Jean Galbraith

Zivotofsky v. Kerry and the Balance of Power

Zivotofsky v. Kerry (Zivotofsky II) is a case about the constitutional distribution of power. The narrow question is whether Congress or the President has the power to determine whether a U.S. citizen born in Jerusalem can have “Israel” listed as his country of birth on his passport when the President does not formally recognize Jerusalem as part of Israel. As for the broader question—well, the case is packed with broader questions. Does the President have the exclusive constitutional authority to undertake the international legal act of recognition? Does the President have further exclusive constitutional authority to control the content of executive-branch communications with foreign nations? What powers does Congress have in foreign affairs? And are these justiciable issues for the federal courts to resolve?

Temporary International Legal Regimes as Frames for Permanent Ones

This chapter explores the footprint that temporary international legal regimes can leave on international law. Drawing on four different theories of state behaviour, it considers how temporary regimes can shape future permanent regimes. Under a rational design approach, temporary legal regimes influence future permanent regimes largely because they provide valuable experiences from which state actors learn. Under other theories of behaviour—historical institutionalism, constructivism, and behavioural international law—temporary legal regimes can have even more influence on permanent ones. Although these other three theories have important differences, all suggest that temporary regimes strongly shape the real and perceived possibilities for future permanent design choices. This chapter then looks at how these different theoretical approaches play out in case studies in refugee law, international criminal law, and international environmental law. While these case studies do not solely support any one theoretical account, collectively they demonstrate that temporary regimes can have outsized influence on permanent ones. This in turn has important implications for negotiators involved in regime design.

Two Faces of Foreign Affairs Federalism and What They Mean for Climate Change Mitigation

President Trump has done the impossible: he has made the international community enthusiastic about U.S. federalism. Even as they express dismay at Trumps plan to abandon the Paris Agreement, foreign leaders and internationalists have praised the efforts of U.S. states and cities to combat climate change mitigation in accordance with the Agreements goals. These leaders are responding to what I will call the outer face of foreign affairs federalism—the direct international engagement undertaken by U.S. states and cities. This outer face has gained visibility in recent years, spurred on not only by the exigencies of climate but also by developments in legal practice. Less noticed internationally but of great practical importance is the inner face of foreign affairs federalism—the ways in which U.S. states and cities interact with the federal government. In this contribution, I first describe these two faces of foreign affairs federalism as they relate to climate and then suggest some ways in which foreign leaders and internationalists could expand the outer face and respond to the inner face.

Human Rights Treaties in and beyond the Senate: The Spirit of Senator Proxmire

In 1995, Louis Henkin wrote a famous piece in which he suggested that the process of human rights treaty ratification was haunted by “the ghost of Senator Bricker” – the isolationist Senator who in the 1950s had waged a fierce assault on the treaty power, especially with regard to human rights treaties. Since that time, Senator Bricker’s ghost has proved even more real. Professor Henkin’s concern was with how the United States ratified human rights treaties, and specifically with the packet of reservations, declarations, and understandings (RUDs) attached by the Senate in giving its advice and consent. Today, the question is not how but whether. It is now twenty years since the United States ratified a major human rights treaty.Yet one common theme that arches across U.S. foreign relations law is the power of the dialectic. Written in honor of Roger Clark, this essay suggests that as a counterweight we should consider the spirit of Senator Proxmire – the late internationalist who for many years led a lonely campaign to keep the Genocide Convention on the Senate’s agenda. The spirit of Senator Proxmire embodies two trends in relation to unratified human rights treaties. The first is simply that efforts towards Senate advice and consent for at least some of these treaties persist and persist. The second trend – less direct, but even more interesting – is that unratified human rights treaties are nonetheless influencing the shape of law in the United States. In essence, these uses of unratified human rights treaties are advancing Senator Proxmire’s goal of having the United States be responsive to human rights norms, although not doing so through his preferred means of treaty ratification. This essay describes these trends and closes by observing that isolationists and internationalists have both used half-measures in order to pursue their goals.

Ending Security Council Resolutions

Criticism of the Security Council tends to take one of two forms: first, that it does not act enough; and second, that it acts unwisely. Although these concerns are quite different, they both have partial causal roots in the Council’s voting process. Article 27 of the United Nations Charter provides that Council decisions on nonprocedural matters require “an affirmative vote of nine members including the concurring votes of the permanent members.” The ability of any of the five permanent member stove to a Council resolution makes it difficult for the Council both to act in the first place and to pass corrective resolutions when existing resolutions are criticized as problematic. Indeed, the difficulty of undoing resolutions can make Council members wary about allowing the passage of resolutions at the very outset.

INTRODUCTION TO AGORA, PART II: REFLECTIONS ON ZIVOTOFSKY V. KERRY

AJIL Unbound is pleased to publish the second part of an Agora on the Supreme Court’s recent decision in Zivotofsky v. Kerry (Zivotofsky II).1 As we explained in our introduction to the first part of the Agora published in July, Zivotofsky II is a significant separation-of-powers decision concerning the exclusivity of the President’s authority to recognize foreign sovereigns and their territory.2 The essays in the first part of the Agora, by Curtis Bradley, Harlan Cohen, Jean Galbraith, and Peter Spiro, discussed the Supreme Court’s methodology in Zivotofsky II and considered the decision’s implications for the balance of authority between Congress and the executive branch and for the future direction of U.S. foreign relations law. The essays in the second part of the Agora consider Zivotofsky II from a number of additional perspectives. Julian Mortenson of the University of Michigan School of Law praises the decision for clarifying that a President can disregard a federal statute on the ground that it invades executive authority only if the President is exercising exclusive, and not merely inherent, authority.3 Catherine Powell of Fordham School of Law focuses on the signing statement accompanying President George W. Bush’s signature of the statute at issue in Zivotofsky II, and she discusses how such signing statements can promote a dialogic approach to resolving constitutional controversies.4 John Torpey of the Graduate Center of the City University of New York considers Zivotofsky II against the backdrop of domestic and international politics and describes more generally the political nature of passports.5 Finally, Campbell McLachlan of Victoria University of Wellington offers a non-U.S. perspective on the decision, explaining that, although the Supreme Court’s conclusion that the President has an exclusive recognition power is consistent with principles of English law, those principles do not support a more general executive authority in foreign affairs that is free from legal constraint.6

The Good Deeds of International Criminal Defendants

International criminal tribunals try defendants for horrific acts: genocide, war crimes, and crimes against humanity. At sentencing, however, evidence often arises of what I will call defendants’ ‘good deeds’ – humanitarian behaviour by the defendants towards those on the other side of the conflict that is conscientious relative to the culture in which the defendants are operating. This article examines the treatment of good deeds in the sentencing practices of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. I show that the tribunals’ approaches are both undertheorized and internally inconsistent. I argue that the tribunals should draw upon the goals that underlie international criminal law in developing a coherent approach to considering good deeds for sentencing purposes.