Monday, January 31, 2005

International Legal Personalities

I had initially thought I would “liveblog” the Santa Clara University conference I attended last week but the lack of free wireless internet access and the limitations of my typing skills stymied that plan. So instead of simply recapitulating the discussions and presentations, including my own (which will be published in any event), let me instead profile three of the most interesting and famous figures at this conference: Judge Rosalyn Higgins, Professor Louis Henkin, and Professor John Yoo.

Rosalyn Higgins

Judge Rosalyn Higgins, a British lawyer who has served on the ICJ for over a decade, gave the keynote address. Judge Higgins has had an impressive career and the ICJ is lucky to have a dignified and credible member like her on its bench. Still, like many judges, her talk only hinted at the interesting topics that she could have talked about. Her address touched on the recent series of ICJ cases involving U.S. obligations under the Vienna Convention for Consular Relations, and suggested that she believed the decisions did not transform the ICJ into a “court of appeal” overseeing U.S. courts. Yet she also admitted that the ICJ had rejected the U.S. government’s suggestion that non-judicial remedies might satisfy their treaty obligations. She did not believe that requiring a particular type of domestic legal remedy (in this case, a judicial remedy) is a remarkable intervention by an international tribunal into domestic law.

Perhaps I’m being overly imaginative (or paranoid), but I am not sure Judge Higgins thinks the ICJ’s role is as modest as she suggested, Her reference to the ICJ as the “highest international court in the world” may actually reflect a more exalted view of the ICJ’s role than is justified by its very limited jurisdiction and the fact that it has no jurisdiction over any other international tribunal.

Louis Henkin

Other than Judge Higgins, the most famous speaker at this conference was undoubtedly Louis Henkin. Henkin’s influence on the United States international law academy is hard to overstate. His treatise, Foreign Affairs and the U.S. Constitution, is the seminal text on the study of international law as part of the domestic U.S. system. Combined with his service as Chief Reporter of the Restatement (Third) of U.S. Foreign Relations Law, Henkin can claim, without danger of too much contradiction, to be the greatest international law scholar of his generation (the only other possible claimant to this title is Myres McDougal).

On the other hand, Henkin’s views on a number of subjects such as the status of customary international law and the self-execution of treaties have been sharply questioned by recent revisionist scholarship. But none of this detracts from his achievement in setting the agenda for a generation of legal scholarship. Before anyone else thought to do so, Henkin asked all the interesting and important questions for international law scholars. It does not detract from his achievement that I, and a number of others more prominent than myself, think he is wrong in many of his answers.

John Yoo

If Henkin is the most acclaimed scholar of international law of his generation, John Yoo may very well be the most controversial of his. Over the past seven years, Yoo has created an impressive body of scholarship on subjects such as presidential control over the use of military force and the self-execution of treaties. But Yoo himself became controversial last year when a number of memos he wrote while serving in the Office of Legal Counsel of the Justice Department were leaked to the media almost at the same time that the abuses at the Abu Ghraib prison in Iraq were revealed. Although none of Yoo’s memos actually advised that torture was acceptable (this is something that Yoo’s critics often forget), they did take a rather robust view of the President’s Commander in Chief Power and a narrow view of the effect of statutory law and treaties prohibiting torture by U.S. government officials.

As a legal matter, Yoo’s analysis is not only defensible, it may very well be right, as I’ll try to explain later this week when I discuss Marty Lederman’s posts on this subject. In any event, I think the hysteria over Yoo’s memos, which were reflected in some of the angry questions posed by audience members during the conference, is misdirected. Lawyers in Yoo’s position must give a good faith interpretation of the law and I believe he and others did so here. Yoo’s more intelligent critics, like Lederman, have offered very persuasive alternative interpretations of the laws that may also be right. But I just don’t think that a disagreement over the interpretation of laws and statutes can rise to the level of legal malpractice or even criminal action, which some of Yoo’s most severe critics have suggested.

Imagine someone calling for the prosecution or disbarment of Justice Harry Blackmun for writing Roe v. Wade and thereby allowing (in some people’s views) the murder of millions of babies. Such combinations of hysterical outrage and moral righteousness, so easy to dismiss in the abortion context, are not just seen in random audience members. Some well-regarded legal academics like Dean Harold Koh have declared some of the DOJ memos on torture to be the worst legal work he has ever seen. This is not hysterical, but it is troubling given the stature of its source. All of this inhibits the ability of lawyers and policy makers to have useful or intelligent conversation about very difficult and important issues.

In Yoo’s case, hysteria over his work in the government should not obscure his ambitious scholarly agenda or, indeed, what he has already accomplished (not even including the work he and I have done together). He, along with a number of other scholars like Jack Goldsmith, Curtis Bradley and Eric Posner, have sought to challenge a lot of conventional wisdom that has stultified post-Henkin international legal scholarship. One of their most important contributions is to focus their scholarship on developing positive or descriptive models of international law or foreign affairs law rather than making only normative arguments. An outstanding example of this is Posner and Goldsmith’s recent The Limits of International Law.

It should be acceptable for international law scholars to question the growth or use of international law. Our role as scholars does not require us to advocate for or against international law. Yet this statement alone may raise some eyebrows. One of the odd things about international law scholars, and certainly international law scholars of a certain generation, is their strange obsessions with whether one “supports” or “believes” in the existence and promotion of international law. Constitutional law scholars are not expected to always believe in constitutional law, so why should international law scholars?

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