Quotable Quotes from the Fordham Law Review Symposium

Along with Julian, I had the good fortune to participate in a symposium last week at Fordham Law School on “International Law and The Constitution: Terms of Engagement.” Details about the symposium are available here. The Fordham Law Review will devote a symposium issue to the conference in the near future. Here are a few quotes from the symposium:

The strongest response that can be made to those who challenge violations of the laws of war by the Bush Administration is that these same voices were silent when the laws of war were being violated by NATO during the Kosovo war. You could call this argument “A pox on both your houses.”

Marty Lederman

Derek, you state that the Geneva Conventions are only prohibitory and do not independently authorize conduct. You further state that international human rights law is fully applicable in regulating wartime conduct. So hypothetically, what if in a few years from now the British invaded Washington again on the 200th anniversary of the War of 1812, killing hundreds of American soldiers. Can these British soldiers be prosecuted for human rights violations of extrajudicial killings, even if they do not violate the laws of war?

Martin Flaherty

I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

Harold Koh

The United States is numbered among only about a quarter of countries in the world that expressly includes international law as part of our law through the Supremacy Clause. As a general rule, the United States does an exceptional job of enforcing international law. The recent violations by the United States are just exceptions that prove the rule.

Oona Hathaway

Customary international law suffers from a ‘democracy deficit’ in a number of ways. First, states are assumed to assent to a new customary international norm unless they affirmatively object. Second, most customary international law norms are created and promoted by international law professors. Now, I have no doubt that law professors have many virtues, but being representative of the people is not one of them.

John McGinnis

Terrorism is typically attacked by using either a war model or a criminal model. But there is a third model, the state of emergency model. I would argue that we now have an international system of coordinated states of emergency.

Kim Lane Scheppele

As moderator I have six questions in the queue and five of them are from law professors. So let me start with this gentleman here in the corner who is a civilian. [Pointing to Marty Lederman]

Moderator

Well I’m not a law professor but I play one on TV.

Marty Lederman

Does it really matter what the court decides this term in Medellin? Based on my research in state and local courts, it doesn’t matter that much. There now is a State Department missionary who travels to the remotest parts of the country spreading the word about consular notification. These consular notification practices have now found there way into state practice throughout the country.

Janet Levit

The first international human rights commission was actually established in the 19th century Mixed Commission on the Abolition of Slave Trade. They heard over 600 cases and freed over 80,000 slaves.

Jenny Martinez

On the question of deference to ICJ decisions, in Sanchez-Llamas, transnationalist law professors argued a vertical enforcement model. Nationalist law professors argued a horizontal approach of informational value. But in it’s decision, the Court used the term “respectful consideration.” Court precedent suggests this phrase always means a level of deference well beyond mere horizontal informational value. The relationship is neither vertical nor horizontal, but diagonal. This means we should adopt an international courts’ interpretation unless the interpretation is unreasonable.

Melissa Waters

If I were to modify Dean Koh’s keynote speech yesterday, I would suggest that there are actually three categories of judges, not two. The first category are “Transnationalist” judges. There currently are no justices in this category. The second category are “Cameo Transnationalists.” These justices give their friends cameo roles in a small handful of films in movie genres that involve death or sex. There are five justices in this category. The third category are “Nationalist” judges. There currently are four justices in this category … and several thousand state and federal judges.

Roger Alford

I was at a cocktail party right after Roper was decided and I went up to Justice O’Connor to thank her for all she had done to promote international law. She responded rather sharply, “Well, it certainly has gotten us into a lot of trouble!”

Sarah Cleveland