'Nuff said

(Taking context-optional note of thought-provoking quotes)

He played a small but meaningful role in this unique gathering of princes, presidents, and kings-in-waiting, sitting down face-to-face with Emir Faisal ibn Husayn, who would briefly be king of Syria and then of Iraq. Faisal's translator and adviser was none other than T.E. Lawrence, fresh from the exploits in insurgency that earned him the nickname Lawrence of Arabia. Working with Lawrence, Frankfurter negotiated an exchange of letters expressing mutual support for the national hopes of Jews and Arabs alike -- a kind of hopeful entente that prefigured later cooperation between the Zionists and the Hashemite Kingdom of Jordan.

-- A story of the bit part that Felix Frankfurter (above left) played in the 1919 Paris Peace Conference (prior posts) that led to the Versailles Treaty and many other post-World War I agreements. Recounted at p. 30 of in Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices (2010), by Harvard Law Professor Noah Feldman. Frankfurter was among those those "greats," according to Feldman. The others (4 out of 9 FDR appointees) were Robert H. Jackson, Hugo Black, and William O. Douglas. In Feldman's telling, the 4 were instrumental in the entrenchment of theories of constitutional interpretation that persist to this day: respectively, judicial restraint, pragmatism, originalism, and legal realism. (credit for circa 1927 photo of Frankfurter, then a Harvard Law professor)

Treaties no treat?

What to make of Jamie Rubin's blithe Farewell to the Age of the Treaty?
In an op-ed yesterday Rubin, a State Department spokesperson back when Madeleine Albright was Secretary of State, posited that treaties aren't "even worth the trouble anymore."
The "trouble," it appears, is not with international agreements themselves. Troublesome, rather, is securing 2/3 consent of the Senate, a constitutional sine qua non for U.S. ratification of a treaty. The requirement's now bedeviling President Barack Obama's bid for ratification, detailed here, of the U.S.-Russia New Start disarmament treaty. (prior posts) (credit for White House photo of April 2010 signing)
"'Fortunately, there is an alternative,'" Rubin breezed. He argued that statutes, which pass upon simple majorities of both houses of Congress, usually "will work just fine."
Even putting aside the glib assertion that "the international system has most of the rules it needs," Rubin's argument falters on a number of points:
► History: The op-ed's ahistorical in its implication that this is a new problem. Presidential struggles to clear the 2/3 Senate hurdle are "nothing new," as our Opinio Juris colleague Duncan Hollis pointed out. Failure to secure approval dates at least to President Woodrow Wilson, and the Senate's rejections of the Versailles Treaty (right) and the League of Nations Covenant, in 1919 and again in 1920 -- years surely within the putative "Age of Treaties." Rubin himself no doubt recalls President Bill Clinton's CTBT debacle back in 1999.
► Politics: Also implicit is an assumption that congressional majorities easily may be obtained. Rubin points to legislative efforts on climate change as an example of his position "already being used." He pretermits, however, that these efforts have yet to bear statutory fruit. Given that the New Year will inaugurate a House of Representatives with a heavy GOP lean, getting Congress to okay internationally aimed reforms would seem far from simple.
► International Relations: Rubin's solution seems unlikely to give U.S. status abroad the hefty boost he suggests. Statutes and treaties are quite different legal animals. A statute may be altered, even repealed, at any time. Preferring the legislative path thus adds instability to the United States' foreign relations. What's more, a statute is the unilateral enactment of a single sovereign. In contrast, a treaty embodies that sovereign's consent not just to act, but to do so out of an international obligation. Treaties represent a deeper level of commitment, a promise to pursue global cooperation even if domestic political winds shift. Opting always for the U.S. statutory fix, at a time when other countries are urged to join treaty regimes, seems unlikely to ease what Rubin rightly calls "international frustration with American leadership."
Hard to see the op-ed's effort -- in essence, to put a brave face on an inferior option -- as much more than advance spin should New Start founder in the Senate.

On April 14

On this day in ...
... 1935 (75 years ago today), an international meeting ended at Stresa, a town at Lake Maggiore (below left), with the Final Declaration of the Stresa Conference. By this pact Italian dictator Benito Mussolini, along with leaders of France and Britain, aimed "to resist further German breaches" of the post-World War I Versailles Treaty "and German actions likely to endanger the peace of Europe." Among other things, the independence of Austria was deemed "common policy." Within years the parties would fight against one another in World War II.

(Prior April 14 posts are here, here, and here)

On May 4

On this day in ...
... 1919 (90 years ago today), "massive popular protest ... took place in China ... following the announcement of the terms of the Versailles Treaty," which, as we've posted, ceded territories on China's mainland that formerly had been held by Germany to Japan rather than returning them to China. The 1919 protests (left) exemplified what came to be called China's "May 4th Movement," or "new culture" movement, which emerged a few years earlier out of discontent with the failure of efforts in 1911 to set up a republican government. (image credit) This website maintains:

Its importance equals if not surpasses the more commonly known political revolutions of the century. The movement articulated the contempt for traditional Chinese culture felt by many Chinese intellectuals. These intellectuals blamed traditional culture for the dramatic and rapid fall of China into a subordinate international position, and maintained that China's cultural values prevented China from matching the industrial and military development of Japan and the West. ... The way out of China's problems, many believed, was to adopt Western notions of equality and democracy and to abandon the Confucian approach which stressed hierarchy in relationships and obedience. Science and democracy became the code words of the day.

... 1814 (195 years ago today), the 45-year-old former French Emperor, Napoleon I, began an exile on Elba in accordance with the 1814 Treaty of Fontainebleau. He began his stay on the Italian island (pop. 12,000) by entering its capital city, Portoferraio, and declaring, "I want to live from now on like a justice of the peace." Within a year he would return to the European mainland to try to reclaim his prior empire. (credit for 1814 political cartoon)

(Prior May 4 posts are here and here.)

On November 9

On this day in ...
... 1923 (85 years ago today), Alice Coachman was born in Albany, Georgia. This site, which includes clips of her oral history, writes of Coachman:

As a child, she was drawn to athletics, but was denied access to public training facilities because of segregation polices. Determined to hone her athletic abilities, Coachman ran barefoot on the back roads of Georgia and devised all sorts of makeshift set-ups to jump over — from strings and ropes to sticks and tied rags.

Her specialty was the high jump, and her victory in that event in the 1948 Summer Games made her the "first black woman to win an Olympic gold medal." She's the founder of a Track & Field Foundation named after her.

... 1918 (90 years ago today), as Germany worked for an armistice ending World War I, the country's Chancellor announced Kaiser Wilhelm II's abdication. In point of fact, the Kaiser (left) had not yet consented to give up his throne; however, "[f]aced with a fait accompli Wilhelm formally abdicated and went into exile in Holland." The latter country would refuse to hand him over notwithstanding that Article 229 of the Versailles Treaty envisioned his trial, as a "[p]erson guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers," who would "be brought before military tribunals composed of members of the military tribunals of the Powers concerned." No such tribunal ever was convened.

On September 1

On this day in ...
... 1933 (75 years ago today), Dorothy Ann Willis was born in Lakeview, Texas. "[S]he grew up in Waco, where she made her mark early on as an outstanding student who excelled at debate and participated in Girls State," a leadership program sponsored by the American Legion Auxiliary. A teacher, she married David Richards and brought up 4 children in Austin. In her free time the woman whose married name was Ann Richards volunteered on political campaigns, among them that of Sarah Weddington, who'd argued Roe v. Wade before the U.S. Supreme Court. In 1990 Richards herself was elected Governor of Texas. The state's website says she "brought a vitality and outrageousness to the governship that had not been seen in decades," a judgment reinforced by the photo above right. Richards, whom the Washington Post obituary described as a "feminist Democrat" with a "Texas twang, halo of white hair and quick-on-the-draw quips," lost her 1994 re-election bid to George W. Bush. She died of cancer in 2006. (photo credit)
... 1929, Germany's Weimar government accepted the Young Plan, which renegotiated the harsh reparations payments that had been set forth in the post-World War I Treaty of Versailles. For his negotiation efforts the chair of the committee that forged the eponymous plan, U.S. financier Owen D. Young, would be named Time's Man of the Year (left). The Young Plan was implemented in 1930; however, payments faltered amid a global economic depression and the rise of Nazism in Germany.

On July 10

On this day in ...

... 1999, a Ceasefire Agreement respecting the armed conflict in the Democratic Republic of the Congo (map at left) was signed by that country as well as Namibia, Rwanda, Uganda, and Zimbabwe. Witnessing the signing were delegates from Zambia, the Organization for African Unity, the United Nations, and the Southern African Development Community. The Movement for the Liberation of the Congo signed the agreement on August 1; the Congolese Rally for Democracy on August 31.

... 1919, President Woodrow Wilson personally delivered to the U.S. Senate the Treaty of Versailles, which ended World War I and established the League of Nations. It was the 1st such personal delivery since the founding of the Republic in 1789. His presentation did not go well:

[H]e strained to read from typewritten notes on small index cards. Perhaps suffering from the effects of a small stroke, Wilson inadvertently omitted words as he proceeded. Realizing this, he stopped and repeated the garbled sentence, only to drop more words and repeat more sentences. Only near the end of his forty-minute address did Wilson approach eloquence. Setting aside his cards, the president turned to the Republican side of the chamber, where members sat in sullen hostility. He declared that treaty approval was their only option. "The stage is set, the destiny disclosed. It has come about by no plan of our conceiving, but by the hand of God. We cannot turn back. The light streams on the path ahead, and nowhere else." His conclusion evoked only scattered applause.

In November 1919 and again in March 1920, the Senate rejected the treaty. (credit for photo of "Big 4" -- from right, Wilson, France's Georges Clemenceau, Italy's Vittorio Orlando, and Britain's David Lloyd George -- during negotiation of treaty in Paris)

On January 18, ...

... 1919, the Paris Peace Conference, which would lead to the Versailles Treaty and others that redrew much of the world's map in the course of settling disputes remaining after the end of World War I, convened for the 1st time. Opening addresses of Allied leaders -- among them the 3 pictured (l. to r.), British Prime Minister David Lloyd George, French Prime Minister Georges Clemenceau, and U.S. President Woodrow Wilson -- may be read here. A superb study of the conference is Margaret MacMillan's Paris 1919.
... 1943, U.S. Rep. Kay Granger (R-Tex.) was born in Greenville, Texas.
... 1978 (30 years ago today), the European Court of Human Rights ruled that Britain's treatment of Irish interrogees violated Article 3 of the European Human Rights Convention. In my 2004 article entitled Guantánamo, I discussed this judgment in light of the United States' post-9/11 detention policy, as follows:

International instruments evince particular concern that states act humanely toward persons they have detained. Early scrutiny of methods used during questioning of such persons occurred in the landmark decision of the European Court of Human Rights in Ireland v. United Kingdom. In order to achieve “disorientation” or “sensory deprivation” of suspected terrorists, British agents had forced Irish interrogees to stand for hours spread-eagled against a wall, to endure loud noises, or to submit to interrogation wearing a dark-colored hood, sometimes having been denied food, drink, or sleep. The European Court held in 1978 that combined and prolonged use of these techniques “caused, if not actual bodily injury, at least intense physical and mental suffering and also led to acute psychiatric disturbances during interrogation”; therefore, Britain had violated, if not the European Convention’s ban against torture, its equally nonderogable ban against inhuman and degrading treatment.

On October 13, ...

... 1999, U.S. President Bill Clinton and other supporters of the Comprehensive Test Ban Treaty failed to persuade the requisite 2/3 of the Senate to give its advice and consent in favor of U.S. ratification. The defeat by a vote of 51-48 signified the Senate's 1st rejection of a "security-related treaty since the Treaty of Versailles nearly 80 years" earlier. Today this antiproliferation treaty, monitored by a Vienna-based international organization, has 177 states parties, but cannot enter into force absent ratification by the United States and certain other nonparty states.
...1958, U.S. Sen. Maria Cantwell (D-Wash.), was born in Indianapolis, Indiana.

Way-Faring Justice

Notable at the end of a U.S. Supreme Court Term notably lacking in transnational references is Justice John Paul Stevens' reach across borders of time as well as place. (For upcoming transnational cases, see below.)
Yesterday's plurality opinion invalidating programs designed to maintain racially integrated public schools relied on Brown v. Board of Education (II), the 1955 judgment that ordered desegregation with "all deliberate speed." This reference by Chief Justice John G. Roberts Jr. (above right) rankled Stevens (above left), whose involvement with the Court and desegregation, as I wrote here, well predates Brown. In the 1948 case of Ada Sipuel Fisher (right), who'd sought admission to the University of Oklahoma Law School, a typescript memorandum by then-law clerk Stevens advised Justice Wiley B. Rutledge:

I would think it possible to take judicial notice of the fact that (a) a law school for one student cannot be equal, even if you accept the equal but separate doctrine, and (b) the doctrine of segregation is itself a violationof the Constitutional requirement.

Nearly 6 decades later Stevens, who'd gone on to serve as a judicial brother to Sipuel lawyer Thurgood Marshall (left), found "a cruel irony" in Roberts' invocation of Brown II. Elaborating, Stevens' wrote that Roberts' opinion concludes with the sentence

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." This sentence reminds me of Anatole France's observation: "The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions. Compare ante ("history will be heard"), with Brewer v. Quarterman (2007) (Roberts, C.J., dissenting) ("It is a familiar adage that history is written by the victors").

The transnational reference is to Le Lys Rouge, or The Red Lily, an 1897 novel by Anatole France (left). The renowned French author used his 1921 Nobel Prize speech to condemn the Versailles agreement as "a peace treaty that is not a treaty of peace but a continuation of war" on account of which, if not amended, "Europe will perish." The sentence that Stevens invoked yesterday comes from a passage likewise laden with social commentary. In a chapter entitled "Madame Has Her Way," the character Choulette delivers a bitter critique of what he sees as France's Revolutionary legacy:

"... We are warlike in France, and we are citizens. Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this, in presence of the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread. That is one of the good effects of the Revolution. As this Revolution was made by fools and idiots for the benefit of those who acquired national lands, and resulted in nothing but making the fortune of crafty peasants and financiering bourgeois, the Revolution only made stronger, under the pretence of making all men equal, the empire of wealth. It has betrayed France into the hands of the men of wealth. ..."

Choulette's traveling companion, Countess Martin, thinks his ideas "a little absurd," the novel continues. "She did not think that the past had ever been better than the present." And so she replies with resignation:

"I believe, Monsieur Choulette, that men were always as they are to-day, selfish, avaricious, and pitiless. I believe that laws and manners were always harsh and cruel to the unfortunate."

Stevens' dissent underscores the continuing relevance of this 110-year-old debate over formal versus substantive equality.

On June 28, ...

...1919, 5 years to the day after the assassination of Austrian Archduke Franz Ferdinand that touched off World War I, delegates convened in the Hall of Mirrors, Palace of Versailles, France, to sign a Treaty of Peace with Germany. Among those signing were Allied leaders Woodrow Wilson, Georges Clemenceau, and David Lloyd George, chief negotiators at the Paris Conference that had been in session for months. A superb study of that conference is Paris 1919 by historian Margaret MacMillan (left), Provost of Trinity College in the University of Toronto and Lloyd George's great-granddaughter.
...1945, U.S. Rep. Jane Harman (D-Cal.) was born in Los Angeles.