The Supremacy Clause as Structural Safeguard of Federalism: State Judges and International Law in the Post-Erie Era

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges\u27 use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state judges\u27 authority under the Supremacy Clause to harmonize treaties and customary international law with state constitutional, legislative, and common law, and to influence federal jurisprudence on the scope and effect of binding international law. The Supremacy Clause empowers state judges to adapt international law to maximize benefits for--and minimize disruptions to--state policy objectives. As more areas of traditional state authority are displaced by international law, state judicial management of international law may be the strongest structural protection for state interests

Traditions of Belligerent Recognition: The Libyan Intervention in Historical and Theoretical Context

On February 26 and March 17, 2011, the U.N. Security Council adopted two resolutions authorizing sanctions, referral to the International Criminal Court and military intervention to protect civilians during the Libyan Civil War. Despite these rapid and well-supported interventions, France decided, on March 10, 2011, to recognize the largely anonymous and poorly understood National Transitional Council based in the eastern city of Benghazi as the legitimate representative of the Libyan people. The move both confused its allies and raised a number of legal problems for France, Libya and participants in the multilateral intervention. Nevertheless, Italy, Qatar, the United States, the United Kingdom and other states soon recognized the National Transitional Council either as a legitimate government in Libya or the only legitimate government in Libya. This article situates the decision to recognize the National Transitional Council in the context of the international law on belligerent recognition, ultimately arguing that -- whatever the difficulties recognition may cause for other objectives embodied in Security Council Resolutions 1970 and 1973 -- recognizing revolutionaries fits squarely within the larger framework by which third-party states manage civil wars to safeguard international order

High stakes and low bars: How international recognition shapes the conduct of civil wars

When rebel groups engage incumbent governments in war for control of the state, questions of international recognition arise. International recognition determines which combatants can draw on state assets, receive overt military aid, and borrow as sovereigns—all of which can have profound consequences for the military balance during civil war. How do third-party states and international organizations determine whom to treat as a state's official government during civil war? Data from the sixty-one center-seeking wars initiated from 1945 to 2014 indicate that military victory is not a prerequisite for recognition. Instead, states generally rely on a simple test: control of the capital city. Seizing the capital does not foreshadow military victory. Civil wars often continue for many years after rebels take control and receive recognition. While geopolitical and economic motives outweigh the capital control test in a small number of important cases, combatants appear to anticipate that holding the capital will be sufficient for recognition. This expectation generates perverse incentives. In effect, the international community rewards combatants for capturing or holding, by any means necessary, an area with high concentrations of critical infrastructure and civilians. In the majority of cases where rebels contest the capital, more than half of its infrastructure is damaged or the majority of civilians are displaced (or both), likely fueling long-term state weakness

Efficient Contracting between Foreign Investors and Host States: Evidence from Stabilization Clauses

Bilateral investment treaties are agreements between sovereign states that give broad protections to investors and investments made within the jurisdiction of the other state. The prevailing view in the academy and practice is that developing countries sign bilateral investment treaties in order to reassure investors from developed states that their investments will be safe from changes in domestic law. Without these credible commitments, investors would be deterred from making investments, depriving developing countries of foreign capital. This Article disputes that view by demonstrating that foreign investors and host states effectively contract around the risk of changes in the law. This Article applies transaction cost economic theory to the most comprehensive empirical study of stabilization clauses (provisions intended to manage post-investment changes in domestic law) recently conducted under the auspices of the World Bank\u27s International Finance Corporation. The analysis shows that investors and states demonstrate principles of efficient contracting even without the protections of bilateral investment treaties. This finding adds to current research focusing on the credible commitment story. The Article concludes that (1) BITs can be explained as instruments developed and developing states use in their competition for markets and capital and (2) differences in the reasons states execute BITs raise significant doubts about conclusions drawn based on aggregate phenomena