Duncan B. Hollis

Why State Consent Still Matters: Non-State Actors, Treaties, and the Changing Sources of International Law

This article explores the role authority can play in the debate over whether the sources of international law are changing. Scholars who take up the question of changing sources of international law traditionally face the dilemma that there is, as yet, no agreement on a definitive list of what sources contain the rules of international law, let alone what method or methods lead to the creation of such rules. This article argues that one way to overcome the existing stalemate is to integrate considerations of authority into sources doctrine. By going beyond traditional lines of inquiry such as what makes international law binding and where one finds it to ask who is making the law, a new perspective is presented for evaluating changes to the international legal order. To demonstrate how such an authority-based approach would operate, this article reviews non-state actor participation in treaties. Specifically, it examines whether the roles sub-state, supranational and extra-national actors play in the formation, application and interpretation of treaties has truly altered who international law authorizes to create treaty obligations. It finds that, although non-state actor treaty participation demonstrates a potential for a systemic shift, state consent still remains the operating principle of the treaty paradigm. As such, the article concludes that sources scholarship should focus more, not less, on the doctrine of consent as a source of international law, looking at who is consenting, on whose behalf, and to whom such consent is being given.

Constructing Norms for Global Cybersecurity

On February 16, 2016, a U.S. court ordered Apple to circumvent the security features of an iPhone 5C used by one of the terrorists who committed the San Bernardino shootings. Apple refused. It argued that breaking encryption for one phone could not be done without undermining the security of encryption more generally. It made a public appeal for “everyone to step back and consider the implications” of having a “back door” key to unlock any phone—which governments (and others) could deploy to track users or access their data. The U.S. government eventually withdrew its suit after the F.B.I. hired an outside party to access the phone. But the incident sparked a wide-ranging debate over the appropriate standards of behavior for companies like Apple and for their customers in constructing and using information and communication technologies (ICTs). That debate, in turn, is part of a much larger conversation. Essential as the Internet is, “rules of the road” for cyberspace are often unclear and have become the focus of serious conflicts.

Treaties in the Supreme Court, 1861-1900

This chapter, part of a larger book reviewing the history of the U.S. Supreme Court’s approach to international law, examines the Court’s treaty doctrine between the poles of the Civil and Spanish-American Wars. It finds that - even as the period exhibited much continuity in the Court’s approach to treaties - there were substantial areas of evolution. The chapter offers three different explanatory lenses to examine that evolution: (i) the rise of Congress’s relative power in domestic politics, (ii) U.S. foreign affairs’ increased attention to non-European treaties, and (iii) increasing jurisprudential emphasis on positivism in domestic and international circles. In terms of the treaty doctrine itself, the Chapter reveals the Court’s continued fidelity to several treaty principles developed at the Framing, especially the ability of treaties to trump state law and the capacity of private individuals to invoke rights and receive judicial remedies pursuant to U.S. treaty obligations. At the same time, it details the origins of the Court’s adoption of a theory of equivalence between statutes and treaties that paved the way for the later-in-time rule. In addition, the Chapter reviews the Court’s often inconsistent experimentation with different methods for interpreting treaties and its elaboration in theory - if not in practice - of the concept of non-self-executing treaties. All told, therefore, this Chapter reveals a more nuanced - and important - set of treaty rulings during the post-Civil War period than previous foreign affairs law scholarship has recognized.