Opinio Juris

There are many topics that come to mind from yesterday's ASIL program, but the biggest takeaway for me came from the annual meeting with the passing of the torch from José Alvarez to Lucy Reed.

The strength of any learned society depends on its leadership and Alvarez has done an exceptional job as ASIL President. His President's columns have always been interesting and often provocative. His openness to innovation is impressive, from the promotion of ASIL West to resident Sabbatical Fellows. His commitment to junior scholars is commendable. At yesterday's panel on New Voices, he said that the presentations were so good that he thinks we should have twice as many "new voice" panels and half as many "old voice" panels. In his final Presidential Column he relates a criticism from the old guard challenging the democratization of the society. "Another pre-eminent voice of the “old guard” passed on to me recently a criticism that he had heard: namely that our annual meetings have lately resembled 'try-outs for the junior league.' I explained that our Society has shifted to more democratic, bottom-up, processes with respect to how we organize our Annual Meeting.... I remain convinced that this shift is healthy if we are to remain a membership organization that seeks to engage and to attract the whole of our members, here and abroad. It is a way to convey to prospective members and to our student members that they need not wait decades before they too will be accorded the privilege of addressing their peers." I love it.

Lucy Reed comes to the ASIL Presidency with large shoes to fill. I have known Reed for years, and I have absolutely no doubt that she will continue the tradition of outstanding leadership. She is one of the most prominent women in international arbitration, so I have watched her in action for years. I can confidently confide to anyone who does not know her that she is blessed with the Midas touch. In her inaugural speech, she emphasized her priorities as fundraising, women's rights, and continuing legal education. It will be wonderful to watch the ASIL excel under her leadership.

Of course, it is a great honor to be ASIL President. But the ASIL members should be honored that we have the likes of Alvarez and Reed as our leaders.

Okay maybe not war exactly. But last month the Supreme Court rendered an interesting opinion resolving a bitter border dispute between Delaware and New Jersey. Just how bitter? Well, according to the Court, the dispute became so heated that “Delaware considered authorizing the National Guard to protect its border from encroachment [and] one New Jersey legislator looked into recommissioning the museum-piece battleship U.S.S. New Jersey in the event that the vessel might be needed to repel an armed invasion by Delaware.” Armed invasion of the Jersey shore by the Delaware National Guard?

What could have led these two states to almost come to blows? Of course, oil. Well, okay not oil exactly, but natural gas. In essence, New Jersey wanted to construct a natural gas facility in New Jersey and build a pier that extended into Delaware waters for supertankers to dock. Delaware refused to authorize this, which led New Jersey to conclude that Delaware was acting beyond the scope of its regulatory authority.

Why would Delaware not have the authority to regulate the construction of a pier within its own territory? Ordinarily it would, of course, but a 1905 Compact between the states gave New Jersey the right to build such a pier without Delaware’s approval. Or so New Jersey argued.

New Jersey read the Compact to give New Jersey “exclusive regulatory authority over all projects appurtenant to its shores, including wharves extending past the low-water mark on New Jersey's side into Delaware territory.” The Court disagreed. I won’t bore you with the details, but suffice it to say that the Court interpreted the 1905 Compact to conclude that both states had concurrent jurisdiction over the matter.

So Delaware won the day and the great New Jersey War was averted. Thank goodness, otherwise the next Supreme Court case between Delaware and New Jersey would be over the interpretation of Article I, Section 10 of the Constitution: “No State shall, without the Consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”