Congress recently enacted significant reforms to the laws governing the reporting and publication of international agreements in the United States. These reforms were adopted in December 2022 and took effect in September 2023, and the State Department issued regulations implementing them in early October 2023.
AbstractThe text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a climate change agreement that the state of California had made with Québec. Despite this challenge, for the most part, neither Congress nor the executive branch has resisted the growth in state international agreements. This acquiescence could change as countries like China target US states in an effort to work around strained relations with the US national government and as states become more assertive in resisting the national government's foreign policies. In any event, the practice of state international agreements unapproved by Congress rests in part on a distinction between binding and non-binding agreements that deserves greater scrutiny under both domestic and international law.
AbstractFor more than a decade, U.S. courts have struggled to develop a common law immunity regime to govern suits brought against foreign government officials, and they are now divided on a number of issues, including the extent to which they should defer to the executive branch and whether to recognize a jus cogens exception. This Editorial Comment considers a more conceptual division in the courts, between an "effect-of-judgment" approach that would confer immunity only when the judgment that the plaintiff is seeking would be directly enforceable against the foreign state, and a broader "nature-of-act" approach that would confer immunity whenever the plaintiff's case is challenging conduct carried out on behalf of the state. The Comment argues in favor of the nature-of-act approach and explains why analogies in this context to domestic civil rights litigation are misplaced.
The five essays in this Agora, written by Jack Goldsmith and myself, Ashley Deeks, Ryan Goodman, Rebecca Ingber, and Michael Ramsey, consider the legal legacy of the Obama administration concerning the use of military force, with respect to both domestic law and international law. Prominent developments during the Obama administration relating to war powers include the administration's defense in habeas litigation of its authority to detain members of Al Qaeda and associated groups in military custody; its increased use of targeted killing outside of active combat areas, in part through frequent missile attacks carried out by drones; its use of military force in 2011 against the regime of Libyan leader Muammar Qaddafi, pursuant to a United Nations Security Council resolution; its deliberations in 2013 about the use of military force against Syria in response to the use of chemical weapons by the regime of Syrian President Bashar al-Assad; and its initiation of a long-term conflict against the Islamic State in 2014. This Agora touches on these and other developments and offers a range of perspectives.
In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. That document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. In the opinion, Bradford concluded that "[s]o far ... as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States." He also expressed the view that the actors could be prosecuted for crimes on the high seas, while noting that "some doubt rests on this point" in light of the language of the relevant criminal statute. Finally, he stated—in an obvious reference to the ATS—thatthere can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by acivilsuit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States . . . .The Bradford opinion contains one of the few early historical references to the ATS, so it not surprisingly has received a lot of attention. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions. Reliance on the opinion has increased since the Supreme Court's 2004 decision inSosa v. Alvarez-Machain, in which the Court cited the opinion in support of the proposition that the ATS provides jurisdiction over certain common law causes of action derived from the law of nations. As an illustration of its perceived significance, both sides discussed the opinion in the oral argument before the Supreme Court in the first hearing in the pending ATS case,Kiobel v. Royal Dutch Petroleum Co.
Ever since the Supreme Court's 1829 decision in Foster v. Neilson, it has been settled that some treaties ratified by the United States are "non-self-executing" and thus are not enforceable in U.S. courts unless implemented by Congress. Despite its pedigree, both the theory behind the self-execution doctrine and its mechanics have long befuddled courts and commentators. There is significant uncertainty, for example, concerning the materials that are relevant to the self-execution analysis, whose intent should count in determining self-executing status, the proper presumption that should be applied with respect to self-execution, and the domestic legal status of a non-self-executing treaty.
