Law Commons^™

Can Greece Be Expelled From The Eurozone? Toward A Default Rule On Expulsion From International Organizations, Joseph Blocher, Mitu Gulati, Laurence R. Helfer

Faculty Scholarship

The ongoing European crisis has raised uncomfortable questions about the conditions under which treaty-based unions of nations like the EU or the EMU can legally expel a member—Greece being the most obvious candidate. The EU, for example, has rules governing the voluntary withdrawal of members, but says nothing about whether a member can be expelled. As a matter of international law, what does the silence mean? Put differently: What is the default rule regarding expulsions when a treaty says nothing about forced withdrawals? Is there an absolute bar on expulsion, as some have suggested? Conversely, is there an implicit right …

The Sad, Quiet Death Of Missouri V. Holland: How Bond Hobbled The Treaty Power, Robert D. Sloane, Michael Glennon

Faculty Scholarship

Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This …

Accounting For Difference In Treaty Interpretation Over Time, Julian Arato

Book Chapters

The law of treaty interpretation aspires to unity. All treaties are formally subject to the same rules of interpretation, codified in the Vienna Convention. Yet time and again we hear that some kinds of treaties are entitled to special treatment. Most commonly the idea is that certain exceptional conventions are capable of evolving, with or without the continued consent of the parties — as with certain human rights conventions. Other times the claim is that certain kinds of agreements resist techniques of interpretation that establish treaty change over time. To date, explanations for such differential treatment remain unsatisfying. This Chapter …

Freedom From Violence And The Law: A Global Perspective In Light Of Chinese Domestic Violence Law, 2015, Rangita De Silva De Alwis, Jeni Klugman

All Faculty Scholarship

No abstract provided.

Contemporary Practice Of The Untied States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran Nuclear Framework Agreement Reached; Congress Seeks to Influence Negotiation • United States Lifts Some Cuba Restrictions and Explores the Possibility of Normalizing Relations • United States Responds to Alleged North Korean Cyber Attack on Sony Pictures Entertainment • Senate Select Committee on Intelligence Releases Executive Summary of Its Study of CIA’s Detention and Interrogation Program • President Obama Seeks Statutory Authorization for the Use of Military Force Against ISIL

The Abiding Exceptionalism Of Foreign Relations Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In their article The Normalization of Foreign Relations Law, Professors Ganesh Sitaraman and Ingrid Wuerth argue that “[foreign affairs] exceptionalism . . . is now exceptional,” and that this is a good thing. I agree with much of the authors’ normative argument for “normalization” of foreign affairs doctrine (as they define the term). But the authors overstate the extent to which such normalization has already occurred. There have indeed been some recent Supreme Court decisions that seem to lack the exceptional deference to the Executive that had characterized judicial decisionmaking in the foreign affairs area in previous years. But foreign …

Non-Refoulement In A World Of Cooperative Deterrence, Thomas Gammeltoft-Hansen, James C. Hathaway

Articles

Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices — visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence — have proved increasingly vulnerable to practical and legal challenges, new forms of …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: United States Objects to Russia’s Continued Violations of Ukraine’s Territorial Sovereignty, Including by Convoys Purporting to Provide Humanitarian Aid • United States and Afghanistan Sign Bilateral Security Agreement • United States Announces “Changes and Confirmations” in Its Interpretation of the UNConvention Against Torture • United States and China Make Joint Announcement to Reduce Greenhouse Gas Emissions, Bolstering Multilateral Climate Change Negotiations • United States Deepens Its Engagement with ISIL Conflict • NATO Affirms that Cyber Attacks May Trigger Collective Defense Obligations

Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi

Articles

This article assesses the implications of the current Syria situation for the international law on the use of defensive force against non-State actors. The law in this area is highly unsettled, with multiple legal positions in play. After mapping the legal terrain, the article shows that the Syria situation accentuates three preexisting trends. First, the claim that international law absolutely prohibits the use of defensive force against non-State actors is increasingly difficult to sustain. States, on the whole, have supported the operation against the so-called Islamic State in Syria. Second, States still have not coalesced around a legal standard on …

White Paper: Options For A Treaty On Business And Human Rights, Anita Ramasastry, Douglass Cassell

Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group took take place in Geneva in July 2015. The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales asked the present authors to prepare a “White Paper” on possible options for a treaty …

Corporate Social Responsibility Versus Business And Human Rights: Bridging The Gap Between Responsibility And Accountability, Anita Ramasastry

Articles

This article explores the evolution of business and human rights (BHR) from a lawyer’s perspective and examines how it is contextually and conceptually different from corporate social responsibility (CSR) in its aims and ambitions. While CSR emphasizes responsible behavior, BHR focuses on a more delineated commitment in the area of human rights. BHR is, in part, a response to CSR and its perceived failure. This has led to a gap with two disciplines or strands of discourse that are diverging rather than converging. This article explores how the quest for accountability shapes a very different narrative for BHR, which takes …

Reputation And The Responsibility Of International Organizations, Kristina Daugirdas

Articles

The International Law Commission’s Draft Articles on the Responsibility of International Organizations have met a sceptical response from many states, international organizations (IOs), and academics. This article explains why those Articles can nevertheless have significant practical effect. In the course of doing so, this article fills a crucial gap in the IO literature, and provides a theoretical account of why IOs comply with international law. The IO Responsibility Articles may spur IOs and their member states to prevent violations and to address violations promptly if they do occur. The key mechanism for realizing these effects is transnational discourse among both …

Rogue Debtors And Unanticipated Risk, S. I. Strong

Faculty Publications

Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass the …

The International Law Commission Reinvents Itself?, Kristina Daugirdas

Articles

For most of its history, the International Law Commission has been in the business of producing draft articles. Yet, Sean Murphy’s coverage of the Commission’s sixty-fifth session reveals that the Commission has decisively turned away from this format. As Jacob Katz Cogan’s earlier post observes, the Commission is demonstrating a new-found preference for outputs that are explicitly non-binding and betray no aspiration to form the basis for multilateral treaties. The Commission’s embrace of alternative formats is a promising response to some of the risks and criticisms associated with producing draft articles. But it is also an incomplete response. To ensure …

Food Deprivation: A Basis For Refugee Status?, James C. Hathaway

Articles

It is commonplace to speak of those in flight from famine, or otherwise migrating in search of food, as “refugees.” Over the past decade alone, millions of persons have abandoned their homes in countries such as North Korea, Sudan, Ethiopia, Congo, and Somalia, hoping that by moving they could find the nourishment needed to survive. In a colloquial sense, these people are refugees: they are on the move not by choice, but rather because their own desperation compels them to pursue a survival strategy away from the desperation confronting their home communities.

The question addressed here is whether persons in …

The Bond Court's Institutional Truce, Monica Hakimi

Articles

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that …

State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea

Columbia Center on Sustainable Investment Staff Publications

Many critiques of investment treaties relate to concerns that tribunals’ interpretations of these agreements depart from states’ understandings of the texts, and do so in unpredictable ways leading to expensive litigation and unforeseen liability. States, however, can take steps to make their intentions regarding the texts clearer, and reduce the risk of uncertain outcomes.

This policy paper discusses these possible steps, and the legal rules supporting them, providing guidance to states, attorneys, and tribunals regarding the important role of states in clarifying vague standards in and managing liability under existing investment treaties. A second paper, published by the Global …

The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr.

All Faculty Scholarship

This essay is Part One of a two-part essay series. It outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty Contracting States (fifty-four of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

A novel, distinctive, and path-breaking feature of the Convention is the international registry …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Condemns Russia’s Use of Force in Ukraine and Attempted Annexation of Crimea • In Wake of Espionage Revelations, United States Declines to Reach Comprehensive Intelligence Agreement with Germany • United States Defends United Nations’ Immunity in Haitian Cholera Case • French Bank Pleads Guilty to Criminal Violations of U.S. Sanctions Laws • D.C. Circuit Strikes down Administrative Order Requiring Divestment by Foreign-Owned Corporation • United States Adopts New Land Mine Policy • United States Claims That Russia Has Violated the INF Treaty

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

• Progress Is Made Implementing U.S.-Russia Framework for Eliminating Syrian Chemical Weapons • United States Advocates for Syrian Peace Conference • United States Extends Deadline for Signing of Bilateral Security Agreement with Afghanistan • China Announces New Air Defense Identification Zone over East China Sea, Prompting U.S. Response • United States and Six Other States Reach Interim Agreement on Iranian Nuclear Program

Treaty Termination And Historical Gloss, Curtis A. Bradley

Faculty Scholarship

The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

Differentiating Among International Investment Disputes, Julie A. Maupin

Faculty Scholarship

Can investor-state arbitration tribunals, which exercise jurisdiction over limited claims involving discrete parties, render awards that deliver individualized justice while also promoting systemic fairness, predictability and coherence? The answer, I argue, is a qualified yes – provided that the methods employed are tailored to the particular characteristics of each dispute. Using three well-known investment arbitrations as case studies, I illustrate that investor-state disputes vary widely in terms of their socio-legal, territorial, and political impacts. Significant variances along these three dimensions call for a differentiated approach to investor-state dispute resolution. I outline what such an approach might look like and analyze …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer

Scholarly Works

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the …

Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith

All Faculty Scholarship

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy Meyer

Faculty Scholarship

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism's retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states-often rising or reluctant powers such as China and the United States-without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the European Union: from contractual …

Convention On The Rights Of Persons With Disabilities - Testimony Of Timothy L. Meyer Before The U.S. Senate Committee On Foreign Relations, Timothy L. Meyer

Presentations and Speeches

Testimony of Timothy L. Meyers before the U.S. Senate Foreign Relations Committee on November 5, 2013 concerning the Convention on the Rights of Persons with Disabilities.

Agenda: Free, Prior And Informed Consent: Pathways For A New Millennium, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, University Of Colorado Boulder. School Of Law. American Indian Law Program

Free, Prior and Informed Consent: Pathways for a New Millennium (November 1)

Presented by the University of Colorado's American Indian Law Program and the Getches-Wilkinson Center for Natural Resources, Energy & the Environment.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), along with treaties, instruments, and decisions of international law, recognizes that indigenous peoples have the right to give "free, prior, and informed consent" to legislation and development affecting their lands, natural resources, and other interests, and to receive remedies for losses of property taken without such consent. With approximately 150 nations, including the United States, endorsing the UNDRIP, this requirement gives rise to emerging standards, obligations, and opportunities …

The Extraterritorial Application Of Human Rights Treaties: Al-Skeini Et Al. V. United Kingdom (2011), Joseph Sinchak

Pace International Law Review Online Companion

The decade proceeding the 9/11 tragedy has been very unkind to the human rights regime, as many western nations have committed human rights abuses in their mission to combat terrorism. Both the United States and the United Kingdom have been engaged in wars in Iraq and Afghanistan, where they perpetrated terrible crimes and violated important tenants of international law. These violations, ranging from allegations of torture to wrongful deaths, are prohibited by human rights law. In fact, human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) were …

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper discusses the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, which were adopted in August of 2013 and went into effect on April 1, 2014. It draws on negotiating history to elaborate on the content of and purpose of each of the Rules’ provisions, and identifies options for and barriers to applying these Rules in future arbitrations.

A Brief Guide To Finding International Treaties, Jennifer Sekula

Library Staff Publications

No abstract provided.