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California Law Review | 2005

Judicial Independence in International Tribunals

Eric A. Posner; John C. Yoo

TABLE OF CONTENTS Introduction 3 I. Background on Intemational Dispute Resolution 8 II. Independence and the Role of Intemational Tribunals 12 A. Independence in the Domestic and Intemational Spheres 12 B. Why States Use Intemational Tribunals 14 1. Information Disclosure in Treaty Disputes 15 2. Infonnation Disclosure in Customary Intemational Law Disputes 18 3. The Dispute Resolution Mechanism 20 C. The Design of Dispute Resolution Mechanisms 22 1. The Single Arbitrator 22 2. Three (or More) Arbitrators 23 3. From Arbitration to Courts 24 4. Measuring Tribunal Independence 26 D. Measurements of Effectiveness 27


California Law Review | 2010

Fixing Failed States

John C. Yoo

Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is not failed states but the nation-state as the primary actor in international relations. This paper argues that both American and U.N policy on the one hand, and the conventional academic wisdom on the other hand, are mistaken. Building a normal nation-state with full sovereignty on every territory in the world, without changing any borders, fails to understand why some states are failing in the first place. Viable states simply do not align with the borders recognized by the United Nations or created during the period of rapid decolonization in the decades after World War II. Academics who see in failed states the rise of alternatives to the nation-state have no practical solutions that do not depend on the political, economic, and military resources of strong nation-states. Without them, supra-national governments, trusteeships, or non-governmental organizations have shown little ability to fix failed states. This paper argues that powerful nations can help by performing the more modest role of promoting and guaranteeing power-sharing agreements between competing groups within failed states. It concludes by illustrating the thesis with the outcome of the surge in Iraq.


American Journal of International Law | 2003

International Law and the War in Iraq

John C. Yoo

In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc “coalition of the willing” that invaded Iraq on March 19,2003, quickly defeated Iraq’s armed forces, and ended the regime of Saddam Hussein and the Ba’ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.


California Law Review | 1996

The Continuation of Politics by Other Means: The Original Understanding of War Powers

John C. Yoo

Introduction ..................................................................................... 170 I. War Powers: Allocation, Practice, and Criticism ........................... 175 A. The Constitutional Text ........................................................ 175 B. The Constitution in Practice ................................................. 176 1. Congress and the President ............................................. 176 2. The Courts and the War Powers ...................................... 182 3. The Persian Gulf War ..................................................... 186


California Law Review | 1996

Who Measures the Chancellor's Foot--The Inherent Remedial Authority of the Federal Courts

John C. Yoo

In Missouri v. Jenkins (Jenkins III),1 the Supreme Court began a reexamination of the inherent remedial authority of the federal courts. This doctrinal development should be of great interest to a symposium on race-based remedies because, since the days of Brown v. Board of Education (Brown I),2 the federal courts have used their remedial powers to desegregate the schools3 and to order affirmative action


Berkeley Journal of International Law | 2013

Globalization and Sovereignty

Julian Ku; John C. Yoo

Globalization represents the reality that we live in a time when the walls of sovereignty are no protection against the movements of capital, labor, information and ideas—nor can they provide effective protection against harm and damage.1 This declaration by Judge Rosalyn Higgins, the former President of the International Court of Justice, represents the conventional wisdom about the future of global governance. Many view globalization as a reality that will erode or even eliminate the sovereignty of nation-states. The typical account points to at least three ways that globalization has affected sovereignty. First, the rise of international trade and capital markets has interfered with the ability of nation-states to control their domestic economies.2 Second, nation-states have responded by delegating authority to international organizations.3 Third, a “new” international law, generated in part by these organizations, has placed limitations on the independent conduct of domestic policies.4


Yale Law Journal | 2006

Rational War and Constitutional Design

Jide Nzelibe; John C. Yoo

Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close to an empirical truth in international relations: democracies do not tend to go to war with each other. First, we articulate and evaluate the various arguments that underpin the democratic peace literature and analyze their relationship to the United States constitutional structure of war powers. Second, we distinguish between two types of constitutional processes that would be most necessary for successfully combating different regimes. We argue that if the United States were involved in a dispute with another democracy, the President ought to involve Congress because a dual branch process would help facilitate a peaceful resolution to the dispute by allowing the United States to signal more effectively its intentions. If, however, the United States were involved in a dispute with a non-democracy or a terrorist organization, a unilateral presidential approach might make much more sense because a non-democratic regime or terrorist organization is unlikely to appreciate the value of congressional participation. Finally, we conclude with the observation that in the war powers debate, only an approach that gives the President the complete flexibility to seek congressional participation would permit the United States to adapt its domestic decision making structure to the exogenous demands of the international system.


California Law Review | 2017

Embracing the Machines: Rationalist War and New Weapons Technologies

John C. Yoo

Dramatic advances in weapons technology over the past two decades have led to a revolution in military affairs. Robotics and cyber weapons have used real-time information and communications to produce precision that has reduced casualties and blurred the line between war and peace. Critics fear that these developments will encourage nations to resort to force more often; they call for international agreements to ban the new technologies. This Essay argues that efforts to limit the use of such weapons are both misguided and counterproductive. New military technologies will advance humanitarian aims by reducing civilian casualties and the overall destructiveness of war. A rationalist approach to war even suggests that these weapons will create more opportunities for the settlement of international disputes with less use of force.


Issues in Legal Scholarship | 2004

The Conservative Case against the Federal Marriage Amendment

John C. Yoo; Anntim Vulchev

This Essay criticizes the proposed Federal Marriage Amendment as inconsistent with the principle of federalism. It argues that after recent Supreme Court decisions on the rights of gays, it is likely that federal and state laws discriminating against the recognition of same-sex marriages are likely to be found unconstitutional. It then argues that a constitutional amendment defining marriage is inconsistent with the purposes behind our federal system of government, and that a more preferable approach would preserve to each state the ability to define marriage for itself.


Columbia Law Review | 1999

Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution

John C. Yoo

This article advances textual and structural constitutional arguments in defense of the doctrine of non-self-executing treaties. Requiring congressional implementation of treaties that regulate matters within Congresss Article I, Section 8 powers respects the Constitutions basic separation of the legislative and executive powers. It also ensures that treaties, which are asserted to be free from the Constitutions federalism and the separation of powers limitations, will not assume an unbounded legislative power, and it promotes the Constitutions principle that domestic legislation be made by democratic processes. The paper criticizes the position that the Supremacy Clauses text requires automatic judicial enforcement of treaties as too simple and inconsistent with practice both in the treaty area and in the enforcement of federal statutory and constitutional provisions. The paper also replies to responses to Globalism and the Constitution.

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Glenn Sulmasy

University of California

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Laurent Mayali

University of California

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Jide Nzelibe

Northwestern University

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