scholarly journals International Law in the U.S. Legal System

2015 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
International Law ◽  
Legal System ◽  
The United States ◽  
Executive Branch ◽  
Criminal Prosecution ◽  
Sovereign Immunity ◽  
War Powers ◽  
System P ◽  
Jus Cogens ◽  
The U.S

This book provides an overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. The book covers all of the principal forms of international law: treaties, decisions and orders of international institutions, customary international law, and jus cogens norms. It also explores a number of issues that are implicated by the intersection of U.S. law and international law, such as the use of “executive agreements” in lieu of treaties, foreign sovereign immunity, international human rights litigation under the Alien Tort Statute, war powers, extradition, international criminal prosecution, and extraterritoriality. The book highlights recent decisions and events relating to the topic (including decisions and events arising out of the war on terrorism), while also taking into account relevant historical materials, including materials relating both to the U.S. constitutional founding and to long-standing practices of Congress and the executive branch.

scholarly journals International Law in the US Legal System

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
United States ◽  
International Law ◽  
Legal System ◽  
Separation Of Powers ◽  
The United States ◽  
Foreign Affairs ◽  
Sovereign Immunity ◽  
War Powers ◽  
Jus Cogens ◽  
The U.S

International Law in the U.S. Legal System provides a wide-ranging overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. Curtis Bradley explains the structure of the U.S. legal system and the various separation of powers and federalism considerations implicated by this structure, especially as these considerations relate to the conduct of foreign affairs. Against this backdrop, he covers all of the principal forms of international law: treaties, executive agreements, decisions and orders of international institutions, customary international law, and jus cogens norms. He also explores a number of issues that are implicated by the intersection of U.S. law and international law, such as treaty withdrawal, foreign sovereign immunity, international human rights litigation, war powers, extradition, and extraterritoriality. This book highlights recent decisions and events relating to the topic, including various actions taken during the Trump administration, while also taking into account relevant historical materials, including materials relating to the U.S. Constitutional Founding. Written by one of the most cited international law scholars in the United States, the book is a resource for lawyers, law students, legal scholars, and judges from around the world.

The Fourth Restatement, International Law, and the “Terrorism” Exception to the Foreign Sovereign Immunities Act

2020 ◽  
pp. 391-410
Author(s):  
Beth Stephens
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Executive Branch ◽  
Human Rights Violations ◽  
Sovereign Immunity ◽  
The Law ◽  
The U.S

This chapter evaluates the “terrorism” exception to the Foreign Sovereign Immunities Act (FSIA). The Fourth Restatement of Foreign Relations Law of the United States sets out to “restate” the law of the United States and “relevant portions of international law,” not to critique U.S. law or settle debates about the content of international law. However, that task is complicated when the law of the United States triggers questions about unresolved international law issues. The “terrorism” exception to the FSIA illustrates this complexity. Congress, the executive branch, and the judiciary have employed the exception as a politically motivated weapon to target disfavored states, while excluding U.S. allies, politically powerful states, and the United States itself from the reach of the statute. The text of the Fourth Restatement merely restates the U.S. law governing the “terrorism” exception, without identifying international law concerns or analyzing the issues they raise. The chapter, by contrast, offers a critique of the “terrorism” exception, focusing on the statute as written, as amended to reach particular targets, and as applied in practice. A well-crafted statutory exception to sovereign immunity for state human rights violations would be a welcome addition to human rights accountability. The “terrorism” exception falls far short of that goal.

scholarly journals THE OBLIGATION TO PROSECUTE HEADS OF STATE UNDER THE ROME STATUTE OF THE INTERNATONAL CRIMINAL COURT (ICC) AND CUSTOMARY INTERNATIONAL LAW: THE AFRICAN AND U.S. PERSPECTIVES

2019 ◽  
Vol 7 (1) ◽  
pp. 33-56
Author(s):  
Fareed Mohd Hassan ◽  
Noor Dzuhaidah Osman
Keyword(s):  
International Law ◽  
Rome Statute ◽  
The United States ◽  
Trial Chamber ◽  
Criminal Court ◽  
Criminal Prosecution ◽  
Customary International Law ◽  
Head Of State ◽  
Jus Cogens ◽  
Heads Of State

The United States (U.S.), a Signatory, but not a State Party to the Rome Statute, entered into various Bilateral Agreements (BIAs) with almost all State Parties to the Rome Statute prohibiting the arrest, surrender, or prosecution of the US Head of State before the International Criminal Court (ICC). Similarly, the African Union (AU) Members, being the majority State Parties to the Rome Statute have decided in the AU Assembly of Heads of State and Government not to cooperate with the ICC and to grant immunity to African Heads of State after the ICC Pre-Trial Chamber issued two arrest warrants against the Sudanese President for allegedly committing genocide, crimes against humanity and war crimes. This paper examines the tension between States’ obligations under the Rome Statute to prosecute, surrender and arrest a head of State, including when referred to by the UN Security Council on the one hand, and the AU decision, the U.S. BIAs and customary international law which grants immunity to a sitting head of State from criminal prosecution by either an international or a foreign court on the other hand. It argues that States are bound by the obligations enshrined under the Rome Statute and both the AU decision and the BIAs are inconsistent with the duty of states to uphold jus cogens norms including those proscribed under the Rome Statute

10 War Powers and the War on Terrorism

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
International Law ◽  
The United States ◽  
Legal Issues ◽  
War On Terrorism ◽  
Targeted Killing ◽  
War Powers ◽  
Self Defense ◽  
Geneva Conventions ◽  
Collective Self ◽  
The U.S

This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war, and it also discusses a variety of international law-related issues that have arisen in connection with the “war on terrorism” following the attacks of September 11, 2001. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the president, as well as the contours of the 1973 War Powers Resolution. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the president’s war authority. The chapter also discusses legal issues relating to the placement of U.S. troops under foreign or UN command. The chapter then shifts to the “war on terrorism,” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.

4 Decisions and Orders of International Institutions

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Legal System ◽  
International Institutions ◽  
The United States ◽  
Criminal Court ◽  
Vienna Convention ◽  
System P ◽  
International Court ◽  
The Status ◽  
History Of ◽  
The U.S

This chapter considers the status in the U.S. legal system of decisions and orders of international institutions to which the United States is a party. It begins with a description of various constitutional doctrines and principles that are potentially implicated by delegations of authority to international institutions, as well as general concerns that have been raised about such delegations relating to democratic accountability. The chapter also recounts the long history of U.S. engagement with international arbitration and the constitutional debates that this engagement has sometimes triggered. Extensive consideration is given to litigation concerning the consular notice provisions in the Vienna Convention on Consular Relations, including efforts by criminal defendants to enforce decisions by the International Court of Justice (ICJ) interpreting these provisions. The U.S. relationship with other international institutions, such as the World Trade Organization and the International Criminal Court, are also considered. The chapter concludes by discussing the extent to which constitutional concerns relating to international delegations can be adequately addressed by presuming that the orders and decisions of international institutions are non–self-executing in the U.S. legal system.

10 War Powers and the War on Terrorism

2015 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
War On Terrorism ◽  
Targeted Killing ◽  
War Powers ◽  
Self Defense ◽  
Geneva Conventions ◽  
Collective Self ◽  
The U.S

This chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. After briefly reviewing some of the most relevant treaties relating to war and warfare, the chapter considers the Constitution’s distribution of war authority between Congress and the President. It then discusses how international law, including the provisions in the UN Charter relating to the authority of the Security Council, as well as collective self-defense treaties, might affect the President’s war authority. The chapter then shifts to the “war on terrorism” and discusses the relevance of international law, including the Geneva Conventions, to issues concerning the scope of the military’s detention authority in that conflict, with particular reference to the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld. International law and other issues relating to the use of military commissions to try terrorist suspects are also considered. The chapter concludes by discussing legal debates relating to coercive interrogation and targeted killing.

4 Decisions and Orders of International Institutions

2015 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Legal System ◽  
International Institutions ◽  
International Criminal ◽  
The United States ◽  
Criminal Court ◽  
Vienna Convention ◽  
System P ◽  
The Status ◽  
History Of ◽  
The U.S

This chapter considers the status in the U.S. legal system of decisions and orders of international institutions to which the United States is a party. It begins with a description of various constitutional doctrines and principles that are potentially implicated by delegations of authority to international institutions. The chapter also recounts the long history of U.S. engagement with international arbitration and the constitutional debates that this engagement has sometimes triggered. Extensive consideration is given to litigation concerning the consular notice provisions in the Vienna Convention on Consular Relations. The U.S. relationship with other international institutions, such as the World Trade Organization and the International Criminal Court, are also considered. The chapter concludes by considering the extent to which constitutional concerns relating to international delegations are adequately addressed by presuming that the orders and decisions of international institutions are non–self-executing in the U.S. legal system.

Questions

2018 ◽  
Author(s):  
James L. Gibson ◽  
Michael J. Nelson
Keyword(s):  
United States ◽  
African Americans ◽  
Supreme Court ◽  
Legal System ◽  
Public Support ◽  
The United States ◽  
Future Research ◽  
White Americans ◽  
Two Factors ◽  
The U.S

We have investigated the differences in support for the U.S. Supreme Court among black, Hispanic, and white Americans, catalogued the variation in African Americans’ group attachments and experiences with legal authorities, and examined how those latter two factors shape individuals’ support for the U.S. Supreme Court, that Court’s decisions, and for their local legal system. We take this opportunity to weave our findings together, taking stock of what we have learned from our analyses and what seem like fruitful paths for future research. In the process, we revisit Positivity Theory. We present a modified version of the theory that we hope will guide future inquiry on public support for courts, both in the United States and abroad.

Foreign Relations Law

2019 ◽  
pp. 43-61
Author(s):  
Karen Knop
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
Comparative Law ◽  
The United States ◽  
Legal Systems ◽  
The U.S

The two starting points for this chapter are that fields of law are inventions, and that fields matter as analytical frames. All legal systems deal with foreign relations issues, but few have a field of “foreign relations law.” As the best-stocked cabinet of issues and ideas, U.S. foreign relations law would be likely to generate the field elsewhere in the process of comparison. But some scholars, particularly outside the United States, see the nationalist or sovereigntist strains of the U.S. field, and perhaps even just its use as a template, as demoting international law. The chapter begins by asking whether this apprehension can be alleviated by using international law or an existing comparative law field to inventory the foreign relations issues to be compared. Finding neither sufficient, it turns to the U.S. field as an initial frame and sketches three types of anxieties that the U.S. experience has raised or might raise for international law. The chapter concludes by suggesting how Campbell McLachlan’s allocative conception of foreign relations law might be adapted so as to turn such anxieties about international law into opportunities.

scholarly journals Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom

Laws ◽  
2021 ◽  
Vol 10 (1) ◽  
pp. 12
Author(s):  
Paul Baumgardner
Keyword(s):  
United States ◽  
Supreme Court ◽  
Legal System ◽  
Religious Freedom ◽  
The United States ◽  
Religious Practices ◽  
The Past ◽  
The U.S

When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the “Pandemic Court”, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards.

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