Law Commons^™

The Caroline Affair In The Evolving International Law Of Self-Defense, Matthew C. Waxman

Faculty Scholarship

The "Caroline" incident – an 1837 raid by British Canadian militia across the Niagara River border to sink an American steamboat being used by Canadian insurgents – is well-known to many international lawyers. United States Secretary of State Daniel Webster’s resulting correspondence with British representative Lord Ashburton is often cited today as a key authority on customary international self-defense standards. University of Ottawa professor Craig Forcese has produced a valuable new history and analysis of that event, its legal context, and its continuing influence: "Destroying the Caroline: The Frontier Raid that Reshaped the Right to War." As explained in this …

Custom In Our Courts: Reconciling Theory With Reality In The Debate About Erie Railroad And Customary International Law, Nikki C. Gutierrez, Mitu Gulati

Faculty Scholarship

One of the most heated debates of the last two decades in U.S. legal academia focuses on customary international law’s domestic status after Erie Railroad v. Tompkins. At one end, champions of the “modern position” support customary international law’s (“CIL”) wholesale incorporation into post-Erie federal common law. At the other end, “revisionists” argue that federal courts cannot apply CIL as federal law absent federal legislative authorization. Scholars on both sides of the Erie debate also make claims about the sources judges reference when discerning CIL. They then use these claims to support their arguments regarding CIL’s domestic status. Interestingly, neither …

Customary International Law: An Instrument Choice Perspective, Laurence R. Helfer, Ingrid B. Wuerth

Faculty Scholarship

Contemporary international lawmaking is characterized by a rapid growth of “soft law” instruments. Interdisciplinary studies have followed suit, purporting to frame the key question states face as a choice between soft and “hard” law. But this literature focuses on only one form of hard law—treaties—and cooperation through formal institutions. Customary international law (CIL) is barely mentioned. Other scholars dismiss CIL as increasingly irrelevant or even obsolete. Entirely missing from these debates is any consideration of whether and when states might prefer custom over treaties or soft law.

How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young

Faculty Scholarship

No abstract provided.

Codifying Custom, Timothy Meyer

Faculty Scholarship

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …

Use Of Comparative Law In Determining The Customary International Law Of Human Rights, Kenneth S. Gallant

Faculty Scholarship

Comparative law method is essential to determining the customary international law status of rules of human rights law. Doing the hard, detailed work of comparative law is necessary if we are to give up on the unfortunate tendency to make overly broad, unsupported claims that wide varieties of human rights have passed into customary international law.

The traditional use of only interstate practice in determining rules of customary international law is insufficient where the rules concern relationships between states and individuals, especially their own nationals. This, however, is the essence of human rights law.

Comparative law techniques allow, and are …

Comparative Law And International Human Rights Law: Non-Retroactivity And Lex Certa In Criminal Law, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Mandatory Versus Default Rules: How Can Customary International Law Be Improved?, Curtis A. Bradley, Mitu Gulati

Faculty Scholarship

Customary International Law (CIL) is plagued with uncertainties about its sources, its content, its manipulability, and its normative attractiveness. The rise of law-making through multilateral treaties also makes the proper role of CIL increasingly uncertain. This is an opportune time, therefore, to be thinking of ways to revive and improve CIL. In a prior article, we argued that the "Mandatory View" of CIL, pursuant to which nations are barred from ever withdrawing unilaterally from rules of CIL, is functionally problematic, at least when applied across the board to all of CIL. We also suggested that CIL might be improved by …

International Law And The U.S. Common Law Of Foreign Official Immunity, Curtis A. Bradley, Laurence R. Helfer

Faculty Scholarship

In Samantar v. Yousuf, 130 S. Ct. 2278 (2010), the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act does not apply to lawsuits brought against foreign government officials for alleged human rights abuses. The Court did not necessarily clear the way for future human rights litigation against such officials, however, cautioning that such suits “may still be barred by foreign sovereign immunity under the common law.” At the same time, the Court provided only minimal guidance as to the content and scope of common law immunity. Especially striking was the Court’s omission of any mention of the …

International Criminal Courts And The Making Of Public International Law: New Roles For International Organizations And Individuals, Kenneth S. Gallant

Faculty Scholarship

Judicial decisions of the International Criminal Court and other international criminal tribunals now serve as instances of practice and statements of opinio juris for the formation of customary international criminal law and customary international human rights law related to criminal law and procedure. In these areas of law and others, they are no longer “subsidiary” sources as that word is used in the International Court of Justice Statute, Art. 38. In the same fields of customary international law, other binding acts of international organizations, such as the UN Security Council, are also used as practice, and the statements of these …

Withdrawing From International Custom, Curtis A. Bradley, Mitu Gulati

Faculty Scholarship

Treaties are negotiated, usually written down, and often subject to cumbersome domestic ratification processes. Nonetheless, nations often have the right to withdraw unilaterally from them. By contrast, the conventional wisdom is that nations never have the legal right to withdraw unilaterally from the unwritten rules of customary international law (CIL), a proposition that we refer to as the “Mandatory View.” It is not obvious, however, why it should be easier to exit from treaties than from CIL, especially given the significant overlap that exists today between the regulatory coverage of treaties and CIL, as well as the frequent use of …

The Fog Of Certainty, Robert B. Ahdieh

Faculty Scholarship

In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”

For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

International Common Law: The Soft Law Of International Tribunals, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

No abstract provided.

The Scope Of Executive Power In The Twenty-First Century: An Introduction, Robert D. Sloane

Faculty Scholarship

This is a revised version of introductory remarks to a panel entitled The Scope of Executive Power held on October 12, 2007, at Boston University Law School's symposium, The Role of the President in the 21st Century. It focuses on an argument advanced by Charlie Savage, among others: that the Bush administration has forged a breathtakingly robust view of the scope of executive power by combining (1) the original Unitary Executive thesis, which insists on the "exclusivity" of certain plenary presidential powers; with (2) a new Unitary Executive thesis, which insists on a vastly expanded vision of the "scope" of …

Federal Suits And General Laws: A Comment On Judge Fletcher's Reading Of Sosa V. Alvarez-Marchain, Ernest A. Young

Faculty Scholarship

No abstract provided.

Congress’S Under-Appreciated Power To Define And Punish Offenses Against The Law Of Nations, Andrew Kent

Faculty Scholarship

Perhaps no Article I power of Congress is less understood than the power to define and punish . . . Offences against the Law of Nations. There are few scholarly works about the Clause; Congress, the Supreme Court, and the Executive Branch have seldom interpreted the Clause, and even then they have done so in a cursory and contradictory manner. Relying on textual analysis and Founding-era history and political theory to read the Clause in a different mannner than previous commentators, this Article seeks to rescue the Clause from obscurity and thereby enrich current foreign affairs debates. Not only is …

International Human Rights Standards In International Organizations: The Case Of International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Application Of Customary International Law By U.S. Domestic Tribunals, Lori Fisler Damrosch

Faculty Scholarship

In recent years there has been a significant expansion of the number and kinds of cases in U.S. courts raising issues of customary international law. U.S. courts are increasingly asked to enforce international norms of behavior against foreign governments, state and local governments, and indeed the U.S. Government itself. To a greater and greater extent the courts themselves have become actors on the international scene: in the view of one party to a lawsuit, judicial or quasi-judicial acts may threaten to violate international law, while in the view of another party those same sorts of acts can contribute affirmatively to …