Michael J. Glennon

The New Interventionism: The Search for a Just International Law

community, pressure built to use force against him, whether the U.N. Charter allowed it or not. Thus when the Western allies launched air strikes, the move was largely popular. It was not, however, technically legal under the old regime. After all, Kosovo is still part of Yugo slavia. No cross-border attack?the one circumstance where the charter allows an international military response?had occurred, and the Security Council had never authorized nato military measures. Thus in Kosovo, justice (as it is now understood) and the U.N. Charter seemed to collide. But it is not only that the U.N. Charter prohibits intervention where enlightened states now believe it to be just?its problems run even deeper. For the charter is grounded on a premise that is simply no longer valid?the assumption that the core threat to international security still comes from interstate violence. This

The Constitution and Chapter VII of the United Nations Charter

A resolution of the UN Security Council authorizing the use of force cannot substitute for congressional approval under the United States Constitution or the War Powers Resolution.

The Senate Role in Treaty Ratification

Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme law of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.

Who’s the Client? Legislative Lawyering Through the Rear-View Mirror

I am invited to consider whom I regarded as my client when I was Legal Counsel to the Senate Foreign Relations Committee. Happily, I can answer succinctly: I do not know. Traditional notions of attorney-client relations do not really apply on Capitol Hill as they do in executive departments and agencies. There, a lawyer has one client-the President, or, depending upon its measure of independence, the agency. The legislative branch, on the other hand, comprises hundreds of potential clients-535 Members plus committees, subcommittees, and various legislative officers. Each of these entities pursues multiple, often conflicting, objectives. Rather than working for a particular body (a committee) or person (its chairman), committee counsel arguably work for the Senate as a whole-Members not on a committee, Members in minority, or Members concerned about matters on which the committee does not have a firm position. In a sense, committee counsel function almost as independent contractors, hopscotching about a political minefield in which the committee, or its chairman, or a Member seeks to vindicate views that are at odds with the views of the others, and using the counsel to help do it. Often, counsel has discretion to pursue his own interests, even when those interests conflict with the expressed preferences of a member of the committee, though it normally is necessary under such circumstances to seek political cover by finding a sympathetic member of the committee to espouse those views. All this translates into opportunities for ideological entrepreneurship in which a committee counsel with a modicum of political savvy can, within certain parameters, advance his own philosophical interests. My thesis, therefore, is that committee counsel need seldom worry about high-minded attorney-client matters because the landscape does not lend itself to that way of thinking. While I recognize that the breadth of a counsels discretion may vary from committee to committee, knowing how my peers operated leads me to be confident that my experience was not unique. And, lest

The executive’s misplaced reliance on war powers “custom”

Historical practice, or custom, has long been seen as a source of authority in the resolution of separation-of-powers disputes. In two recent cases assessing the limits to the president’s power regarding the recognition of foreign nations and the making of recess appointments, the Supreme Court heavily emphasized past practice. Historical practice, the Court said, reflects “the compromises and working arrangementsth at the elected branches of Government themselves have reached.” in the realm of war powers, the executive branch has long relied on custom to justify military initiatives that were carried out without congressional approval. In essence, the executive has argued that because force has been used in the past without congressional approval, the same is permissible in various other situations (for example, in the Dominican Republic, Grenada, Haiti, Kosovo, and Panama).

Law, Power, and Principles

Daniel Bethlehem’s proposed principles grapple bravely with the familiar tension between law and power, between the aspirational and the real, between states’ words and irreconcilable acts. His principles “are proposed with the intention of stimulating a wider debate on these issues.” With that invitation in mind, I offer this thought: while Bethlehem posits a need for objectivity—by which he appears to mean neutral principles indifferent to power disparities—his proposed principles nonetheless substitute the opinio juris of the powerful for the practice of all, and they aim to bridge a division among states that he supposes merely to be a division among publicists.