Bradley Book Symposium: Ingrid Wuerth comments on International Law and War Powers

by Ingrid Wuerth

[Ingrid Wuerth is Professor of Law at Vanderbilt Law School]

War Powers and the War on Terrorism, the final chapter of Professor Bradley’s book, is excellent.  To be sure, I disagree with Professor Bradley on some points, so had I written the chapter it would have approached certain issues differently.    But rather than use this space to rehash those debates, I would like to offer a few broader thoughts about the chapter and about the issues raised by the book.

Beginning with the war powers chapter itself, what I missed most in the chapter was a clearer historical narrative.  The chapter could have moved forward chronologically, for example, perhaps treating jus ad bellum and jus in bello separately, and by giving a much richer account of international law and war (or the threat thereof), especially in the 18th and 19th centuries.  As it is, the history in this chapter is pressed into the service of contemporary debates and the extent to which early U.S. administrations and courts were consumed by issues of war-initiation and the rules of prize is somewhat lost.  Framing the chapter this way might also have given greater place to international law itself and how it developed over the past two centuries, situating the U.S. experience within those developments, rather than situating international law within domestic separation of powers disputes. Had Professor Bradley taken such an approach, however, he might have sacrificed brevity and clarity, especially for newcomers to the field – and the book is written in part for such readers. So maybe this is less a criticism of the chapter itself, and more a statement about the limitations of the genre.

More broadly, one might ask what the book tells us about the “field” of law and of scholarship that it describes.  The broader field, “foreign relations law” is situated at the intersection of international law and constitutional law, but is also partially claimed by scholars of “federal courts” and perhaps should include more administrative law than it currently does.  Like the field as a whole — at least in the United States  — the book is not focused on methodology, theory, or interdisciplinary inquiry.   Yes, there are exceptions (like some of my co-blogger-for-the day Mike Ramsey’s work defending textualism), but generally ours is a very doctrinal field and is widely understood as such.   In that sense, the book is representative.  The title of the book refers to international law in the “U.S. Legal System” rather than in “U.S. courts” which is generally consistent with trends both in foreign relations law and in constitutional law as a whole.   Internal decision making by the executive branch during the war on terror has focused significant attention on foreign-relations decision-making outside the courts.  Throughout the book, but especially in the war powers chapter, the book describes international legal issues that arise within the executive branch and that are addressed by Congress, rather than focusing just on cases and courts.   Nevertheless, the book as a whole is framed around domestic constitutional structures (rather than international law) and trains much of its attention on courts.

Finally, I would like to take even more liberties with my assigned chapter and focus on one aspect of the book’s conclusion.   The last paragraph of the book (page 331) argues that in some respects international law within the U.S. legal order are fundamentally unsettled and contested, resulting in a “continuing dialog”.  This is correct, and it is this dynamism that makes the field such an interesting part of U.S. law.  I also think the domestic power struggles (aka “dialog”) are significant for the development of international law, however.   The contest for power and dynamism create room for doctrinal innovation within international law itself. To take questions of immunity and jurisdiction, for example,  in many legal systems the control over these issues may be “shared” (as a practical, if not a theoretical matter), by two or all three branches of government, in a competitive, ongoing process that is not necessarily resolved quickly through a strict hierarchy, if at all.   This pluralism is reflected upward, as the actions of all three branches potentially constitute both state practice and opinio juris. (See here) Professor Nico Krisch has recently defended the virtues of pluralism in the international legal order.  He describes pluralism as a “heterarchical interaction of various layers of law” in which the “relationships between them are left to be determined ultimately through political, not rule-based processes.”  This nicely captures the international legal order with respect to immunity and jurisdiction, I believe, and a significant aspect of this pluralism is generated by the power struggles within domestic legal systems such as those that Professor Bradley describes.  Professor Maximo Langer’s article on universal criminal jurisdiction illustrates the point in that context, and I have documented domestic power struggles over immunity here.  Doctrinally, it is in part the domestic power struggles or gaps that have generated state practice that tends to limit immunity, but also that suggests that there may be a complementarity requirement for universal jurisdiction.  In a forthcoming article I argue that the intersection between domestic and international law in these areas generates narrow decisions that mediate the competing normative frameworks of accountability on the one hand and sovereign equality on the other.

Professor Bradley’s book is a great help for newcomers to the field, but it also provides a balanced overview of the areas it surveys, creating a platform for arguments about optimal production and enforcement of international law in domestic legal systems.

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