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Professor Louis Henkin: In Memoriam

Professor Louis Henkin

Professor Louis Henkin

Louis Henkin was one of the greatest international legal scholars of his generation. Professor Henkin passed away on Thursday, October 14th at the age of 92.  His obituary in the New York Times chronicles his remarkable life and his contributions to both the practice and theory of international and constitutional law:

Louis Henkin, a legal scholar often credited with creating the field of human rights law and the author of classic works on constitutional law and the legal aspects of foreign policy, died Thursday at his home in Manhattan. He was 92.

His death was confirmed by his wife, Alice Hartman Henkin.

Professor Henkin, unusual in combining equal expertise in constitutional law and international law, moved easily between academia and government. His legal scholarship was a fundamental resource for other scholars involved in human rights and international law, and his books addressed to a broader audience — notably “Foreign Affairs and the Constitution,” “The Rights of Man Today,” “How Nations Behave” and “The Age of Rights” — became required reading for government officials and diplomats.

Through his teaching at Columbia University, where he founded the Center for the Study of Human Rights in 1978 and the Human Rights Institute in 1998, and through seminars run by the Aspen Institute’s Justice and Society Program, he trained hundreds of legal specialists and advocates in the field of human rights law.

“It is no exaggeration to say that no American was more instrumental in the development of human rights law than Lou,” said Elisa Massimino, the president and chief executive officer of Human Rights First, an organization Professor Henkin helped found in 1978 under the name Lawyers’ Committee for Human Rights. “He literally and figuratively wrote the book on human rights.”

Eliezer Henkin was born on Nov. 11, 1917, in present-day Belarus, where his father was a rabbi and Talmudic scholar. In 1923 the family immigrated to the Lower East Side of Manhattan, where Lazar, as his family called him, acquired the nickname Louie. By the time he began studying mathematics at Yeshiva College, where he earned a bachelor’s degree in 1937, he had adopted the first name Louis.

Virtually on a whim, he applied to Harvard Law School and, after passing the admittance tests, borrowed tuition money from his sister and enrolled. He received his law degree in 1940.

After working as a clerk for Judge Learned Hand at the United States Court of Appeals for the Second Circuit, in Manhattan, he served in the Army during World War II, seeing action in Sicily, Italy, France and Germany.

In 1944, near Toulon, France, he was part of an artillery observation unit that encountered three German officers. Relying on his Yiddish, he convinced the Germans to surrender a force of 78 men to his 13-man unit, a feat for which he was awarded the Silver Star.

On leaving the military, he served as a law clerk for Justice Felix Frankfurter of the United States Supreme Court.

Mr. Henkin, an ardent New Dealer, worked for the State Department’s United Nations bureau and its Office of European Regional Affairs from 1948 to 1956. He played a main role in negotiating the United Nation’s 1951 Refugee Convention, which set forth the standards defining refugees, their rights and the legal obligations of nations toward them.

In 1956 he was invited by Columbia University to spend a year studying the legal issues involved in the control and verification of nuclear weapons, the subject of his first book, “Arms Control and Inspection in American Law” (1958).

Several works on law, foreign policy and diplomacy followed, including “The Berlin Crisis and the United Nations” (1959) and “Disarmament: The Lawyer’s Interests” (1964).

After teaching law at the University of Pennsylvania for five years beginning in 1958, he returned to Columbia, where he taught at the law school into his 80s.

His highly influential “Foreign Affairs and the Constitution” (1972) explored the Constitution’s division of power between the president and Congress on matters pertaining to foreign affairs, a quest that took on particular urgency against the backdrop of the Vietnam War, then still in progress.

How did it come about, Professor Henkin asked, that the president gained the initiative in waging war, when, taken as a whole, the Constitution favors Congressional over presidential power?

“Every grant to the president, including those relating to foreign affairs, was in effect a derogation from Congressional power, eked out slowly, reluctantly, and not without limitations and safeguards,” Professor Henkin wrote, in a typically lucid and graceful passage.

Over time, however, circumstances trumped principles, he wrote. “The structure of the federal government, the facts of national life, the realities and exigencies of international relations, the practices of diplomacy, have afforded presidents unique temptations and unique opportunities to acquire unique powers,” he concluded.

He returned to the subject in 1990 with “Constitutionalism, Democracy and Foreign Affairs,” a much more impassioned book, that warned of the dangers of an imperial presidency and insisted on the importance of human rights as a cornerstone of American foreign policy. Professor Henkin waged a multifront struggle to extend universalist ideas of human rights and the reach of the law. “He pushed back forcefully against the Roman observation that in war — and perhaps in foreign relations generally — the law is silent,” Sarah H. Cleveland, a law professor at Columbia, said in an interview with the Columbia Human Rights Law Review in 2007.

In his books, he took on such issues as compliance with international law (“How Nations Behave,” 1968) and the underlying principles of human rights (“The Rights of Man Today,” 1978).

At the Aspen Institute’s Justice and Society Program, for many years directed by his wife, a human rights lawyer, he taught international law to more than 300 judges, including four future Supreme Court justices, Ruth Bader Ginsburg, Anthony M. Kennedy, Stephen G. Breyer and Sonia Sotomayor.

Professor Henkin’s close ties to the United States government allowed him to serve as a go-between for human rights organizations and Congressional committees drafting rights legislation. He also filed numerous amicus briefs in Supreme Court cases including, most recently, Hamdan v. Rumsfeld, a 2006 case in which the court rejected the Bush administration’s plan to try Guantánamo Bay detainees before military commissions.

In addition to his wife, Professor Henkin is survived by their three sons, Joshua, of Brooklyn; David, of San Francisco; and Daniel, of Manhattan; and five grandchildren.

Professor Henkin took a lofty view of his own government’s international responsibilities. He often felt let down.

“In the cathedral of human rights,” he wrote in a well-known passage in a 1979 article, “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.”

The concluding words from the Times obituary are a poignant critique of the United States and are emblematic of Henkin’s human rights advocacy.  As my friend and colleague, Professor Ari Kohen has observed:

Henkin effectively created the field of human rights law through a series of careful and forceful arguments that nations are bound by law to treat their citizens in accordance with certain internationally accepted standards. His influence undoubtedly extends to anyone with even a passing academic or practical interest in human rights.

On a personal note, I own a tremendous debt to Professor Henkin’s work. When I took Professor John Norton Moore’s International Law course at the University of Virginia School of Law in the Fall of 1980, we used the First Edition of Henkin’s co-edited International Law casebook. And ever since I started teaching International Law at Georgetown, I have used the various editions of his casebook on down to the present. I have also drawn heavily upon his writings dealing with constitutional law of US foreign relations.

Professor Henkin was a giant in the field. His scholarship and advocacy had has left an indelible mark. He will be greatly missed.

(HT: Ari Kohen)

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.