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A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand

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In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

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The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …

A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand

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The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and …

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

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In this section: Congress Enacts Sanctions Legislation Targeting Russia • United States and Qatar Sign Memorandum of Understanding over Terrorism Financing • Trump Reverses Certain Steps Toward Normalizing Relations with Cuba • United States Announces Plans to Withdraw from Paris Agreement on Climate Change • President Trump Issues Trade-Related Executive Orders and Memoranda • United States, Russia, and Jordan Sign Limited Ceasefire for Syria • Trump Administration Recertifies Iranian Compliance with JCPOA Notwithstanding Increasing Concern with Iranian Behavior

Reply On The Work Of International Law, Monica Hakimi

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"In the Article, I distill and then criticize a prominent view about the role of international law in the global order. The view—what I call the “cooperation thesis”—is that international law serves to foster a particular kind of cooperation, specifically to help the participants achieve their common aims and curb their disputes. Lawyers who subscribe to this view of course appreciate that international law is, like all law, often contentious in operation. But they posit that, unless such conflict is overcome, it detracts from cooperation and evinces the limits of international law. That view is wrong. It incorrectly assumes that …

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

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In this section: • Trump Administration Takes Steps to Implement Bilateral Agreement with Australia Regarding Refugees • Trump Administration Criticizes NATO Members for Failing to Meet Defense Spending Guideline; United States Joins Other NATO Members in Supporting Montenegro’s Membership in the Organization • President Trump Issues Executive Orders Suspending Refugee Program and Barring Entry by Individuals from Specified Countries • Trump Administration Maintains Nuclear Deal with Iran, Despite Persistent Skepticism • United States Strikes Syrian Government Airbase in Response to Chemical Weapons Attacks by Syrian Forces; Two Additional Strikes on Syrian Government Forces Justified by Defense of Troops Rationale • …

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

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In this section: • Congress Overrides Obama’s Veto to Pass Justice Against Sponsors of Terrorism Act • U.S. Federal Court of Appeals Upholds United Nations’ Immunity in Case Related to Cholera in Haiti • U.S.-Russian Agreements on Syria Break Down as the Syrian Conflict Continues • Russia Suspends Bilateral Agreement with United States on Disposal of Weapons-Grade Plutonium • The United States Makes Payment to Family of Italian Killed in CIA Air Strike • United States Ratifies Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance

Is There A Right To Be Free From Corruption?, Anita Ramasastry

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Scholars and policymakers have, for some time, focused on the link between corruption and human rights. This has been to illustrate that corruption is not a victimless crime. While this has publicized the impact of corruption on individuals and on society, it has not changed the lack of political will to prosecute many instances of corruption. Thus citizens often stand by as their leaders plunder national treasuries. Rather than focusing solely on human rights, or trying to create a new “human right” to be free from corruption, this article explores the right to a legal remedy for victims of corruption …

How And Why International Law Binds International Organizations, Kristina Daugirdas

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For decades, controversy has dogged claims about whether and to what extent international law binds international organizations (“IOs”) like the United Nations and the International Monetary Fund. The question has important consequences for humanitarian law, economic rights, and environmental protection. In this Article, I aim to resolve the controversy by supplying a theory about when and how international law binds IOs. I conclude that international law binds IOs to the same degree that it binds states. That is, IOs are not more extensively or more readily bound; nor are they less extensively or less readily bound. This means that IOs, …

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

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In this section: • United States and France Sign Agreement to Compensate Holocaust Victims • United States Conducts Naval Operation Within Twelve Nautical Miles of Spratly Islands in the South China Sea, Prompting Protests from China • United States Pursues Bilateral and Multilateral Initiatives in and Around the Arctic

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

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In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …

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

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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 …

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

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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

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

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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 …

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

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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

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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

Reputation And The Responsibility Of International Organizations, Kristina Daugirdas

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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 …

The International Law Commission Reinvents Itself?, Kristina Daugirdas

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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 …

The Bond Court's Institutional Truce, Monica Hakimi

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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 …

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

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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

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• 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

Persuasion Treaties, Melissa J. Durkee

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All treaties, akin to contracts between nations, formalize the promises of their parties. Yet the contents of those promises differ, with important consequences.

One particular difference is underappreciated and divides treaties into two fundamentally different categories. In one category of treaty, nations agree that they themselves will act, or refrain from acting, in certain ways. For convenience, I call these “resolution” treaties because they demand that states resolve to act. In the second category, nations make promises they can only keep if nonstate third parties also act or refrain from acting. These are what I term “persuasion” treaties because they …

State Bystander Responsibility, Monica Hakimi

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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 …

Leveraging Asylum, James C. Hathaway

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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.

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

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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

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

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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 …

Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand

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This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …

The Human Rights Quagmire Of 'Human Trafficking', James C. Hathaway

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Support for the international fight against "human trafficking" evolved quickly and comprehensively. The campaign launched by the UN General Assembly in December 19981 led to adoption just two years later of the Trafficking Protocol to the UN Convention against Organized Crime.2 U.S. President George W. Bush was among those particularly committed to the cause, calling for collective effort to eradicate the "special evil" of human trafficking, said by him to have become a "humanitarian crisis."3 One hundred and twenty-two countries have now ratified the Trafficking Protocol, agreeing in particular to criminalize trafficking and to cooperate in investigating and prosecuting allegations …

Rethinking Subsidiarity In International Human Rights Adjudication, William M. Carter Jr.

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This article suggests that a re-evaluation of the principle of subsidiarity is in order. While I make no sweeping claims that the principle of subsidiarity is always preferable or always undesirable, I do suggest that a close look at the myriad ways in which subsidiarity applies reveals that it may sometimes impede, rather than advance, the cause it purports to serve: namely, achieving universality of human rights. This article identifies situations where subsidiarity is more likely to diminish human rights protections that it is to advance them and suggests that subsidiarity should be abandoned or minimized in such areas.

The Value Of Year Books Of International Law, James C. Hathaway

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Is there still a place for a 'Yearbook' of International Law? Viewed as no more than an annually published volume of scholarship, one would surely answer in the negative. There is no shortage of excellent law journals, including journals focused on international and comparative law. It is thus doubtful that any quality article published in a yearbook would have failed to find a good home elsewhere. With even relatively obscure law journals readily available in electronic form at minimal cost and with maximum ease, the case for a yearbook is surely weak if predicated simply on the importance of disseminating …