.  The performance of certain bodies – we tended to focus in particular on the ICC and the international criminal tribunals – would need to be improved.  So would the capacity of domestic systems to apply international law.  On the other hand, there were strong calls not to proliferate international legal texts and instruments when a more important requirement was to make the existing international institutions work more effectively and to underline the legitimacy involved in respecting them. 

4  What should we aim to achieve over the coming period?
Participants were clear that to set global governance as an ultimate aim was too far-fetched.  It would make better sense to try to make the current institutions operate more effectively.  The aim should be to establish that the value of a working international system was so great that national compromises were a long-term national interest for each UN member state.  Where there were tensions between different principles, efforts to resolve them should continue.  The capacity to implement should be improved where possible, if necessary with international assistance.  And judges and legal advisers should develop a deeper dialogue on the interpretation of the law where different perspectives had caused problems.  Most participants agreed that a key issue in developing international criminal law was complementarity.  The international structure should not be called upon except when national systems were unable to cope with a problem.

5  If compliance and implementation are major problems, how do we improve them?
The conference found it easier to point to compliance as needing improvement than to specify ways of making this happen in particular circumstances.  There was plenty of general criticism of states applying double standards, or putting their security above international norms, or treating international and humanitarian law as remote obligations.  But we also tried to understand what was happening underneath the surface.  The universal application of international legal principles was all very well in theory, but ours was a pluralistic world with many different political and cultural approaches.  We were probably looking at a circle which could not be squared.  Yet we saw the world as gradually becoming accustomed to the fading impact of borders.  International systems were no longer so esoteric when such a large proportion of the global population travelled, communicated or did business internationally.  Governments, the private sector and individuals had an increasing stake in international order and this needed to be crystalised in the way they related to others’ interests.  The answer, therefore, was a greater determination by member states to implement or enforce (not the same thing) the multilateral approach.

6  As the world evolves, what new circumstances, issues or challenges need to be adapted to?
We were not short of thoughts on the nature of the new global environment.  Greater freedom of choice and interaction had introduced a multiplicity of actors into international life, going way beyond governments.  The increase in intra-state conflict, with inter-state war now much less common, was testing the application of the UN Charter.  Modern technology and communications were changing the style of human exchange.  International institutions were finding it hard to keep up with the pace of change, which meant that governments and other major international players were increasingly inclined to use informal groupings to address specific issues.  Were these just new millennium growing pains or was the world in deep crisis?  The tendency in this debate was not to be alarmist.  We had considerable resources to bring to bear on international order and there was no reason why sensible arrangements for climate change, the Arctic, cyberspace and new economic and political power distributions should not evolve, even if there were moments when order took some time to catch up with complexity.  One small indication of this relative optimism lay in the fact that, to the surprise of some, the subject of Iraq hardly featured at all in our discussion.  This was not intended to minimise the criticism of those who saw a lack of international legitimacy in the Iraq invasion, more an indication that we were moving on to other things.  But it suggested a reasonable confidence in the capacity of the global system to adapt.

7  How can action on human rights or humanitarian disasters be built into the system?
Humanitarian action came up regularly as an example of tension between national policies and international principles.  The responsibility to protect had been endorsed by the 2005 World Summit, but participants agreed that it remained an aspiration.  There was no doubt that human rights and humanitarian activity were receiving increasing prominence in international discussion, and no-one could object to promoting the principle as far as it could be taken.  But it remained unclear as to how this should be balanced with national sovereignty or with policies on national security.  The history of the dialogue on R2P showed how reluctant many states were to allow precedents to be established for the invasion of sovereign territory.  Yet the spirit of international justice and the impact of international public opinion meant that these areas could not be ignored.  So this was definitely an area where the promulgation of norms had run ahead of the capacity to implement.  Most participants thought strong advocacy for action should continue, but that the UN Security Council should remain in control of the authority to use force in specific circumstances, even if differences between members of the Council sometimes meant that either inaction or disputed action resulted.

This question was related in our discussion to the more general difficulties over the use of force in the international sphere.  The UN Charter was clear enough about the two bases for the use of armed force, self-defence or a decision by the Council itself.  But this did not seem to be enough to deal with those circumstances where the right to self-defence was claimed but not broadly accepted in the particular circumstances, or where the Security Council was just not up to taking the necessary action because of political differences.  It was also acknowledged that the International Court of Justice, effective and well run as it was generally considered to be, had not developed a more detailed doctrine on self-defence.  Strong arguments were voiced, backed up by unimpeachable international principles and texts, on the primary responsibility of the Security Council to sort this out.  But many participants did not feel that the dialogue could stop there, as recent events had shown.  The most powerful states could be singled out as required to keep international order ahead of anyone else, but it was often the most powerful states which hit the biggest national dilemmas in this area.  In reality, while many observers regarded these areas as justiciable, the decisions taken were highly political and therefore needed to be the subject of political negotiation as much as recourse to law.  If that seemed to be no progress at all, others pointed out that international law was gradually developing a broader scale of impact through the accretion of decisions over the years.  Perhaps some of the ambiguities could be overcome by accepting, as the Security Council had done in its better moments, that the certain key rules of international armed conflict should apply to non-international conflict or to the use of force in circumstances different from inter-state war.  In other words, the call to respect the legitimising authority of the international institutions needed to be matched by the capacity of those institutions to understand the new types of cases that were coming before them. No-one at this conference found it difficult to recommend that hard discussion on this needed to continue in both political and legal circles.  It did not have to be a show-stopper.

8  What role does or should the UN Security Council play in a universal system?
The conference spent a good deal of time, including in one whole working group, on this issue.  There was general agreement that the UN Charter could not be opened up for reform:  even an adjustment in the membership of the Security Council, though regarded by most as advisable in terms of representativeness in the modern context, was not likely to happen soon.  It was difficult to deny that the Council, while performing an enormous amount of good work in areas where its membership were largely in agreement, was severely handicapped when that agreement was missing.  There were also arguments, some of them quite powerful, for amendment to the use of the veto;  but everyone knew that the Permanent Five were most unlikely to agree a change in the foreseeable future. 

This meant that the Security Council had to improve its capacity to act by focussing on its working methods.  There were proposals for greater transparency in the Council, through a higher proportion of open meetings;  for more systematic consideration by the Council of the consequences of implementing a proposed resolution before it was adopted;  for greater involvement of the Legal Counsel in advising on legal implications;  and for the Secretary-General to play a stronger role in taking his opportunities under the Charter for influencing the Council’s business.  It was also suggested that the Security Council and the Secretariat could together give more active assistance to states, particularly those with capacity problems, in the implementation of resolutions where relevant. 

There were concerns about the Council’s tendency to legislate.  It should take more care when it was mandating sanctions against individuals or corporations, when the evidence for targeting a particular area was inconclusive.  The current proposal to create an Ombudsman was welcomed, but several participants thought that the establishment of an independent quasi-judicial panel to address such cases might be needed.  Otherwise, non-UN courts, particularly in Europe, which had specific systems of law to apply, might find UN sanctions (which should in principle prevail under Article 103 of the Charter) in violation of the human rights principles in issue.  These considerations might also apply to the detention of individuals by UN peacekeepers under implicit or explicit powers under a Security Council resolution.  When it was suggested that a more general process of accountability might be established for the Security Council, to be put in the hands either of a judicial panel or of the General Assembly, strong objections were lodged.  It was nevertheless an interesting aspect of our debate that people felt the Security Council, composed of representatives from national capitals with national prerogatives, should more consistently show responsibility to serve the collective interest.  A dialogue amongst leading states to establish the beginnings of  principles whereby their representatives might do this in New York was an interesting suggestion. 

9  How have the international courts and tribunals performed and can they be improved?
This discussion was an important part of our health check on the international legal system, but we found it difficult to establish the criteria for assessment.  The ICJ was given a good billing, both for the quality of its judges and the relevance of its decisions.  But it had not been all that active in the areas of greater political difficulty covered above. The International Criminal Court and the Rwanda, Yugoslavia and (to a lesser degree) Sierra Leone Tribunals were more consistently criticised, both for the uncertain quality of leading personnel and for their lengthy and apparently inefficient procedures.  It was seen as a pity that, with the exception of Yugoslavia, it was the African arena that seemed to be heavily targeted, which reinforced the perception that international criminal law was largely a western tool.  On the other hand, the establishment of these courts, and not least the ICC, was an important achievement in itself and was gradually creating over time a deterrent against humanitarian abuse.  Two practical proposals were made for procedural improvements:  staffing international courts with people with a higher and more relevant standard of judicial experience and expertise;  and perhaps examining whether the purely adversarial system of adjudication by international courts might not be adapted to, or accompanied by, the option of an inquisitorial method.

Related issues
A number of other points came up in the discussion but needed more time to develop.  We recognised that the emerging powers, and particularly China and India, who were not present at this discussion, were going to develop perceptions of the international legal system which might not fully fit with the largely western model so far.  There might be resistance to their approaches, not least if China, for instance, attempted to assert its national weight in approaches to the Arctic or to regions in the developing world that were the source of raw materials.  This was noted, though others pointed out that the evidence so far indicated to the willingness of the emerging powers to play within the system, rather than breaking away from it.  Everyone accepted that a focus on dialogue, and if necessary, negotiation in this area would be sensible.  This thought was extended to the increasing tendency of regional bodies, especially but not solely in Europe, to diverge in certain respects from the letter of the international law.  This would become a much more noticeable drift if it was not addressed.  As for the non-governmental input, most participants felt that NGOs and civil society more generally should be allowed an input into the international legal structure, not excluding the Security Council, because they were so often involved in action on the ground to remedy problems.  The conference was hesitant, however, in assigning them a formal role in this respect.  A good deal could be done by building them into debate and dialogue at the informal level.

We also had a discussion about international lawyers themselves.  The law, after all, was not an end in itself, but a means to solve problems and reduce conflict.  Given the areas for improvement and further discussion we identified, it was important also to persuade the legal advisers within governments, and the legal teams within the UN family of institutions, to give expression to the discipline that was needed in the making of decisions for international order.  The law itself could either be coercive or suggest compromise. Lawyers should be particularly attuned to the opportunities for the latter when coercion was likely to be resisted. 

Perhaps it depended on personal experience and perception whether pessimism or optimism came out on top after this fascinating debate.  But the conference was unhappy to leave it at the point that the health of the patient lay in the eye of the beholder.  The international legal system was a huge achievement, but global change was producing threats and weaknesses.  It was an uncomfortable feeling to think that so much depended on rational discussion and compromise, when issues of security or climate change or development assistance had shown too little benefit from these approaches in the recent past. 

The main points to take away from the conference could include the following:

·         The picture that emerges from this assessment is that the system is not inadequate, nor in need of much more law, but the international community needs to make better use of what it already has.

·         In this vein, it is important to encourage politicians and policy-making officials, including in parliaments where relevant, to discuss and hear views on the relationship between international order and national policy priorities.  It might be understandable, in day-to-day terms, that political leaders pay little attention to the regular round of business at the UN or in international legal institutions, but the accumulating effect of what is achieved will in the end have a significant impact on their business.

·         The encouragement of more dialogue should include discussion amongst judges and legal advisers in the international arena of their respective interpretation both of principles and of circumstances.

·         The capacity of states to implement international law needs greater attention, particularly in respect of aligning domestic with international legal requirements.

·         The appointment of effective personnel, in particular to the international tribunals, is vital.

·         The UN Security Council should in particular improve its working methods, with consideration of greater transparency, a more systematic approach to implementation of resolutions, restraint on the veto, care over the justice of targeting individuals, greater input from the Legal Counsel into Security Council discussion and a stronger role from the Secretary-General. 

·         In all this, nevertheless, we should not expect radical change, which would only come in an unwelcome and unexpected way.  Cumulative improvements were ready to be made and it was in the national interest of member states that improvements should be made.

This was a necessary and a surprisingly comprehensive discussion, fully in tune with Ditchley’s series of assessments of the multinational institutions in the context of global change.  Ditchley is immensely grateful to the participants for their responsiveness and frankness in answering the questions posed, and to no-one more than our distinguished Chairman, who led the plenary discussions with a fine sense of discipline and feel for the core substance.  The agenda of things to be done may be enormous, but the priority areas are not so difficult to address if decision-makers contemplate the vacuum that would result if international order declined.

This Note reflects the Director’s personal impressions of the conference.  No participant is in any way committed to its content or expression.


Chair :  Dame Rosalyn Higgins DBE QC
Advisor on International Law to the Chilcot Enquiry (2009-); Honorary Life Vice-President, American Society of International Law (1993-); Bencher, Inner Temple (1989-); Member, Institut de Droit International.  Formerly: Judge (1995-2009) and President (2006-09), International Court of Justice, The Hague; Chairman, Public International Law Advisory Board, British Institute for International and Comparative Law (1992-2005); Member, United Nations Committee on Human Rights under the International Covenant on Civil and Political Rights (1985-95); Professor of International Law, University of London (1981-95).

Mr Nicholas Grono

International Crisis Group, Brussels: Deputy President.  Formerly: Vice-President for Advocacy and Operations (2005-08); Director of Research (2003-05); Chief of Staff and National Security Adviser to the Australian Attorney General (1998-2001).

Mr Maurice Copithorne QC

Professor, Faculty of Law, The University of British Columbia.  Formerly:  UN Special Representative on the Human Rights Situation in Iran (1995-2002); Canadian Foreign Service (1956-86).
Professor François Crépeau
Hans & Tamar Oppenheimer Professor of Public International Law, McGill University (2009-); Fellow (2008-11), Trudeau Foundation; Fellow, Institute for Research on Public Policy; Member, Canadian Commission for UNESCO. 
Mr Paul Heinbecker
Director, Centre for Global Relations, Wilfrid Laurier University & Distinguished Fellow - International Relations, The Centre for International Governance Innovation, Waterloo, Ontario (2003-).  Formerly: Canadian Diplomatic Service (1965-2003).
Professor Kathleen Mahoney
Professor, Faculty of Law, University of Calgary; Founder, Women's Legal Education and Action Fund; Expert Advisor, Interaction Council; Canadian Director of a 5-year project on judicial education in Vietnam. 
Judge Kimberly Prost
Judge, International Criminal Tribunal for the Former Yugoslavia (2006-); Member, Programmatic Steering Board, Hague Institute for the Internationalisation of Law (2009-).  Formerly: Head, Legal Advisory Section, Division of Treaty Affairs, United Nations Office on Drugs and Crime, Vienna (2005-06).

Dr Nabil Elaraby

Director, Cairo Centre for International Commercial Arbitration (2008-); Senior Partner, Zaki Hashem & Partners, Cairo (2008-); Member, International Institute for the Unification of Private Law.  Formerly: Judge, International Court of Justice, The Hague (2001-06).

Mr Laurent Cohen-Tanugi

Managing Partner, Law Offices of Laurent Cohen-Tanugi; Member, Paris & New York Bars; Political Writer.  Formerly: Chair, French Government Task Force on Europe in the Global Economy (2007-08).

Dr Constanze Stelzenmüller

Senior Transatlantic Fellow (2009-), formerly Director, Berlin Office (2005-09), German Marshall Fund of the United States, Berlin.  Formerly: Die Zeit: Defence & International Security Editor (1998-2005).  A Governor, The Ditchley Foundation.

Professor Andrea Bianchi

Professor of International Law, Graduate Institute of International and Development Studies, Geneva (2002 ).

Mr Hans van Loon

Secretary General, The Hague Conference on Private International Law, The Hague; Associate Member, Institut de Droit International; Member, European Group of Private International Law.

Mr Rolf Einar Fife

Director General, Department of Legal Affairs, Ministry of Foreign Affairs, Oslo (2002-); Chair, Committee of Legal Advisers on Public International Law, Council of Europe (2009 ).

Ambassador Kirill Gevorgian

Legal Service of the Russian/Soviet Foreign Ministry (1975-); Director, Legal Department, Ministry of Foreign Affairs (2009-).  Formerly: Ambassador of the Russian Federation to the Netherlands (2003-09).

Mr Anton du Plessis

Head, International Crime in Africa Programme, Institute for Security Studies, Pretoria.  Formerly: Terrorism Prevention Branch, UN Office on Drugs & Crime, Vienna; Senior State Advocate, National Prosecuting Authority of South Africa.
Professor John Dugard
Professor of Law, Centre for Human Rights, University of Pretoria; Professor Emeritus, University of Leiden; Member, Institut de Droit International; Member, UN International Law Commission (1997-); Judge ad hoc, International Court of  Justice; Special Rapporteur to the UN Commission on Human Rights, on Violation of Human Rights and on International  Humanitarian Law in the Occupied Palestinian Territory (2001-). 

Ambassador Hans Corell

Chairman, Board of Trustees, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University, Sweden.  Formerly: Under-Secretary-General for Legal Affairs and Legal Counsel, United Nations (1994-2004).

The Right Honourable Lady Justice Arden DBE

Lady Justice of Appeal, Royal Courts of Justice (2000-); Head of International Judicial Relations for England and Wales (2005-).  Formerly: Chair, Judges' Council Working Party on Constitutional Reform, leading to the Constitutional Reform Act 2005 and the Judicial Discipline (Prescribed Procedures) Regulations 2006 (2004-06).
Mr Clive Baldwin
Senior Legal Adviser, Human Rights Watch, New York (2007-).  Formerly: Head of Advocacy, Minority Rights Group International, London (2002-07); Coordinator of Human Rights and Rule of Law Analysis and Reporting, OSCE Mission, Kosovo (2000-02).
Professor Sir Franklin Berman KCMG QC
Barrister and International Arbitrator, Essex Court Chambers, London; Visiting Professor of International Law, Universities of Oxford and Cape Town.  Formerly: Legal Adviser, Foreign and Commonwealth Office, London (1991-99); Judge ad hoc, International Court of Justice.
Mr Daniel Bethlehem QC
Barrister; Legal Adviser, Foreign and Commonwealth Office, London (2006-).  Formerly:  Director, Lauterpacht Research Centre for International Law, University of Cambridge (2003-06).
The Honourable Lord Bonomy
Judge of the Supreme Courts of Scotland (1997-).  Formerly: Judge, International Criminal Tribunal for the Former Yugoslavia (2004-09); Surveillance Commissioner (1998-2004).
Mr Jeremy Carver CBE
Consultant & Head of International Law, Clifford Chance LLP (2003-); Co-Chair, International Rescue Committee, UK; Board Member, Transparency International, Berlin; Member, Steering Board for the UK National Contact Point for OECD Guidelines for Multi-National Enterprises; President, British Branch, International Law Association. 
Ms Nima Elmi
Fulbright Scholar, Harvard Law School; International Lawyer, London & Dubai; Associate, Herbert Smith, LLP.
Judge Sir Christopher Greenwood CMG QC
Judge, International Court of Justice (2009-); Bencher, Middle Temple (2003-); Honorary Fellow, Magdalene College, Cambridge (2009-). 
Ms Catriona Laing
International Director, Ministry of Justice.  Formerly: Head, Department for International Development Sudan; Head, International Institutions Department, DFID; Alternate Director, Board of the European Investment Bank.
Mr Iain Macleod
Director, Treasury Solicitors (2009-).  Formerly: Deputy Legal Adviser, Home Office/Northern Ireland Office (2005-09); Legal Advisers, Foreign & Commonwealth Office (1987-2005).
Ms Bronwen Maddox
Chief Foreign Commentator, The Times (2006-).  Formerly: The Times: Foreign Editor (1999-2006).  A Member of the Programme Committee and a Governor, The Ditchley Foundation.
Professor Sir Adam Roberts KCMG FBA
President of The British Academy; Emeritus Professor of International Relations, Balliol College, Oxford University; Member, UK Defence Academy Advisory Board (2003-).  Author.  A Member of the Programme Committee and a Governor, The Ditchley Foundation.
Mr Joshua Rozenberg
Freelance Writer, Commentator and Broadcaster; Contributor, Law Society's Gazette; Presenter (wef June 2010), Law in Action, BBC Radio 4.  Author.  Formerly: Legal Editor, The Daily Telegraph (2000-08).

Professor Mashood A Baderin

Professor of Law and Head of the School of Law, School of Oriental and African Studies, University of London.

Ms Elizabeth Andersen

Executive Director (2006-) and Executive Vice President, American Society of International Law, Washington DC.  Formerly: Executive Director, Central European and Eurasian Law Initiative, American Bar Association (2003-09).
The Honorable John Bellinger III
Partner, Arnold & Porter LLP, Washington DC; Adjunct Senior Fellow in International and National Security Law, Council on Foreign Relations; Member, Permanent Court of Arbitration, The Hague.  Formerly: Legal Adviser to the US Department of State, Washington DC (2005-09).
Professor Oona A Hathaway
Gerard C and Bernice Latrobe Smith Professor of International Law, Yale Law School (2009-); Member, Advisory Committee on International Law for the Legal Adviser, US Department of State, Washington, DC (2005-). 
Mr Thomas Joyce
Senior Counsel, Dorsey and Whitney, Minneapolis (2003-).  Formerly: Partner, Freshfields (1996-2003), Shearman and Sterling (1972-96).
Mr Harold Koh
The Legal Adviser, US Department of State; Martin R. Flug Professor of International Law, Yale Law School (on leave).
The Honorable Nicholas Rostow
University Counsel & Vice Chancellor for Legal Affairs, The State University of New York (SUNY) (2006-); University Fellow, Levin Graduate Institute of International Relations & Commerce, SUNY (2005-).  Formerly:  Senior Counsel, The Research Foundation, SUNY (2005-06); General Counsel & Senior Policy Advisor to the US Permanent Representative to the UN (2001-05).
The Honorable Abraham Sofaer
George P Shultz Senior Fellow in Foreign Policy and National Security Affairs & Member, Task Force on Energy Policy, The Hoover Institution, Stanford University, California (1994-); Professor of Law by courtesy, Stanford Law School (1996-).  Author.
The Honorable Frank Sullivan Jr
Justice, Supreme Court of Indiana (1993-).  Formerly: Executive Assistant for Fiscal Policy to Governor Evan Bayh (1993); Indiana State Budget Director (1989-92).  A Member of the Board of Directors, The American Ditchley Foundation.