Oona A. Hathaway

Academic Publications

The Internationalists: How a Radical Plan to Outlaw War Remade the World¹² (with Scott Shapiro) (2017, Simon & Schuster)

• U.K. Edition (Penguin Allen Lane) published¹³ September 2017
• Japanese Edition published¹⁴ 12 October 2018.
• Italian Edition published¹⁵ November 2018.
• German, Chinese, and Spanish editions expected.
• New York Times Book Review Editors’ Choice
• The Economist, “Books of the Year 2017”
• 2018 Scribes Book Award Winner
• Shortlisted for Lionel Gelber Prize
• Shortlisted for Duke of Westminster Prize

National Security Lawyering¹⁶, 68 UCLA L. Rev. 2 (2021)

The Failed Transparency Regime for Executive Agreements¹⁷: An Empirical and Normative Analysis, 134 Harv. L. Rev. 629 (2020) (with Curtis A. Bradley and Jack L. Goldsmith)

Aiding and Abetting in International Law¹⁸, 104 Cornell Law Review 1593 (2020) (with Srinath Kethireddy, Alexandra Francis, Alyssa Yamamoto & Aaron Haviland)

Response¹⁹, Roundtable on The Internationalists: How a Radical Plan to Outlaw War Remade the World, H-Diplo (Nov. 18, 2019) (with Scott Shapiro)

A Comparative Foreign Relations Law Agenda: Opportunities and Challenges, in Oxford Handbook of Comparative Foreign Relations Law²⁰ (Curtis Bradley, ed., 2019)

International Law and Its Transformation Through the Outlawry of War,²¹ International Affairs, Volume 95, Issue 1, January 2019, Pages 45–62 (Cambridge University Press) (with Scott Shapiro)

Yemen: Is the U.S. Breaking the Law²²?, Harvard National Security Review (2019) (with Srinath Kethireddy, Alexandra Francis, Alyssa Yamamoto, and Aaron Haviland)

What is a War Crime²³? Yale Journal of International Law (2019) (with Paul Strauch, Beatrice Walton, Zoe Weinberg)

Response to Critics, Global Constitutionalism²⁴, Vol. 7, No. 3 (2018) (with Scott Shapiro) (responding to submissions to an Agora on The Internationalists, in Global Constitutionalism)

War Manifestos²⁵, 85 Chicago Law Review 1139 (2018) (with William Holste, Scott Shapiro, Jacqueline Van De Velde, and Lisa Wang Lachowicz)

War Manifestos Database²⁶, Yale Law School (with William Holste, Scott Shapiro, Jacqueline Van De Velde, and Lisa Wang Lachowicz)

Ensuring Responsibility: Common Article 1 and State Responsibility for Non-State Actors²⁷, 95 Texas Law Review 539 (2017) (with Emily Chertoff, Lara Domínguez, Zachary Manfredi and Peter Tzeng)

Consent is Not Enough: Why States Must Respect the Intensity Threshold in Transnational Conflict, 165 University of Pennsylvania Law Review 11 (2016) (with Rebecca Crootof, Daniel Hessel, Julia Shu, and Sarah Weiner)²⁸

Asking for Directions: The Case for Federal Courts To Use Certification Across Borders²⁹, Yale Law Journal Forum (November 2015) (with Michael Wishnie) 

Fighting the Last War: The United Nations Charter in the Age of the War on Terror, in The U.N. Charter³⁰ (Joseph Lambert & Ian Shapiro, eds.) (2014)

Consent-Based Humanitarian Intervention³¹, 46 Cornell International Law Journal 499 (2013) (with Julia Brower, Ryan Liss, Tina Thomas, & Jacob Victor)

The Power to Detain: Detention of Terrorism Suspects After 9/11³², YALE JOURNAL OF INTERNATIONAL LAW (2013) (with Samuel Adelsberg, Spencer Amdur, Philip Levitz, Freya Pitts, and Sirine Shebaya)

The Treaty Power: Its History, Scope, and Limits³³, CORNELL LAW REVIEW (2013) (with Spencer Amdur, Celia Choy, Samir Deger-Sen, Haley Nix, John Paredes, and Sally Pei)

Tortured Reasoning: The Intent to Torture Under International and Domestic Law³⁴, 52 Virginia Journal of International Law 791 (2012) (with Aileen Nowlan & Julia Spiegel)

Between Power and Principle³⁵, in THE ROLE OF ETHICS IN INTERNATIONAL LAW (Donald Earl Childress III, ed.) (Cambridge University Press, 2012)

The Law of Cyber-Attack³⁶, CALIFORNIA LAW REVIEW (2012) (with Rebecca Crootof, Philip Levitz, Haley Nix, Aileen Nowlan, William Perdue, Julia Spiegel)

The Relationship Between International Humanitarian Law and Human Rights Law in Armed Conflict³⁷, MINNESOTA LAW REVIEW (2012) (with Rebecca Crootof, Philip Levitz, Haley Nix, William Purdue, Chelsea Purvis, Julia Speigel)

International Law at Home³⁸, YALE JOURNAL OF INTERNATIONAL LAW (2012) (with Sara Solow & Sabria McElroy) (examines the enforcement of international treaties in U.S. courts in light of the U.S. Supreme Court’s decision in Medellin v. Texas).

International Law at a Crossroads, YALE JOURNAL OF INTERNATIONAL AFFAIRS³⁹ (2012) (with Sara Solow & Sabria McElroy).

Outcasting⁴⁰, YALE LAW JOURNAL (2011) (with Scott Shapiro) (examines the functional and jurisprudential underpinnings of international law

Human Rights Abroad: When Do Human Rights Treaty Obligations Apply Extraterritorially?, ARIZONA STATE LAW JOURNAL (2011) (with Philip Levitz, Elizabeth Nielsen, Aileen Nowlan, William Perdue, Chelsea Purvis, Sara Solow, and Julia Spiegel)

Limited War and the Constitution⁴¹, MICHIGAN LAW REVIEW (2011) (with Bruce Ackerman) (argues that a new legal framework is required to reassert congressional control over limited warmaking by the United States)

The Case for Promoting Democracy Through Export Control⁴², Harvard Journal of Law & Public Policy 17 (2010) (critiques the claim that the presidential system of separation of powers can be easily exported to developing countries)

Presidential Power over International Law: Restoring the Balance(YALE LAW JOURNAL, October 2009)⁴³ (examines the role of the president in U.S. international lawmaking)

Treaties' End: The Past, Present and Future of International Lawmaking in the United States, YALE LAW JOURNAL (2008)⁴⁴ (examines the use of treaties and congressional-executive agreements from historical, comparative, and empirical perspectives and argues for greater action in replacing most treaties with congressional-executive agreements)

Treaties' End Replication Files
Note: some of these files are in the .do and .dta formats. The Stata application is required to open them properly.

Treaties' Data Table 1
Comparative Constitutions
Comparative Constitutions Final
Global Constitutions Codebook 04-01-08
Figure 1
Oceana Database Revised for Table 2

International Delegation and Domestic Sovereignty, LAW AND CONTEMPORARY PROBLEMS (2008)⁴⁵ (examines the debate over the delegation of legal and political authority to international organizations)

Domestic Enforcement of International Law: Hamdan v. Rumsfeld, in STORIES IN INTERNATIONAL LAW (Foundation Press, 2007)⁴⁶

Why Do Nations Join Human Rights Treaties?, JOURNAL OF CONFLICT RESOLUTION 588 (2007) (peer review journal) (examines why nations subscribe to international human rights treaties utilizing cross national data analysis and uses findings to assess a political theory of international law)

Replication Files:
Tables
Figures
JCR Replication
Other

The Continuing Influence of the New Haven School⁴⁷, 32 Yale J. Int'l L. 553 (2007).

Rationalism and Revisionism in International Law, 119 HARV. L. REV. 1404 (2006) (with A. Lavinbuk) (assess the state of the academic debate over international law in light of a recent book on international law, The Limits of International Law, by Jack Goldsmith and Eric Posner)

Between Power and Principle: An Integrated Theory of International Law⁴⁸, 72 UNIVERSITY OF CHICAGO LAW REVIEW 469 (2005), reviewed in Legal Affairs by Michael Ignatieff.

The New Empiricism in Human Rights: Insights and Implications, 98 AMERICAN SOCIETY OF INTERNATIONAL LAW PROCEEDINGS 206 (2004)

Foundations of International Law and Politics⁴⁹ (with Harold H. Koh) (Foundation Press 2004) (a reader intended for legal and political science audiences), reviewed in Christopher C. Joyner, International Law Is, as International Relations Theory Does?, 100 Am. J. Int’l L. 248 (2006)

Empirical Approaches to International Law, AM. J. INT’L L. (forthcoming 2004) (discusses the lessons that can be drawn from existing empirical research into human rights law and proposes promising avenues for future research)

The International Law of Torture, in TORTURE: PHILOSOPHICAL, POLITICAL, AND LEGAL PERSPECTIVES (Sanford Levinson ed., Oxford University Press 2004) (explores the place of international law in efforts to bring an end to the practice of torture)

The Cost of Commitment, 55 STAN. L. REV. 1821 (2003) (arguing that traditional understandings of the costs of treaty ratification are insufficiently nuanced and that the cost of compliance varies according to the product of a country’s divergence from the requirements of the treaty and the likelihood that the nation will actually change its practices to comply with those requirements and then tests the theory offered using empirical evidence)

Testing Conventional Wisdom, 13 E.J.I.L. 185 (2003) (peer review journal) (arguing that empirical analysis can be an important and powerful tool for testing assumptions regarding state behavior)

Do Human Rights Treaties Make a Difference?, 111 YALE L. J. 1935 (2002) (analyzes quantitative data on over 150 nations during a 40-year period to assess the impact of human rights treaties on countries’ human rights practices and the empirical validity of current theories of international law compliance).

Path Dependence in the Law: The Course and Pattern of Change in a Common Law Legal System, 86 IOWA L. REV. 601 (2001) (develops and applies three strands of path dependence theory to explain change in common law legal systems and to offer a positive and normative account of stare decisis).

Positive Feedback: The Impact of Trade Liberalization on Industry Demands for Protection, 52 INT’L ORG. 575 (1998) (peer review journal) (uses tools drawn from political economy and rational choice theory, as well as empirical evidence, to propose and test a theory that helps explain variation in demand for trade protection).

Book Note, The Politics of the Confirmation Process, 107 YALE L. J. 235 (1996) (reviews John Anthony Maltese, The Selling of Supreme Court Nominees).

Popular and Other Writings

Fewer troops won’t end wars. Most U.S. combat involves airstrikes⁵⁰, Washington Post (Dec. 4, 2020).

Covid-19 and International Law: A 12-Part Series⁵¹, Just Security (November 2020) (with Mark Stevens, Preston Lim, and Alasdair Phillips-Robins)

Reengaging on Treaties and Other International Agreements (Part II): A Path Forward⁵², Just Security (Oct. 6, 2020)

Reengaging on Treaties and Other International Agreements (Part I): President Donald Trump’s Rejection of International Law⁵³, Just Security (Oct. 2, 2020)

Welcome to the Post-Leader World⁵⁴, Foreign Policy (July 4, 2020) (with Scott J. Shapiro)

Black Lives Matter Might Just Rescue American Democracy⁵⁵, Just Security (June 16, 2020)

The Trump Administration’s Indefensible Legal Defense of Its Asylum Ban⁵⁶, Just Security (May 15, 2020)

After Covid-19, We Need to Redefine “National Security,”⁵⁷ Slate (April 7, 2020)

Universal Health Care is a National Security Issue⁵⁸, Just Security (March 12, 2020)

The Soleimani Strike Defied the U.S. Constitution⁵⁹, The Atlantic (January 4, 2020)

How to Recover a Role for Congress and the Courts in Decisions to Wage War⁶⁰, Just Security (Jan. 10, 2020) (with Geoffrey Block)

How to Revive Congress’s War Powers⁶¹, Texas National Security Review (Nov. 2019)

Turkey is Violating International Law. It Took Lessons from the U.S⁶²., Washington Post (Oct. 22, 2019)

The Missing State Department Memo on US Officials’ Possible Aiding and Abetting Saudi War Crimes⁶³, Just Security (July 24, 2019)

Bolton’s Stated Predicate for War With Iran Doesn’t Work⁶⁴, Just Security (May 31, 2019)

Trump’s Golan Policy and Its Threat to the Post-War International Legal Order⁶⁵ Just Security (May 16, 2019) (with Scott Shapiro)

What is a War Crime⁶⁶? Just Security (April 15, 2019) (with Paul Strauch, Beatrice Walton, and Zoe Weinberg)

Accountability for War Crimes in Syria: The “Criminalization” Confusion⁶⁷, Just Security (April 11, 2019) (with Paul Strauch, Beatrice Walton, and Zoe Weinberg)

Saudi Coalition “Admission” of Error in Bombing Cholera Treatment Center Implicates the United States⁶⁸, Just Security (Jan. 25, 2019)

Executive Agreements: International Lawmaking Without Accountability⁶⁹? Just Security & Lawfare (Jan. 9, 2019) (with Curtis A. Bradley and Jack Goldsmith)

The Death of Article II Treaties⁷⁰? Just Security & Lawfare (Dec. 13, 2018) (with Curtis A. Bradley and Jack Goldsmith)

The International Criminal Court is No Threat to America, But John Bolton Is⁷¹, Just Security & Newsweek (September 12, 2018)

Bruce Ohr Is One of the DOJ’s Top Russia Crime Fighters. Is that why the president wants him fired⁷²? Just Security & Slate Magazine (August 30, 2018)

The Three Options for Prosecuting Trump⁷³, Just Security & Slate Magazine (August 23, 2018)

Yemen in Crisis⁷⁴ (series of 10 articles), Just Security (March-April, 2018) (with Alexandra Francis, Aaron Haviland, Srinath Reddy Kethireddy & Alyssa Yamamoto)

Bad Legal Arguments for the Syria Strikes⁷⁵, Lawfare & Just Security (April 14, 2018) (with Jack Goldsmith)

The Downsides of Bombing Syria⁷⁶, Lawfare & Just Security (April 10, 2018) (with Jack Goldsmith)

A Syria Plan that Breaks the Law⁷⁷, New York Times (Jan. 23, 2018) (with Sen. Cory Booker)

The Big Picture: Trump, Trade and War⁷⁸, Pubic Books (with Scott Shapiro) (Nov. 10, 2017)

What Realists Don’t Understand About Law⁷⁹, Foreign Policy (October 9, 2017) (with Scott Shapiro)

The Internationalists vs. the Realists and Neocons⁸⁰, Lawfare (September 25, 2017) (with Scott Shapiro)

Making War Illegal Changed the World. But It’s Becoming Too Easy to Break the Law⁸¹, The Guardian (September 14, 2017) (with Scott Shapiro)

Outlawing War? It Actually Worked⁸², The New York Times (Sept. 2, 2017) (with Scott Shapiro)

How to Oppose Trump from Within Government⁸³, Newsweek (January 2017) (with Sarah Weiner)

Why the Spike in Civilian Casualties of U.S. Military Action?,⁸⁴ Newsweek (March 2017)

The Government’s Prepublication Review Process is Broken⁸⁵, Washington Post (December 26, 2015) (with Jack Goldsmith)

Going It Alone: The Anti-Counterfeiting Trade Agreement as a Sole Executive Agreement, ASIL INSIGHTS (Aug. 24, 2011) (with Amy Kapczynski)

Our Unbalanced Democracy, New York Times (August 1, 2011) (with Jacob Hacker)

Obama’s Illegal War, Foreign Policy (June 1, 2011) (with Bruce Ackerman)

The Death of the War Powers Resolution?, Washington Post (May 17, 2011) (with Bruce Ackerman)

The World After Bin Laden, Washington Post (May 3, 2011) (with Bruce Ackerman)

The Clock is Ticking on Obama’s War, Foreign Policy (April 6, 2011) (with Bruce Ackerman)

It's Not Up to the President to Impose a No-Fly Zone Over Libya, The Huffington Post (March 9, 2011) (with Bruce Ackerman)

Did Congress Approve America’s Longest War?, THE UK GUARDIAN (January 27, 2011) (with Bruce Ackerman)

How to Swing Arms Control: Obama Can Model Nixon and Clinton to Get a New Treaty Through Congress, LA Times (April 3, 2010) (with Bruce Ackerman)

Co-Counsel, Brief for Non-Governmental Organizations and Scholars as Amici Curiai in Support of Rehearing or Rehearing En Banc, Al-Bihani v. Obama, Court of Appeals for the D.C. Circuit (March 22, 2010)

Hear the Uighurs: The Critical Guantanamo Case the Supreme Court Should Not Duck⁸⁶, Slate Magazine (February 17, 2010) (with Rebecca Crootof)

Counsel of Record, International Law Experts Brief, Kiyemba v. Obama, United States Supreme Court⁸⁷ (December 2009)

What Will Congress Do About Afghanistan?⁸⁸, Slate Magazine Online (December 9, 2009) (with Bruce Ackerman)

America needs to prepare for early Iraq pullout⁸⁹, THE FINANCIAL TIMES (August 23, 2009) (with Bruce Ackerman) (free registration required to view Financial Times content online)

The Iraq War is Now Illegal⁹⁰, THE DAILY BEAST (Jan. 1. 2009) (with Bruce Ackerman)

A legal time bomb in Iraq, THE GUARDIAN (U.K.) (December 12, 2008) (with Bruce Ackerman)

Bush should include Congress, THE BOSTON GLOBE (November 26, 2008) (with Congressman Bill Delahunt)

Bush's Final Illusion: The president's agreement with Iraq bypasses Congress. Again⁹¹, SLATE MAGAZINE (October 21, 2008) (with Bruce Ackerman)

The Case for Replacing Article II Treaties with Ex Post Congressional-Executive Agreements, American Constitution Society Issue Brief (Nov. 16, 2008)

Testimony on “The U.S.-Iraq Bilateral Agreement: Constitutional and other Legal Concerns,” House Foreign Affairs Committee, Subcommittee on Oversight, (Nov. 13, 2008)

Testimony on “Declaration and Principles: Future U.S. Commitments to Iraq,” House Foreign Affairs Committee, Subcommittee on Oversight (Mar. 4, 2008)

Testimony on “The November 26 Declaration of Principles: Implications for UN Resolutions on Iraq and for Congressional Oversight,” House Foreign Affairs Committee, Subcommittee on Oversight (February 2008)

What Bush Will Surrender in Iraq, TIME MAGAZINE (ONLINE), September 10, 2008 (with Bruce Ackerman) (arguing that the draft agreement with Iraq includes several unconstitutional provisions)

Into No-Man’s Land , THE L.A. TIMES, July 25, 2008 (with Bruce Ackerman) (arguing that the proposed memorandum of understanding with Iraq is unconstitutional and does not adequately protect the troops)

The War's Expiration Date, THE WASHINGTON POST ONLINE, Saturday, April 5, 2008 (with Bruce Ackerman) (arguing that the war in Iraq will become illegal on Jan. 1, 2009 unless new legislation is passed or the UN Mandate is extended)

An Agreement that Needs Agreement , THE WASHINGTON POST ONLINE, Saturday, February 15, 2008 (with Bruce Ackerman) (arguing that the proposed agreement between the United States and Iraq must be approved by Congress to be legal)

Why We Need International Law , THE NATION, November 19, 2007 (putting forth a case for international law on the ground that international law benefits the United States' national interest)

A Tortured Way to Run A War on Terror, NEWSDAY, October 26, 2005 (op-ed discussing the Administration's efforts to stop Congress from regulating the military's treatment of detainees)

Judge Roberts and International Law & other posts, Supreme Court Extra: Think Progress (blog)

Debate Club: Is International Law Really Useful? (Jan. 2005) (on-line written debate with Eric Posner, a prominent critic of international law)

Supreme Court Brings Bush Administration Back to Earth, THE HARTFORD COURANT, July 1, 2004 (op-ed discussing the Supreme Court’s cases on the rights of prisoners in the war on terror)

The Court Puts the White House in its Place, NEWSDAY, June 30, 2004 (op-ed discussing the Supreme Court’s cases on the rights of prisoners in the war on terror)

Human Rights and Security, a paper for the United Nations High Level Panel on Global Security Threats (commissioned by the UN Foundation⁹²) (proposes ways the UN can use international law to more effectively shape what states do)

Two Cheers for International Law, 27 Wilson Quarterly⁹³ 50 (Autumn 2003)(examines the role of international law in modern international politics)

Making Human Rights Treaties Work: Global Legal Information and Human Rights in the 21st Century, 31 INT’L J. OF LEGAL INFO. 312 (2003) (discussing why human rights treaties have been ignored in discussions of the war against terrorism and how they can be made more effective)

Making Human Rights Treaties Work, 4 YALE POLITIC 28 (2003) (discussing why human rights treaties have been ignored in discussions of the war against terrorism and how they can be made more effective)

Book Note, The Politics of the Confirmation Process, 107 YALE L. J. 235 (1996) (reviews John Anthony Maltese, The Selling of Supreme Court Nominees)

Whither Biodiversity? The Global Debate over Biological Variety Continues, 15 HARV. INT’L REV. 58 (Winter 1992/93) (journalistic piece examining the international debate over a draft treaty designed to maintain biological diversity)

Lifting the Veil, 19 HARV. POL. REV. 16 (Mar. 1992) (journalistic piece examining the political and social status of women in Kuwait, based in part on observations made during a visit to Kuwait). Winner of the Kennedy School of Government Political Journalism Award.