Law Commons^™

Border Orientation In A Globalizing World, Beth A. Simmons, Michael R. Kenwick

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Border politics are a salient component of high international politics. States are increasingly building infrastructure to ‘secure’ their borders. We introduce the concept of border orientation to describe the extent to which the State is committed to the spatial display of capacities to control the terms of penetration of its national borders. Border orientation provides a lens through which to analyze resistance to globalization, growing populism, and the consequences of intensified border politics. We measure border orientation using novel, geo-spatial data on the built environment along the world’s borders and theorize that real and perceived pressures of globalization have resulted …

Beyond Guantanamo: Restoring The Rule Of Law To The Law Of War, Claire Oakes Finkelstein, Harvey Rishikof

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In June 2021, CERL assembled a working group to address the difficult legal and policy questions that arise in anticipation of renewed attempts to close the Guantánamo detention facility. The CERL 2021 Working Group on Guantánamo Bay is co-chaired by Claire Finkelstein, a professor of criminal and national security law at the University of Pennsylvania and CERL’s faculty director, and Harvey Rishikof, former convening authority for the commissions and a visiting professor of national security law at Temple University. The group comprises over thirty national security and counterterrorism experts, retired military officers, lawyers, former Department of Justice officials, psychologists, psychiatrists, …

The Psychology Of Separation: Border Walls, Soft Power, And International Neighborliness, Diana C. Mutz, Beth A. Simmons

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This study assesses the impact of international border walls on evaluations of countries and on beliefs about bilateral relationships between states. Using a short video, we experimentally manipulate whether a border wall image appears in a broader description of the history and culture of a little-known country. In a third condition, we also indicate which bordering country built the wall. Demographically representative samples from the United States, Ireland, and Turkey responded similarly to these experimental treatments. Compared to a control group, border walls lowered evaluations of the bordering countries. They also signified hostile international relationships to third-party observers. Furthermore, the …

On Environmental, Climate Change & National Security Law, Mark P. Nevitt

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This Article offers a new way to think about climate change. Two new climate change assessments — the 2018 Fourth National Climate Assessment (NCA) and the United Nations Intergovernmental Panel’s Special Report on Climate Change — prominently highlight climate change’s multifaceted national security risks. Indeed, not only is climate change a “super wicked” environmental problem, it also accelerates existing national security threats, acting as both a “threat accelerant” and “catalyst for conflict.” Further, climate change increases the intensity and frequency of extreme weather events while threatening nations’ territorial integrity and sovereignty through rising sea levels. It causes both internal displacement …

Contemporary Practice Of The United States Relating To International Law (114:4 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the October 2020 issue of the American Journal of International Law © 2020 American Society of International Law. All rights reserved.

Pandemic Response As Border Politics, Michael R. Kenwick, Beth A. Simmons

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Pandemics are imbued with the politics of bordering. For centuries, border closures and restrictions on foreign travelers have been the most persistent and pervasive means by which states have responded to global health crises. The ubiquity of these policies is not driven by any clear scientific consensus about their utility in the face of myriad pandemic threats. Instead, we show they are influenced by public opinion and preexisting commitments to invest in the symbols and structures of state efforts to control their borders, a concept we call border orientation. Prior to the COVID-19 pandemic, border orientation was already generally …

Contemporary Practice Of The United States Relating To International Law (114:3 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the July 2020 issue of the American Journal of International Law © 2020 American Society of International Law. All rights reserved.

Contemporary Practice Of The United States Relating To International Law (114:2 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the April 2020 issue of the American Journal of International Law © 2020 American Society of International Law. All rights reserved.

Rejoining Treaties, Jean Galbraith

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Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer …

Contemporary Practice Of The United States Relating To International Law (114:1 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the January 2020 issue of the American Journal of International Law © 2020 American Society of International Law. All rights reserved.

Contemporary Practice Of The United States Relating To International Law (113:2 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the April 2019 issue of the American Journal of International Law © 2019 American Society of International Law. All rights reserved.

Borders Rules, Beth A. Simmons

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International political borders have historically performed one overriding function: the delimitation of a state’s territorial jurisdiction, but today they are sites of intense security scrutiny and law enforcement. Traditionally they were created to secure peace through territorial independence of political units. Today borders face new pressures from heightened human mobility, economic interdependence (legal and illicit), and perceived challenges from a host of nonstate threats. Research has only begun to reveal what some of these changes mean for the governance of interstate borders. The problems surrounding international borders today go well-beyond traditional delineation and delimitation. These problems call for active forms …

Contemporary Practice Of The United States Relating To International Law (113:1 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the January 2019 issue of the American Journal of International Law © 2019 American Society of International Law. All rights reserved.

Contemporary Practice Of The United States Relating To International Law (113:3 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the July 2019 issue of the American Journal of International Law © 2019 American Society of International Law. All rights reserved.

The Dynamism Of Treaties, Yanbai Andrea Wang

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How do treaties change over time? This Article joins a growing body of scholarship focusing not on formal change mechanisms but instead on informal change arising from a treaty’s implementation in practice. Informal implementation is often murky, poorly documented, and may be indistinguishable from noncompliance. Yet it is significant both doctrinally under the Vienna Convention on the Law of Treaties—a set of rules for the formation and operation of treaties—and in its own right, when it does not meet the requirements to be doctrinally relevant. Based on a deep dive into the history of one of the oldest areas of …

Contemporary Practice Of The United States Relating To International Law (113:4 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the October 2019 issue of the American Journal of International Law © 2019 American Society of International Law. All rights reserved.

The Operational And Administrative Militaries, Mark P. Nevitt

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This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the focus …

Contemporary Practice Of The United States Relating To International Law (112:4 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the October 2018 issue of the American Journal of International Law © 2018 American Society of International Law. All rights reserved.

Contemporary Practice Of The United States Relating To International Law (112:3 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the July 2018 issue of the American Journal of International Law © 2018 American Society of International Law. All rights reserved.

Military Justice: A Very Short Introduction (Book Review), Mark Patrick Nevitt

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This short essay reviews Professor Eugene Fidell’s recently published book, “Military Justice A Very Short Introduction” (Oxford Press). This book is a welcome addition to military law and military justice literature more generally. Eugene Fidell, a professor at Yale Law School, brings a tremendous breadth of experience as both a scholar and military justice practitioner. He also possesses a keen observational and critical eye to the subject of military justice practiced here and abroad.

The book review first provides an overview of Professor Fidell’s book, its organizational set-up, and where it sits in the broader context of military justice literature. …

Contemporary Practice Of The United States Relating To International Law (112:2 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the April 2018 issue of the American Journal of International Law © 2018 American Society of International Law. All rights reserved.

Once the PDF is open, individual articles are accessible either by scrolling down or by clicking on the bookmark symbol.

Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt

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What best explains how “Everything Became War and the Military Became Everything?”— the provocative title of a recent book by Professor Rosa Brooks of Georgetown Law. In this Essay, I turn to the Department of Defense’s (DoD) unique agency design as the vehicle to address this question. Specifically, I first describe and analyze the role that the 1947 National Security Act and 1986 Goldwater-Nichols Act play in incentivizing organizational behavior within the DoD. These two Acts have broad implications for national security governance. Relatedly, I address the consequences of these two core national security laws, focusing on the …

Contemporary Practice Of The United States Relating To International Law (112:1 Am J Int'l L), Jean Galbraith

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This article is reproduced with permission from the January 2018 issue of the American Journal of International Law © 2018 American Society of International Law. All rights reserved.

Once the PDF is open, individual articles are accessible either by scrolling down or by clicking on the bookmark symbol.

Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

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There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons

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The core international human rights treaty bodies play an important role in monitoring implementation of human rights standards through consideration of states parties’ reports. Yet very little research explores how seriously governments take their reporting obligations. This article examines the reporting record of parties to the Convention against Torture, finding that report submission is heavily conditioned by the practices of neighboring countries and by a government’s human rights commitment and institutional capacity. This article also introduces original data on the quality and responsiveness of reports, finding that more democratic—and particularly newly democratic—governments tend to render higher quality reports.

Introduction: Cyber And The Changing Face Of War, Claire Oakes Finkelstein, Kevin H. Govern

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Cyberweapons and cyberwarfare are one of the most dangerous innovations of recent years, and a significant threat to national security. Cyberweapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide-ranging potential consequences. Cyberwarfare occupies an ambiguous status in the conventions of the laws of war. This book addresses Ethical and legal issues surrounding cyberwarfare by considering whether the Laws of Armed Conflict apply to cyberspace and the ethical position of cyberwarfare against the background of our generally recognized moral traditions in armed conflict. The book explores these moral and legal …

Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo

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Scholars have spent considerable effort determining how the law of war (particularly jus ad bellum and jus in bello) applies to cyber conflicts, epitomized by the Tallinn Manual on the International Law Applicable to Cyber Warfare. Many prominent cyber operations fall outside the law of war, including the surveillance programs that Edward Snowden has alleged were conducted by the National Security Agency, the distributed denial of service attacks launched against Estonia and Georgia in 2007 and 2008, the 2008 Stuxnet virus designed to hinder the Iranian nuclear program, and the unrestricted cyber warfare described in the 1999 book by …

Soft Law As Foreign Relations Law, Jean Galbraith, David Zaring

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The United States increasingly relies on “soft law” and, in particular, on cooperation with foreign regulators to make domestic policy. The implementation of soft law at home is typically understood to depend on administrative law, as it is American agencies that implement the deals they conclude with their foreign counterparts. But that understanding has led courts and scholars to raise questions about whether soft law made abroad can possibly meet the doctrinal requirements of the domestic discipline. This Article proposes a new doctrinal understanding of soft law implementation. It argues that, properly understood, soft law implementation lies at the intersection …

Making Fiction Of Facts In The Israeli Spy Case, Kenneth Lasson, Angelo Codevilla, Lawrence J. Korb, John Loftus

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The authors make the case that Jonathan Pollard, the man convicted of spying for Israel, is again being condemned by new allegations by Martin Peretz in a New Republic article, and by retired Navy Capt. M. E. Bowman. The authors of these new assertions may not know more of the particulars than others in high places who have already publicly supported commuting Pollard's sentence to time served.

No More 'Sha Still', Kenneth Lasson

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This op-ed laments the consequences of staying quiet in light of recent national and international events. It takes President Obama to task for blaming Israel for lack of progress in Middle East peace negotiations, as well as Congress for its ineptitude during the recent national debt ceiling negotiations.