State Responsibility for the Acts of Private Armed Groups

Under what circumstances should international law impute to states the acts of private armed groups? Although states as a general rule are not liable for the conduct of nonstate actors, it is now well settled that the acts of de facto state agents are attributable to the state. That is, the conduct of ostensibly private actors may be sufficiently connected with the exercise of public power that otherwise private acts may be deemed state action. Of course, the question remains how best to distinguish de facto state action from purely private conduct. The attacks of September 11, and the international political firestorm that followed, underscore the importance of this issue. Indeed, the legal justification for Operation Enduring Freedom was predicated on the claim that the Taliban regime in Afghanistan was, as a formal matter, responsible for the acts of al Qaeda. The legal response to the terrorist attacks (and other recent developments) strongly suggests that the scope of state liability for private conduct has expanded. Moreover, this expansion of liability was achieved not by refashioning any primary rules defining the content of state obligations, but rather by relaxing the secondary rules defining state responsibility for breaches of any such obligation. This type of strategy, though not uncommon in international law, is potentially problematic. In this Article, I argue that (1) the response to the September 11 attacks may signal an important shift in the law of state responsibility; and that (2) this shift is likely to prove ineffective and counterproductive. The thrust of my policy argument is that the revision of trans-substantive secondary rules is a clumsy, and typically ineffective, device for vindicating specific policy objectives. Through an analysis of the role of state responsibility in global antiterrorism efforts, I illustrate several perverse collateral consequences of amending the secondary rules of attribution. My claim is that the formal characterization of terrorist acts as a specie of state action risks overapplication and underapplication of the relevant primary rules. The most effective strategy to restrain and deter state support for, or toleration of, terrorism is to define more clearly the primary obligations of states and the consequences for noncompliance with those obligations

The Federal Common Law Of Universal, Obligatory, And Definable Human Rights Norms

International law is part of United States law. Indeed, international law - or the law of nations in eighteenth century parlance - has been considered part of United States law since the founding. The Judiciary Act of 1789, the enabling legislation of Article III, establishes federal court jurisdiction over torts committed in violation of the law of nations

Is the President Bound by the Geneva Conventions

The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims. These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in time of war. Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land. The scope and content of the Conventions have assumed central importance in debates about U.S. policy toward al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba. Indeed, several aspects of U.S. policy toward the detainees arguably violate the Conventions. In response, the Bush Administration maintains in effect that the Conventions, even if they are applicable and even if U.S. policy is inconsistent with them, are not binding on the President as a matter of domestic law because the President has the constitutional authority to choose to violate the Conventions in the interest of protecting national security. This Article evaluates the Bush Administration’s claim. The Administration’s position has certain non-trivial virtues. Even if the United States has no legal right to violate the treaties as a matter of international law, there are good reasons to recognize an implied power to violate (or supersede) treaties as a matter of domestic law. The central question is who should have this authority: the President or Congress. We consider in detail three variations of the Administration’s position - read in its best light. The President’s power to violate treaties might stem from (1) the President’s law-making authority; (2) the President’s law-breaking authority; or (3) the President’s unfettered discretion to interpret U.S. treaty obligations. Following detailed consideration of each variation, we conclude that the President has no authority to violate a treaty obligation if Congress has the authority under Article I to enact legislation superseding that treaty obligation. Because the rules embodied in the Geneva Conventions address matters within the scope of Congress’ Article I powers, the President lacks the constitutional power (absent congressional authorization) to violate these treaties. Building on this claim, we also argue that the President never has the unilateral authority to violate treaties because the existence of international rules empowers Congress to regulate matters governed by the treaty, even if those matters would otherwise be subject to the President’s exclusive power. Finally, we suggest that there is some meaningful role for courts to play in enforcing treaty obligations—irrespective of whether the President’s interpretation of any given treaty is entitled to substantial deference. In short, we conclude that the President is bound by the Geneva Conventions—as a formal legal matter and as a practical matter