International Law Commons^™

An Intersubjective Treaty Power, Duncan B. Hollis

Notre Dame Law Review

This Article explores whether the Constitution limits the making and implementation of U.S. treaties to subjects of “international” intercourse or concern. It does so in two steps. First, I undertake the existential inquiry, asking if the Constitution requires a nexus between treaties and “international” subject matters. I argue that Justices Alito, Scalia, and Thomas are correct—and the Restatement (Third) is wrong—on the question of whether the Constitution imposes an affirmative subject matter limitation on the treaty power. Various modalities of constitutional interpretation—original meaning, historical practice, doctrine, structure, and prudence—offer evidence in support of some version of an “international concern” test. …

The Boundless Treaty Power Within A Bounded Constitution, Saikrishna Bangalore Prakash

Notre Dame Law Review

I count myself among those who suppose that the Constitution contains no subject matter limits on the treaty power. More precisely, I believe that the original Constitution granted the President the power to make international agreements, with no particular constraints on the subjects they might touch. I reach this conclusion with a great deal of reluctance not because the case for this proposition is weak but because, as a matter of policy, I favor subject matter limits on the treaty power as a means of ensuring exclusive state authority over certain matters. Nonetheless, I have become convinced that the Constitution …

Congress's Limited Power To Enforce Treaties, Michael D. Ramsey

Notre Dame Law Review

This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. …

Bond And The Vienna Rules, Roger P. Alford

Notre Dame Law Review

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.

Bond V. United States: Choosing The Lesser Of Two Evils, David Sloss

Notre Dame Law Review

This essay makes two main points. First, the majority’s interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding of the design of the underlying treaty. Second, Justice Scalia’s construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia’s view would seriously harm the federal government’s ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia’s constitutional error would be far more damaging than the majority’s statutory error, the majority’s statutory …

Bond, The Treaty Power, And The Overlooked Value Of Non-Self-Executing Treaties, Julian Ku, John Yoo

Notre Dame Law Review

This Article proceeds as follows. First, it discusses the Bond case and how the treaty at issue in Bond illustrates the practical importance of non-self-executing treaties in U.S. practice. It elaborates on this point in Part II by arguing that the CWC is the classic example of an important international treaty that could not have been properly implemented without separate legislation. Next, it offers a discussion of the academic criticism of non-self-execution as tending to undermine the United States’ ability to comply with international obligations. It then responds to this criticism by exploring the ways in which non-self-executing treaties like …

Plaintiffs Carry Heavy Burden In Terror Suits Against Banks, Jimmy Gurulé

Journal Articles

Plaintiffs have a heavy burden to prove that the provision of routine financial services to suspected terrorists violated the ATA. While plaintiffs clearly met their burden in the Arab Bank case, that case did not involve the provision of routine banking services. Further, in the Palestinian Authority case several of the individuals who committed the terrorist attacks worked for the authority and were monetarily rewarded for their acts of terrorism.

Plaintiffs' lawyers in pending bank cases filed under the ATA therefore should be hesitant to read too much into the Arab Bank and Palestinian Authority verdicts.

Bond And The Vienna Rules, Roger P. Alford

Journal Articles

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.

A Hypothetical Engagement: Gatt Article Xx(A) And Indonesia's Fatwa Against Trade In Endangered Species, Lisa M. Meissner

Notre Dame Law Review Reflection

The greatest recognized threat facing biodiversity conservation today is habitat destruction. Other threats include but are not limited to global climate change, encroachment, illegal wildlife trafficking, and overexploitation through intensive agricultural and commercial uses. Although wildlife trafficking is not the main source of biodiversity loss, the pressures generated by the international demand for endangered species and their derivative products adversely affect not only individual species, but also entire ecosystems and rural livelihoods through the removal of flagship species from the environment. In response to the growing threats facing our shared natural world, environmental issues are now being incorporated into multilateral …

Bond V. United States, Dean M. Nickles

Notre Dame Law Review Reflection

Although the majority’s outcome was correct, the application of the clear statement rule in this situation seems incorrect. The majority misconstrues the statute not to reach Mrs. Bond’s conduct when it should have done so. The concurrences properly assert that despite the conduct here falling within the clear definition of the statute, the Court should have reversed the conviction on constitutional grounds. As a result of this decision, Congress should now plan to make clarifying statements about the scope of the statute in order to avoid the clear statement problem identified here.

Separately, although only dicta, Justice Scalia’s assertion that …

Between Idealism And Realism: A Few Comparative Reflections And Proposals On The Appointment Process Of The Inter-American Commission And Court Of Human Rights Members, Laurence Burgorgue-Larsen

Notre Dame Journal of International & Comparative Law

In this Article, Professor Laurence Burgorgue-Larsen, a renowned scholar in European and Latin-American law, explores flaws in the process by which members are appointed to the Inter-American Commission and Court of human rights, respectively. Seeking to strike a balance between "Idealism" and "Realism," Burgorgue-Larsen seeks methods for improving the independence and impartiality of the Commissioners and Judges in the Inter-American system in the hopes of ultimately lending greater credibility and legitimacy to the system as a whole. Drawing comparisons to the appointment of judges on national and international courts worldwide, Burgorgue-Larsen ultimately produces specific suggestions for improving the appointment process, …

Death Penalty, Amnesty Laws, And Forced Disappearances: Three Main Topics Of The Inter-American Corpus Juris In Criminal Law, Eduardo Ferrer Mac-Gregor, Pablo GonzáLez DomíNguez

Notre Dame Journal of International & Comparative Law

In this Article, Judge Eduardo Ferrer Mac-Gregor of the Inter-American Court of Human Rights and International Human Rights Researcher Pablo González Domínguez explore three of the richest and most contentious areas of the jurisprudence of the Inter-American Court of Human Rights: death penalty cases, amnesty law, and cased regarding forced disappearance. These topics encompass some of the most pressing human rights issues in the Inter-American System. For each topic, Ferrer Mac-Gregor and González Domínguez provide a succinct but comprehensive view of the Inter-American Court's jurisprudence, discuss the ways in which the core principles of this jurisprudence have been applied in …

Protecting Freedom Of Expression Over The Internet: An International Approach, Alan Sears

Notre Dame Journal of International & Comparative Law

Writing primarily in 2013, Alan Sears examines different aspects of the international legal framework as to how freedom of expression over the Internet may be protected. Even though the Internet has largely incorporated the concept of freedom of expression from its inception, the need for such protection has become increasingly evident. States around the world have progressively cracked down on Internet speech, a trend highlighted by recent events occurring during the Arab Spring. Alan thus focuses on the Middle East when exploring how Internet governance may be shaped, and human rights and trade agreements may be utilized, in order to …

The Relationship Between Inter-American Jurisdiction And States (National Systems): Some Pertinent Questions, Sergio GarcíA RamíRez

Notre Dame Journal of International & Comparative Law

In this Article, Judge Sergio García Ramírez of the Inter-American Court of Human Rights explores the complex and often vexing relationship between the Inter-American Human Rights system and the domestic human rights protections within the system's member states. García Ramírez identifies a number of challenges to implementing human rights protections in Latin America, many of which are rooted in a history of authoritarianism in the twentieth century and the nascent nature of the region's democratic institutions. Yet he sees solutions in the role of the Inter-American Court in the region. García Ramírez highlights the Court's role in interpreting international human …

Letter From The Editor, Trista Turley

Notre Dame Journal of International & Comparative Law

Editor-in-Chief Trista Turley writes to introduce Volume 5 of the Notre Dame Journal of International and Comparative Law.

The Rules And The Reality Of Petition Procedures In The Inter-American Human Rights System, Dinah Shelton

Notre Dame Journal of International & Comparative Law

In this Essay, Professor Dinah Shelton draws on her personal experience as a member of the Inter-American Commission on Human Rights to discuss the underlying causes of a "crisis of commitment" to the Inter-American system of human rights. Shelton traces the roots of this crisis in large part to the Inter-American petition procedures. Giving an in-depth account of the structure of the Inter-American Commission on Human Rights and the details of the petition procedures, Shelton explores the issues of legitimacy, transparency, effectiveness, and efficiency raised by various aspects of the petitioning process, and discusses the various ways in which these …

The Anglo-Latin Divide And The Future Of The Inter-American System Of Human Rights, Paolo Carozza

Notre Dame Journal of International & Comparative Law

A former President of the Inter-American Commission on Human Rights, Paolo Carozza draws on his personal experience to identify and propose solutions for a key flaw in the Inter-American Human Rights System: the division between English-language member states and states with Latin-based languages. Terming this division "The Anglo-Latin Divide," Carozza traces the division not only to linguistic difference, but also to differences in legal traditions. He explains how the differences between Anglo tradition of common law and the Latin tradition of civil law manifest in both substantive and procedural divides within the Inter-American Human Rights system, including in sensitive areas …

Saving The Paper Tiger: Biodiversity As An Irreplaceable Element Of Our Common Cultural Heritage, Lisa Meissner

Notre Dame Journal of International & Comparative Law

This Note examines the role of international law and human rights in the conservation of global biodiversity as an element of our shared cultural heritage. International instruments like the Convention on the International Trade in Endangered Species of Wild Fauna and Flora and the World Heritage Convention have changed the discourse of international conservation law by connecting natural resources, including animal species, to incentives-based structures in local or regional communities. Such a legal foundation is critical to engaging with evolving international concepts of sustainable development and rural livelihoods protection that promote making biodiversity conservation cognizably valuable to humanity, both tangibly …

Justice Among Nations: A History Of International Law, Gerard V. Bradley

Journal Articles

NEFF, Stephen C. Justice Among Nations: A History of International Law. Cambridge, Mass.: Harvard University Press, 2014. 628 pp. Cloth, $45.00.

This magisterial work is not a "history of international law" in the most conventional senses of the term. The author is not concerned to identify the origins or to trace the rise and fall of specific norms of international law. Nor does he provide a history of institutions which traverse national borders. This is not a book about globe-rattling events, such as world wars, era-defining treaties (Westphalia, Versailles), or the comings and goings of great men (Caesar, Churchill). …

The Just War Tradition And International Law Against War: The Myth Of Discordant Doctrines, Mary Ellen O'Connell

Journal Articles

The international law regulating resort to armed force, still known by the Latin phrase, the jus ad bellum, forms a principal substantive subfield of international law, along with human rights law, international environmental law, and international economic law. Among theologians, philosophers, and political scientists, just war theory is a major topic of study. Nevertheless, only a minority of scholars and practitioners know both jus ad bellum and just war theory well. Lack of knowledge has led to the erroneous view that the two areas are in conflict. This article responds to this misapprehension, explaining the deep compatibility of international law …

The Anglo-Latin Divide And The Future Of The Inter-American System Of Human Rights, Paolo G. Carozza

Journal Articles

A former President of the Inter-American Commission on Human Rights, Paolo Carozza draws on his personal experience to identify and propose solutions for a key flaw in the Inter-American Human Rights System: the division between English-language member states and states with Latin-based languages. Terming this division "The Anglo-Latin Divide," Carozza traces the division not only to linguistic difference, but also to differences in legal traditions. He explains how the differences between Anglo tradition of common law and the Latin tradition of civil law manifest in both substantive and procedural divides within the Inter-American Human Rights system, including in sensitive areas …

Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim

Notre Dame Law Review

This Article explores the unique separation of powers issues raised in the immigration context, focusing on the respective powers of Congress and the President to preempt state law. Pursuant to traditional understanding, Congress and only Congress is constitutionally vested with the authority to displace conflicting state laws. Outside of the immigration context, the Supreme Court nonetheless has invoked competing theories of executive power to justify extending preemptive effect to administrative decisions. At the same time, however, it has imposed significant doctrinal restrictions on its exercise. In its recent decision in Arizona v. United States, the Court departed from these existing …

Labor In Faith: A Comparative Analysis Of Hosanna-Tabor V. Eeoc Through The European Court Of Human Rights' Religious Employer Jurisprudence, Francesca M. Genova

Notre Dame Law Review

This Note uses the European Court of Human Rights’ framework to analyze the Supreme Court’s decision in Hosanna-Tabor v. Equal Employment Opportunity Commission, which recognizes a “ministerial exception” for religious organizations as a defense to certain employment claims. It argues that the unanimous Supreme Court in Hosanna-Tabor examines factors similar to those of its European counterpart, but protects religious liberties more robustly by avoiding some of the European Court’s preoccupations. Yet, the European Court’s assessment anticipates the difficulties of applying the “ministerial exception” in future cases.

The Three Lives Of The Alien Tort Statute: The Evolving Role Of The Judiciary In U.S. Foreign Relations, Thomas H. Lee

Notre Dame Law Review

This Article explains how the Alien Tort Statute (ATS) began in the late eighteenth century as a national security statute that the First Congress and early federal district judges saw as a way to afford damages remedies to British merchants, creditors, and other subjects whose persons or property were injured under circumstances in which treaties or the law of nations assigned responsibility to the United States. Torts committed within the United States by private American citizens were the most likely such circumstances. The ultimate aims of the statute were to avoid renewed war with Great Britain and the other European …

The Ats Cause Of Action Is Sui Generis, William R. Casto

Notre Dame Law Review

In Kiobel v. Royal Dutch Petroleum Co., the Court considered the extraterritorial reach of the tort action for violations of customary international law. Kiobel was a “foreign-cubed” case in which a foreign plaintiff sued a foreign defendant for damages arising from conduct in a foreign country. The Justices wrote four different opinions, but they were unanimous in refusing to create a federal common law tort remedy in a foreign-cubed case. At least they were unanimous in holding that a remedy is not available in a case like Kiobel. Some, including the present author, are disappointed in the Court’s decision. But …

Resisting Rulemaking: Challenging The Montana Settlement's Title Ix Sexual Harassment Blueprint, Katie Jo Baumgardner

Notre Dame Law Review

Every university and college across the nation—with the exception of three—accepts federal financial assistance. Consequently, in the world of higher education, the impact of administrative regulation and compliance that accompanies federal funding cannot be overstated. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities operated by recipients of federal financial assistance. The text of Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program …

Kiobel Surprise: Unexpected By Scholars But Consistent With International Trends, Eugene Kontorovich

Notre Dame Law Review

A primary function of legal scholarship is to incubate ideas to inform the bench and bar. Yet several Supreme Court Justices have recently spoken out publicly about what they consider the growing irrelevance of academic legal scholarship (though empirical findings suggest the continued utility of law reviews to judges). The legal academy sometimes entirely misses what turn out to be major and decisive legal issues in prominent areas, not recognizing them at an early stage and dismissing their importance later on. For example, the great majority of professors dismissed the notion that the Patient Protection and Affordable Care Act (Obamacare) …

Alien Tort Litigation: The Road Not Taken, William S. Dodge

Notre Dame Law Review

When the Second Circuit decided in Filartiga v. Pena-Irala that the Alien Tort Statute (ATS) provided a federal forum for international human rights claims, no one would have predicted that thirty-three years later in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court would use the presumption against extraterritoriality to limit those claims. This Essay recounts some of the doctrinal developments in alien tort litigation during the intervening thirty-three years.

Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Doug Cassel

Notre Dame Law Review

In this author’s view, the concurring Justices are correct in allowing ATS suits against Americans for foreign torts. And contrary to narrow readings by some lower courts, even the majority’s rationale allows space for ATS causes of action for torts committed by Americans overseas. Kiobel was a suit by foreign plaintiffs, against foreign defendants, for foreign conduct. In that “foreign-cubed” case, the limited American jurisdictional interests at stake—mainly to afford redress for heinous international torts—were not enough to persuade the majority to overcome its presumption against extraterritorial application. Nor were they enough to convince the four Justices concurring in the …

Overhauling Esa Private Land Provisions In Light Of The Renewable Energy Boom On Federal Public Lands, Blair M. Warner

Notre Dame Law Review

Many of us are familiar with the recent rise in renewable energy development in the United States. What we are not as familiar with, however, is the story of the Mojave desert tortoise and how it succeeded in shutting down for three months what remains the largest solar energy project in the world. Taking a step back, the Endangered Species Act (ESA), now forty years old, has plodded along at a slow and steady pace, with Congress slowly chipping away at the ESA until it was transformed from “prohibitive to permissive.” While the ESA has had the benefit of a …