22 Oct Louis Henkin (1917-2010): The Power of His Ideas Live On
[Anne-Marie Slaughter is the Director, Secretary’s Policy Planning Office, U.S. Department of State; Former Dean and (on leave) Professor, Princeton University, Woodrow Wilson School for Public and International Affairs. Catherine Powell is Staff Member, Secretary’s Policy Planning Office, U.S. Department of State; (on leave) Professor, Fordham Law School; Former Clinical Professor and Founding Director, Human Rights Institute, Columbia Law School.]
With Louis Henkin’s death, we marvel at how the power of his ideas live on. As a Jewish immigrant whose family fled communism in what is now Belarus, Lou came of age as part of the greatest generation — during the Great Depression, New Deal, and World War II. He went on to become one of the leading international lawyers of his time and a primary founder of the contemporary idea and study of human rights.
Four of Lou’s ideas – embodied in his memorable pithy expressions – frame important challenges with which we must continue to grapple:
1. From Constitutional Rights to Human Rights: “[I]n the cathedral of human rights, the United States is more like a flying buttress than a pillar[.]”
In the past, Lou had said that “in the cathedral of human rights, the United States is more like a flying buttress than a pillar—choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to the scrutiny of that system.” On the one hand, Lou reminded us that America helped invent the idea of human rights, in declaring in the U.S. Declaration of Independence that we all have certain “inalienable rights” simply by virtue of our humanity. On the other hand, the United States has never accepted the full spectrum of rights that exist in otherwise widely-ratified international human rights treaties.
The term “human rights” itself didn’t actually exist in international law or U.S. law, except colloquially, until the abolitionist Frederick Douglass called slavery a violation of human rights. Then Franklin D. Roosevelt’s Four Freedoms speech called for a New Deal for the world – insisting on a broad scope of rights, including freedom of expression, freedom from religious persecution, freedom from fear, and freedom from want. While FDR’s vision moved beyond the negative rights paradigm of the State, to embrace a positive role for the State in affirmatively providing social safety nets and economic security (i.e., freedom from want), the United States never fully accepted economic and social rights as being on par with civil and political rights. Even with civil and political rights, the United States attached numerous reservations, understandings, and declarations. Lou claimed:
[There’s] that nasty joke [that] say[s that] it was Hitler who made us an international nation…. The last major effort by the United States to involve itself in international human rights was essentially a mood. After World War [II] — when the [U.N.] Charter was adopted, Eleanor Roosevelt … was all in favor of promoting and participating [in the U.N.] When the United States finally climbed off its isolationism [following the collapse of the League of Nations] and began to participate in the U.N., it was prepared to do so only on its own terms…. We therefore supported the breaking up of the Universal Declaration [of Human Rights] into two covenants and we were not prepared to adopt obligations under the covenant of economic and social rights [International Covenant on Economic, Social and Cultural Rights.]
Further, in his article, “The Ghost of Senator Bricker,” Lou describes how even though the defeat of the Senator Bricker proposal in the 1950s staved off a constitutional amendment that would have made treaties non-self-executing, we essentially live with the ghost of Senator Bricker today in that when the U.S. ratifies treaties, it attaches numerous reservations, understandings and declarations ( RUDs) such as declaring treaties non-self-executing.
2. From the State to International Cooperation: “Away with the ‘S’ word.”
Lou’s “Away with the ‘S’ word” captured his skepticism toward states that hide behind the banner of “sovereignty” to shield against international scrutiny. Along with other early internationalists of his generation, Lou believed that international institutions and international law offered a “New Deal” vision for the world, with the potential to provide political security, economic security, and human security. As historian Elizabeth Borgwardt notes, “The designers of the Bretton Woods, U.N., and Nuremberg charters actively struggled to redefine the idea of “security” in the international sphere to include economic and political security, much as New Deal programs had redefined security domestically for individual American citizens.” FDR’s recognition that a new world order must secure economic and human security along with political security at home and abroad was deeply informed by his twin experiences with the scourge of the Great Depression and Nazi occupation of Western Europe.
Acknowledging the debt we owe to those, such as Lou, who helped build our existing international system, even while we must build on this to create “a new global architecture,” Secretary of State Clinton has said:
After the Second World War, the nation that had built the transcontinental railroad, the assembly line, the skyscraper, turned its attention to constructing the pillars of global cooperation…. But this architecture served a different time and a different world. As President Obama has said, today it is buckling under the weight of new threats. The major powers are at peace, but new actors, good and bad, are increasingly shaping international affairs. The challenges we face are more complex than ever, and so are the responses needed to meet them.
3. From International Cooperation to International Compliance: “[A]lmost all nations observe almost all principles of international law and almost all of their obligations almost all the time.”
U.S. State Department Legal Counsel Harold Koh describes this famous line from Lou’s How Nations Behave foundational text as “the sentence that launched a thousand articles[.]” Countless scholars have struggled with this puzzle Lou drew our attention to regarding why nations obey international law.
Even in the aftermath of the 2003 U.S. invasion of Iraq without U.N. Security Council approval, Lou believed his adage was still true. After all, in invading Iraq, President George W. Bush’s Administration tried to justify its actions in terms of international law, claiming, for example, that a previous U.N. Security Council authorized the U.S. invasion.
4. From War to Peace: “Perhaps, a small measure of success in the battle against the ‘S’ word has encouraged me to ‘take on’ two other words: the ‘W’ word, ‘war,’ and the ‘T’ word, ‘terrorism’.”
In fact, in between Henkin’s two clerkships, he spent four years in the army after being drafted in 1940, as the U.S. was about to enter World War II. With his expertise in both law and mathematics, he was assigned to serve in an artillery observation unit. While near Toulon during the invasion of France in 1944, Henkin came upon three German officers. Following a standoff with arms drawn, Henkin spoke Yiddish to the German soldiers, which initiated negotiations, ultimately convincing the Germans to surrender a force of 78 men to Lou’s 13-man unit. His skills as a negotiator earned him a Silver Star, a recognition of his daring and persuasiveness.
However, following World War II, Lou had a deep skepticism about the continuing vitality of war as a concept in international law and an unease with the “War on Terror” concept. As a war for democracy to stop the Nazis, World War II shaped the way he thought about the world. “[I]t stopped me from being an isolationist,” he said. But, Lou noted that war is not a word in international law. He asserted that war “has no significance in international law…. War stands in the way of international law…. [T]he Constitution accepts the word “war” and uses it colloquially[.]” But, squaring the Constitution with the U.N. Charter, Lou acknowledged that while “the word ‘war’ is in the U.S. Constitution, and therefore it binds us… the most important [provision] in the U.N. Charter is Article 2, Section 4 [, which] says, ‘Nations shall not use force.’” As far as Lou was concerned, the U.N. Charter’s exception for self-defense under Article 51 did not justify the 2003 U.S. invasion of Iraq. Among other things, the Bush Administration had asserted that Article 51permitted a “preemptive attack” in light of its claimed evidence of weapons of mass destruction in Iraq. In talking with Lou about this in his office, he’d pull the U.N. Charter off his shelf, and note that it says that use of force is not allowed if an armed attack “might occur” or “is on the verge of occurring,” but rather “if an armed attack occurs.” Lou was adamant:
I haven’t changed my mind. The four years into the Iraq war means we have no business in Iraq[. W]e have agreed in the U.N. Charter not to use force except if you combine Article 2(4) with Article 51; those are the limits on our use of force that we accepted, and we should live with it.
Lou had begun thinking about the use of force years earlier, for example, in his book, Foreign Affairs and the Constitution, which he wrote long before anyone noticed that U.S. Presidents were enjoying certain unanticipated powers as commander in chief. When asked about the “War on Terror” concept and whether an age of terror is replacing what Lou had called the age of rights, Lou defended the premise of his classic book, The Age of Rights:
I don’t think the age of terrorism has replaced the age of rights. We are an age of rights but we’re subject to the consequences of terrorism. And I think those of us that care about rights have to keep the idea of rights alive and kicking, and to keep whatever is done in opposition to terrorism limited to what is necessary and not as an excuse for getting rid of the U.N. etc. …. [W]e expect the age of rights to take account of terrorism, but not to bow to it.
For many of us, Lou was a role model – moving effortlessly, it seemed, from government to the academy to a stint as a UN expert. He was a skilled diplomat and negotiator at the U.S. State Department in the 1950s; a brilliant teacher and scholar at Penn and Columbia; and a member of the UN Human Rights Committee.
But what made Lou Henkin particularly special was his willingness to say many things that many international lawyers would not say. He was willing to challenge fundamental premises of the international legal system and to dispense with the normal political cautions that counsel incrementalism even when human lives and dignity are at stake. That is in part simply the kind of man he was, the measure of his character. But it may also have been due to the power and strength that flowed from having been a Frankfurter clerk and a constitutional law professor – the fastest track in the legal academy. He had the intellect to see the truth and the confidence to say it. And in denying the differences between constitutional law and international law, in insisting that civil rights are human rights, he did not deny the distinctiveness and power of the American constitutional tradition, but like the Obama Administration today, he saw that tradition as a part of a much larger culture of universal human rights. From his birth in Belarus to his death in Manhattan, he was a staunch defender of the American constitution and a citizen of the world.
[The views herein expressed are our personal views and do not necessarily represent those of the U.S. Department of State or the United States. Full citations for all the sources cited here can be found in Catherine Powell, Louis Henkin and Human Rights: A New Deal at Home and Abroad (Oral History of Louis Henkin’s life), chapter in BRINGING HUMAN RIGHTS HOME (Catherine Albisa, Martha Davis, Cynthia Soohoo, eds.) Westport, CT: Praeger Publishers, January 2008). The tapes for the full oral history are housed at the Columbia Oral History Project.]