Treaties & Customary International Law
in The Impact of Emerging Technologies on the Law of Armed Conflict (Eric Talbot Jensen & Ronald T.P. Alcala, eds.) (forthcoming 2019)
When confronted with a new weapons technology, international law scholars, military lawyers, and civil society activists regularly ask two questions: Are new regulations needed? And are they needed now? This paper reviews the main categories of technology-fostered legal disruption; tackles the question of whether a given technology will require new law; and weighs the respective benefits of precautionary bans, a wait-and-see approach, and proactive regulation.
in Resolving Conflicts in the Law: Essays in Honour of Lea Brilmayer 106 (Chiara Giorgetti & Natalie Klein, eds.) (2019)
New technologies have fundamentally altered the ways in which international law develops, evolves, and sometimes inappropriately persists. This chapter discusses the problem of “jurisprudential space junk”: treaty laws that are theoretically in force but actually simply clutter the relevant legal regime. After reviewing problems associated with multilateral treaties regulating new technologies, this chapter suggests that other, more flexible forms of international lawmaking—namely, soft law and customary international law—will sometimes be far better suited to international technological governance.
Change Without Consent: How Customary International Law Modifies Treaties
41 Yale J. Int'l L. 237 (2016)
Despite much recent scholarly focus on how outdated treaties might be updated, surprisingly little attention has been paid to an alternative route of treaty evolution: modification by subsequently-developed customary international law. This article demonstrates that such modification occurs; argues for recognition of its legitimacy; and highlights how it may result in more consensus-respecting action than arguments grounded in consent-based forms of treaty modification.
Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon
Note, 120 Yale L.J. 1784 (2011) (cited in Brownlie's Principles of Public International Law 79-80 (James Crawford, ed., 8th ed. 2012))
Non-self-executing treaties are commonly, and inappropriately, dismissed as irrelevant in domestic law. This note examines how judges employ the Charming Betsy canon to interpret ambiguous statutes to accord with U.S. international obligations, including those expressed in non-self-executing treaties. The Note concludes that this practice is justified and beneficial.