• Selected
• Entire List

Abstract:
Ten years ago, the conventional wisdom among international law academics was that customary international law (CIL) had the status of self-executing federal common law to be applied by courts without any need for political branch authorization. This "modern position" came under attack by so-called "revisionist" critics who argued that CIL had the status of federal common law only in the relatively rare situations in which the Constitution or political branches authorized courts to treat it as such. Modern position proponents are now claiming that the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain confirms that CIL has the status of self-executing federal common law. As this Article explains, the decision in Sosa did not in fact embrace the modern position, and, indeed, is best read as rejecting it. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (i.e., the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute ("ATS"), authorizes courts to apply CIL as domestic federal law. The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa's rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely admiralty and interstate disputes), and gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS; application of CIL to the war on terrorism; and the use of foreign and international materials in constitutional interpretation.

customary international law, federal common law, alien tort statute

Abstract:
This piece addresses the question why nations comply with international human rights principles by developing a theory of compliance as a type of informational signaling. The theory posits that nations wish to determine, but cannot always directly discern, whether other nations will tend to cooperate in international endeavors. Conformance to international human rights principles is costly and can communicate that a nation is willing to restrain the exercise of its power or forego immediate gains to secure long-term benefits. Expressed in other terms, compliance communicates that a nation has a low discount rate. Nations interested in long-term cooperative endeavors wish to identify low-discount states. Even in the absence of compelling domestic or foreign pressures, then, low-discount states have an incentive to engage in human rights compliance to signal their type.

As this piece demonstrates, understanding the dynamics of signaling increases understanding of which nations, and when nations, are most likely to respect human rights. An understanding of the signaling dynamic affecting compliance also suggests ways in which respect for human rights might be improved.

human rights, compliance, international law, law and economics

Abstract:
While scholars have begun to debate the meaning of the Supreme Court’s landmark decision in Medellin v. Texas for the domestic status of treaties, the decision’s import for other significant questions of foreign relations law has been ignored in the literature. This Article fills that void by exploring Medellin’s significance (a) for treaty and customary international law (CIL) based claims under the Alien Tort Statute, (b) for the hotly debated issue of CIL’s domestic legal status, and (c) for the recent claim that a uniform doctrine governing the domestic status of both treaties and CIL is developing in U.S. foreign relations law.

Medellin, treaty, treaties, customary international law, CIL, self-execution, non-self-execution, ATS, Alien Tort Statute, foreign relations law

Abstract:
This Article asserts that the international human rights system supported by the United Nations can be productively conceived as a network of agency relationships between individuals, whose interests the system is designed to safeguard, and three main agents: states, the United Nations, and non-governmental organizations. Each of these agency relationships imposes costs, as each agent has interests that conflict with those of individuals and possesses greater information than do individuals. Applying an agency perspective helps to identify these agency costs and suggests ways in which they might be reduced. An agency perspective also offers a new paradigm for viewing the human rights system, a paradigm in which the interests of individuals assume a more central role. As a result, an agency perspective makes both conceptual and practical contributions to international human rights.

human rights, United Nations, Law & Economics, International Law

Abstract:
The status of international law in the U.S. legal system has been hotly contested. Most international law scholars maintain that customary international law (CIL) is federal common law immediately applicable in federal courts. A minority of scholars has responded that CIL may be applied by federal courts only when authorized by the political branches. The Supreme Court's decision in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), stoked the debate. In Sosa's wake, scholars have overwhelmingly concluded that the Supreme Court endorsed the majority view that CIL is federal common law.
This Article asserts that Sosa has been both misperceived and underappreciated. Sosa not only supports the minority position that federal judicial authority to incorporate CIL hinges on congressional intent, but Sosa startlingly suggests that federal incorporation is governed by the same considerations that determine whether treaties are self-executing and immediately applicable in U.S. courts: namely, the intent of the political branches, specific definition, mutuality, practical consequences, foreign relations effects, and alternative means of enforcement. Sosa thus manifests the emergence of a uniform doctrine that governs the federal status of both treaties and CIL. This emerging doctrine, which serves to police the distribution of lawmaking and foreign affairs authority between the judiciary and the political branches, has significant implications. It suggests that reigning confusion over the domestic status of international law is being replaced with doctrinal clarity and coherence, reveals that the collective wisdom on the domestic status of international law is out of step with Supreme Court jurisprudence, results in more appropriate treatment of CIL relative to treaties, and suggests that efforts to incorporate international law as federal law should focus on the political branches, not the courts.

foreign affairs, foreign relations, foreign relations law, customary international law, treaty, self-execution, self-executing, international law, common law, federal courts, CIL, domestic status, sosa, alvarez, alvarez-machain, revisionist, modern position, treaties, non-self-executing

Abstract:
This essay responds to Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599 (2008). Focusing on the authority of the lawmakers of the land, rather than on treaties’ status as law of the land as Professor Vázquez does, this essay concludes that the Foster brand of nonself-execution (which assumes that a treaty may, in the absence of a clear statament, indicate that the treaty is domestically unenforceable) is supported by the Constitution, consistent with longstanding precedent, a coherent part of the non-self-execution doctrine, and endorsed by the Supreme Court's decision in Medellín v. Texas, 128 S. Ct. 1346 (2008).

treaty, self-execution, medellin, foreign relations law, medellin, vazquez, foster