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Begin New Search Political Geography North America Publishing Institution Center for Global Legal Challenges, Yale Law School

1. Black Lives Matter Might Just Rescue American Democracy

Author:
Oona A. Hathaway and Daniel Markovits
Publication Date:
06-2020
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The past weeks in the United States have produced two horrifying varieties of violence. First, and all too familiar, the police killings of Breonna Taylor in Louisville, George Floyd in Minneapolis, and Rayshard Brooks in Atlanta follow a long and awful tradition of brutal state violence directed against Black Americans, beginning with chattel slavery and extending through the fugitive slave laws, lynchings, and right up to the present. The Black Lives Matter movement, which rose to prominence after earlier police killings of Eric Garner in New York City and Michael Brown in Ferguson, Missouri, rightly emphasizes this terrible lineage and contends that achieving racial justice today requires coming to terms with the past. Second, and less familiar, we see an American president openly embracing tools of authoritarian rule. President Donald Trump has incited violence against peaceful protesters, threatening to use “vicious dogs” and “ominous weapons” against them and demanding that the authorities “dominate” citizens gathered to express their values. At the same time, the police have responded with documented instances of violence against members of the press seeking to cover the protests, while military units and military equipment have been deployed against peaceful protesters in Washington D.C. and threatened against protesters throughout the country. These two injustices — racism and authoritarianism — may seem merely to coincide, perhaps because of the person who happens now to occupy the White House. But they are, at least at this moment in American history, deeply intertwined. The writer Akilah Green observes (in a Tweet) that “Police are now brutalizing everyone just to maintain their ability to brutalize black people.” This is more than a Twitter slogan: it captures a deep and powerful social logic.
Topic:
Law Enforcement, Social Movement, Democracy, Protests, and Black Lives Matter (BLM)
Political Geography:
North America and United States of America

2. Saudi Coalition “Admission” of Error in Bombing Cholera Treatment Center Implicates the United States

Author:
Oona A. Hathaway
Publication Date:
01-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In June 2018, the U.S.-supported Saudi led coalition struck a cholera treatment center run by Médecins Sans Frontières/Doctors Without Borders (MSF) in Yemen. A recent internal investigation released by the coalition tries to lay the blame for the strike on MSF. But tucked into the report is a cryptic admission that the coalition did not “complete the necessary procedures used by the Coalition Forces” before undertaking the strike. This suggests that the coalition has not stuck to a deal it made with the United States to maintain U.S. support by properly vetting strikes, leaving the United States and its personnel legally exposed for continuing to support operations that violate international humanitarian law.
Topic:
International Law, Military Strategy, Humanitarian Crisis, and Air Force
Political Geography:
Middle East, Yemen, Saudi Arabia, North America, and United States of America

3. Bolton’s Stated Predicate for War With Iran Doesn’t Work

Author:
Oona A. Hathaway
Publication Date:
05-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The President’s National Security Advisor John Bolton has long been beating the drums of war with Iran. Those drums are growing louder. In the last month, Bolton has repeatedly threatened that Iran’s support for its “proxies” could bring “a very strong response”—even military force. By threatening military action against Iran in retaliation for the acts of groups it supports, Bolton is trying to frame a war on Iran as a justified—even righteous—act of self-defense even if he cannot prove that Iran itself has participated in any attacks. Such a war would, however, be illegal.
Topic:
Foreign Policy, Diplomacy, Military Strategy, Law, and Conflict
Political Geography:
Iran, Middle East, North America, and United States of America

4. The Missing State Department Memo on US Officials’ Possible Aiding and Abetting Saudi War Crimes

Author:
Oona A. Hathaway
Publication Date:
07-2019
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
Today the Senate Foreign Relations Committee is set to consider dueling bills on Saudi Arabia. A bill sponsored by Senator Robert Menendez (D-N.J.), would block arms sales to the Kingdom and in-flight refueling of Saudi aircraft. This largely mirrors a series of measures passed in the House on July 17 to block the sale of billions of dollars of arms to Saudi Arabia and the United Arab Emirates. But in an unusual move, Committee Chairman Jim Risch (R-Idaho) broke comity to put forward his own separate bill focused more narrowly on the killing of journalist Jamal Khashoggi that would merely deny visas to a few Saudi government officials and require that the secretary of state conduct a review of the United States’ relationship with the country. In all likelihood, this is the bill that will advance, allowing the U.S. sales of arms to Saudi Arabia to continue.
Topic:
Foreign Policy, International Law, International Trade and Finance, Arms Trade, and Humanitarian Crisis
Political Geography:
Middle East, Saudi Arabia, North America, and United States of America

5. General Principles Regarding the Legal Validity of RUD

Author:
Eric Chung
Publication Date:
12-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This paper examines the legal validity of reservations, understandings, and declarations (RUDs) in both U.S. and international courts. The analysis is based on 46 U.S. cases discussing RUDs as a general category and 26 U.S. cases discussing interpretative understandings and declarations, out of approximately 650 reviewed cases. The analysis is also based on 13 cases from international courts out of approximately 300 reviewed cases, including cases from the International Court of Justice (ICJ), the United Nations Convention on the Law of the Sea (UNCLOS) tribunal and arbitral bodies, the European Court of Human Rights, and the Inter- American Court of Human Rights. In the U.S. cases, RUDs are nearly always recognized as valid. For example, non-self- execution reservations in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR) are usually treated as legally controlling. The same is true for the reservation to the ICCPR that reserves the right to use capital punishment on juveniles despite treaty prohibitions, as well as interpretative understandings and declarations defining specific terms used in the CAT. U.S. courts have only questioned the validity of RUDs when they were not properly communicated to other state parties, did not support a contrary interpretation, or focused on issues of wholly domestic concern (although the only case on this point was vacated and is not precedential). In addition, individual circuit judges, writing in dissent, have examined whether RUDs violate the separation of powers principle or are inconsistent with the treaty language and international law. With few exceptions, international courts also usually defer to RUDs. The ICJ has indicated that it can invalidate a reservation as incompatible with the object and purpose of a treaty pursuant to Article 19 of the Vienna Convention on the Law of the Treaties. Yet the ICJ has only invalidated a RUD when it determined that a reservation was in fact an interpretative declaration (as opposed to a reservation modifying the state’s legal obligations under the treaty). This has been particularly important in cases where the treaty in question prohibits reservations, such as the UNCLOS. Rules stipulated by a treaty also shape how other courts review RUDs. The European Court of Human Rights, for instance, applies treaty rules to invalidate RUDs that are of a general character or fail to include a statement of the law concerned. Following a number of practices can reduce a RUD’s vulnerability to invalidation in U.S. and international courts. For U.S. courts, a RUD is extremely unlikely to be questioned if it is documented clearly at the time of ratification and communicated to all treaty parties at the time of ratification. For international courts, a RUD is unlikely to be questioned if, in addition to the above factors, it is not counter to the “object and purpose” of a treaty, it is not objected to by other parties, and it is not a reservation masquerading as an interpretive declaration in a situation where reservations are prohibited by the relevant treaty.
Topic:
Human Rights, Law, Legal Theory, and Courts
Political Geography:
United States of America and North America

6. The Applicability of International and Domestic Immigration Law to Relocated Guantanamo Detainees

Author:
Sarah Weiner
Publication Date:
11-2015
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The physical relocation of detainees from Guantanamo to the United States would not meaningfully alter U.S. obligations under domestic immigration law or international law concerning refoulement. Domestic immigration law would not affect U.S. authority to bring aliens into the United States and to detain those aliens under the laws of war. Detainees would not enter the United States as immigrants, but rather would remain legally “at the border” during their detention. If a detainee secures his release from law-of-war detention, then the United States would be prohibited from transferring the former detainee to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture. This obligation applies equally to detainees held at Guantanamo and in the United States. If the United States could not find a suitable country to accept the former detainee, then the United States may have the authority to hold the alien indefinitely in immigration detention, provided that his custody meets statutory requirements. This authority is constitutionally untested and potentially inconsistent with obligations under international law, but these concerns would apply equally to both Guantanamo- and U.S.-located former detainees.
Topic:
Law, Prisons/Penal Systems, War on Terror, and Detention
Political Geography:
North America, United States of America, and Guantanamo

7. EU Privacy Regulation: Implications for U.S. and EI Law Enforcement

Author:
Carlton Forbes and Jacob Victor
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In January 2012, the European Commission released drafts of two new pieces of legislation that would provide more stringent and more uniform regulation to the processing of electronic data relating to EU citizens. The proposed General Data Protection Regulation would govern the processing of data for general purposes, while the proposed Criminal Justice Directive would govern data processed in the specific context of criminal investigations. The Data Protection Regulation has proven controversial because of the significant number of requirements it imposes on private data processors, including requirements that the processor notify a consumer when her data is shared with a third party, and requirements that processors respect a number of new individual rights, such as the right of a consumer to request that her data be deleted (a.k.a. “the right to be forgotten”). Furthermore, the Regulation would mandate that many non-EU corporations would need to comply with its requirements when processing the data of EU citizens, or face harsh penalties. This memo summarizes the existing EU data protection regime, analyzes the changes proposed by the new Data Protection Regulation and Criminal Justice Directive, and explores the implications of this new legislation for U.S. criminal and national security investigations. We arrive at three main conclusions
Topic:
Law Enforcement, Law, European Union, Regulation, and Legal Theory
Political Geography:
Europe, North America, and United States of America

8. UNCLOS Dispute Settlement in Context: The United States’ Record in International Arbitration Proceedings

Author:
Julia Brower, Christina Koningisor, Ryan Liss, and Michael Shih
Publication Date:
12-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The United Nations Convention for the Law of the Sea (UNCLOS) establishes a compulsory dispute settlement regime for resolving disagreements between member states. Critics of the Convention have argued that the mandatory dispute resolution provisions force member states to cede too much control over the dispute resolution process to an international body. They have also argued that the dispute resolution process is biased against the United States, and that the United States tends to fare poorly in international arbitration proceedings. This report addresses the first criticism by examining possible exceptions to mandatory dispute resolution provisions. At least one Annex VII tribunal has interpreted Article 281(1) of UNCLOS to permit states to contract around the mandatory dispute resolution provision through regional agreements. However, a subsequent tribunal applied a much more constrained interpretation of the Article 281 exception. Ultimately, the impact of this exception will depend upon which interpretation is applied. The report also examines the scope of the Article 298(1)(c) exception, which exempts from binding resolution “disputes in respect of which the Security Council . . . is exercising the functions assigned to it by the [U.N.] Charter.” This exception is not confined to specific subject matters, but it is limited by the procedural difficulties of adding or removing an item from the Security Council’s agenda, as well as by the political costs that such an effort entails. Finally, the report notes that UNCLOS’s compulsory dispute settlement regime is not accompanied by similarly robust enforcement provisions. The report addresses the second criticism by examining the United States’ record in arbitration proceedings under eighteen multilateral treaties containing mandatory dispute resolution provisions, as well as a series of bilateral aviation agreements that provide for mandatory dispute resolution. Fifteen of those agreements have yielded very few readily identifiable arbitration proceedings involving the United States.
Topic:
International Law, United Nations, Legal Theory, and Arbitration
Political Geography:
North America and United States of America

9. Internationally Protected Persons: The Status of Consular Employees

Author:
Ryan Liss
Publication Date:
01-2012
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
This memorandum considers whether consular employees and their family members constitute “internationally protected persons” (IPPs) under 18 U.S.C. § 112. In addition, the memorandum briefly considers whether an assault against the child of a consular employee abroad meets the jurisdictional nexus requirements of 18 U.S.C. § 112, such that the assault could be prosecuted in U.S. courts. It concludes that existing U.S. and foreign law and state practice do not provide a definitive definition of IPPs that either clearly includes or excludes consular employees. Moreover, the status of a consular employee’s child is similarly unclear, as the status of consular employees’ family members depends on that of the employee. However, while a definitive answer is not provided, the travaux preparatoires of the relevant treaties and one U.S. decision at least suggest that consular employees are excluded from the definition of IPPs. Part I explains that the applicable U.S. statutory provisions do not provide an exhaustive definition of who constitutes an IPP. The statute relies instead on the definition of IPPs at international law. In addition, there are no U.S. cases directly on point, so the existing case law does not foreclose the possibility that a consular employee might qualify as an IPP. However, the court’s logic in one case, United States v. Marcano-Garcia,2 which relied on the assault victim’s status as honorary consul under the Vienna Convention on Consular Relations in determining his IPP status, suggests that a consular employee would not fall within the definition. The exclusion of consular employees from the definition of IPPs is also arguably supported by the international treaties that 18 U.S.C. § 112 was drafted to implement, as well as those treaties’ travaux préparatoires. Part II looks to foreign and international law. There are indications in statements made via United Nations reporting processes that some states regard themselves as obligated to protect consular employees. But these statements are vague and are not supported by a similar trend in foreign domestic legislation or foreign case law. Part III shows that even if a consular employee and his or her child qualify as IPPs, the jurisdictional nexus under 18 U.S.C. § 112 must be met. For American courts to exercise jurisdiction in this case, the provision requires that the accused either be a U.S. national or be present on U.S. territory. Having concluded that the law does not support a definitive conclusion regarding whether a consular employee qualifies as an IPP, Part IV concludes by discussing policy considerations both in favor of and against extending such protection to consular employees.
Topic:
Law, Legal Theory, Protected People, and Diplomatic Immunity
Political Geography:
United States of America and North America

10. TACIT AMENDMENTS

Author:
Oona A. Hathaway, Haley Nix, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
As a general rule, the President is “‘without authority, except by and with the advice and consent of the Senate, to modify a treaty provision.’”2 Thus, in amending a treaty, parties effectively sign and ratify a new treaty, to which the standard treaty processes apply. However, numerous treaties have established procedures for modifications to the regime that do not rise to the level of formal amendments to the treaty. This report focuses on such “unratified treaty amendments”—which include what are called “tacit amendments.” Unratified amendments are amendments to treaties that are made without formal Senate ratification.3 They have proven a useful tool in creating robust treaty regimes in a changing world. Just as the use of executive agreements in general has expanded rapidly in the past century,4 treaty regimes increasingly have adopted amendment processes that do not require a full ratification process. And just as executive agreements have raised questions about Senate prerogatives, so too have unratified amendments. There are two primary ways that the U.S. government modifies underlying treaties through an unratified amendment5 —first, through the use of executive agreements; and, second, through the use of tacit amendments. Part I describes how each process works. It argues that both pass constitutional muster so long as the Senate has provided its clear advice and consent to the use of such processes (although not necessarily to the substance of the modifications) in the first instance. Part II outlines and evaluates the various ways in which the Senate has responded to attempts to modify treaties by executive agreement or by tacit amendment in the past. It concludes that the Senate’s requirements of prior notice and its focus on technical provisions, while not always easy to achieve in practice, are sensible ways to maintain Senate prerogatives. Part III concludes.
Topic:
Foreign Policy, Treaties and Agreements, Domestic politics, and Federalism
Political Geography:
North America and United States of America