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Abstract:
Contemporary justifications of international criminal tribunals (ICTs), especially the permanent International Criminal Court, often stress the role of such tribunals in deterring future humanitarian atrocities. But hardly any academic commentary has attempted to explore in-depth this deterrence rationale. This essay utilizes economic models of deterrence to analyze whether a potential perpetrator of humanitarian atrocities would likely be deterred by the risk of future prosecution by an ICT. According to the economic theory of deterrence, two factors - certainty and severity of punishment - are central to the reduction of crime after taking into account a particular individual's preference for risk. In the context of a possible ICT prosecution, isolating the pool of individuals likely to commit humanitarian atrocities is difficult but not insurmountable. Given that international tribunals are not likely to have independent police powers in the foreseeable future, the actors most likely to face prosecution are individuals in weak states who have failed politically. In other words, the likely pool will be composed of individuals in weak states who have been forced from political power by local or foreign forces. Examining evidence concerning the fate of failed coup plotters and dictators in Africa - a group that represents a pool of likely perpetrators of atrocities - we show that the probability that this pool of individuals will be subject to a range of other legal and extra-legal sanctions is quite high. Moreover, the severity of the sanctions these individuals are likely to face - death, life imprisonment, and torture - is also likely to be higher than those imposed by an ICT. Thus, prosecution by an ICT will often serve as a weaker substitute, rather than a complement, to pre-existing sanctions. In one situation, however, the threat of ICT prosecution is likely to complement other possible sanctions and serve as a deterrent - where the perpetrator is unlikely to be subject to other sanctions because he is considered to be politically indispensable. But in such circumstances, the ex ante benefits of deterrence from ICT prosecution will likely be outweighed by the ex post harms of prosecuting a spoiler - an individual whose prosecution is likely to generate local political instability. In other words, the prospect of prosecution by an ICT may sometimes exacerbate the risks of humanitarian atrocities. Finally, prosecution by an ICT may also exacerbate conflicts though a political opportunism effect in which local politicians will have an incentive to free-ride off ICT efforts and turn a blind eye to the kinds of institutional reforms that are more likely to prevent future atrocities.

international tribunals, international criminal law, deterrence

Abstract:
This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations.

We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role of the courts and the executive in foreign affairs. This functional approach suggests that the executive branch can more effectively achieve the purpose behind the ATS. Critics of this approach have argued that a jurisdictional approach to the ATS would disrupt American foreign relations by allowing the states, rather than a single federal judiciary, to make and enforce CIL. The Court's recent decisions, however, address this concern by permitting presidential declarations of international policy to preempt state law. Thus, CIL could continue as part of the common law of the states enforceable in state court or through diversity jurisdiction in federal court subject to federal preemption by the President.

Customary international law, international law, alien tort statute, federal courts, President, separation of powers

Abstract:
The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference.

In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court largely ignored. The executive branch has strong institutional advantages over courts in the interpretation of laws relating to the conduct of war. If followed in the future, the Hamdan Court's refusal to give deference to the executive branch and to require a congressional clear statement prior to any executive action will further disrupt the traditional system of political cooperation between Congress and the President in the conduct of wars. It will raise the transaction costs for policymaking in wartime without any significant benefit and potentially at large cost. Congress's recent enactment of the Military Commission Act of 2006 may be understood as an attempt to prevent future courts from applying Hamdan's new clear statement rule by strictly limiting judicial review of executive wartime decisions.

customary international law, law of war, statutory interpretation, treaties

Abstract:
For nearly 150 years, courts have applied the last in time rule to resolve conflicts between treaties and federal statutes by giving effect to whichever was enacted later in time. Despite its acceptance by the courts, this rule has received unanimous criticism in the legal academy. In this article, I present the first comprehensive defense of the last in time rule on textual, structural, historical, and functional grounds. I argue that the last in time rule should be applied because the text of the Constitution grants treaties the status of enacted domestic law. As such, treaties are subject to the principle of statutory construction, leges posteriors priores contrarias abrogant (later laws abrogate prior laws that are contrary), unless otherwise indicated by the Constitution's text or structure. This understanding is supported by Supreme Court precedent, historical evidence from the Founding era, including practice during the pre-Constitution era, discussions during the Constitutional Convention and ratifying debates, as well as actions during the early years of the Constitutional era. In the course of defending the last in time rule, I also consider how the rule fits into the broader debate over the extent to which treaties, which increasingly seek to regulate traditionally domestic matters, have effect in the U.S. legal system. The last in time rule, I contend, provides an elegant compromise between internationalists seeking greater incorporation of treaties and revisionists seeking to limit or eliminate such incorporation. Under the last in time rule, treaties are given direct domestic effect, which facilitates greater U.S. participation in the international system. On the other hand, the last in time rule guarantees that a politically accountable Congress retains the flexibility to control a treaty's domestic effects.

Treaties, international law, constitutional law, statutory interpretation

Abstract:
The use of customary international law ("CIL") by courts in the United States, long the subject of debate among scholars, has finally come to the attention of the Supreme Court. In the last few years, the Court has interpreted and applied CIL to interpret provisions of the U.S. Constitution, to interpret statutes and treaties, and as a substantive rule of decision. While the Supreme Court's renewed interest in customary international law has drawn much praise, it has also sparked sharp criticism. The purpose of this symposium essay is not to recapitulate these disagreements, but instead, to identify a different problem with the interpretive and substantive use of CIL by federal and state courts. Whether a court uses CIL as a tool for statutory or constitutional interpretation or as a substantive rule of decision, the court's usage creates potentially serious structural conflicts in the U.S. constitutional system.

customary international law, separation of powers, constitutional law

Abstract:
The Supreme Court's decision in Sosa v. Alvarez-Machain to keep the door ajar for lawsuits alleging violations of international law under the Alien Tort Statute (ATS) has important implications for the U.S. government's prosecution of the war on terrorism. Unlike "first wave" ATS lawsuits against other aliens, or "second wave" ATS lawsuits against multinational corporations, what I call the "third wave" of ATS lawsuits are directed at the U.S. government itself. This third wave has already manifested itself in ATS lawsuits arising out of U.S. mistreatment of prisoners held in Iraq, alleged mistreatment of detainees at Guantanamo Bay, and the rendition of suspected terrorists to third countries.

My goal in this symposium essay is neither to celebrate nor to condemn this coming wave of ATS litigation. Rather, my more modest task is to describe examples of these new ATS lawsuits, explain why the Sosa decision will not prevent such lawsuits, and to suggest how these lawsuits will highlight the role of the executive branch in the administration of international law by U.S. courts. As a doctrinal matter, the executive branch has a crucial, yet unexplored, role to play in the application of international law by domestic courts. The third wave ATS lawsuits will test the importance of this role.

customary international law, alien tort statute, executive power

Abstract:
Although most courts and commentators presume that the states disappear when it comes to foreign relations, states actually play a crucial role in fulfilling U.S. obligations under international law. In many circumstances, state governments are the only institutions responsible for carrying out treaty and customary international law obligations on behalf of the United States. Not only have states always played this role, but state control over the implementation of such obligations is likely to become even more important in the future because the implementation of many private international law and international human rights treaties is controlled by the states. This role for states in controlling compliance with international law calls into question the widely held view that exclusive federal control over foreign relations is required or desirable. This Article suggests state-controlled implementation could actually bolster the development of international law.

Federalism, international law, treaties, self execution, foreign relations

Abstract:
In Medellin v. Dretke, the U.S. Supreme Court squarely considered the domestic judicial enforceability of a judgment by the International Court of Justice for the first time. Although the Court ultimately dismissed the case due to President George W. Bush's intervention, the issue that won the Court's attention - the domestic legal status of international tribunal judgments - will almost certainly return to the Court in the near future. When it does, the Court will be faced with calls from leading scholars to enforce the judgments of international courts and tribunals as part of a new world court order, characterized by cooperation between international and domestic courts. This Article takes issue with this stream of scholarship by laying out the first comprehensive constitutional critique of judicial enforcement of international tribunal judgments. U.S. constitutional doctrine and practice with respect to the enforcement of international law obligations confirms that domestic courts have no independent authority to implement international tribunal judgments. Indeed, independent judicial enforcement of international tribunal judgments of the kind sought by the petitioners in Medellin would result in potentially excessive delegations of the U.S. foreign affairs power. To avoid this constitutional problem, this Article recommends that courts treat all such international tribunal judgments as non-self-executing absent a clear statement in the treaty that judicial enforcement is permitted.

international law, constitutional law

Abstract:
Can a federal court override the executive branch's interpretation of customary international law? Ali v. Rumsfeld, the landmark lawsuit brought by the ACLU and Human Rights First against Donald Rumsfeld, squarely presents this important question, which has never been resolved by any court. In this symposium essay, I argue that a judicial determination of Rumsfeld's liability may require a federal court to override the executive branch's interpretation of CIL. Because the executive branch holds the primary responsibility for the interpretation of CIL on behalf of the United States, a judicial determination of Rumsfeld's liability could undermine the Constitution's allocation of foreign affairs powers to the President.

constitutional law, international law

Abstract:
In recent years, scholars have debated whether customary international law (CIL) should hold the status of federal law in the American legal system. This debate between nationalists and revisionists has led scholars to make claims about the historical status of CIL in U.S. law. Yet there has been no serious historical review of state court treatment of CIL. This article seeks to fill this gap by describing the historical role of state courts in the interpretation and development of CIL in the American legal system. It aims to test the validity of nationalist claims about the role of state courts against the historical and doctrinal record of state courts applying CIL. While I do not purport to offer a definitive historical account, my discussion of the role of state courts in the application of CIL reveals that, at the very least, the revisionist understanding of how CIL has been incorporated into American law has far greater plausibility than nationalist critics have admitted.

federal courts, international law, constitutional law

Abstract:
In a variety of circumstances, state governors exercise independent decision-making power over matters affecting the foreign policy of the United States. This Essay describes and defends this emerging system of gubernatorial foreign policy on both legal and functional grounds. Recent Supreme Court decisions retreating from federal exclusivity in foreign affairs and prohibiting the commandeering of state executive officials leave a small doctrinal space for governors to act independently on matters affecting foreign policy. This small space has been further expanded by the federal government's practice of imposing limitations on the preemptive effect of treaties and international agreements. A system of gubernatorial foreign policy also represents the most practical and feasible way to accommodate the internationalizing pressure of globalization with a continuing federal system of dual sovereignties. Under this system, the states will continue to improve their capacity to deal with matters affecting foreign affairs, and the federal government will retain the right to preempt, but not to commandeer, state governors in the service of federal foreign policy goals.

Federalism, international law, treaties, self execution, foreign relations

Abstract:
Over the past few decades, international law scholars and advocates have widely supported the use of domestic United States courts to independently enforce and implement international tribunal judgments, even over the opposition of the President. The Supreme Court's decision in Sanchez-Llamas v. Oregon represents a potentially serious setback for this burgeoning movement. This contribution defends and elaborates the reasons for the Court's refusal in Sanchez-Llamas to give effect to judgments of an international tribunal absent a clear and explicit authorization by Congress or the Senate.

General, International, Comparative,International Law

Abstract:
This Article proposes a framework for analyzing the constitutional issues raised by relationships between the United States and international organizations. The constitutional issues implicated in these relationships are most usefully understood as international delegations. An international delegation is the transfer of constitutionally-assigned federal powers-treaty-making, legislative, executive, and judicial powers-to an international organization. This Article evaluates the propriety of these delegations by incorporating analysis from existing commentary on the constitutional framework for separation of powers and federalism. On the other hand, it also recognizes that international organizations pose special constitutional problems that not even traditional modes of constitutional analysis can easily resolve.

international law, constitutional law

Abstract:
This brief symposium contribution highlights the central and important role that state governments play in the development and integration of private international law treaties into the United States legal system. States play this central role even though, as some of the papers in this symposium have concluded, there are few, if any, constitutional constraints on the ability of the federal government to sign, ratify, and implement treaties that would displace state law. The primacy of states in the integration of private international law, this essay argues, points the way to a model of accommodation of other kinds of treaties affecting traditional areas of state control. The model of state government control over the integration of private international law offers a healthy, if modest, alternative to the sometimes reflexive nationalism pervading scholarship in this area.

treaties, federalism, private international law

Abstract:
The U.S. Supreme Court's 2008 decision in Medellin v. Texas raised many fascinating structural constitutional issues about the relationship between federal courts and international courts and the problem of delegations to international institutions. Yet, Chief Justice John G. Roberts's opinion for the Court managed to avoid direct discussion of any of this issue. Instead, it focused almost exclusively on the doctrine of non-self-execution. The Court's determination that the relevant treaties were non-self-executing lies at the heart of its decision. The focus on non-self-execution, however, does not mean that the complicated structural problems raised by Medellin do not exist. Rather, in this short essay, I argue that the problem of international delegations is crucial to understanding and justifying Chief Justice Roberts's application of the non-self-execution doctrine in Medellin.

delegation, internationl law, international courts, constitutional law