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Modern economic globalization has revived the legal tradition of universal jurisdiction, which declined in the West after the enactment of the Treaty of Westphalia, when the principle of sovereignty gained currency. Today, nations face this reality when making policy choices. During the first panel of an AEI event on Monday, Peter Spiro of Temple Law School highlighted how transnational organizations use international law to pursue policies on both sides of the political spectrum. John Fonte of the Hudson Institute then argued against the legitimacy of the International Criminal Court and articulated the challenge global governance poses to liberal democracy.
The second panel explored how the U.S. Constitution responds to international law — John Yoo of AEI compared the legal response to international law with conservatives' legal response to the New Deal in the 1930s. Jeremy Rabkin of the George Mason School of Law examined the history of international conventions on war, and elaborated on how their true purpose has been distorted over time. Michael Glennon of Tufts University’s Fletcher School of Law and Diplomacy argued for the primacy of U.S. Congress — not the United Nations Security Council — in American decisions on war and peace.
In his keynote address, Sen. Jon Kyl emphasized the foundational principles upon which U.S. government was founded: sovereignty for the people and the value of the democratic process in lawmaking. Kyl noted the opportunity for the American "Madisonian" approach to government — as opposed to the European "Westphalian" approach — to strengthen treaties serving American interests, including key elements of the Law of the Sea Treaty.
Papers from the conference will be published in the Berkeley Journal of International Law.
Globalization is provoking deep changes in the international order, with significant effects on the American constitutional and political system. The case of Medellin vs. Texas brought this issue into the spotlight as U.S. Supreme Court justices grappled with the question of whether international courts can order an American state to abolish the death penalty. Furthermore, in this term and the next, the Supreme Court must wrestle with whether U.S. courts should adjudicate violations of international law by multinational corporations, brought to light during the Kiobel vs. Royal Dutch Petroleum case.
Is global governance fundamentally different from earlier forms of international cooperation? Is it a necessary response to the effects of globalization? Does the U.S. Constitution limit the ways the United States can engage in global governance? The AEI Project on Sovereignty will explore the effects of globalization on international law, institutions and the Constitution.
Senator Jon Kyl (R-Ariz.) will conclude the conference with a keynote address.
Panel I: Effects of Globalization on International Law and Institutions
Tai-Heng Cheng, New York Law School
John Fonte, Hudson Institute
Julian Ku, Hofstra University School of Law
Peter Spiro, Temple Law School
Marc A. Thiessen, AEI
Panel II: The U.S. Constitution’s Response to International Law
Michael Glennon, Tufts University Fletcher School of Law and Diplomacy
Thomas Lee, Fordham University School of Law
Jeremy Rabkin, George Mason University School of Law
John Yoo, AEI
Michael S. Greve, AEI
Senator Jon Kyl, (R-Ariz.)
Paul Wolfowitz, AEI
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Tai-Heng Cheng is an International Arbitration Practice partner at Quinn Emanuel Urquhart & Sullivan LLP’s New York office. He is a specialist in international law and international arbitration and was a tenured professor of law at New York Law School and co-director of its Institute for Global Law, Justice and Policy. Cheng has authored almost 40 books, articles and essays on international law, international dispute resolution and international investment law. His next book monograph, “When International Law Works: Realistic Idealism After 9/11 and the Global Recession” is forthcoming with Oxford University Press. His scholarship has been cited in the American Journal of International Law, the Yale Journal of International Law and the Harvard Journal of International Law, as well as by judges and counsel in the U.S. Supreme Court and federal appeals and district courts.
John Fonte is a senior fellow and director of the Center for American Common Culture at the Hudson Institute. He is the author of “Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others?” (Encounter Books, September 2011), a number-one rated Amazon bestseller in international law. His ideas on "lawfare" were cited in the annual New York Times Magazine's Year in Ideas as being among the most noteworthy ideas of 2004. He is co-editor of “Education for America's Role in World Affairs” (University Press), a book on civic and world affairs education used in universities and teacher-training institutes.
Michael Glennon is professor of international law at the Fletcher School of Law and Diplomacy at Tufts University. Before going into teaching, he was legal counsel to the U.S. Senate Foreign Relations Committee (1977-1980) and assistant counsel in the Office of the Legislative Counsel of the United States Senate (1973-1977). A frequent commentator on public affairs, he has spoken widely within the U.S. and abroad and appeared on Nightline, the Today Show, NPR's All Things Considered and other national news programs. His op-ed pieces have appeared in the New York Times, Washington Post, Los Angeles Times, International Herald-Tribune, Financial Times and the Frankfurt Allgemeine Zeitung.
Michael S. Greve is the John G. Searle Scholar at AEI and specializes in constitutional law, courts and business regulation. His most recent book, “The Upside-Down Constitution” (Harvard University Press, 2012), is available for purchase on Amazon.com. Greve is also the chairman of the Competitive Enterprise Institute. He is a frequent contributor to the Liberty Law Blog and he will be a full time professor at George Mason University beginning in the fall of 2012. Prior to his engagement at AEI, Greve founded and co-directed the Center for Individual Rights, a public interest law firm specializing in high-stakes constitutional litigation.
Julian Ku teaches international and constitutional law subjects at Hofstra University. His main research interest is the intersection of international and domestic law. He is the co-author, with John Yoo, of a forthcoming book on globalization and the U.S. Constitution from Oxford University Press. He is also a co-founder of the international law blog Opinio Juris. Before joining the Hofstra faculty in 2002, Professor Ku served as a law clerk to Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit and as an Olin Fellow and lecturer in law at the University of Virginia Law School. Ku also practiced as an associate at the New York City law firm Debevoise & Plimpton, specializing in litigation and arbitration arising from international disputes. During the spring of 2011, Professor Ku was the Fulbright Distinguished Lecturer in Law at the East China University of Political Science and Law in Shanghai, China.
Jon Kyl is serving his third and final term as a senator for the state of Arizona after previously serving for eight years in the U.S. House of Representatives. He was elected unanimously by his colleagues in 2008 to serve as Republican Whip, the second-highest position in U.S. Senate Republican leadership. Kyl serves on the Senate Judiciary Committee, where he has played key roles in the confirmation of John Roberts as chief justice of the U.S. Supreme Court and of Samuel Alito as associate justice. As a member of the Judiciary Committee, he has also helped write the landmark Crime Victims Rights Act as well as important provisions of the Patriot Act, the Military Commissions Act and other anti-terrorism laws. As a member of the Finance Committee, he has been chief advocate of death-tax repeal and other pro-growth tax policies, including low tax rates on income, capital gains and dividends. He has also been a strong proponent of step-by-step solutions for health care reform that can improve access, lower costs and preserve the sacred doctor-patient relationship.
Thomas Lee has taught courses in civil procedure, comparative and U.S. constitutional law, federal courts, international commercial arbitration, international law and international relations theory, international trade, the laws of war, telecommunications law and the U.S. Supreme Court at Fordham University, Columbia University, the University of Virginia, Leiden University in the Netherlands and Sungkyunkwan University in South Korea. He spent the first four years after college as a U.S. naval cryptology officer in East Asia and South Asia, where he made four submarine deployments.
Jeremy Rabkin is a professor of law at George Mason University School of Law. Before joining the faculty in June 2007, he was a professor of government at Cornell University for 27 years. Rabkin is a renowned scholar in international law and was recently confirmed by the U.S. Senate as a member of the Board of Directors of the United States Institute of Peace.
Peter J. Spiro holds the Charles Weiner Chair in international law at Temple University. Before joining Temple’s faculty in 2006, Spiro was Rusk Professor of Law at the University of Georgia Law School, where he also served as associate dean for faculty development. A former law clerk to Justice David H. Souter of the U.S. Supreme Court, Spiro currently specializes in international law, the constitutional aspects of U.S. foreign relations and immigration and nationality law. Spiro is the author of “Beyond Citizenship: American Identity after Globalization” (Oxford University Press, 2008).
Marc A. Thiessen, a member of the White House senior staff under former president George W. Bush, served as chief speechwriter for the president and to former secretary of defense Donald Rumsfeld. Prior to joining the George W. Bush administration, Thiessen spent more than six years as spokesman and senior policy adviser to the U.S. Senate Foreign Relations Committee chairman Jesse Helms (R-N.C.). He is a weekly columnist for the Washington Post, and his articles can be found in many major publications. His book on the Central Intelligence Agency's interrogation program, “Courting Disaster” (Regnery Press, 2010), is a New York Times bestseller. At AEI, Thiessen writes about U.S. foreign and defense policy issues for The American and the Enterprise Blog. He appears every Sunday on Fox News Channel's "Fox and Friends" and makes frequent appearances on other TV and talk radio programs.
Paul Wolfowitz spent more than three decades in public service and higher education. Most recently, he served as president of the World Bank and deputy secretary of defense. As ambassador to Indonesia, Wolfowitz became known for his advocacy of reform and political openness and for his interest in development issues. At AEI, Wolfowitz works on development issues.
John Yoo has been a professor of law at the University of California, Berkeley, School of Law since 1993. He served as a deputy assistant attorney general in the Office of the Legal Counsel of the U.S. Department of Justice from 2001 to 2003, where he worked on issues involving foreign affairs, national security and the separation of powers. He also served as general counsel of the U.S. Senate Judiciary Committee from 1995 to 1996. He is the author of “Crisis and Command: A History of Executive Power from George Washington to George W. Bush” (Kaplan Publishing, 2010), “War by Other Means: An Insider's Account of the War on Terror” (Atlantic Monthly Press, 2006) and “The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11” (University of Chicago Press, 2005).