International Law
Interrogation's Law
118 Yale L.J. 1434 (2009). Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.
Medellin and the Future of International Delegation
118 Yale L.J. 1712 (2009). Given the rise of globalization and the need for international governance of problems of the commons, the delegation of binding domestic authority to international agents is likely to be an issue of growing importance. This Essay considers the extent to which U.S. law imposes constraints on such delegations and the extent to which those constraints will influence the structure of international delegations. International delegations of domestic authority raise even more profound problems of agency costs and democratic deficit than purely domestic delegations. The Supreme Court’s recent decision in Medellín v. Texas reflects these concerns. By requiring a clear statement in U.S. law before giving domestic effect to the decision of an international agent (in this case the International Court of Justice), the Supreme Court raised the enactment costs of domestic delegations. Because the Court did not find such a clear statement in the treaties at issue in Medellín, it left unaddressed whether the Constitution otherwise constrains international delegations of domestic authority. The Essay considers the implications of four models—the administrative law model, the categorical constraint model, the categorical permission model, and the treaty model—for the policing of international delegations domestically and the improvement of such delegations internationally. It suggests that the treaty model—one by which the President and the Senate must authorize such delegations by treaty—may best reflect the original meaning of the Constitution. The Treaty Clause’s requirement that such delegations be approved by a supermajority ex ante may also help address their ex post agency costs and democratic deficit.
Our Imperial Criminal Procedure: Problems in the Extraterritorial Application of U.S. Constitutional Law
118 Yale L.J. 1660 (2009). From the early days of the Republic, courts have encountered the question of whether and to what extent provisions of the Constitution establishing individual rights have force beyond the borders of the United States—that is, whether the Constitution has “extraterritorial” force. Despite nearly two centuries of decisions on this issue, the law remains unsettled, and no framework for analyzing these claims is clearly defined, much less well established. This Essay draws on that body of decisions to develop an approach for evaluating whether a particular constitutional provision should have overseas application in a particular case. In so doing, it considers competing theories of the Constitution—one envisioning the document as a “compact” between the government and the governed, and the other construing it as a charter from which “organically” flow both the power of the government and the limitations of that power—and how these competing theories shape views on whether constitutional provisions should have force abroad. The question of extraterritorial applicability has arisen in numerous contexts in our history, including continental expansion, colonial administration, and conventional war. In modern times, however, we see it raised most often in the context of criminal prosecutions and antiterror operations. Because the focus of this Essay is on contemporary criminal prosecutions, it examines the basis in international law for a nation to prosecute individuals residing beyond its borders. It then discusses the body of law addressing the question of extraterritorial application and, avoiding a rigid, dogmatic theory, gleans from these decisions a set of considerations that can guide future decisionmaking in this complex area of law.
The Constitutional Power To Interpret International Law
118 Yale L.J. 1762 (2009). What is the force of international law as a matter of U.S. law? Who determines that force? This Essay maintains that, for the United States, the U.S. Constitution is always supreme over international law. To the extent that the regime of international law yields determinate commands in conflict with the Constitution’s commands or assignments of power, international law is, precisely to that extent, unconstitutional. Further, the force of treaties (and executive agreements) to which the United States is a party is always subject to the constitutional powers of Congress and the President to supersede or override them as a matter of U.S. domestic law. It follows from the Constitution’s allocation of power exclusively to U.S. constitutional actors that the power to interpret, apply, enforce—or disregard—international law, for the United States, is a U.S. constitutional power not properly subject to external direction and control. The power “to say what the law is,” including the power to determine the content and force of international law for the United States, is a power distributed and shared among the three branches of the U.S. government. It is not a power of international bodies or tribunals. This understanding of the relationship of international law to the U.S. Constitution’s allocation of powers in matters of war and foreign affairs has important implications for many contemporary issues and the United States’s actions with respect to compliance with international treaties and other international law norms in the areas of criminal law enforcement, the conduct of war, war prisoner detention and interrogation practices, and the imposition of military punishment on unprivileged enemy combatants.
Treaties' End: The Past, Present, and Future of International Lawmaking in the United States
117 Yale L.J. 1236 (2008). Nearly every international agreement that is made through the Treaty Clause should be approved by both houses of Congress as a congressional-executive agreement instead. In making this case, this Article examines U.S. international lawmaking through empirical, comparative, historical, and policy lenses. U.S. international lawmaking is currently haphazardly carved up between two tracks of international lawmaking, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two. Moreover, the process for making international law that is outlined in the U.S. Constitution is close to unique in cross-national perspective. To explain how the United States came to have such a haphazard and unusual system, this Article traces the history of U.S. international lawmaking back to the Founding. The rules and patterns of practice that now govern were developed in response to specific contingent events that for the most part have little or no continuing significance. The Treaty Clause process is demonstrably inferior to the congressional-executive agreement process as a matter of public policy on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, this Article concludes by charting a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with ex post congressional-executive agreements, policymakers can make America’s domestic engagement with international law more sensible, effective, and democratic.
Antislavery Courts and the Dawn of International Human Rights Law
117 Yale L.J. 550 (2008). Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts were the first international human rights courts. Over the lifespan of the treaties, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every five or six ships involved in the transatlantic slave trade. Historians have given these international antislavery courts scant attention, and legal scholars have almost completely ignored the courts. Most legal scholars view international courts and international human rights law as largely a post-World War II phenomenon, with the Nuremberg trials of the Nazi war criminals as the seminal moment in the turn to international law as a mechanism for protecting individual rights. But in fact, contrary to the conventional wisdom, the nineteenth-century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features. The history of the antislavery courts also reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge. Moreover, the antislavery movement’s use of international law and legal institutions as part of a broader social, political, and military strategy can help us better understand the potential role of international law today in bringing about improvements in human rights.
Enforcing the Treaty Rights of Aliens
117 Yale L.J. 680 (2008). Despite the Supremacy Clause’s declaration that treaties are the “Law of the Land,” efforts to incorporate treaties that guarantee individual rights into domestic law have been stymied by a wave of political opposition. Critics argue that giving these treaties the force of domestic law would be inconsistent with constitutional values like sovereignty, democracy, federalism, and separation of powers. This Note analyzes these four critiques and demonstrates that the values critics seek to protect are not jeopardized by the extraterritorial application of treaty-based rights or the domestic enforcement of treaties that guarantee rights specific to aliens. With that discovery in mind, this Note proposes to incorporate such treaties into U.S. law in a way that both affirms constitutional values and promotes the rule of law in foreign affairs.
Concession Agreements:From Private Contract to Public Policy
117 Yale L.J. 510 (2007). Many concession agreements between governments of developing countries and corporations have failed to produce expected infrastructural, monetary, and efficiency gains. This Note argues that these agreements fail in part because the parties construct them as traditional private contracts. Given their subject matter, their noneconomic focus and purposes, and the ways in which they shape future economic development strategy, international policymakers and business leaders should conceptually and procedurally recast concession agreements as traditional matters of public policy. This reinterpretation will make the agreements more stable and successful by making their costs and benefits more transparent, their drafters more accountable to the populations they are intended to benefit, and their terms more responsive to the concerns of those populations.
Piercing China's Corporate Veil: Open Questions from the New Company Law
117 Yale L.J. 329 (2007).
Designing a Constitution-Drafting Process: Lessons from Kenya
This Note examines Kenya’s recent constitution-writing experience as a case study for designing constitution-drafting processes in emerging democracies. Eight years after Kenya’s constitutional review process began, and after a highly acrimonious drafting period, Kenyans roundly defeated a proposed new constitution in a national referendum. This Note describes Kenya’s experience and considers six lessons on designing a constitution-drafting process. It then proposes how a constitution-drafting process in a country like Kenya might have been more effectively designed. 116 Yale L.J. 1824 (2007).
Chevronizing Foreign Relations Law
116 Yale L.J. 1170 (2007) A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns. For example, courts usually interpret ambiguous statutes to conform to international law and understand them not to apply outside of the nation’s territorial boundaries. The international comity doctrines are best understood as a product of a judicial judgment that in particular contexts the costs of deference to foreign interests are lower than the benefits to American interests. Sometimes Congress balances these considerations and incorporates its judgment in a statute, but usually it does not. In such cases, executive interpretations should be permitted to trump the comity doctrines, as long as those interpretations are reasonable. This conclusion is supported both by considerations of institutional competence and by the distinctive position of the President in the domain of foreign affairs. It follows that if the executive wants to interpret ambiguous statutes to conflict with international law or to apply extraterritorially, it should be permitted to do so. The analysis of the interpretive power of the executive can be justified by reference to the Chevron doctrine in administrative law, which similarly calls for deference to executive interpretation of statutory ambiguities. Sometimes the Chevron doctrine literally applies to executive interpretations; sometimes it operates as a valuable analogy. At the same time, the Chevron principle is qualified by doctrines requiring a clear congressional statement, especially when constitutionally sensitive rights are involved. These claims have many implications for legal issues raised by the war on terror, including those explored in the Hamdi and Hamdan cases.
Disregarding Foreign Relations Law
116 Yale L.J. 1230 (2007) What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference that courts accord executive interpretations of law in the foreign affairs context. They maintain that courts should presumptively give Chevron-style deference to executive interpretations of foreign relations law—even if the executive interpretation is articulated only as a litigation position, and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference under their proposal—namely, those involving foreign relations law that operates in what we call the “executive-constraining zone.” Courts have scrutinized, and should continue to scrutinize, executive interpretations of international law that has the status of supreme federal law, that is made at least in part outside the executive, and that conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the President in ways that would subvert the nation’s interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard and that law-interpreting authority at some point effectively constitutes lawbreaking authority.
