Episode 9 – Oona Hathaway on War Powers and the Scope of National Security

In this episode, I speak with Oona Hathaway, Professor of Law at Yale Law School and Professor of International Law and Area Studies at the Yale University MacMillan Center. We discuss the constitutional and legislative constraints on the executive war-making power, both in terms of the theoretical rationale for such constraints, and in terms of the constitutional and legislative form such constraints take in U.S. legal system. After discussing how and why such constraints in the U.S. have eroded over time, reaching a nadir in the Libyan intervention, Oona explains how the War Powers Resolution could be revised, in ways more consistent with international law, and how Congress could employ the courts, in order to re-establish Congressional authority over decisions to engage in armed conflict. We also discuss how such crises as the Coronavirus pandemic and climate change should cause us to re-think the scope and character of national security priorities and policy. We wrap up with a short discussion of the collaborative process involved in the writing of her co-authored work The Internationalists, and the ethical obligations in being a government lawyer. A fantastic foray into war powers and evolving perspectives on national security!

Materials:

– “How to Revive Congress’s War Powers,” Texas National Security Review (2019).

– “How to Recover a Role for Congress and the Courts in Decisions to Wage War,” Just Security, Jan. 10, 2020)(with Geoffrey Block).

– “COVID-19 Shows How the U.S. Got National Security Wrong,” Just Security, Apr. 7, 2020.

Reading Recommendations:

– Kate Manne, Entitled: How Male Privilege Hurts Women (2020).

– Samuel Moyn, Humane: How Americans Abandoned Peace and Reinvented War, [working title – forthcoming, see this YouTube session for Sam’s discussion of the book!]

– Hilary Mantel, Wolf Hall Trilogy (2009)

Episode 7 – Alonso Gurmendi Dunkelberg on Latin American Approaches to the Laws of War

In this episode, I speak with Alonso Gurmendi Dunkelberg, Professor of Law at the Universidad del Pacifico in Lima, Peru. We discuss his recent writing on the Latin American approaches to, and perspectives on, the jus ad bellum regime and principles of non-intervention. Drawing on a rich history of the Latin American response to the Monroe Doctrine and European approaches to intervention in the 19th Century, Alonso explains how the distinct Latin American perspectives developed, found expression in the Montevideo Convention of 1933, and contributed to the Latin American embrace of the U.N. system in 1946. He explains how a misunderstanding of the Latin American perspective leads to common misinterpretations of Latin American positions and responses to recent interventions, such as those in Syria, and debates over doctrinal issues, such as the validity of humanitarian intervention or the unwilling or unable doctrine. We round off our discussion by putting it all into the context of Third World approaches to international law. An eye-opening romp through history and theory!

 

Materials:

– “A Legal History of Consent and Intervention in Civil Wars in Latin America,”  7  J. Use of Force and Int’l L. 1 (2020).

– “The Latin American View of Jus ad Bellum,” Just Security, May 16, 2018.

– “The Other Carolines,” Opinio Juris, Feb. 17, 2020.

Reading Recommendations:

– Juan Pablo Scarfi, The Hidden History of International Law in the Americas: Empire and Legal Networks (2017).

– Liliana Obregón, “Between Civilisation and Barbarism: Creole Interventions in International Law,” 27 Third World Quarterly 815 (2006).

– Andrew Fitzmaurice, “Discovery, Conquest, and Occupation of Territory,” in The Oxford Handbook of the History of International Law, Bardo Fassbender and Anne Peters, eds. (2012).