(What follows are the remarks I delivered earlier today at the annual meeting of the American Society of International Law in Washington. The footnoted version of this speech is available at SSRN here.)
I am very honored, and most deeply humbled, by this Prominent Woman in International Law award. I am humbled when I look at the list of prior recipients. They include: Pat Wald and Mireille Delmas-Marty, two women whose lifework has inspired my own. Stateswomen like Pat Schroeder and Geraldine Ferraro. ASIL leaders like Lucy Reed and Edie Weiss. Another woman who serves as a Special Adviser to the International Criminal Court Prosecutor, Patti Sellers. And Carol Lee, a woman who, like me, once clerked for Justice John Paul Stevens. (Indeed, as of today Justice Stevens may add “feeder judge for PWIL award” to his long list of accomplishments.)
I am even more humbled when I think of all the amazing international law women who deserve this award. Let me name a very few: Our new ASIL President-Elect, Lori Damrosch (who is here with her mother, Jean Fisler, a WILIG stalwart), not to mention ASIL fearless leader Betsy Andersen. Joan Donoghue and her sisters on the International Court of Justice. The ICC Prosecutor whom I am honored to serve, Fatou Bensouda, as well as my sister Special Advisers, Leila Sadat and Brigid Inder. Stateswomen like Mary Robinson and Hillary Clinton. And still another woman whose lifework has inspired my own, Martha Minow.
(You know, I never had a sister, and my mother has been gone for more than a decade now. But I would like to give shout-out to the men in my life: my husband, Peter O’Neill, and our son, Tiernan O’Neill. Tiernan is in school today, so they had to stay at home, but they are here today in my heart.)
I am humbled, finally, to accept this award not only on my behalf, but also on behalf of my three co-editors, Kate Doty, Jaya Ramji-Nogales, and Beth Van Schaack, and, indeed, on behalf of the more than 300 women (plus a few men) who have contributed to IntLawGrrls. Those of you who are with us here today, please stand. Thank you. This award belongs to every one of you.
Even though we are all winners, our general dislike for cacophony demands that only one of us speak today. That honor falls to me, and given that this is a lunch talk, I have chosen a light and modest topic. Well, no, I’m afraid I have not. My title is, in fact, “International Law and the Future of Peace.” For this audience, it might more fittingly be called “Peace: A Feminist Project.”
As many of you know, IntLawGrrls often dedicated their contributions to transnational foremothers. Consistent with the assumption that we women are more nurturing than other humans, contributors frequently chose to honor pacifist heroines. Many from this group of foremothers rode what is sometimes called the first wave of feminism – that period in the late nineteenth and early twentieth centuries when many women (plus a few men) campaigned for change. Members of this movement are best known for winning women the vote. That goal, however, was but one of several that animated them. Equally important to many of these feminists was pacifism. Theirs was an all-out quest to end war. One such campaigner was Jeannette Rankin (above). (photo credit) As a rare woman member of Congress, Rankin voted “No” on legislation by which the United States entered World War I – and twenty-three years later, World War II.
Another was Jane Addams (below), who lectured for peace and against war, and led the U.S.-based Women’s Peace Party. In 1915, Addams chaired the International Congress of Women at The Hague and became the founding President of the Women’s International League for Peace and Freedom, an organization that thrives to this day. For her efforts Addams eventually would receive the Nobel Peace Prize. (photo credit) It must be noted that despite her achievements, the American Society of International Law denied Addams’ application for membership. As chronicled in a 1974 AJIL article co-authored by Alona Evans, Addams was “invited, instead, to subscribe to the Journal ‘for the same amount as the annual dues ….’” In fact, no woman was admitted to membership until 1921, when the Constitution’s guarantee of women’s suffrage appears to have forced the Society’s hand.
It must also be noted that not every foremother was a woman of peace. Quite to the contrary. The pirate Gráinne Ní Mháille, or Grace O’Malley, was cited by me and by nearly every other Irish IntLawGrrl. Selected from Asia were Lakshmi Bai and Trưng Trắc; from Africa, Ndaté Yàlla; and from the Caribbean, Anacaona and Nanny of the Maroons. At times, each of these women resorted to combat as a means to keep her people free from conquest or exploitation.
That we IntLawGrrls chose to honor warriors and pacifists alike points to a central paradox of peace. In its purest sense, pacifism connotes opposition to violence. And surely, the human condition is advanced every time that a life-threatening attack is averted. But the absence of that sort of violence – the non-use of force, as we lawyers call it – is not, in and of itself, peace. Whenever a careful examination reveals an apparent absence of violence to be little more than a veneer that masks exploitation, there is no peace.
It is in recognition of this fact that the peacemaker who died forty-five years ago today, Dr. Martin Luther King, Jr. (left), made clear his preference not for “negative peace which is the absence of tension,” but rather for “positive peace which is the presence of justice.” (photo credit) Similarly, a leading theorist of peace, the Norwegian sociologist Johan Galtung, distinguished attacks, which he called “direct violence,” from exploitation, which he called “structural violence.” Galtung insisted on attention to the latter as well as the former, “not only because exploitation may lead to direct violence,” but also, and perhaps most importantly, because exploitation “is violence in itself.” This fuller understanding of peace, this acknowledgment that exploitation is itself violence, poses a challenge, Galtung wrote. The challenge is to reduce direct violence – to promote the non-use of force – without simultaneously enabling exploitation. In short, there is a line to be drawn. And in our world, the task of drawing that line often falls to the shapers of international law.
We all know in broad outline the rules that govern the use of force. They appear in the foundational text of modern international law, the Charter of the United Nations. From 1945 onwards, U.N. member states promised to “settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered,” and further to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” States reserved an “inherent right” of self-defense, but only “if an armed attack occurs, until the Security Council has taken measures necessary to maintain international peace and security.” We know too that at Nuremberg and in Tokyo, convicted leaders were hanged for committing aggressive war – called crimes against peace – and for the atrocities that ensued. Taken together, these developments signaled that no state would be permitted to launch an offensive attack, that none therefore would need to exercise self-defense, and that leaders who acted in violation would be punished. That legal framework ought to have put an end to war, or at least to war between states. It did not. Continue reading