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Abstract:
In "The Limits of International Law," Jack Goldsmith and Eric Posner posit that "[i]nternational law emerges from states acting rationally to maximize their interests given their perceptions of the interests of other states and the distribution of state power." There is value in applying this instrumentalist, rational choice twist on traditional realism to a range of international coordination and cooperation problems. But the theory reaches its limits where Goldsmith and Posner attempt to extend it to the international human rights system. In the last decade, there has been a shift toward examination of human rights norm compliance from a range of alternative and interdisciplinary perspectives, including transnational legal process, governmental networks theory, liberal democratic theory, and constructivism. While the rational choice theory in "Limits" may be useful for understanding political trends in international human rights, these additional theories - which Goldsmith and Posner either ignore or dismiss - are necessary to a more complete understanding of how law affects state behavior.

This essay argues that a hybrid approach that draws from a range of theoretical approaches offers a more useful account of the complexities of human rights behavior than the instrumentalist approach of "Limits." First, the book largely ignores the effect of international human rights legal institutions (e.g., ad hoc and permanent courts) on a range of state and individual behavior. Second, by focusing almost exclusively on interstate behavior and international political institutions, Goldsmith and Posner fail to examine the domestic dimension of human rights compliance. Third, by minimizing the role of individuals, NGOs, corporations, and other non-state actors, the book paints a distorted picture of the current processes through which human rights norms are elaborated and enforced. Fourth, the book draws overly broad conclusions from limited empirical data about the effect of legalization on human rights behavior. Finally, the instrumentalist thesis of "Limits" is weakened by the explicit and implicit normative claims of the book, i.e., that states should not act on the basis of moral values or the basis of perceived cosmopolitan duties and that international law should not constrain state behavior. Indeed, if law is an instrument of preference as Goldsmith and Posner claim, it follows that law can result from a preference for the universal observation and protection of human rights.

Human Rights, International Law, United Nations, Norms, Compliance

Abstract:
The Medellin v. Dretke line of capital cases challenging U.S. non-compliance with the notification provisions of the Vienna Convention on Consular Relations (VCCR) provides an example of effective transnational horizontal integration of international human rights norms notwithstanding lack of domestic vertical enforcement and persistent government objection to the outside norm. As an international treaty that codifies the right of nation states to mediate between two legal systems on behalf of their nationals detained abroad, the VCCR acts as a "norm portal" - a formal gateway permitting the entry of an international human rights norm into the legal system of a state that has persistently rejected the norm. In the Medellin death penalty cases, a transnational advocacy support network comprised of defense counsel, NGOs, and foreign governments adopted the VCCR as a norm portal through which to mediate between the external abolitionist norm and the U.S. criminal justice system. The result was increased compliance with consular notification and assistance, which in turn has led to a decline in death sentences for foreign nationals and the avoidance of several executions. The VCCR norm portal has thus helped chip away at the application of capital punishment in the United States, notwithstanding consistent official U.S. government objection to importation of the international abolitionist norm and the refusal of the Supreme Court in Sanchez-Llamas to give domestic legal effect to an International Court of Justice decision requiring creation of a judicial remedy for violations of the VCCR notification provisions.

The Medellin cases demonstrate that while transnational vertical processes of norm enforcement play an important role in elaborating rules and framing legal arguments, the ability to engage actors at the local and state level may prove most salient to shifting practices and attitudes toward the international standard. These cases further suggest that formal procedural mechanisms that permit direct norm mediation by transnational advocates have an important role to play in the integration of international human rights norms across borders. Extradition treaties and international refugee law are other examples of norm portals that permit the import and export of international human rights norms across state borders. Because they reflect formal legal obligations adopted through treaty and are subject to political reversal, norm portals may prove more robust and less potentially dilutive of democratic processes than the use of non-binding foreign and international legal authority in judicial opinions. Human rights advocates are therefore likely to continue to seek out and exploit norm portals as a means through which to bring U.S. human rights practice in line with external standards.

human rights, international law, death penalty, transnational legal process, norms, Sanchez-Llamas, Medellin v. Dretke, International Court of Justice, norm entrepreneurs

Abstract:
The Supreme Court held in Medellín v. Texas that an International Court of Justice decision made pursuant to treaty is not binding domestic law, and that it is beyond the scope of the president's foreign affairs powers to convert an ICJ decision into domestic law. This essay, a contribution to a symposium convened to examine the case, argues that analysis of Medellín is likely to fall into one of the three narratives to have emerged from the arguments of the parties, the briefs of amici, and outside commentary: (1) Internal/Constitutionalist: Draws on the U.S. Constitution as the final word on applicable law and modes of judicial interpretation in the case; (2) External/Internationalist: Looks to the tenets of public international law to identify first order principles for understanding the case and appropriate judicial outcomes; and (3) Transnational/Intersystemic: Seeks to explain Medellín through the phenomenon of multiple, interactive systems of law through which changes in normative behavior occur. While the first two narratives dominated the parties' submissions to the Court and form the space within which much of the academic debate has taken place, it is the third narrative that provides a more complete story of how a death penalty case in Texas came to be litigated before both the ICJ and the Supreme Court.

Medellín is thus an excellent case study for process-oriented theories of how international human rights norms move across national borders and between and among local, national and transnational actors and provides important detail about the domestic and international mechanisms that promote norm integration and, significantly, can serve as barriers to norm integration. For human rights activists, Medellín illustrates the complexity of an increasingly legalized international system that permits multiple legal portals - local, national , regional and international - through which to contest individual rights, but one in which politics and the legal constructs of statehood and nationality continue to play a central role.

Abstract:
This essay was adapted from remarks at the 2006 Symposium, Gender, War & Peace: Women's Status in the Wake of Conflict, held at Michigan State University in 2006. As many of the contributions to the symposium demonstrate, women and girls experience particularized harms from armed conflict, including, for example, the psychological fall-out and physical damage of sex-related war crimes, the permanent displacement of women and children from their homes, and the destruction of families and livelihoods. Redressing these harms through post-conflict accountability mechanisms is an important, but incomplete response. Peace processes - the informal and formal mechanisms through which wars are ended and transitions to post-war order are managed and regulated - may have longer term consequences for the welfare of women than the underlying armed conflicts. Domestic and comparative studies tend to demonstrate that women behave differently from men within dispute resolution processes. Given these differences, and because war carries particularly devastating effects for women and girls, efforts to end war and prevent the recurrence of armed conflict should systematically consider the role of women and include women as active participants in peace building.

Abstract:
The dichotomy that emerged from the debate over the United States' invasion of Iraq, pitting multilateralism against unilateralism, has generally obscured more than it has enlightened about the law, rationales, and effectiveness of multilateralism in war. This article examines security multilateralism and concludes that, while the authority to address peace and security is, as a matter of international law, aggregated at the Security Council, the functions through which the United Nations works in support of that aggregated legal mandate are dispersed throughout the organization and affiliated bodies. Inquiries that seek to measure the effectiveness of U.N. security multilateralism against other multilateral or unilateral actors in armed conflict need to take this dispersal of functions into account.

This article proposes a taxonomy of security multilateralism formed by these disaggregated functions: (1) assessment; (2) intermediation; (3) humanitarian assistance; (4) sanctions; (5) military intervention; and (6) post-conflict administration. In this article, the taxonomy is applied to three cases that represent the spectrum of legality of outside interventions in war: U.N. multilateral (East Timor); ad hoc, non-U.N. multilateral (Kosovo); and unilateral (Iraq). This comparative empirical examination reveals the ways in which U.N. multilateralism may be over-valued (e.g., the U.N.'s legitimating effect on outside military interventions), under-valued (e.g., the U.N.'s ability to assess threats and impose sanctions), or misconstrued (e.g., U.N. military operations may be no more or less multinational than non-U.N. operations). The article concludes with implications for reform of U.N. security functions and recommendations for how the taxonomy might be applied to future research.

United Nations, Armed Conflict, War, Iraq, Multilateralism, East Timor, Kosovo

Abstract:
This essay reply to Professor Michael Stokes Paulsen, "The Constitutional Power to Interpret International Law," 118 YALE L. J. 1774 (2009) argues that Paulsen’s static, formalist portrait of the foreign affairs Constitution stands in stark contrast to the dynamic realities of transnational lawmaking today.

Paulsen's central claim, that the U.S. Constitution is the domestic means through which United States' international legal obligations are realized and enforced, is neither controversial nor "threaten[ing to] all that the community of 'international law' scholars hold most dear." His corollary claim, that the Constitution "binds" U.S. actors in a way that international law does not, simply does not reflect reality. To the contrary, as Paulsen recognizes, most international obligations undertaken by the United States become domestic law through well-accepted constitutional mechanisms and are carried out in rather unremarkable ways, with disputes about their application or interpretation being resolved on a regular basis through domestic or international dispute settlement bodies. For all Paulsen’s claims of the "fogginess" that surrounds "vague" and "elliptical" international law, U.S. participation in the international legal system operates smoothly and in ways largely indistinguishable from the application of domestic law.

Paulsen's secondary claim, which he argues flows from the claim of constitutional superiority over international law, is that international law is not "law" at all, but rather policy. This attack on what Steven Colbert might call the "lawiness" of international law has a long pedigree. But whether international law represents "law," "policy," "political commitment," "best practices," or something else, does not answer the more interesting and salient question of whether international law alters the behavior of actors in practice and not just in theory.

Just as non-legal domestic costs alter the behavior of the President, Congress, and the Court, the "policy" costs of non-compliance with international obligations posited by Paulsen in some cases are real enough to actually change the behavior of American constitutional actors. The Bush administration's use of torture against detainees captured as part of the post-9/11 war against terrorism is a useful illustration of how costs ultimately restrained behavior. Despite all the constitutional powers that Paulsen posits were available to the President – the power to unilaterally breach both the Geneva Conventions ("GCs") and the Convention Against Torture ("CAT") in whole or in part – President Bush never publicly repudiated or stated that he was breaching or suspending those obligations. To the contrary, President Bush and other officials repeatedly stated during the period 2004-2007 that the administration "does not torture," that its programs complied with domestic and international law, and that it remained committed to compliance with the GCs and the CAT. This is a remarkable fact given that many key members of the Bush legal policy team held views of international law and the Constitution similar to Professor Paulsen’s.

However one characterizes those costs, the torture narrative explains how external costs constrained actors and altered their interest calculations. The altered calculation of interests in turn affected how the constitutional actors in the U.S. (especially, perhaps, the Supreme Court) interpreted and applied their own constitutional powers. Paulsen's analysis concedes that these costs of non-compliance may be real; he just does not want the corresponding constraints of those costs to be called "law." But the label is not important to identifying the binding force of international law. Recent history amply demonstrates that it is not the force of international law that is, as Paulsen argues, "largely an illusion," rather it is the idea of any domestic constitutional order can cut itself from considerations of international law that is illusory.

Constitution, Foreign Affairs, Torture, International law, treaties, transnational law

Abstract:
This chapter is a contribution to the book project, PROGRESS IN INTERNATIONAL ORGANIZATION, which revisits Manley O. Hudson's 1932 book of the same name.

In 1932, Manley O. Hudson represented a seemingly Utopian vision of the transformative effect of international institutions. Remarkably, by the end of the 20th century, the international community had indeed achieved two of the aspirations Hudson set forth: to develop the habit of interstate cooperation and interaction through international organizations and to make the world more secure. International regulation governing when and how governments may resort to force has never been broader or deeper. Despite the persistence of armed conflict, more people live peaceful and secure lives and have a say in how they are governed than at any time in history. But with progress comes paradox: The world faces great and potentially catastrophic threats to the peace, including from weapons of mass destruction (WMDs), large-scale environmental and health disasters, and the combined dangers posed by failed governments, religious conflict, and ethnic strife. The rise of non-state actors has transformed the way in which individuals govern their own lives and determine their own destinies, but has also brought the threat of new forms of transnational terrorism with global reach.

Hudson's idea that one central international institution could serve to regulate the behavior of states in the service of international security - first laid out in the League Covenant and further refined in the United Nations Charter - has never been fully realized. In the post-Cold war period, the UN Security Council has been revitalized, but alongside it has emerged a patchwork of unilateral and regional responses to threats. This evolution of security multilateralism away from the vision of one central apparatus need not, however, be viewed as a failure of international organization. To the contrary, three recent security challenges, East Timor, Kosovo, and Iraq, demonstrate that the UN remains relevant, adapting itself to new threats and shifting global politics. While some have decried - and others celebrated - this adaptability and flexibility as the triumph of politics over law, it reflects the core features of the system of international organization Hudson envisioned; one that balances (perhaps precariously at times) the moral force of law against the practical necessity of politics, joining legalism with institutional functionalism.

Abstract:
In INTERNATIONAL ORGANIZATIONS AND THEIR EXERCISE OF SOVEREIGN POWERS (Oxford, 2005) Professor Dan Sarooshi argues that concern about the democracy deficit in international organizations is misplaced. He sets out an alternative claim that states should embrace those institutions and procedures that permit contestation of sovereign values within international organizations. Sarooshi's typology of conferrals of sovereign power is useful to understanding the distribution of legal rights and obligations that result from state participation in international organizations. However, the book's central claim - that the project of global governance results in an ongoing process of contestation of the meaning of sovereignty - fails to respond adequately to the unique problems that conferrals of powers to international institutions create for democracies.

Abstract:
Justice Harry Blackmun has been described as willful, liberal, conservative, humble, and a White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs. One adjective that is conspicuously missing is internationalist. Internationalism is, in part, reflected in Blackmun's preference change or shift from relatively conservative to relatively liberal. At the same time, Blackmun's internationalism defies most traditional judicial typologies. That Blackmun as internationalist has been a minor theme in the academic literature is understandable given the small number of cases concerning international or transnational legal questions that reach the Court. Nonetheless, an examination of those opinions, as well as of Justice Blackmun's best known outside writing and speaking, uncovers his somewhat surprising and arguably influential internationalist turn.

This comment provides a roadmap for closer examination of the Blackmun Papers and evaluates the sources of internationalism in Blackmun's opinions as manifested in four separate but related jurisprudential approaches: (1) in federalism questions, deferring to the federal political branches' ordering of international economic and political relationships; (2) adopting a view of globalization that preferences international and/or foreign-based approaches to ordering private economic and business relations; (3) interpreting treaty obligations according to globally accepted international law interpretation doctrines; and (4) respecting and acknowledging international and foreign judicial opinions in constitutional jurisprudence. An understanding of these approaches can usefully inform typologies of internationalism among other Justices, past, present, and future.

Blackmun, international law, foreign law, supreme court, jurisprudence

Abstract:
This Essay examines Sanchez-Llamas v. Oregon within the line of cases challenging U.S. non-compliance with the notification requirements of the Vienna Convention on Consular Relations (VCCR). The VCCR litigations arose as a response to American death penalty exceptionalism. Viewed through the lens of transnational efforts to integrate international human rights norms into the United States, Sanchez-Llamas illuminates the ways in which American human rights exceptionalism - in its many forms - is being actively contested and how judges - implicitly and explicitly - respond to arguments for and against exceptionalism.

Abstract:
This contribution to the 2008 Willamette Law School symposium, “Presidential Power in the 21st Century,” addresses the question of presidential powers to carry counterterrorism policies - in particular the use of force against terrorist groups - through an internationalist lens. Viewed through that lens, domestic constitutional understandings of appropriate democratic constraints on presidential counterterrorism powers can be seen as interacting with international institutional understandings of democratic accountability for the use of force. This intersystemic process can be engaged to address “democracy deficits” at both the international and domestic level and to promote reform at international organizations.

Part I of the article explains that U.S. counterterrorism policy post-September 11, 2001 has been more multilateral in its orientation than is generally assumed, and that counterterrorism policy going forward is likely to rely more, rather than less, on multilateral institutions. Part II examines the question of U.S. constitutional practice where the war powers have been exercised through international institutions. Part III argues that international institutional legitimacy should be more explicitly invoked as a rationale for closer consultation with and participation by Congress in counterterrorism use of force decisions. A more explicit acknowledgment of the dynamic, dialectical interaction between domestic democratic accountability for a state’s participation in U.N. counterterrorism programs and the international and domestic accountability for the action taken by the U.N. offers several advantages. Open embrace of more robust congressional participation in U.S./U.N. counterterrorism practice can contribute to overcoming the democracy gaps at home and within the U.N. by: (1) strengthening democratic accountability domestically; (2) modeling “best practices” for nascent democracies and regimes in transition; (3) promoting procedural legitimacy within the Council; (4) promoting legitimacy of emerging international legal norms concerning the use of force against terrorists and terrorist groups; (5) harmonizing U.N. counterterrorism programs with international human rights protections; and (6) clarifying the role of judicial review (at the domestic and international level) of Security Council actions.

counterterrorism, presidential powers, security council, terrorist groups, war powers, internationalist

Abstract:
In Medellín v. Texas, 128 S.Ct. 1346 (2008), a 6-3 majority of the U.S. Supreme Court held that the decision of the International Court of Justice (ICJ) in the Avena case (Mex. v. U.S.), 2004 ICJ Rep. 12 (Mar. 31), was not automatically binding as domestic law within the United States, and that the president, absent a congressional act, lacked the power to enforce the Avena decision against U.S. states. The ICJ had decided in Avena that with regard to 51 Mexican nationals on death rows in ten U.S. states, the United States was in breach of its obligations under Article 36 of the Vienna Convention on Consular Relations to provide consular notification to foreign nationals who are detained or arrested, and that the United States must provide “review and reconsideration” of the convictions and sentences of those 51 individuals. Petitioner José Medellín had argued that as one those named in Avena, he was entitled to review of his state conviction and sentence because Avena preempted contrary Texas state law and also because Texas was bound by a February 2005 memorandum from President Bush stating U.S. intent to comply with Avena. The Supreme Court rejected Medellín’s claim, holding that “neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions” (p. 1348).

The Court analyzed the effect of three U.S. treaty obligations triggered by the petitioner’s request for relief under Avena: the Optional Protocol of the Vienna Convention, which provides the basis for ICJ jurisdiction over disputes arising out of the application or interpretation of the Convention; Article 94 of the UN Charter; and the ICJ Statute itself. The Court did not rely on the text of the Vienna Convention to determine whether Avena overrides state procedural rules, because the Court had already decided that any rights under Article 36 do not preclude application of state procedural bar rules (p. 1361 n.8).13 Moreover, the Court distinguished the obligations created under a treaty from those created by a judgment rendered pursuant to a treaty. None of the three treaties in question has been incorporated by statute into federal law. The Court concluded that the treaties themselves were not self-executing and consequently that, absent implementing legislation, they cannot be given effect by the Court.

Medellin, Medellin v. Texas, Avena, ICJ, international court of justice, Vienna Convention, Consular Relations, self-executing, Article 94

Abstract:
This commentary to the 2008 Missouri Law Symposium, “Return to Missouri v. Holland: Federalism and International law,” critiques the intersystemic/pluralist framework as a tool for analyzing the process of international human rights norm diffusion. While I argue that intersystemic approaches are extraordinarily useful for framing case studies to better understand the increasingly horizontal process of human rights norm transmission, it has its limits. The commentary raises questions about the impact of these theoretical frames on more traditional understandings of human rights enforcement through vertical institutions (courts, commissions, committees) and on potential institutional reform at the international level. It ultimately concludes that horizontal processes can be effective in filling the enforcement gaps of vertical institutions and in affecting state human rights behavior. The future challenge is to harness horizontal processes in a way that reinforces the legitimacy of domestic and international legal mechanisms and permits international institutions to be flexible in adapting to these horizontal processes.

missouri v. holland, missouri law review, intersystemic, international human rights, horizontality, horizontal processes, norm diffusion

Abstract:
On March 25, 2008, the U.S. Supreme Court decided Medellín v. Texas, a case in which a Mexican national on death row in Texas challenged his conviction on the basis that he was not afforded his right of consular notification under the Vienna Convention on Consular Relations (VCCR). In a 6-3 decision, the Court held that the 2004 decision of the International Court of Justice (ICJ) in Mexico v. United States (Avena), requiring the United States to provide further "review and reconsideration" of the convictions of petitioner Medellin and 51 other Mexican nationals on death row in the U.S., was not binding federal law and was therefore, absent an implementing statute, not enforceable by federal courts against Texas, and thus did not preempt the state procedural bar to Medellin's habeas claim. The Court further held that a 2005 memorandum issued by President Bush, stating his intention to enforce Avena, did not create binding law that could be enforced against Texas.

The decision will effectively end the federal habeas claims of petitioner Jose Ernesto Medellin and the other death row inmates affected by the Avena decision. Mexico may pursue political remedies at the international, federal and state level to address the problem of consular non-notification in death row cases. The Court noted that Congress is free to enact the legislation required to give domestic legal effect to decisions of the ICJ reached under the VCCR Optional Protocol, but there are no current efforts to do so. The decision leaves unresolved whether criminal defendants may bring a direct VCCR non-notification claim in cases where the claim has not been procedurally defaulted, and also leaves open the possibility of civil claims in non-notification cases brought under 42 U.S.C. §1983, which permits remedies for violations of federally protected rights.

Medellin, Vienna Convention, Consular Relations, ICJ, Avena

Abstract:
On December 19, 2005, the International Court of Justice (ICJ) issued its final judgment in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). The Court held that the armed activities of Uganda in the Democratic Republic of Congo (“DRC”) between August 1998 and June 2003 violated the international prohibition against aggressive use of force as well as international human rights and international humanitarian law. The Court ruled in favor of Uganda on its counter-claim that the DRC violated obligations owed to Uganda under the Vienna Convention on Diplomatic Relations. The Court ordered Uganda to pay reparations to the DRC.

ICJ, Territory of the Congo, DRC, international human rights, aggressive force, international humanitarian, Vienna Convention, Uganda, reparations, Vienna Convention on Diplomatic Relations

Abstract:
This essay introduces the 2008 Missouri Law Review symposium, “Return to Missouri v. Holland: Federalism and International Law.” The foreword places the theme of the symposium in historical and theoretical context and introduces the articles by Professors Carlos Vázquez, Michael Ramsey, Edward Swaine, Peter Spiro, Paul Stephan, Julian Ku, Duncan Hollis, Paul Schiff Berman, Robert Ahdieh, and Ilya Somin, along with the keynote lecture, “The Internationalism of American Federalism, Missouri and Holland,” by Professor Judith Resnik.

missouri v. holland, symposium, missouri law review, Resnik, internationalism, international law

Abstract:
This essay is a review of the collected essays, Secretary or General? The UN Secretary-General in World Politics, edited by New York University Professor Simon Chesterman. The question posed by the title turns out to be rhetorical. As the contributions reveal, a successful UN secretary-general need not be an extraordinary bureaucrat or military genius, but must possess keen political instincts. Like an acrobat performing a high-wire act, the secretary-general must carefully balance a unique political independence - untethered to the interests of one sovereign state - against a required institutional and political interdependence with the Security Council and the UN member states. The book’s central project, reflected as a common theme running through the contributed essays, is this understanding of the secretary-general as a global homo politicus.

UN Secretary-General, Simon Chesterman, secretary-general, security council, UN, United Nations, homo politicus