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Abstract:
Just as states have spent the last several years wrestling with the appropriate legal response to terror, they must now undertake a similar effort to deal with the burgeoning use of information operations (IO). IO involves the use of information technology, such as computer network attacks or psychological operations, to influence, disrupt, corrupt, usurp or defend information systems and the infrastructure they support. More than thirty states have developed IO capacities. But IO is also undoubtedly attractive to non-state actors like Al Qaeda, since the technology is mostly inexpensive, easy-to-use, and capable of deployment from virtually anywhere.

This Article assesses the ways in which international law, specifically the rules regulating the use of force and the law of war, currently applies to IO. Conventional wisdom suggests existing rules can cover IO by analogy. The conventional wisdom is only half-right. This Article explains why the existing rules govern IO, but challenges the unstated assumption that they do so appropriately. Translating existing rules into the IO context produces extensive uncertainty, risking unintentional escalations of conflict where forces have differing interpretations of what is permissible. Alternatively, such uncertainty may discourage the use of IO even if it might produce less harm than traditional means of warfare. Beyond uncertainty, the existing legal framework is insufficient and overly complex. Existing rules have little to say about the non-state actors that will be at the center of future conflicts. And where the laws of war do not apply, even by analogy, an overwhelmingly complex set of other international and foreign law rules purport to govern IO.

To remedy such deficiencies, this Article proposes a new legal framework, an international law for information operations (ILIO). By adopting an ILIO, states could alleviate the uncertainty and complexity of the status quo, reduce transaction costs for states fighting global terror, and lessen the collateral costs of armed conflict itself. This Article concludes with a review of some of the regulatory design questions facing an ILIO, but does not offer any specific rules. Rather, its ultimate aim is to convince states and scholars about the need for an ILIO in the first place.

cyberwar, cyberterror, information operations, IO, information warfare, jus ad bellum, jus in bello, international humanitarian law, use of force, civilian distinction, perfidy, complexity, regulatory design, international law, estonia, denial of service attack, hactivists, computer network attack

Abstract:
This article explores the role authority can play in the debate over whether the sources of international law are changing. Scholars who take up the question of changing sources of international law traditionally face the dilemma that there is, as yet, no agreement on a definitive list of what sources contain the rules of international law, let alone what method or methods lead to the creation of such rules. This article argues that one way to overcome the existing stalemate is to integrate considerations of authority into sources doctrine. By going beyond traditional lines of inquiry such as what makes international law binding and where one finds it to ask who is making the law, a new perspective is presented for evaluating changes to the international legal order. To demonstrate how such an authority-based approach would operate, this article reviews non-state actor participation in treaties. Specifically, it examines whether the roles sub-state, supranational and extra-national actors play in the formation, application and interpretation of treaties has truly altered who international law authorizes to create treaty obligations. It finds that, although non-state actor treaty participation demonstrates a potential for a systemic shift, state consent still remains the operating principle of the treaty paradigm. As such, the article concludes that sources scholarship should focus more, not less, on the doctrine of consent as a source of international law, looking at who is consenting, on whose behalf, and to whom such consent is being given.

Treaty, international law, sources, non-state actors, international organizations, amendment

Abstract:
Traditionally, scholars and practitioners have viewed the study of treaties primarily through the lens of international law - considering how treaties constitute a source of law or obligation and analyzing the formation, interpretation, and application of such laws/obligations as between the various subjects of international law. At the same time, others have taken a more national approach, examining how a particular state's domestic legal system regards treaty obligations assumed by that state. This chapter, and the book - "National Treaty Law & Practice" - that it introduces, advances a third, comparative perspective on treaty law and practice. In it, I argue that if we only examine treaties from the traditional perspectives, we gain an incomplete, and at times inaccurate, account of treaty law and practice. As treaties proliferate in both numbers and subjects, a comparative view offers alternative insights, experiences, legislative approaches and practices for dealing with treaties. By comparing how different states negotiate, conclude and implement their treaty obligations, we necessarily respond to those concerned with a national perspective by obtaining views on how individual states relate to treaties. More importantly, the comparative approach can inform the international law of treaties. By analyzing a representative group of states, we can compile evidence of what state practice is, which, in turn, informs the content of the customary international law of treaties. To demonstrate how the comparative approach operates, this chapter analyzes a representative group of nineteen states - Austria, Canada, Chile, China, Colombia, Egypt, France, Germany, India, Israel, Japan, Mexico, the Netherlands, Russia, South Africa, Switzerland, Thailand, the United Kingdom, and the United States. It compares the surveyed states' treaty laws and practices with respect to four core questions: (1) How do states define treaties as a matter of domestic law and practice? (2) What is the scope of the executive's authority over treaty making? (3) What role does the legislature play in treaty making? and (4) How are treaties incorporated into national law?

comparative law, international law, treaties, Austria, Canada, Chile, China, Colombia, Egypt, France, Germany, India, Israel, Japan, Mexico, Netherlands, Russia, South Africa, Switzerland, Thailand, United Kingdom, United States

Abstract:
For more than a decade, military thinkers have debated the impact of "information operations" (IO) on armed conflict. Responding to the possibilities (and vulnerabilities) inherent in the interconnectivity of the Internet and other information networks, IO constitutes a new form of warfare. IO uses methods such as computer network attacks or psychological operations to influence, disrupt, corrupt, usurp and defend information systems and the infrastructure they support. As militaries work through what IO can do, however, they must also wrestle with when and how they can employ it - i.e., the question of law's application to IO. Since computer networks and modern information systems constitute new tools (and new targets) for military activities, international law currently regulates them only by analogy, and even then, in a patchwork fashion. Most states and scholars appear content with this situation, denying any need to develop IO-specific rules. This short essay challenges that conventional wisdom. Even as it applies to IO, the existing legal framework suffers from several, near-fatal conditions: uncertainty (i.e., militaries lack a clear picture of how to translate existing rules into the IO environment); complexity (i.e., overlapping legal regimes threaten to overwhelm military commanders seeking to apply IO); and insufficiency (i.e., existing rules fail to address basic challenges of modern conflicts with non-state actors). This situation creates disincentives for militaries to use IO, notwithstanding IO's potential to achieve military and political objectives with less harm than conventional bombs or missiles. To redress these deficiencies, I propose states adopt an international law for information operations, or "ILIO." By adopting an ILIO, states could alleviate the uncertainty and complexity of the status quo, reduce transaction costs for states fighting global terror, and lessen the collateral costs of armed conflict itself.

international law, international humanitarian law, law of war, information operations, information warfare, cyberwar, cyberterror, cybercrime, computer network attacks, psychological operations, jus ad bellum, jus in bello, civilian distinction, perfidy, use of force

Abstract:
This article addresses the longstanding debate over whether federalism constrains the treaty power and challenges the view that courts may authoritatively resolve that debate. Until recently, scholars generally accepted that the treaty power operated free from federalism limits based on Justice Holmes' opinion in Missouri v. Holland. Lately, however, scholars have questioned whether Missouri remains good law. Two camps have emerged. On one side lie "nationalists" who seek to defend Missouri by invoking constitutional text, structure, history, doctrine and prudential claims. On the other side reside "new federalists" who suggest that the Court should overrule Missouri in light of: (1) adjustments to Congress' commerce power via Lopez and its progeny; and (2) changes in the subjects and substantive obligations of U.S. treaties. Despite their disagreements, both sides focus on the same subject - the Supreme Court.

This article demonstrates, however, that this judicial focus is misplaced. An examination of the Court's doctrine reveals little likelihood that it will revisit Missouri. More importantly, while the Court has chosen to disengage, the Executive has interpreted the treaty power's scope and devised its own mechanisms for accommodating federalism in U.S. treaties. To date, however, scholars have largely ignored the Executive's efforts to self-judge when and how federalism limits U.S. treaty-making-efforts that I label "Executive Federalism." But Executive Federalism has significant domestic and international ramifications. First, it requires rethinking federalism's nature by demonstrating that federalism need not function solely as a judicial or legislative safeguard for states' rights. Second, while it serves as a vehicle for Executive self-restraint, Executive Federalism still has structural implications, weakening the authority of other actors (the courts, the legislature, and even future Presidents) to voice their views on federalism in the treaty context. Third, it provides us with valuable information about how the holder of the treaty power - the Executive - conceives of its scope. Finally, Executive Federalism can affect U.S. foreign relations, preventing some treaty-making altogether, constraining U.S. negotiating positions, imposing extra costs to achieve U.S. goals, and complicating questions of U.S. compliance. In sum, Executive Federalism presents the case for re-conceptualizing the treaty power debate to recognize the Executive as an essential subject in its own right.

treaty, constitution, federalism, safeguards, executive, legislature, senate, congress, states' rights, enumerated powers, Supreme Court, judiciary, foreign relations, foreign affairs, international law

Abstract:
On the surface, CONTEMPORARY ISSUES IN THE LAW OF TREATIES, by Malgosia Fitzmaurice and Olufemi Elias, makes no overt claims regarding the debate over the fragmentation of international law. Yet on closer examination, I argue in this book review that their work has the potential to make an important contribution to that discourse. In both its format and content, CONTEMPORARY ISSUES IN THE LAW OF TREATIES offers an alternative vision of fragmentation, one where international law subdivides into specialized regimes, not solely by subject matter or geographic region, but by the individual sources of law themselves. Put simply, Fitzmaurice and Elias's work suggests that the law of treaties constitutes its own specialized, maturing regime within international law, standing alongside, rather than above, normative regimes such as human rights, international environmental law, or trade.

My review essay explores how the fragmentation lens informs this volume's analysis of some of the more complex and lasting treaty problems, such as how to define treaties, who can make them, and what consequences flow from their breach. More importantly, my essay critiques the authors' vision of treaty law as equivalent to substantive- or primary-rules of international law. I argue that, in doing so, they miss the opportunity to give treaty law an architectural, if not hegemonic, status, with the potential to ease the tension among competing international law norms, rather than further contributing to the fragmentation problem itself.

treaty, fragmentation, Hart, primary rules, secondary rules, breach, soft law, tacit amendment, ILC Study Group, optional clause jurisdiction, state responsibility, VCLT, vienna convention, kyoto protocol compliance

Abstract:
This paper seeks to devise a theoretical explanation for recent disputes over the construction of an outlet from Devils Lake, North Dakota, in a way that affords a predictive framework for future international environmental law issues. Opponents of the outlet alleged it would violate U.S. obligations not to pollute Canadian waters under the 1909 Boundary Waters Treaty (BWT) because it might introduce invasive species into waters flowing across the border into Canada. North Dakota dismissed such concerns, as did the U.S. federal government, notwithstanding requests from Canada's Ambassador and Prime Minister that the treaty compliance question be referred to the BWT's International Joint Commission (IJC). Instead of an IJC reference, the White House negotiated a political deal directly with Canadian federal, provincial, and U.S. state officials that allowed North Dakota to operate the outlet under certain conditions.

The Devils Lake crisis provides an opportunity to assess the descriptive and predictive value of three competing theories: (a) that non-state actors are an increasingly visible and powerful presence in international relations; (b) that the United States, as hegemon, can do what it wants and bend the law to its will; and (c) that international institutions such as the IJC can be considered to act as either agents or trustees for the state(s) that create them. I conclude that the first two theories fail to accurately or completely explain why the Devils Lake dispute played out as it did. As for recent theories debating whether international institutions operate more like agents or trustees, I find neither label alone explains the IJC's relationship with the United States. But, by selecting those characteristics of agents and trustees that best reflect the IJC's actual construction and operation - i.e., a hybrid approach - I can generate a relatively accurate explanation for why the United States refused an IJC reference on Devils Lake when it did, along with a nuanced assessment of how the IJC may operate in the future. Adopting a hybridized approach has the added benefit of engaging recent scholarship on agents and trustees constructively. It suggests both agent and trustee characterizations might suffer from oversimplification and require further elaboration or adjustment to apply to many existing international institutions.

international law, international environmental law, non-state actors, hegemonic law, hegemony, principal-agent theory, trustees, Boundary Waters Treaty, BWT, International Joint Commission, IJC, treaty interpretation, VCLT, slippage, Canada, Garrison, pollution, invasive species, risk, precaution

Abstract:
This article explores how the Constitution regulates political commitments in light of recent controversies over the formation of a new U.S. security relationship with Iraq. The United States has long used political - or, non-legally binding - commitments as alternatives to its treaties, but the Executive's authority to do so is un-theorized. And, although international law and international relations literature have studied political commitments extensively, conventional wisdom simply assumes that because they are not international law, they are irrelevant to domestic law as well.

This paper challenges such views. We contend that the Constitution regulates the President's ability to form political commitments and provide a comprehensive constitutional analysis to support this position. We offer a functional explanation for why the Constitution should control political commitments, given how their international and domestic functions parallel those of U.S. treaties. In doing so, we offer the first typology of political commitments, differentiating them according to variables of form, substance, organization and autonomy. Assuming the federal government has a political commitment power, we explain why it does not fit neatly under either the treaty-making power or the foreign affairs power more generally. Instead, we look to constitutional text, original meaning, custom, structure, and prudence to construct a discrete Executive power to make political commitments, subject to legislative checks. Ultimately, we provide a framework for evaluating political commitments that can legitimize the Executive's use of political commitments while guiding decisions on when Congress must require information about - or even approval of - them. We conclude by applying our framework to the Iraqi security agreements.

Significant implications flow from recognizing a political commitment power. Recognition legitimizes the vast majority of Executive political commitments that have gone unsubstantiated to date. It prescribes to Congress grounds for acquiring information about U.S. political commitments, and, more infrequently, approving them. Finally, a political commitment power reconciles existing practice with the Constitution's basic rule of law principle, establishing that the Constitution governs all U.S. international agreements, not just some of them.

political commitments, treaty, treaties, treaty-making, Article II, foreign affairs, dormant foreign affairs, residual foreign affairs, non-legally binding, gentleman's agreements, iraq, strategic framework agreement, constitution, international law

Abstract:
In Spector v. Norwegian Cruise Line Ltd., the U.S. Supreme Court ruled that Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. §12181 et seq., applies to foreign-flag cruise ships in U.S. waters, but does not require the removal of physical barriers if it would conflict with international legal obligations or compromise shipboard safety. In accommodating international law, the Court's decision effectively tracks the Charming Betsy canon—i.e., "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." But, the Court's failure to agree on a corresponding accommodation for international comity in cases where U.S. law would otherwise regulate a foreign ship's "internal affairs" brings further confusion to the question of which U.S. laws apply to such vessels, and, more generally, suggests further erosion of the primacy of flag state jurisdiction.

international law, comity, charming betsy, flag state, jurisdiction, extraterritoriality

Abstract:
The Compact Clause prohibits U.S. states from making “any Agreement or Compact with another State, or with a foreign Power” absent congressional consent. No one, however, has ever studied the Clause’s application to agreements by foreign powers with U.S. states (FSAs). The conventional wisdom views FSAs as infrequent, unimportant, and otherwise identical to those interstate compacts for which the Supreme Court has opined congressional consent is generally unnecessary.

My article explains why the conventional wisdom is wrong on all counts. For the first time, I present a typology of 340 FSAs and show how they are increasing in both number and importance. The states have simply not reported their practice to the federal government.

More importantly, my article introduces the idea that the Constitution contains not one Compact Clause, but two - one for interstate compacts and another for FSAs. Using text, history, doctrine, function, and structure, I demonstrate how Congress can dictate for itself when states must obtain congressional approval of FSAs, independent of the interstate compact doctrine devised by the Court. In doing so, my work aims to demonstrate that the Court is not the only actor that can construct constitutional meaning; Congress has its own powers to interpret the constitutional text outside the courtroom. Ultimately, my article shows that, despite some costs, a Foreign Compact Clause will benefit states, their foreign partners, the federal government, and even our understanding of federalism as a cooperative venture, rather than just a competitive one.

compact clause, compact, agreement, treaty, treaties, constitution, foreign compact, states, sub-national, FSAs, vattel, interstate compact, separation of powers, federalism, Cuba, Kansas, foreign affairs power

Abstract:
This symposium essay identifies and explains Congress's inactivity in exercising its Compact Clause power in the foreign context. The Constitution prohibits U.S. states from concluding treaties, alliances or confederations, and gives Congress the power to approve "any Agreement or Compact" by a U.S. state with a foreign power. Congress, however, has consented to a mere handful of foreign compacts, even though U.S. states have concluded hundreds of agreements with foreign governments in recent years. How has the Compact Clause become so dormant? I argue that Congress's inaction is a function of judicial and executive action. The Supreme Court's rulings have greatly limited when Congress must consent to foreign compacts, suggesting the states have their own power to make many foreign agreements free from congressional oversight or approval. At the same time, the Executive has come to police the constitutional propriety of U.S. state agreements with foreign governments.

This essay focuses on the informational, functional and structural challenges of having the Executive act as a surrogate for Congress in overseeing state agreements abroad. First, executive oversight has done little to remedy a growing informational deficit on what agreements U.S. states are making with foreign governments. Second, even if the Executive knew what the states were doing, it lacks the functional capacity to control such state activity. Third, having the Executive interpret for Congress the scope of Congress’s power raises separation of powers concerns. Taken together, these problems suggest a need for closer scrutiny of U.S. state practice overseas and a more robust congressional role in monitoring and approving foreign compacts.

compact clause, compact, foreign compact, states, treaty, treaties, agreements, missouri, missouri v. holland, manitoba, separation of powers, federalism