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Full-Text Articles in Law
Globalization And Structure, Julian Ku, John Yoo
Against Foreign Law, Robert J. Delahunty, John Yoo
Against Foreign Law, Robert J. Delahunty, John Yoo
John C Yoo
The article looks at the practice of several U.S. Supreme Court justices who have considered the decisions of foreign and international courts for guidance in interpreting the U.S. constitution. This practice has occurred in several controversial, high profile cases. There are two main reasons to think that use of foreign or international decisions extends beyond mere ornamentation.
The Status Of Soldiers And Terrorists Under The Geneva Conventions, John C. Yoo
The Status Of Soldiers And Terrorists Under The Geneva Conventions, John C. Yoo
John C Yoo
Outlines the legal case for denying Geneva Convention protection to Taliban and al Qaeda detainees in the U.S. Difference between U.S. policy towards Iraq detainees and the policy towards Taliban and al Qaeda; Impact of the Geneva Convention on the U.S. goal of effective acquisition of intelligence from the interrogation of detainees; Incentives and disincentives of the enforcement of international law; Comparison of the legal rights of members of al Qaeda and the Taliban militias from professional soldiers; Customary laws governing war combatants and civilians.
Rational Treaties: Article Ii, Congressional-Executive Agreements, And International Bargaining, John C. Yoo
Rational Treaties: Article Ii, Congressional-Executive Agreements, And International Bargaining, John C. Yoo
John C Yoo
This paper examines the continuing difference between the Constitution’s Article II treaty, and the congressional-executive agreement’s statutory process, to make international agreements. Rather than approach the problem from a textual or historical perspective, it employs a rational choice model of dispute resolution between nation-states in conditions of weak to little enforcement by supranational institutions. It argues that the choice of a treaty or congressional-executive agreement can make an important difference in overcoming various difficulties in bargaining that arise from imperfect information and commitment problems.
Fixing Failed States, John C. Yoo
Fixing Failed States, John C. Yoo
John C Yoo
Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is …
Kant, Habermas And Democratic Peace, John C. Yoo, Robert J. Delahunty
Kant, Habermas And Democratic Peace, John C. Yoo, Robert J. Delahunty
John C Yoo
Philosophers of great stature rarely write about international law or international relations. When they do, their writing, though often illuminating, tends to be brief, episodic and marginal to the rest of their work. Major exceptions include the towering eighteenth-century Enlightenment thinker Immanuel Kant and the contemporary German thinker Jürgen Habermas, much of whose highly influential work is devoted to international affairs. The relationship between Kant and Habermas is an extremely close one, and few later thinkers have done as much as Habermas to demonstrate the continuing importance and relevance of Kant’s political thought for the contemporary world. Briefly stated, our …
Great Power Security, John C. Yoo, Robert J. Delahunty
Great Power Security, John C. Yoo, Robert J. Delahunty
John C Yoo
The change of administration in the US may have encouraged the belief that collective security will finally have its day. A conventional wisdom also seems to be emerging among many, if not most, academics in international law that the strengthening of the UN security system would advance international peace and security. Although the twenty-first century has brought radically different security threats from those that existed when the UN Charter was first written, many seem to believe that concentrating authority in the Security Council remains the most effective international legal process for the use of force. Resurrecting the formal UN Charter …
The 'Bush Doctrine': Can Preventive War Be Justified?, John C. Yoo, Robert J. Delahunty
The 'Bush Doctrine': Can Preventive War Be Justified?, John C. Yoo, Robert J. Delahunty
John C Yoo
We continue to live in a dangerous world. We are exposed to the risk that hostile states or terrorist groups with global reach might attack our civilian population or those of our allies using weapons of mass destruction. In such circumstances, it might seem natural for U.S. policymakers to consider preventive war as a possible tool for countering such threats. Yet in the current climate of opinion, such thinking would be controversial - in large part, no doubt, because of the continuing disputes over the normative, strategic, and legal wisdom of what has been called the “Bush Doctrine.” Preventive war, …
Peace Through Law? The Failure Of A Nobel Experiment, John C. Yoo, Robert Delahunty
Peace Through Law? The Failure Of A Nobel Experiment, John C. Yoo, Robert Delahunty
John C Yoo
Collective-security ideas that emerged from the First World War nobly sought to end the carnage depicted in Erich Maria Remarque's All Quiet on the Western Front. The collective-security movement sought to create a system that protected the status quo by making existing national borders sacrosanct. Any violation of those borders would be treated like a criminal attack under a domestic legal system. But those who devised these rules could not have anticipated the very different threats confronting the international system today. Large, multistate conflicts have receded in the wake of the stability provided by the Cold War superpowers and now …
Counterintuitive: Intelligence Operations And International Law, John C. Yoo, Glenn Sulmasy
Counterintuitive: Intelligence Operations And International Law, John C. Yoo, Glenn Sulmasy
John C Yoo
This essay addresses proposals for international regulation of intelligence gathering activities. We show that international law currently does not express any strong norms against intelligence gathering. We argue that international law is incapable of regulating such activities and proposals for change would prove counterproductive. Careful attention to the causes of war between rational nation-states shows that these efforts will have the highly undesirable result of making war more, rather than less, likely.
Executive Power V. International Law, John C. Yoo, Robert J. Delahunty
Executive Power V. International Law, John C. Yoo, Robert J. Delahunty
John C Yoo
Critics of the Bush administration's conduct of the war on terrorism and the wars in Afghanistan and Iraq have made the claim that the President cannot order conduct that is inconsistent with international law. Not only is the argument under-theorized, it runs counter to the best reading of the constitutional text, structure, and the history of American practice. A careful examination of the constitutional text, for example, shows that international law that does not take the form of a treaty or other authoritative adoption by the political branches will not enjoy supremacy effect. If international law cannot claim the status …
International Law And The Rise Of China, John C. Yoo, Eric Posner
International Law And The Rise Of China, John C. Yoo, Eric Posner
John C Yoo
The rise of China raises questions about the future of international law. The current system of international law depends largely on American hegemony, along with the dominance of western European states that share America's general goals and values. It is possible that China in the future will not threaten this system, either because China comes to share these goals and values or because China breaks apart. But the more likely scenario is that China will compete with the U.S. for regional and then global influence. We argue that in such a world the current system of international law will not …
Force Rules, John C. Yoo
Force Rules, John C. Yoo
John C Yoo
This piece criticizes U.N. proposals to reform the international legal rules on the use of force. While they properly identify threats to international peace and security as arising outside the context of great power warfare, they make it even more difficult for nations to address these new challenges. They codify a rule that gives the Security Council complete authority over all uses of force short of national self-defense, rather than providing nations with flexibility. They expand the size of the Security Council, which will only aggravate the body's collective action troubles in authorizing force. Reform should begin by modifying the …
Rational War And Constitutional Design, John C. Yoo, Jide Nzelibe
Rational War And Constitutional Design, John C. Yoo, Jide Nzelibe
John C Yoo
Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close …
War, Responsibility, And The Age Of Terrorism, John C. Yoo
War, Responsibility, And The Age Of Terrorism, John C. Yoo
John C Yoo
This Article questions the widely-held view, expressed most clearly by John Hart Ely's War and Responsibility, that Congress must provide ex ante approval for all uses of force. It critiques Ely's approach, both his method of constitutional interpretation and his substantive goals for the war-making process. It proposes a different vision for war powers that provides more flexibility to the political branches. It then argues that a Congress-first process does not produce its desired substantive outcomes, and questions whether the costs and benefits of different war-making processes are sufficiently clear to cement one into place as a matter of constitutional …
Beyond Formalism In Foreign Affairs: A Functional Approach To The Alien Tort Statute, John C. Yoo, Julian Ku
Beyond Formalism In Foreign Affairs: A Functional Approach To The Alien Tort Statute, John C. Yoo, Julian Ku
John C Yoo
This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations. We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role …
Laws As Treaties? The Constitutionality Of The Congressional-Executive Agreement, John C. Yoo
Laws As Treaties? The Constitutionality Of The Congressional-Executive Agreement, John C. Yoo
John C Yoo
This article develops a theory explaining the constitutionality of the congressional-executive agreement, an alternatve to treaties. The puzzle is that our nation continues to use treaties at all, since congressional-executive agreements need only recieve simple legislative majorities for their approval. This article argues that in order to maintain the Constitution's balance between executive and legislative powers, congressional-executive agreements have been used in areas of Congress's Article I, Section powers, and that treaties continue to be used in areas where cooperation between the executive and legislative branches is necessary, or where the subject lies outside of Congress's enumerated powers.
Globalism And The Constitution: Treaties, Non-Self-Execution, And The Original Understanding, John C. Yoo
Globalism And The Constitution: Treaties, Non-Self-Execution, And The Original Understanding, John C. Yoo
John C Yoo
As the globalization of society and the economy accelerates, treaties will come to assume a significant role in the regulation of domestic affairs. This Article considers whether the Constitution, as originally understood, permits treaties to directly regulate the conduct of private parties without legislative implementation. It examines the relationship between the treaty power and the legislative power during the colonial, revolutionary, Framing, and early national periods to reconstruct the Framers’ understandings. It concludes that the Framers believed that treaties could not exercise domestic legislative power without the consent of Congress, because of the Constitution’s creation of a national legislature that …
Treaties And Public Lawmaking: A Textual And Structural Defense Of Non-Self-Execution, John C. Yoo
Treaties And Public Lawmaking: A Textual And Structural Defense Of Non-Self-Execution, John C. Yoo
John C Yoo
This Rejoinder responds to Professors Flaherty and Vazquez by advancing textual and structural constitutional arguments in defense of the doctrine of non-self-executing treaties. It first responds by raising several historical and contextual problems with Professor Flaherty’s Response. It then argues that requiring congressional implementation of treaties that regulate matters within Congress’s Article I, Section 8 powers respects the Constitution’s basic separation of the legislative and executive powers. This approach also ensures that treaties, which are asserted to be free from the Constitution’s federalism and the separation of powers limitations, will not assume an unbounded legislative power, and it promotes the …