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Louis Henkin (1917-2010)
Published online by Cambridge University Press: 27 February 2017
- In Memoriam
- American Journal of International Law , Volume 105 , Issue 2 , April 2011 , pp. 287 - 300
- Copyright ©by the American Society of International Law,2011
1 See Living History Interview with Abram Chayes, 7 Transnat’l L. & Contemp. Probs. 459, 481 (1997); Lori Fisler Damrosch, Oscar Schachter (1915–2003), 98 AJIL 35, 35 n.4 (2004).
2 Letter from Louis Henkin to Learned Hand (Nov. 17, 1944), quoted in Gerald Gunther, Learned Hand: The Man And The Judge 552 (1994).
3 For references to this correspondence and selected quotations, see Gunther, supra note 2, at 535–38, 552, 682, 762 n.133. See also infra note 5.
4 See Gunther, supra note 2, at 762 n.133.
5 Letter from Henkin to Hand (Mar. 9, 1944). I am grateful to Constance Jordan, Learned Hand’s granddaughter, for providing photocopies of this and other unpublished wartime letters from Henkin to Hand, and to the Henkin family for permitting quotation. For another extract, see Lori Fisler, Damrosch, Louis Henkin: Courage and Convictions, 49 Colum. J. Transnat’l L. 5, 5–6 (2010).Google Scholar
6 See William, Grimes, Louis Henkin, 92, Leader in Field of Human Rights Law, N.Y. Times, Oct. 17, 2010, at A28.Google Scholar
7 They were colleagues at Columbia after 1975, co-editors in chief of this Journal, and collaborators on the Restatement (Third) of the Foreign Relations Law of the United States.
8 See Louis, Henkin, In Memory of Oscar Schachter, 104 Colum. L. Rev. 554 (2004)Google Scholar (citing Curran v. City of New York, 77 N.Y.S.2d 206, 213 (Sup. Ct. 1947), aff’d, 88 N.Y.S.2d 924 (App. Div. 1949)).
9 Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150.
10 For these interventions, see the summary records of the Ad Hoc Committee on Statelessness and Related Problems, meeting at Lake Success, N.Y., January 16-26, 1950, UN Docs. E/AC.32/SR.1–13 (Jan. 1950), and at Geneva, Switzerland, August 14–25, 1950, UN Docs. E/AC.32/SR.33–43 (Sept. 1950), reprinted in The Collected Travaux Preparatoires of The 1951 Geneva Convention Relating to The Status of Refugees (Alex Takkenberg & Christopher C. Tahbaz eds., 2d ed. 1989). I am grateful to Linda K. Kerber, whose work-in-progress on statelessness (presented at the Columbia University Law and History Workshop in October 2010) draws on and quotes from Henkin’s statements in these negotiations.
11 For a bibliography of selected publications and presentations, see Politics, Values, and Functions: International Law in The 21st Century: Essays in Honor of Professor Louis Henkin 461 (Jonathan I. Charney, Donald K. Anton, & Mary Ellen O’Connell eds., 1997) [hereinafter Festschrift]. The Festschrift, presented on the occasion of his eightieth birthday, contains essays addressing the enduring themes of Henkin’s work—questions of theory, constitutional questions, human rights inquiries, ocean law, and use of force. The essays were also published under the same title in a special double-issue symposium in 36 Colum. J. Transnat’l L. 3 (1997).
12 A tribute in a special issue of the Columbia Human Rights Law Review on the occasion of Henkin’s fiftieth year of service at Columbia observed that references to his work appear in at least 20 Supreme Court opinions and 120 federal appellate opinions. Foreword: Human Rights and the “War on Terror, “38 Colum. Hum. Rts. L. Rev. 459, 460 (2007).
13 See Louis, Henkin, The Treaty Makers and the Law Makers: The Niagara Reservation, 56 Colum.L.Rev. 1151 (1956)Google Scholar ; see also Louis, Henkin, The Treaty Makers and the Law Makers: The Law of the Land and Foreign Relations, 107 U. Pa. L. Rev. 903 (1959)Google Scholar [hereinafter Henkin, Law of the Land].
14 Jessup was the Hamilton Fish Professor of International Law and Diplomacy and Lissitzyn was Associate Professor of Public Law, while Henkin was then a lecturer in law at Columbia.
15 In this respect the article foreshadows the position articulated in Henkin’s later writings that a “domestic jurisdiction” limitation has no application to the kinds of treaties that the Bricker movement opposed. See, e.g., Louis, Henkin, Foreign Affairs and The United States Constitution 196-98 (2d ed. 1996)Google Scholar [hereinafter Henkin, Foreign Affairs and The Constitution]; see also Louis, Henkin, “International Concern “and the Treaty Power of the United States, 63 AJIL 272 (1969)Google Scholar [hereinafter Henkin, International Concern].
16 For later explorations, see Henkin, Foreign Affairs and The Constitution, supra note 15, at 180–82; Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 52–57, 62–64 (1990). See also Louis, Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AJIL 341, 347 n.26 (1995)Google Scholar (resisting an interpretation of his 1956 article in relation to conditions attached to human rights treaties in the 1980s and 1990s: “If what I wrote might be interpreted as supporting a general principle that would allow the President, or the Senate, to declare all treaties non-self-executing, that is not my opinion.”).
17 Louis, Henkin, Arms Control and Inspection in American Law (1958).Google Scholar Jessup’s foreword commented on Henkin’s unique combination of experiences and skills relevant to the project, from both his diplomatic service and his clerkships. Id. at ix–x.
18 See infra text at notes 40–45 .
19 Reviewing Henkin’s debut volume in these pages, James N. Hyde found it “literate, lean and readable, mercifully free of jargon”; it “puts him among those from whom we can expect future insights.” James N. Hyde, Book Review, 54 AJIL 219, 220 (1960).
20 See, e.g., Louis, Henkin, The Sea-Bed Arms Treaty—one Small Step More, 10 Colum. J. Transnat’l L. 61 (1971)Google Scholar . Restraint on nuclear weapons through law is likewise a recurring theme in How Nations Behave, infra note 23, at 141–45, 149, 283-85.
21 Henkin, Constitutionalism, Democracy, and Foreign Affairs, supra note 16, at 52–57 (also addressing constitutional aspects of Senate’s conditions to Strategic Arms Limitation Treaty and Intermediate Nuclear Forces Treaty); see also The ABM Treaty and the Constitution: Joint Hearings Before the Senate Comms. on Foreign Relations and on the judiciary, 100th Cong. 81 (1987) (testimony of Prof. Louis Henkin).
22 See Louis, Henkin, Treaties in a Constitutional Democracy, 10 Mich. J. Int’l L. 406 (1989).Google Scholar
23 Louis, Henkin, How Nations Behave: Law and Foreign Policy (1st ed. 1968; 2d ed. 1979). All references here are to the second edition.Google Scholar
24 Id. at 4.
25 Id. at 5.
26 Id. at 47.
27 Part Four: The Law in Operation includes four case studies: Suez: The Law Works, Then Fails but Is Vindicated; The Law Fails: The Case of Adolf Eichmann; The Law’s Other Influences: The Cuba Quarantine; and Vietnam: The Uncertain Trumpet of Uncertain Law. See id. at viii.
28 Cases and Materials on International Law (Wolfgang G. Friedmann et al. eds., 1969).
29 International Law: Cases and Materials (Louis Henkin et al. eds., 1st ed. 1980, 2d ed. 1987, 3d ed. 1993). For subsequent editions, Henkin enlisted younger colleagues in the Columbia tradition. See International Law: Cases and Materials (Lori F. Damrosch et al. eds., 4th ed. 2001,5th ed. 2009). on the Columbia scholars and their liberal internationalist orientation, see Martti Koskenniemi, The Gentle Civilizer of Nations 477 (2001).
30 Louis, Henkin, International Law: Politics, Values and Functions, 216 Recueil Des Cours 9 (1989 IV)Google Scholar ; Louis, Henkin, International Law: Politics and Values (1995)Google Scholar [hereinafter Henkin, Politics and Values] (updated and revised version of the lectures).
31 Henkin, Politics and Values, supra note 30, at 4.
35 Henkin, How Nations Behave, supra note 23, at 212–27. For additional references, see the bibliography in the Henkin Festschrift, supra note 11; the contributions by five colleagues in the law of the sea field credit his pioneering work in this area.
36 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397.
37 See Louis, Henkin, Arctic Anti-pollution: Does Canada Make—or Break—International Law?, 65 AJIL 131 (1971)Google Scholar ; Panel on the Law of Ocean Uses (Bernard H., Oxman, Rapporteur), United States Interests in the Law of the Sea Convention, 88 AJIL 167, 178 n.* (1994).Google Scholar
38 His interests in the constitutional and international law aspects of the law of the sea came together in his expert testimony to the special master in a dispute between the federal government and certain states (successors to the original thirteen colonies plus Florida) over rights to the offshore oil and gas resources in submerged lands, which reached the Supreme Court under its original jurisdiction in the 1970s and resulted in a judgment upholding the federal position. See United States v. Maine, 420 U.S. 515 (1975). I am grateful to Bruce Rashkow for drawing my attention to Henkin’s role as expert for the United States in this case (in which Jessup was on the opposite side).
39 See, e.g., Louis, Henkin, The Constitution at Sea, 36 Maine L. Rev. 201 (1984)Google Scholar ; see also Louis, Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at Our Gates, 27 Wm. & Mary L. Rev. 11 (1985)Google Scholar (calling for constitutional safeguards in Coast Guard’s interdiction of boats carrying Haitian refugees).
40 Henkin, Foreign Affairs and The Constitution, supra note 15. The first edition of this work was published in 1972. The second edition not only brings the volume up to date but also makes certain significant changes of organization, emphasis, and even content. References here are to the second edition.
41 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), critiqued by Henkin in Foreign Affairs and The Constitution at 16–22.
42 For treatments of these themes in significant articles, see, for example, Louis, Henkin, Viet-Nam in the Courts of the United States: “Political Questions, “63 AJIL 284 (1969)Google Scholar ; Louis, Henkin, Is There a “Political Question” Doctrine?, 85 Yale L.J. 597 (1976)Google Scholar ; see also Louis, Henkin, The Foreign Affairs Power of the Federal Courts: Sabbatino, 64 Colum. l. Rev. 805 (1964)Google Scholar ; Louis, Henkin, Comments, in Act of State: Sabbatino in the Courts and in Congress, 3 Colum. J. Transnat’l L. 99, 107 (1963–64)Google Scholar ; Louis, Henkin, Act of State Today: Recollections in Tranquility, 6 Colum. J. Transnat’l L. 175 (1967).Google Scholar
43 on the place of international law in the U.S. legal system, see also Louis, Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984).Google Scholar
44 For related work urging the courts to take these responsibilities seriously, see, for example, Louis, Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853 (1987).Google Scholar
45 Henkin, Foreign Affairs and The Constitution, supra note 15, at 254.
46 See Henkin, Constitutionalism, Democracy, and Foreign Affairs, supra note 16.
47 Constitutionalism and Rights: The Influence of The United States Constitution Abroad (Louis, Henkin & Albert J., Rosenthal eds., 1990).Google Scholar
48 See Louis, Henkin, The United Nations and Human Rights, 19 Int’lOrg. 504 (1965)Google Scholar . Implicitly, he had begun addressing the constitutional basis for implementing internationally protected rights in U.S. law with his early articles on treaty making and lawmaking. See Henkin, Law of the Land, supra note 13, at 922–23 (arguing for expansive treaty-making and lawmaking powers to give effect to international human rights norms, such as the prohibition on genocide); see also Henkin, , The Constitution, Treaties, and International Human Rights, 116 U. Pa. L. Rev. 1012 (1968)CrossRefGoogle Scholar ; Henkin, International Concern, supra note 15.
49 See, e.g., Louis, Henkin, The Rights of Man Today (1978)Google Scholar ; The International Bill of Rights: The Covenant on Civil and Political Rights (Louis, Henkin ed., 1981)Google Scholar ; Louis, Henkin, The Age of Rights (1989)Google Scholar ; see also Henkin, How Nations Behave, supra note 23, at xiv, 228–39 (expanded treatment of human rights in second edition).
50 See, e.g., Human Rights In Contemporary China (R. Randle Edwards, Louis Henkin, & Andrew J. Nathan eds., 1986).
51 Human Rights (Louis Henkin et al. eds., 1st ed. 1999, 2d ed. 2009).
52 For tributes focusing on his human rights legacy, see the symposium issue of the Columbia Human Rights Law Review, note 12 supra.
53 RESTATEMENT (THIRD) of THE FOREIGN RELATIonS LAW of THE UNITED STATES (1987) [hereinafter RESTATEMENT].
54 The associate reporters were Andreas F. Lowenfeld, Louis B. Sohn, and Detlev F. Vagts. I have benefited from communications with the surviving reporters about their experience working with Henkin.
55 The Restatement declares that international law is “law like other law.” 1 Restatement, supra note 53, pt. I, ch. 1, intro. note, at 17.
56 The law of human rights was identified as one of the areas “not covered, or addressed only lightly, in the previous Restatement.” Id., Introduction, at 3. The reporters’ notes to the Restatement (Third) explain the more capacious definition of international law in the new work by comparison to the Restatement (Second): “international law has ceased to apply exclusively to states and international organizations and now deals also with their relations with individuals and juridical persons.” Id., §101 reporters’ note 1.
57 As the work proceeded, the ALI published the reporters’ drafts for comment and discussion and the drafts were debated at sessions of the ALI in the mid-1980s. The final version was adopted (with some modifications) by the institute in 1986 and published in 1987.
58 1 Restatement, supra note 53, Introduction, at 4.
59 See, e.g., Louis, Henkin, Restatement of the Foreign Relations Law of the United States (Revised), 74 AJIL 954 (1980)Google Scholar ; Louis, Henkin, Restatement of the Foreign Relations Law of the United States (Revised): Tentative Draft No. 2, 75 AJIL 987 (1981)Google Scholar ; see also Louis, Henkin, The Draft Restatement of the Foreign Relations Law of the United States (Revised), 76 ASIL Proc. 184 (1982)Google Scholar ; Louis, Henkin, Remarks, in The Revised Draft Restatement of the Foreign Relations Law of the United States and Customary International Law, 79 ASIL Proc. 73, 92-94 (1985)Google Scholar ; Special Review Essays: The Restatement (Third) of the Foreign Relations Law of the United States, 14 Yale J. Int’l L. 433 (1989).Google Scholar
60 The reporters put forward a position on the possible overriding of a federal statute by customary international law, which followed Henkin’s own views as articulated in other writings of approximately the same period, see, e.g., Henkin, supra note 44, but was not embraced by the institute in the eventual text. See 62 ALI Proc. 374, 391–92 (1985).
61 63 ALI Proc. 90, 122–24 (1986).
62 62 ALI Proc, supra note 60, at 385, 387–88.
63 63 ALI Proc, supra note 61, at 91, 141.
64 Id. at 141–42; see also 62 ALI Proc, supra note 60, at 424 (citing Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3 (Feb. 5)).
65 See 1 Restatement, supra note 53, pt. I, ch. 2, intro. note, at 41–42 (citing Henkin, supra note 43).
66 For references to the debate, see International Law (5th ed. 2009), supra note 29, at 658–60.
67 Thomas, M. Franck, Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States, 64 AJIL 809 (1970)Google Scholar ; Louis, Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL 544 (1971)Google Scholar .
68 Louis, Henkin, The Constitution for Its Third Century: Foreign Affairs, Preface to The United States Constitution in Its Third Century: Foreign Affairs, 83 AJIL 713 (1989), reprinted as Foreign Affairs and The U.S. Constitution (Louis, Henkin, Michael J., Glennon, & William D., Rogers eds., 1990)Google Scholar .
69 Louis, Henkin, Kosovo and the Law of “Humanitarian Intervention,” 93 AJIL 824 (1999).Google Scholar
70 Louis, Henkin, The Mythology of Sovereignty, ASIL Newsletter, Mar.–May 1993, at 1Google Scholar ; see also Louis, Henkin, That “S” Word: Sovereignty, and Globalization, and Human Rights, et Cetera, 68 Fordham L. Rev. 1 (1999).Google Scholar
71 See, e.g., Henkin, How Nations Behave, supra note 23, at 303–12.
72 Henkin, Foreign Affairs and The Constitution, supra note 15, at 99 n.* (Libya); Louis, Henkin, The Invasion of Panama Under International Law: A Gross Violation, 29 Colum. J. Transnat’l L. 293 (1991)Google Scholar ; Louis, Henkin, The Use of Force: Law and U.S. Policy, in Right v. Might: International LAW and The Use of Force 37, 52–56 (Louis, Henkin et al. eds., 2d ed. 1991)Google Scholar (criticizing U.S. military actions in Grenada, Libya, Nicaragua, and elsewhere, in light of U.S. interest in maintaining UN Charter constraints on use of force).
73 He thus subscribed to amicus statements urging that military action should not proceed without the constitutionally required congressional participation and that courts could in principle address legal challenges arising from such actions. Brief of Amici Curiae Ackerman et al., Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990) (No. 90–2866), reprinted in 27 Stan. J. Int’l L. 257 (1991); Letter from Bruce Ackerman et al. to President William J. Clinton (Aug. 31, 1994), reprinted in Contemporary Practice of the United States, app., 89 AJIL 127 (1995).
74 Louis, Henkin, Provisional Measures, U.S. Treaty Obligations, and the States, 92 AJIL 679 (1998)Google Scholar (regretting that the executive branch had treated the order in the Breard case as not creating a binding obligation).
75 Brief for Louis Henkin et al. as Amici Curiae, Hamdan v. Rumsfeld, 548 U.S. 557, 628 n.58 (2006). For the brief, see 2005 U.S. Briefs 184, 2006 U.S. S. Ct. Briefs Lexis 52.
76 Louis, Henkin, War and Terrorism: Law or Metaphor, 45 Santa Clara L. Rev. 817, 827 (2005).Google Scholar