Opinio Juris/Yale Journal of International Law Symposium: Hathaway, McElroy, and Solow on International at Home

The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris through this symposium. Today we will be discussing an Article by Oona A. Hathaway (Yale Law School), Sabria McElroy, and Sara Aronchick Solow, (both Yale Law School class of 2010) entitled International Law at Home: Enforcing Treaties in U.S. Courts and published in Vol. 37, No. 1. Our sincere thanks to Peggy McGuinness and the rest of the Opinio Juris team for hosting this exciting discussion.

Although this discussion will focus on International Law at Home, we would like to introduce two additional Articles in Vol. 37, No. 1. First, in The “Gateway” Problem in International Commercial Arbitration, George Bermann (Columbia Law School) discusses how and when courts should decide “gateway” issues in international arbitration—issues that go to the validity of the agreement to arbitrate. Professor Bermann argues that the French and the German approaches neither adequately explain courts’ decisions nor provide a strong logical basis for them. In contrast, the more nuanced U.S. approach, which involves demarcating “gateway” and “non-gateway” issues, has strong explanatory and normative force. Recognizing the pragmatic balance struck between legitimacy and efficacy explains an otherwise confusing set of precedents and provides a superior approach to recognizing the gateway.

Second, in Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Law, Anthea Roberts (Harvard Law School (Visiting Professor) and Department of Law, London School of Economics and Political Science) and Sandesh Sivakumaran (School of Law, University of Nottingham) examine the role of nonstate actors in the formation of international humanitarian law. They argue that the current model, in which nonstate actors are subject to international humanitarian law, but do not have a role its creation, is outdated and normatively questionable. Using the example of nonstate armed groups, Professors Roberts and Sivakumaran explain why nonstate actors should be a given a role in the creation of international humanitarian law. They then explore how the interests of nonstate groups could be incorporated into the formation of international humanitarian law using a less statist approach to the doctrine of sources.

With that, we begin the discussion of International Law at Home. The article is available at YJIL’s website. We are pleased to welcome a distinguished group of commenters including: John Bellinger, former Legal Adviser to the Department of State and currently a Partner at Arnold & Porter, David Sloss from Santa Clara Law, Chimène Keitner from University of California, Hastings College of the Law, and Steve Vladeck from American University Washington College of Law.

Professor Hathaway, Ms. McElroy, and Ms. Solow introduce their piece here. The comments will be posted throughout the day tomorrow.