Hathaway: Hamdan v. Rumsfeld: Domestic Enforcement of International Law

Oona A. Hathaway (Yale - Law) has posted Hamdan v. Rumsfeld: Domestic Enforcement of International Law (in International Law Stories, forthcoming). Here's the abstract:

International law has long been subjected to the charge that it isn't really law - at least not in the sense that we usually imagine law. There is no international police force standing ready to enforce the laws of the international community against states that violate them. There is no court system that can adjudicate violations and assess penalties. And, with a few exceptions, there is no mechanism for penalizing states found to have fallen short of the law's rules. This has led some to conclude that most of international law is little more than cheap talk - words not backed up deeds and, hence, without any real force. And yet this view of international law misses much of what makes international law relevant and powerful: International law is not only enforced by states against one another, but it is also enforced by states against themselves. That is to say, it is enforced by domestic courts and political institutions that pressure their own government to live up to the promises it has made; it is enforced by individuals and interest groups that pressure the political branches of government to live up to international legal commitments they have made, whether they can be enforced in the courts or not; and it enforced by individuals or groups that use a state's own court system to enforce international law through litigation. It is this missing part of the picture - the enforcement of international law at home - that this essay brings to light.

This essay explores these issues through the lens of one of the most important international law cases in the United States in at least the last decade: Hamdan v. Rumsfeld. The case powerfully illustrates both the promise and limits of domestic enforcement of international law. The circumstances that gave rise to it demonstrate the hurdles that domestic enforcement of international law faces in even the most robust democracies. It stands as a stark reminder that the domestic enforcement of international law relies not only on the existence of robust rule of law institutions, but also on the ability of those institutions to reach the cases in which international legal rules are at stake. And yet Hamdan also offers a more hopeful message: Domestic enforcement of international law can succeed even where there is stringent resistance by even the most powerful of political actors. The story of Hamdan is thus the story of both the fragility and the power of domestic enforcement of international law, and in this story lies broader lessons for the promise and limits of international law as a whole.