Law Commons^™

The Trouble With Treaties: Immigration And Judicial Law, Angela M. Banks

Faculty Publications

No abstract provided.

Power, Exit Costs, And Renegotiation In International Law, Timothy L. Meyer

Scholarly Works

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …

The Post-Medellin Case For Legislative Standing, James A. Turner

Articles in Law Reviews & Journals

After the terrorist attacks against the United States on September 11, 2001, the balance of power between the executive and legislative branches of government in this country shifted. President Bush expanded the executive’s unilateral authority in international affairs and war powers. Both President Bush and President Obama have extended executive power, and then staunchly protected their expansion of authority from limitation by the legislative and judicial branches. Further, Bush’s use of presidential signing statements to undermine legislative intent suggests that the executive’s power to avoid legislative input may be virtually limitless.

The Supreme Court’s 2008 Medellín v. Texas decision appeared …

Purposeful Ambiguity As International Legal Strategy: The Two China Problem, Anthony D'Amato

Faculty Working Papers

For every definable term in international law there are clear cases and fuzzy cases. Everyone accepts that the term "state" applies to Paraguay, Poland, Portugal and over a hundred other clear cases, but does it apply to Puerto Rico, Western Samoa, the Isle of Man, the Channel Islands, Gibraltar, or the Vatican City? The word "treaty" has thousands of clear applications, but does it apply to an exchange of faxes between two governments or a handshake between two diplomats at a cocktail party? In addition to ambiguities of this kind, international law is replete with deliberately created ambiguities. One of …

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

Law Faculty Publications

This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law.

Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to …

The Role Of Physical Presence In The Taxation Of Cross-Border Personal Services, Michael Kirsch

Journal Articles

This Article addresses the role of physical presence in the taxation of cross-border personal services. For much of the last century, both U.S. internal law and bilateral treaties have used the service provider’s physical location as the touchstone for determining international taxing jurisdiction. Modern developments - in particular, the significant advances in global communication technology and the increasing mobility of individuals - raise important questions regarding the continued viability of this physical presence standard.

These modern developments have already facilitated the offshoring of numerous types of personal services, such as radiology, accounting, and legal services. As communication technology improves, the …

Leveraging Asylum, James C. Hathaway

Articles

I believe that the analysis underlying the leveraged right to asylum is conceptually flawed. As I will show, there is no duty of non-refoulement that binds all states as a matter of customary international law and it is not the case that all persons entitled to claim protection against refoulement of some kind are ipso facto entitled to refugee rights. These claims are unsound precisely because the critical bedrock of a real international legal obligation-namely, the consent of states evinced by either formal commitments or legally relevant actions -does not yet exist.

Power, Exit Costs, And Renegotiation In International Law, Timothy Meyer

Vanderbilt Law School Faculty Publications

Scholars have long understood that the instability of power has ramifications for compliance with international law. Scholars have not, however, focused on how states’ expectations about shifting power affect the initial design of international agreements. In this paper, I integrate shifting power into an analysis of the initial design of both the formal and substantive aspects of agreements. I argue that a state expecting to become more powerful over time incurs an opportunity cost by agreeing to formal provisions that raise the cost of exiting an agreement. Exit costs - which promote the stability of legal rules - have distributional …

Dispute Regarding Navigational And Related Rights (Costa Rica V. Nicaragua), Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

Implementing The Standby Letter For Credit Convention With The Law Of Wyoming, James J. White

Articles

For the first time in American practice, we propose to implement a convention by a federal adoption of law previously enacted by the states – from Wyoming to New York – to implement the Convention on Independent Guarantees and Standby Letters of Credit (“Convention”).1

The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley

Faculty Scholarship

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address …

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Articles

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

International Soft Law, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range of state behavior than has been previously explained.

First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of …

Bespoke Custom, Edward T. Swaine

GW Law Faculty Publications & Other Works

Curtis Bradley and Mitu Gulati’s stimulating article, “Withdrawing from International Custom,” argues for a view of customary international law (CIL) in which unilateral exit rights may be revitalized. This response suggests that Bradley and Gulati’s understanding of the intellectual history of CIL is contestable and that, they tend both to understate the novelty of their approach and overstate the rigidity of the views to which they react. Their tentativeness in endorsing exit options makes it difficult to assess the normative implications of their position, but their argument notably lacks a comprehensive consideration of alternative lawmaking forms.

Rethinking Treaty Shopping: Lessons For The European Union, Reuven S. Avi-Yonah, C. H. Panayi

Book Chapters

Whilst treaty shopping is not a new phenomenon, it remains as controversial as ever. It would seem that the more countries try to deal with it, the wider the disagreements as to what is improper treaty shopping and what is legitimate tax planning. In this paper, we reassess the traditional quasi-definitions of treaty shopping in an attempt to delineate the contours of such practices. We examine the various theoretical arguments advanced to justify the campaign against treaty shopping. We also consider the current trends in treaty shopping and the anti-treaty shopping policies under the OECD Model and the US Model. …

International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan

Book Chapters

I am pleased to have the opportunity to respond to Andreas Paulus’s very interesting contribution, and to elaborate on some of the matters he raises. As will be all too obvious, I am not an expert on general public international law. I undertook this assignment in the hope that I would learn something (as I have), and that I would eventually think of something useful to say (less clear). Happily, the one area of international law where I do have some expertise is the law of the World Trade Organization (WTO). The WTO is often used as an example in …

State Bystander Responsibility, Monica Hakimi

Articles

International human rights law requires states to protect people from abuses committed by third parties. Decision-makers widely agree that states have such obligations, but no framework exists for identifying when states have them or what they require. The practice is to varying degrees splintered, inconsistent, and conceptually confused. This article presents a generalized framework to fill that void. The article argues that whether a state must protect someone from third-party harm depends on the state's relationship with the third party and on the kind of harm caused. A duty-holding state must take reasonable measures to restrain the abuser. That framework …