Law Commons^™

The Fog Of Certainty, Robert B. Ahdieh

Faculty Scholarship

In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”

For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …

Beyond The Global Summits: Reflecting On The Environmental Principles Of Sustainable Development, Stathis N. Palassis

Stathis N Palassis

Sustainable development advocates that in meeting the economic needs of the present we must not compromise the ability of the planet to provide for the needs of future generations. Sustainable development promotes a new economic paradigm integrating traditional economics with ecological economics and also requires developed States to reduce their environmental impact leaving space for developing States to meet their own needs. Beyond that, however, a more precise meaning of sustainable development is subject to competing interpretations thus making its content far from clear. The concept has been broadly utilized in areas including biodiversity, threatened species, fisheries, climate change, international …

The New International Law-Makers? Conferences Of The Parties To Multilateral Environmental Agreements, Annecoos Wiersema

Annecoos Wiersema

What do Conferences of the Parties (COPs) to multilateral environmental agreements contribute to international legal obligation? Much of the activity of COPs does not require the consent of every state party to the treaty to come into effect and does not provide for any form of opt-out for dissenting states; nevertheless, COPs frequently pass agreements that alter the application and scope of their treaties. This article discusses the significance of this activity – what I term consensus-based COP activity – for our understanding of the international legal system and its touchstone of state consent. Conventional categories for the sources of …

The International Court Of Justice And The Concept Of State Practice, Arthur M. Weisburd

Arthur M. Weisburd

State practice is an important element of international law, both as a key component of customary international law and as a crucial tool for interpreting treaties. In this paper, Professor Weisburd seeks to show that there are important flaws in the application of state practice by the International Court of Justice. The Court has relied on actual practice to determine the content of customary rules surprisingly rarely, frequently basing its conclusions instead on non-binding actions by international bodies or on its own decisions. It has reached decisions in some cases clearly inconsistent with significant and relevant state practice and in …

Asat-Isfaction: Customary International Law And The Regulation Of Anti-Satellite Weapons, David A. Koplow

Michigan Journal of International Law

The argument in this Article proceeds through several steps. As background, Part I outlines the current and projected future human uses of outer space, emphasizing the plethora of civilian and military applications that now rely on satellites. The United States, especially, but other countries, too, are coming to depend on multiple space assets for the performance of a wide array of vital functions; the investment is huge, diverse, and growing, despite the costs and natural perils of operating in the harsh exoatmospheric environment.

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

The Federal Common Law Of Nations, Bradford R. Clark

GW Law Faculty Publications & Other Works

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' "perfect rights" (or close analogues) under the …

Asat-Isfaction: Customary International Law And The Regulation Of Anti-Satellite Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – …

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the …

International Common Law: The Soft Law Of International Tribunals, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

No abstract provided.