Congress and the Executive: Who Calls the Shots for National Security? – Remarks by Lori Fisler Damrosch

Professor Firmage\u27s reaffirmation of the Framers\u27 conception of a President who would wait for congressional instructions appeals to traditional values of democratic control and congressional primacy that have deep roots in our national consciousness. But this model of presidential passivity has some of the same strengths and weaknesses as the advocacy of chastity to solve today\u27s problems of teenage pregnancy and sexually transmitted disease. The basic values may be sound, but when one moves from the assertion of those values to the identification of policy prescriptions, then it becomes clear that contemporary problems are too complex to be solved by simply returning to traditional values. Even though Professor Firmage made a strong case for reassertion of congressional prerogatives, the difficult questions facing the political system today need to be examined in their real-life complexities

Richard N. Gardner (1927–2019)

Richard Gardner occupies a unique place in the history of United States diplomacy, in the teaching and practice of international law, in scholarship across a wide range of fields of interest to our discipline, and in the life of this Society. He was my valued colleague and mentor at Columbia University for many years, not just at the Law School, but also at the School of International and Public Affairs, where he nurtured and inspired generations of diplomats and policy experts to follow the call of public service. Having ascended the academic ladder to ever more dazzling heights — from Harvard (B.A.), to Yale (J.D. 1951), to Oxford (Rhodes Scholar and D. Phil. 1954) — he began teaching international law at Columbia in 1955, where he remained for six decades, through and beyond his retirement from teaching in 2012. He was the Henry L. Moses Professor of Law and International Organization at Columbia, teaching international law and a legendary seminar, “Legal Aspects of U.S. Foreign Economic Policy.

The Role of the United States Senate Concerning Self-Executing and Non-Self-Executing Treaties

This essay concerns a pattern in treaty actions of the U.S. Senate which tends to weaken the domestic legal effect of treaties. Under this pattern, the Senate qualifies its consent to U.S. ratification of the treaty with a declaration or other condition to the effect that the treaty shall be non-self-executing, or otherwise expresses its intention that the treaty shall not be used as a direct source of law in U.S. courts. Such qualifications, referred to hereinafter as non-self-executing declarations, give rise to important questions about the place of the affected treaties within the fabric of U.S. law, especially in light of Article VI of the U.S. Constitution, which provides that treaties of the United States shall be the supreme Law of the Land

Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs

It is time for a fresh look at the norm of nonintervention in domestic affairs, as applied to nonforcible efforts to influence another state\u27s internal politics. The existence of such a norm is widely proclaimed, and it is commonly assumed to be a legal obligation rather than a mere practice of comity or aspirational objective. For governments, scholars and international organs alike, the rule against interference in internal politics seems to be an article of faith; but despite the frequency of its incantation in international discourse, how the norm applies to nonforcible conduct is inadequately understood. This article considers the norm of nonintervention in relation to nonforcible support for political movements, political parties or political candidates in other states, focusing on two concrete problems of current concern. The first is transnational campaign funding: does a state violate international law when it sends money to influence a political contest in another state? The second is economic leverage applied for political purposes: does international law prohibit states from implementing policies affecting trade, aid or other economic relations, where their objective is to affect the outcome of another state\u27s internal political process

Impeachment as a Technique of Parliamentary Control over Foreign Affairs in a Presidential System

The central inquiry for this essay is the proper use of the impeachment tool in foreign relations contexts, including war powers. In Part I, the essay begins with a brief review of British impeachment practice (limited to war and foreign policy concerns) known to the Founding generation and reflected in certain fundamental texts of the Founding; this treatment does not betoken any originalist orientation on my part (au contraire) but will set the context for later developments. Part II then turns to the travails of President Andrew Johnson as seen through the eyes of Walter Bagehot, the author of the classic treatment of the nineteenth-century British Constitution, which remains a cogent starting point for comparisons between parliamentary and presidential systems, including on the issue of removal of the head of government. Finally, after an examination in Part III of aspects of the Nixon impeachment crisis relevant to war and national security and a brief look at why impeachment was not considered for the Iran-Contra affair during the Reagan Administration, the essay concludes with some comparative reflections on parliamentary and presidential forms of governance and what such comparisons might portend for constitutional control of war and foreign affairs

The World Trading System: Law and Policy of International Economic Relations

This book serves an important need by providing a clear overview of an increasingly complex subject. The author, a leading figure in international trade law, has distilled his accumulated wisdom into an accessible account of the major features of the world trading system. His intended audience includes not only lawyers, but political scientists, economists, government officials and others as well. While he acknowledges that his own comparative advantage is in the legal aspects of the field (p. 6), he places the legal concepts in their political and economic context to write a treatment that will be enlightening to readers from many different fields

Presidents, Secretaries of State, and Other Visible International Lawyers

I invite you to join me on a journey back ninety years, to the 1911 Annual Meeting as recorded in the 1911 Proceedings (pp. 340-41). President Rovine\u27s predecessor, the then-president of the Society, was Elihu Root, a former secretary of war and secretary of state who was at the time senator for New York (Senator Clinton, please take note!). Root would win the Nobel Peace Prize the following year. President Root proposed a toast to the honorary president of the Society, who then gave the banquet address

Plenary Session: The U.S. Constitution in its Third Century: Foreign Affairs – Remarks by Lori Fisler Damrosch

Our Moderator has asked us to look ahead into the Constitution\u27s third century and anticipate the emerging issues. I believe the changes in the field that I have selected, international organizations and institutions, are likely to be dramatic, perhaps more so than the more incremental changes in the areas being addressed by my copanelists. With all respect to our Moderator, I would like to take note of the rather modest treatment given to international organizations in the leading work on foreign affairs and the Constitution published by Louis Henkin in 1972. I hope he will forgive me if I suggest that his chapter on international organizations, which is already rather short, boils down to the following three propositions. First, international organizations are not doing anything very ambitious yet. Second, the United States can veto or otherwise block most decisions of international organizations. Third, in any event, the United States remains constitutionally free to disregard obligations imposed through international organizations, although we would have to accept the consequences of violating international law

A Lucky Child: A Memoir of Surviving Auschwitz as a Young Boy

Many readers of this Journal would readily identify the young boy in lederhosen, hands tightly clasped by his mother, who is in turn enfolded in the father\u27s embrace – all three smiling on what is perhaps the child\u27s third birthday – in the cover photograph of the American edition of the book under review. In this memoir he is Tommy, Tom, Tomek, or Tommyli; in later life he is known to us (and recognized worldwide) as Thomas Buergenthal, judge of the International Court of justice since 2000 and honorary president of the American Society of International Law from 2001 to 2009. We may have heard the essential points in his life story when he has been introduced at plenary sessions of our annual meetings – a child survivor of Auschwitz who came to this country as a young man, was educated at Bethany College in West Virginia, earned a law degree from New York University and a doctorate from Harvard, became a professor of international law and human rights activist, and has served on several of the most significant tribunals in the areas of international human rights law and general international law. He has taught and mentored generations of law students aspiring to careers in the fields in which he has made such a mark, who have drawn inspiration from the life he has lived and his unwavering optimism that the human condition can indeed be improved through law

Application of Customary International Law by U.S. Domestic Tribunals

In recent years there has been a significant expansion of the number and kinds of cases in U.S. courts raising issues of customary international law. U.S. courts are increasingly asked to enforce international norms of behavior against foreign governments, state and local governments, and indeed the U.S. Government itself. To a greater and greater extent the courts themselves have become actors on the international scene: in the view of one party to a lawsuit, judicial or quasi-judicial acts may threaten to violate international law, while in the view of another party those same sorts of acts can contribute affirmatively to the development and enforcement of international law norms