International Law
Presidential Power to Terminate International Agreements
Can President Trump unilaterally withdraw the United States from any and all international agreements to which the United States is a party? This Essay argues that constitutional, functional, and comparative-law considerations dictate that the answer is a resounding “no.”
Exceptional Judgments: Revising the Terrorism Exception to the Foreign Sovereign Immunities Act
Rogue states are sometimes charged with massive default judgments for state-sponsored terrorism. Frequently, those judgements apportion responsibility to states that were not involved in terrorism and frustrate diplomatic progress. This Comment proposes a novel administrative solution to make claims against foreign states for supporting terrorism more just and effective.
International Lobbying Law
Consultation rules allow nonstate actors to gain special access to international institutions. While consultation once was understood as a means of democratizing international institutions, today, many consultants are industry and trade associations. This Article reframes these rules as a body of lobbying regulations, introducing a theory of international lobbying law.
When Stopping the Smuggler Means Repelling the Refugee: International Human Rights Law and the European Union's Operation To Combat Smuggling in Libya’s Territorial Sea
Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror
Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law
Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking
How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreign relations scholars since the Case Act, is dying or dead. In 2013, as State Department Legal Adviser, I argued that: In the twenty-first century . . . we are now moving to a whole host of less crystalline, more nuanced forms of international legal engagement and cooperation that do not fall neatly within any of these three pigeonholes . . . . [O]ur international legal engagement has become about far more than just treaties and executive agreements. We need a better way to describe the nuanced texture of the tapestry of modern international lawmaking and related activities that stays truer to reality than this procrustean construct that academics try to impose on a messy reality. This Essay seeks to offer that better conceptual framework to evaluate the legality of modern international lawmaking. It illustrates that framework through two recent case studies of modern U.S. diplomacy: the Paris Climate Change Agreement and the Iran Nuclear Deal.
The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
Democracy and Legitimacy in Investor-State Arbitration
In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department’s refusal to permit the construction of an oil pipeline between Canada and Nebraska. TransCanada claims that the State Department ignored its own favorable environmental assessments of the pipeline multiple times and rejected the proposal to placate misinformed activists and foreign governments. The State Department acknowledges that it denied the permit to enhance the Obama Administration’s credibility at the 2015 United Nations Climate Change Conference in Paris, with the long-term goal of reducing emissions through collective political action.