The Manley O. Hudson Medal is the highest honor bestowed by the Society, reserved for a distinguished person of American or other nationality for outstanding contributions to scholarship and achievement in international law. I was not on the Awards Committee but, if I had been, I would have chosen you. I am honored that you chose me as your interlocutor.
Outstanding contributions start somewhere, so where to start? A common first question in the Hudson Medal—and one you used with Lori Damrosch two years ago—is when did your fascination with international law begin? You facetiously teased Lori that her first words as an infant were not “ball” or “mommy” but instead “international law.” So I tease you in turn: Was your first word “Grotius,” perhaps with a Cuban/Spanish accent?
No; my first word was likely to have been “tamales” as I will explain.
First, I want to express deep thanks to the Society for this recognition. Now that I am actually here, I believe that this is on the up and up. When I first got an email from Greg Shaffer about this, I replied to him (with a copy to Michael Cooper) to be sure it was not someone's idea of spam. I am honored to be in the company of recent Hudson medal winners like my old friends Tony Anghie, Lori Damrosch, and Bernie Oxman—to name only the past three recipients of the Hudson Medal.
I also want to thank at the outset the two tables of family and friends who are here. They include relatives of my spouse, Susan Damplo, who came from Massachusetts—nearly all of whom have been educators following in the footsteps of Susan's late father Dr. Anthony Damplo who was Natick's Assistant Superintendent of Schools. Coming from even further away are Miami supporters from childhood, including an inspiring family of educators, the Hogges.
Of course I want to thank my son Gabriel who has tolerated, to quote a favorite lyric from Stephan Sondheim “all those dinners for ten/ elderly men/ from the UN” (“Could I Leave You?,” Follies). And deep, deep thanks to my wife Susan Damplo, an accomplished “superlawyer” who has had to qualify in four bar jurisdictions due to my failure to hold down a job; also devoted mom, talented soprano, and Spanish speaker (very useful to be able to communicate with my late dad)—who also managed in her spare time to Bluebook over 600 footnotes in what has to be one of the longest law review articles ever written—my first. And did it again and again for a number of years.
All those people know my background but perhaps some here do not. I am from Punta Brava, a one traffic light town en route to Havana. Back in 1960 you would have heard me on local Cuban radio advertising my parents’ ten cent tamales at their business, La Placita. My father was one of twelve children who grew up in a farmhouse with a dirt floor. He left school after the third grade when his mom gave him $20 to make his way in the world. He used it to buy a cart and donkey to sell vegetables door to door and eventually to establish La Placita. My mother married at age sixteen. She did not complete high school but was a sharp cookie: she ran the business, cooked the tamales, and did everything else. We did not leave Cuba with any money—with the exception of 100 U.S. dollars sewed into the strap of my mother's purse and another 100 dollar bill in my father's shoe heel. We knew that it was not permitted to leave with hard U.S. currency but my parents let me have my way and allowed me to go up the ship's ramp proudly holding my plastic piggy bank filled with all those U.S. dimes that U.S. tourists would use to pay for their tamales. The Cuban authorities at the top of the ramp smashed the piggy bank, counted out the dimes and gave me Cuban bills that even I knew could not be used even onboard the ship. As Charles Brower who is here can confirm this was an obvious expropriation without “adequate” compensation in violation of the Hull Rule. If you are looking for a reason for my subsequent fascination with property rights and threats to them, it probably started there.
So where did my international law journey begin? There is nothing quite like entering New York harbor in late 1961 after leaving Cuba on a ship bound for Spain half filled with refugees and members of the Spanish clergy that has just been expelled to inspire a lifelong interest in foreign affairs.
And there was another significant moment worth mentioning. Sometime in first grade I was shown a picture book on the Founding Fathers. It showed Alexander Hamilton stepping off a ship from an island in the Caribbean. I became convinced that I had much in common with Hamilton, a fellow refugee who, I imagined, also once lived in a rundown tenement in the Bronx. I recounted that childhood fantasy in my acceptance letter to the Academy of Arts and Sciences. Today my letter is on a wall in the Academy's building in Cambridge not far from Hamilton's own acceptance letter (from 1791).
Of course my immigrant story is common to many here. A substantial number of prior Hudson winners were also immigrants to the United States. I suspect that their “outsider” status had something to do with their commitment to international law. To mention just my own mentors who have passed: Tom Franck, Tom Buergenthal, Louie Sohn, Louis Henkin, Oscar Schachter, Andy Lowenfeld, and Eric Stein. As the character Hamilton says in the musical: “Immigrants. We get the job done.”
Lucy Reed
Fast forward to after law school. You started your legal career as a practitioner: as a Fifth Circuit law clerk, briefly in a law firm, and five years as an attorney-adviser in the U.S. State Department Legal Adviser's Office. (Disclosure: We have been friends since we first crossed paths in “L” thirty-nine years ago.) What made you decide to become an academic?
José E. Alvarez
You know the story, you tell it.
Lucy Reed
As I remember, while we were working together at the State Department, you told me how much you enjoyed adjunct teaching at Georgetown at night and wondered how people get jobs that, as far as you could tell, did not entail having a boss telling them what to do. I later saw an advertisement in, I believe, the National Law Journal that George Washington Law School was looking for qualified candidates to teach and included international law as one of the subjects. I circled the ad and put on your office chair one evening.
José E. Alvarez
I still have a copy of the letter that I wrote in response, which literally began “in response to your ad . . . .” I was so clueless. I had no idea that no serious candidate responds to ads placed for EEOC purposes. I also had no idea that I would be expected to have a job talk and paper on hand. I was extremely lucky that back in 1989 you did not need to have a lengthy list of publications and preferably a Supreme Court Justice on call to support you to break into academe.
But I want to pause on the State Department. I worked there first as a summer intern while in law school and later returned as an attorney adviser for five years. It had a huge impact on my professional life. I learned much from the high competence and incredible work ethic of the world's best international law firm, from colleagues like you, Lucy, as well as Joan Donoghue, Liz Verville, Libby Keefer, Kenny Vandevelde, David Small, David Stewart, and Ron Bettauer. To this day I tell any of my students lucky enough to get a job offer at State to take it. My first job there was working alongside you when the Iran-U.S. Claims Tribunal was established as part of the deal to get Iran to release the fifty-two U.S. diplomats taken hostage after the fall of the Shah. It was an education in how two governments that were at each other's throats (literally but more on that later) were forced by circumstances to create what has become effectively a permanent body to resolve state to state claims as well as claims from each other's citizens. It was also a front row seat on how to resolve mass claims, requiring skills that are applicable to everything from mass tort suits to how to handling claims in the wake of mass atrocity (and which we now call transitional justice).
The Tribunal also provided lessons on when occasionally diplomacy trumps law. The Tribunal permitted each country's nationals to present small claims against each government. Most involved U.S. nationals claiming for loss property when they were forced to flee Iran but there was the small claim of Mrs. Pishdad, an Iranian national. She owned one of the homes occupied by one of the U.S. diplomats taken hostage. For some time the Iranian revolutionaries who took them hostage occupied those homes. Mrs. Pishdad demanded that the U.S. government pay for damages caused, including long distance phone calls made by the hostage takers. She claimed that those revolutionaries were (the United States’) holdover tenants under the lease. I believe that you Lucy quietly settled the claim. Diplomacy prevailed over my argument that the lease had been, to be polite, frustrated.
Lucy Reed
As I recall, you were thrilled that the settlement made it unnecessary for you to go to The Hague to argue the case.
José E. Alvarez
Diplomacy also prevailed when two of the Iranian arbitrators at the Tribunal pushed one of the “neutral” arbitrators against a wall at the Tribunal and tried to strangle him with his tie. Everything stopped at the Tribunal since the United States insisted that two would-be stranglers could no longer serve as arbitrators but Iran refused to dismiss them. Back in the United States, I was told to search federal case law for comparable violence among our judges to show that there was precedent for disqualifying the Iranian arbitrators. I could not find anything comparable—our judges are apparently less violent—but ultimately the stalemate was resolved politically. The two left The Hague and received a heroes' parade welcoming them home.
Lucy Reed
Let us talk more about diversity-equity-inclusion, with some facts. You were Latino professor number forty-nine among nearly two hundred law schools in the United States when you started teaching in 1989 at George Washington. This was according to the “Sin Verguenza” (“shameless”) list identifying the top U.S. law schools with the largest number of Latino students but no Latino faculty. Throughout your career, you have quietly broken a number of glass ceilings within the profession: the first Latino full time professor at GW, Michigan, and Columbia, the first Latino president of this Society, the only Latino among U.S. nationals elected to the Institut de Droit International, the first Latino co-editor in chief of the American Journal of International Law (AJIL), among the few Latino law professors elected to the American Academy of Arts and Sciences, and now the first to be awarded the Hudson Medal. At a time when diversity programs and “identity politics” are under attack, what do you think about the importance of diversity in the profession, particularly for international lawyers?
José E. Alvarez
I am very grateful to Michael Olivas who started the Sin Verguenza list to put pressure on schools to hire Latinos. I am very grateful that thanks to affirmative action I was one of a handful of students accepted into Harvard College from what was then the largest high school in the U.S. Southeast (with some 5,000 students spread over three shifts). Harvard College was quite a change from Miami Senior High. It opened a whole new world. So you will not find me joining the crowd knocking what is left of affirmative action, namely Diversity, Equity and Inclusion (DEI) initiatives. As we all know, the “invisible college” of international lawyers and for much of its history, this Society, has been too narrowly conceived. It is particularly important for international lawyers to be open to all comers with all sorts of ideas, ideological associations, and even biases. We need all forms of diversity—including gender—at the UN and places like international courts and arbitral tribunals. It matters for international law's and this Society's legitimacy. It matters to have role models that look like America. It matters substantively: it influences what gets written about international law.
It matters so much that I suspect that my tombstone will record as my greatest achievement: “He established, with the help of many others, AJIL Unbound.” I suspect that AJIL Unbound has been the single greatest agent for diversifying the contents and eventually the board of the leading journal in the field, AJIL.
Lucy Reed
The Hudson Medal recognizes your exceptional scholarly productivity (seven books and 170 shorter works), some with catchy titles for serious legal material, such as “Fifty Shades of Grey,” “‘Convergence’ Is a Many-Splendored Thing,” “Beware: Boundary Crossings,” and “A BIT on Custom.” So, two questions: one specific and one general: first, how (in heaven's name) did you manage to connect Fifty Shades of Grey to international law, and second, how (in heaven's name) can you write so much?
José E. Alvarez
That article emerged from a friendly debate with former ASIL president and good friend Anne Marie Slaughter at an academic conference on the value of democracy held in Talinn, Estonia back in 2014, shortly after the Russian takeover of Crimea. It was the sequel to a debate between us at a prior ASIL annual meeting that resulted in my article on “Do Liberal States Behave Better?” Slaughter was then a strong proponent of the argument that since democracies behave better, the United States should be in the business of exporting democracy. At Talinn, Slaughter applauded the U.S. role in toppling Libya's Kaddafi and urged the United States to engage in humanitarian intervention in Syria. My argument then and in the subsequent article was “not so fast.” I argued that it was a mistake to believe the United States could successfully spread democracy to others and that it was also a mistake to think that all forty-seven members of the Council of Europe and the United States and some close allies—that these fifty countries were interchangeable good citizens, equally compliant with international law. I argued that there were fifty shades of grey among even democracies. I argued that democracies were: (1) not really more likely to resort to international courts; (2) not more likely to ratify treaties; (3) not necessarily more likely to cooperate better through transnational regulatory networks; (4) not more likely to have their national judges engage in “transnational judicial communications”; and (5) not more likely to directly incorporate international law into their national laws. Democracy itself sometimes imposed obstacles to all those things.
“Fifty Shades” also argued that it was particularly dangerous to presume that it was a good idea to impose democracy at the barrel of a gun to others less enlightened, whether in Panama, Grenada, Iran, Iraq, or Libya. I argued that strong democracies need to be built from the ground up (and can be destroyed or undermined the same way).
You asked how did I write so much, but the more interesting question is why do I write so much?
Writing forces one to really understand. Writing is my attempt at continued self-education. This is particularly important to those who are the first in our families to attend college. Like other late bloomers, I always felt like I was playing catch-up—to better educated, culturally sophisticated prep school grads at Harvard College and Oxford, to the sons and daughters of lawyers and other professionals at Harvard Law School, and much later to exceedingly impressive law school faculty colleagues.
Writing as a form of continuous self-improvement explains why I have written some twenty book reviews. I wrote a seventy-page review of Tom Franck's The Power of Legitimacy Among Nations because I wanted to be as good a scholar as Tom Franck.
Lucy Reed
It is not fair for me to focus on quantity, because the Hudson Medal by definition rewards substance and quality. What do you consider to be your most important and impactful scholarly contributions? What are you most proud of?
José E. Alvarez
If that is not an excuse to toot my own horn, I do not know what is. I will be brief.
Core Contributions to Law of International Organizations (IOs): When I started teaching international law I was struck that we focused on its sources—essentially treaties and custom—but not on its institutions and influential actors other than states: the many international courts, organizations, non-governmental organizations (NGOs), and multinational corporations (MNCs). Compare the study of U.S. law. There we study the role of legislatures, the presidency, executive agencies, state and federal courts, civil society. We build courses around them like administrative law. So I set out to show that international organizations have changed the sources, actors, content, and process by which international law is made as well as how it is “enforced” or defied. It was a ten-year effort to produce my first book, International Organizations as Law-makers, where I tried to show how the UN system organizations change treaties from contracts to more dynamic legislative enterprises, how they change how we find and what we mean by customary law, or the number and kind of “general principles” we apply. Once we put international organizations at the center, it is easier to draw insights from other disciplines that also study “institutions” such as political science. A focus on organizations makes us see more clearly that today a substantial, perhaps the most substantial, kind of international law is institutionally generated “soft law.” This law has special characteristics that some NYU colleagues call global administrative law and others, like some in Germany, simply call “public law.” It enables us to see the limitations of the commonly held view that at the global level all we have is anarchy with occasional small islands where law applies. The number of global and regional institutions and their interlocutors force us to consider whether it might be the opposite: forms of governance with pockets of anarchy.
At the same time, unlike a recent scholar who has suggested that most of us “love” international organizations, I have always agreed with Robert Keohane's warning: the study of these organizations should never be confused with celebrating them. The “turn to institutions” after World War II has many downsides. A clear-eyed look of the UN shows us the Security Council as the site for hegemonic power and reveals UN specialized agencies as discrete silos that are hard to bridge. When we seriously focus on institutions, this elicits insights from Max Weber on the pathologies of bureaucracies. It uncovers international organizations that have been to some extent captured by the industries they are supposed to regulate (such as the maritime industry and the International Maritime Organization; pharmaceuticals and the World Health Organization (WHO); or airlines and the International Civil Aviation Organization). It reveals international organizations' accountability vacuums.
Core Contributions to International Investment Law: Thanks to my experience in negotiating (or more accurately failing to negotiate) bilateral investment treaties at the State Department, when I started at George Washington, I created what became the first class in the United States on the subject. Since then I have written much on what these treaties mean, their contributions to and reliance on customary international law, the precedents set by investor-state arbitrators like Charles Brower, and, since 2000, the reforms now being attempted in response. I have addressed, including in one of my UN lectures, how the United States came to play such a significant role in that regime's regulation of transnational capital flows. I have traced much of that contribution to, you guessed it, Alexander Hamilton. This includes particularly Hamilton's remarkable twenty-eight essays (nearly 100,000 words and called “The Defense”) defending the twenty-eight articles of the Jay Treaty of 1794. Hamilton anticipated most the contentions, pro and con, on the merits of protecting by treaty the rights of foreign investors. The Jay Treaty has a solid claim to being the world's first bilateral investment treaty. It was designed, after all, to protect British investors and creditors from post-revolutionary U.S. courts that were inclined to maltreat them as traitors.
Lucy Reed
Beyond pure scholarship, I happen to know you are admired and beloved as a professor. But I think of skill in teaching as going beyond “professing.” What do you see as your contributions as a teacher?
José E. Alvarez
I suppose this goes back to my notorious “50 Ways IL Hurts Our Lives.” This list was part of my inaugural speech as ASIL president and was written in response to Lucinda Low's now classic “100 Ways IL Shapes Our Lives.” (I kept my list to fifty to avoid impeachment.) We need the “100 Ways” to educate the general public and ourselves about international law's achievements and potential but also the “50 Ways” to keep us humble and point the way to needed change. My basic international law course for first year law students at NYU is essentially the “150 Ways International Law Impacts our Lives”—for good or bad.
A word on what I think law teaching is for. Most of our students will be practicing lawyers. My classes recognize that. They are not an escape from, but a part of, the real world. It is the reason why I have been co-teaching my course now called “law and diplomacy in international organizations”—first with the experienced diplomat and former UN Under-Secretary David Malone and next year with a UN star performer as both UN lawyer and political adviser, Blanca Montejo. It is also why I regularly invite policymakers and law firm practitioners to come to the law school, including to the weekly speaker series we run under the U.S.-Asia Law Institute that I direct.
Lucy Reed
Do you want to say a word about the value of theory?
José E. Alvarez
Both as a teacher and writer, I do not ignore theory but we have a responsibility to show why theory matters. As Michael Reisman is fond of pointing out: “There is nothing more practical than a good theory.” I want to help students see the difference between good and shoddy theories. There are enormous benefits to seeing international legal problems from a number of different theoretical perspectives. There is much to be said in favor of looking at the work of the UN or international courts from the perspective of the Yale School, realism, liberal theory, law and economics/game theory, constructivism, and other IR theories. Everyone can benefit from Jeff Dunoff and Mark Pollack's latest effort to canvas international legal theory in their book.
Lucy Reed
The Hudson Medal honors contributions not just to scholarship but also to other achievement in international law. It is fair to say you have served the Society in virtually every capacity—panelist, committee member, not-to-mention president from 2006–2008. I recall that, as ASIL president, you wrote substantive columns in both Spanish and English on a monthly (not the usual quarterly) basis.
And there is a wide world beyond the Society in international law to which you contribute. To name just a few things: you served on the ABA Task Force seeking to establish the International Criminal Tribunal for the former Yugoslavia; you recorded many hours of free access lectures for the UN's Audiovisual Library; as co-editor in chief of AJIL with Benedict Kingsbury, you broke things wide open with AJIL Unbound; you served seven years on the board of the Center for Reproductive Rights; you were special adviser to the first prosecutor of the International Criminal Court; you mentored minority students considering law school under programs by the AALS and Hispanic Bar Association.
Obviously, many benefit from your commitment to public service. But how has your public service shaped your thinking?
José E. Alvarez
My public service is no greater than any ASIL member in this room. ASIL is a society of lawyers who serve the public interest. They include private practitioners like you Lucy who do both commercial arbitrations and state to state arbitrations like the Eritrean arbitration as well as serve on high level panels to make sure evidence of Russian war crimes gets preserved to help someday convict Putin and his generals of war crimes or aggression. On the back of virtually every member of ASIL here you will find a tattoo of Don Quixote. (I speak metaphorically of course so please let us not test that.) All of us are on a messianic quest to right every tilting windmill, kill every monster. This applies to our crits and TWAILers. Deep down, even Tony Anghie hopes to make international law more useful and responsive to the Global South, isn't that right Tony?
But public service requires listening to those you are purporting to help. You have to work with local lawyers and NGOs if you are going to do any good. The UN does not always do that. If you are a Haitian national I suspect that the scariest words you have ever heard over the past few decades are the following: “I am an international lawyer and I am here to help.” My inaugural speech as ASIL president highlighted the importance of checking our hubris at the door. International law is not always or even most of the time a progress narrative.
Public service, like teaching, is not selfless. I have been deeply enriched by it. My service to ASIL has helped define me. I have learned from practically everyone in this room. ASIL is a mutual aid and learning society. I do not think I could have survived my two years as ASIL president without the sage counsel of two people: ASIL's equivalent of Obi Wan Kenobi: Peter Trooboff (himself a Hudson medal winner) and then-Executive Director Elizabeth Andersen.
Public service has also made me a better scholar. My work with the first prosecutor of the International Criminal Court (ICC) made me aware that it is not only judges who make law, prosecutors do too (e.g., as through their policy papers). It also made me aware that the “complementarity” anticipated by the Rome Statute anticipates “positive complementarity”; that is, efforts by the ICC's prosecutor to encourage local prosecutions and that those local actions are probably far more significant than anything produced at The Hague. My experience on the board of the Center for Reproductive Rights taught me much about how and when international law gets, as the late Sally Merry put, “vernacularized” into national law. I learned that only if one works with knowledgeable local lawyers do you have a hope of convincing a national court that denying access to abortion to a raped teen constitutes a form of torture that violates both national and international law.
Lucy Reed
The international law topics you have addressed and the courses you have taught (at five different law schools) have canvassed virtually every aspect of public international law: law and diplomacy in international organizations, global health law, international investment law, human rights, globalization and East Asia, international criminal law and courts, U.S. foreign policy, international labor law, feminist critiques and other theoretical approaches to international law, and the list goes on. Your scholarship has been associated with Abe Chayes's “international legal process” approach, and has also been described as “positivist,” “pragmatic,” “idealist” or “romantic,” “interdisciplinary,” and even as “TWAIL adjacent.” What do you have to say about any of these characterizations of your work? Also, do you consider yourself to be a generalist, and should young scholars aspire to be generalists?
José E. Alvarez
Thanks for calling me a generalist instead of someone who is just hard to pin down. You are right that I am not a card-carrying member of any one faction. I am not a member of the Yale School or of the Crits or the TWAILers. I think classifications risk simplification. As the painter Mark Rothko put it “to be classified is to be embalmed.” Thanks for not embalming me prematurely. So yes at least to that extent younger scholars can and should aspire to be generalists.
Being a generalist international lawyer was expected in 1989. Being a generalist was characteristic of giants in the field at that time. I learned from generalists now sadly gone like Virginia Leary, Andy Lowenfeld, and Karen Knop. They knew then what we are relearning now: global challenges like preventing/mitigating climate change do not come pre-packed into single subject matter drawers like “international environmental law.” They require, as Edith's husband, Charles Weiss, points out in his recent great book, The Survival Nexus, the application of many disciplines, including law, as well as scientific and technological knowledge.
But it is less easy today to be generalist. As international legal regimes have deepened, they require ever more specialized non-legal knowledge. One cannot know the technologies of everything from nuclear fission to artificial intelligence (AI). It may take much greater effort to tackle global challenges with the necessary inter-regime and interdisciplinary knowledge needed. It may require seeking co-authors from other fields and other talents.
Lucy Reed
Let us move to a critical question. Given today's wars, increasing threats to democracy, backlash to human rights, and seemingly paralyzed institutions like the UN's Security Council, what is there to say about respect for and compliance with international law today? Many ask “Does it matter”? “Is it still ‘law’ or should we relegate its study to schools of divinity like John Austin thought?”
José E. Alvarez
We face three existential threats: nuclear war; climate change and its consequences; and future pandemics. Retrogression on some of them and lack of sufficient progress on others provide serious reasons to be depressed about the current state of international law. Like everyone in this room, am I worried that the nuclear doomsday clock is clicking closer to midnight? That the latest Conference of the Parties on climate change was a disappointment? That it is not clear that the WHO has really learned the lessons of COVID? Of course.
But the past and present status of international law cannot be judged on the basis of the twenty-four-hour news cycle. From the perspective of history, I do not think international law is in more trouble than in the past. We should be equally leery of saying the sky is falling or over hasty declarations of international law's progress. The “golden age” of the immediate post-Cold War period—when some claimed that the UN was finally “working as intended”—was very brief and not so golden. It turns out that even then the UN did not work as intended and the unipolar moment had some very dark consequences: Gulf War part deux and U.S. “enhanced interrogation” techniques to name but two. Our victory over the USSR led to, as I put in my speech to the Canadian Council, “The Closing of the American Mind.”
Making, interpreting, and enforcing international law has always been a struggle. Consider its plight on the eve of World War I or II or during the Cold War—when either the UN Security Council did not exist or was just as paralyzed as today. International law takes a very long time and lots of patience. It took multi-generational efforts to achieve something like the ICC, forty years to get the United States to ratify the Genocide Convention. And we are still waiting for the United States to ratify the 1982 Law of the Sea Convention despite nearly universal agreement that it would be a good idea. Setbacks are also part of the deal.
But we are not where we were before. It is a cliché but it is true we cannot step into the same river twice since the river has changed. Today's levels and kinds of interdependence make it impossible for a return to unilateralism or the kind of isolationism that some think will Make America Great Again. The reality of global supply chains and economic interdependence means that attempts to actually decouple the United States from China will not happen or, if attempted, will not last long given the common challenges we face. This is not to buy into international law's progress narrative. It is simply to recognize that the world has changed over time and this has made international law more important.
But even if you think international law is in a crisis, as has been said often at these annual meetings, we should not let a crisis go to waste. This is an exciting time to be an international lawyer. We are now asking, with renewed seriousness, whether there are possible limits to the exercise of the Security Council veto and even requiring that those vetoes be explained. We are asking whether we need a new international organization to regulate and reap the benefits of AI or how far the UN General Assembly's powers extend in the face of Council paralysis. Can the General Assembly, for example, go beyond encouraging the gathering of relevant evidence and actually help to establish a tribunal to convict Russians captured in Ukraine?
Despite the sense of crisis it is striking how much faith there still is in the law's prospects to regulate nations. Even the subaltern (like allies of Palestine or small island states most threatened by climate change) still pin their hopes on international law—as by engaging in strategic litigation before international courts. Many people—even in the Global South that has suffered so much at the hands of international lawyers during the colonial period and beyond—still think that there is power in international judges whose claim to it rests on their legitimacy or in UN human regimes dependent on in their capacity to mobilize shame. Despite the doubters, human rights still have a power and sting unlike anything else. That is one message of my new book on Women's Property Rights Under CEDAW.
Lucy Reed
I am glad you are prepared to keep at it, despite the pessimism. Please give us some key takeaways from your new book.
José E. Alvarez
My book is about the gendered gap in wealth/property and what one human rights regime does in response. Two quotations from Catherine MacKinnon, cited in the book, are fundamental. As she puts it “women around the world are more likely to be treated as property than to have any”; she also wrote long ago that “women have to leave their home [and I would add ‘state’] in order to find justice within it.” The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), ratified by 189 countries but not the United States, reflects both realities. My book describes the transformational potential of the CEDAW Committee's remarkable property jurisprudence over thirty-plus years but also the substantial challenges that expert body of twenty-three mostly women faces from within as well as the surrounding UN bureaucracy. The book highlights the challenges the battle for gender equality faces from the ground up—populist resistance—as well as, top down, from authoritarian governments, including from some of the Fifty Shades of European democracies.
The gendered wealth and property gap is a chasm. CEDAW's property jurisprudence combats the many structural impediments to gender equality: legal, cultural, religious. That jurisprudence highlights why narrowing that property gap is critical to everything else we want to achieve. A world of economically empowered women who have equal access to land, credit, inheritance, marital property, equal positions in government and in the market is also a place of radically reduced levels of extreme poverty, homelessness, hunger, and vast improvements in health care. My book argues that the protection of women's property rights is not a neoliberalist plot to encourage more commodification, privatization, or deregulation. Even TWAILers would I think applaud it. CEDAW protects Roma single moms from forced evictions even when they do not own their homes; it protects women facing domestic violence to security in their homes even if the husband owns the home; it finds that grabbing the land of widows by male relatives or by large agri-businesses that would destroy women-led family farms both violate the law even if justified by culture or neoliberalism.
The book also highlights the fragmented nature of the “right to property” among international regimes. It tees up comparisons between CEDAW's treatment of property rights and that under international investment agreements that protect the property rights of foreign investors, as well as comparisons with the protection of property even in human rights treaties that do not mention property like the International Covenant on Civil and Political Rights.
Elsewhere, I have written extensively about the Inter-American Court of Human Rights’ property jurisprudence—including on behalf of indigenous peoples. I hope that my work inspires a new field of international comparative property rights since after all there are some twenty human rights treaties alone that contain them.
Lucy Reed
I could go on and on, but we have to come to a close. Thank you on my behalf and on behalf of our guests.
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