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Articles 1 - 30 of 127
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Looted Cultural Objects, Elena Baylis
Looted Cultural Objects, Elena Baylis
Articles
In the United States, Europe, and elsewhere, museums are in possession of cultural objects that were unethically taken from their countries and communities of origin under the auspices of colonialism. For many years, the art world considered such holdings unexceptional. Now, a longstanding movement to decolonize museums is gaining momentum, and some museums are reconsidering their collections. Presently, whether to return such looted foreign cultural objects is typically a voluntary choice for individual museums to make, not a legal obligation. Modern treaties and statutes protecting cultural property apply only prospectively, to items stolen or illegally exported after their effective dates. …
The International Legal Order And The Rule Of Law, Vivian Grosswald Curran
The International Legal Order And The Rule Of Law, Vivian Grosswald Curran
Articles
This article addresses whether international law today is capable of instituting the rule of law. It offers a renewed look at the internationalists who brought us modern international law, such as Lauterpacht, Cassin and Lemkin. They tenaciously worked at placing the individual’s right to life and to human dignity front and center in international law while also preserving peace among states. Their struggle began in earnest first in the interwar years after the “war to end all wars” (1918 – 1939), and then again in 1945 after yet another, still worse, world war had occurred, devastating Europe, but leaving the …
Post-Conflict Reconciliation In Ukraine, Elena Baylis
Post-Conflict Reconciliation In Ukraine, Elena Baylis
Articles
Reconciliation mechanisms should be a core component of transitional justice in Ukraine. The nature of this conflict as a war justified by claims about history, identity, and legitimacy suggests that there will be a need for post-war reconciliation initiatives. Such reconciliation measures would be intended to enable Ukraine’s Russian, Ukrainian, and other communities to live together constructively within the same state. The goals of social reconciliation also converge with Ukraine’s long-term, political aims vis-à-vis both Russia and the European Union. This paper addresses three types of reconciliation measures that are important for post-conflict Ukraine. Instrumental mechanisms to engage post-conflict social …
Inheriting Citizenship, Scott Titshaw
Inheriting Citizenship, Scott Titshaw
Articles
Most of us become citizens at birth based either on our birthplace or our parents' citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and …
Towards Greater Investor Accountability: Indirect Actions, Direct Actions By States And Direct Actions By Individuals, Martin Jarrett, Sergio Puig, Steven R. Ratner
Towards Greater Investor Accountability: Indirect Actions, Direct Actions By States And Direct Actions By Individuals, Martin Jarrett, Sergio Puig, Steven R. Ratner
Articles
Investor accountability in international investment law (IIL) has been gaining increasing traction in recent years. Most visibly, some states have included investor obligations in their investment treaties, while others have made them part of their model treaties. While highly significant for the substance of IIL, these duties need adequate procedural tools to enforce them. Otherwise, investor obligations will be only decorative features of investment treaties without any legal meaning. The oft-discussed option of counterclaims is limited insofar as it may only be launched after an investor has made a claim against a state. As a result, it is important to …
Lecture In Human Rights: Tax Policy, Global Economics, Labor And Justice In Light Of Covid-19, Reuven S. Avi-Yonah
Lecture In Human Rights: Tax Policy, Global Economics, Labor And Justice In Light Of Covid-19, Reuven S. Avi-Yonah
Articles
International Tax Law has extensive ramifications on the wealth gap between wealthy developed nations and poor developing nations. This divide in prosperity has been made clear again in the global response to the COVID-19 pandemic. Developing nations are currently ill-equipped to adapt to, and regulate, an equitable system of taxation on a domestic level. A further challenge is the difficulty of ensuring that foreign investors, especially multinational corporations, are able to comply with tax regulations. Developed nations such as the United States and members of the European Union must continue to work with developing nations to reduce tax evasion and …
The Aggravating Duty Of Non-Aggravation, Steven R. Ratner
The Aggravating Duty Of Non-Aggravation, Steven R. Ratner
Articles
International law's duty of non-aggravation requires states to avoid actions that might inflame an international dispute, both to maintain international peace and to preserve the effectiveness of judicial or arbitral proceedings. Yet parties on the receiving end of calls for non-aggravation --whether from the Security Council or at tribunal -- have little idea of what conduct they are expected to avoid. This state of affairs is most unfortunate in light of the centrality of this norm to the peaceful resolution of disputes and, in particular, examples of seemingly provocative and aggravating acts in recent years. This article attempts to give …
International Rule Of Law And Domestic Courts: A Few Concerns, Akhila Basalalli
International Rule Of Law And Domestic Courts: A Few Concerns, Akhila Basalalli
Articles
The manifestation of the international rule of law appears as one of the possible paths to check the rule of power and establish an egalitarian system. Many international organizations have emphasized on the international rule of law in their objectives and mandates and have called the states to act in their service. The domestic courts have resonated with the call by exhibiting internationalism in their decisions. The international norms have been domesticated by the courts by adopting several incorporation and interpretation methods. The domestic courts, therefore, have been called as the ‘agents’ in the service of international law and protectors …
Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran
Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran
Articles
This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should …
The Vulnerable Sovereign, Ronald A. Brand
The Vulnerable Sovereign, Ronald A. Brand
Articles
The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the …
Domestic Courts And The Generation Of Norms In International Law, Charles T. Kotoby Jr.
Domestic Courts And The Generation Of Norms In International Law, Charles T. Kotoby Jr.
Articles
International law in the form of treaty and custom is primarily shaped by national executives and legislatures. To be sure, “judicial decisions” are deemed a “subsidiary means for the determination of [international] law,” but that still does not give domestic courts an everyday role in the generation of universal norms and international law. This article proposes a more dynamic reality which elevates the importance of municipal courts in the generation and creation of international law. The truth is that domestic courts interact regularly to announce and create important universal norms—by, for instance, adjudicating expropriation claims, passing on the recognition and …
High Seas Governance: Gaps And Challenges, Bernard H. Oxman
High Seas Governance: Gaps And Challenges, Bernard H. Oxman
Articles
No abstract provided.
International Law And Theories Of Global Justice: Remarks, Steven R. Ratner, James Stewart, Jiewuh Song, Carmen Pavel
International Law And Theories Of Global Justice: Remarks, Steven R. Ratner, James Stewart, Jiewuh Song, Carmen Pavel
Articles
International law (IL) and political philosophy represent two rich disciplines for exploring issues of global justice. At their core, each seeks to build a better world based on some universally agreed norms, rules, and practices, backed by effective institutions. International lawyers, even the most positivist of them, have some underlying assumptions about a just world order that predisposes their interpretive methods; legal scholars have incorporated concepts of justice in their work even as their overall pragmatic orientation has limited the nature of their inquiries. Many philospophers, for their part, have engaged with IL to some extent—at a minimum recognizing that …
Comparative Method And International Litigation 2020, Ronald A. Brand
Comparative Method And International Litigation 2020, Ronald A. Brand
Articles
In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …
International Law And Political Philosophy: Uncovering New Linkages, Steven R. Ratner
International Law And Political Philosophy: Uncovering New Linkages, Steven R. Ratner
Articles
The legal regime regulating cross-border investment gives key rights to foreign investors and places significant duties on states hosting that investment. It also raises distinctive moral questions due to its potential to constrain a state’s ability to manage its economy and protect its people. Yet international investment law remains virtually untouched as a subject of philosophical inquiry. The questions of international political morality surrounding investment rules can be mapped through the lens of two critiques of the law – that it systemically takes advantage of the global South and that it constrains the policy choices of states hosting investment. Each …
The Foreign Sovereign Immunities Act's Evolving Genocide Exception, Vivian Grosswald Curran
The Foreign Sovereign Immunities Act's Evolving Genocide Exception, Vivian Grosswald Curran
Articles
The Foreign Sovereign Immunities Act (FSIA) was passed by Congress as a comprehensive statute to cover all instances when foreign states are to be immune from suit in the courts of the United States, as well as when foreign state immunity is to be limited. Judicial interpretation of one of the FSIA’s exceptions to immunity has undergone significant evolution over the years with respect to foreign state property expropriations committed in violation of international law. U.S. courts initially construed this FSIA exception by denying immunity only if the defendant state had expropriated property of a citizen of a nation other …
The International Law Commission's Soft Law Influence, Elena Baylis
The International Law Commission's Soft Law Influence, Elena Baylis
Articles
Since the 1990s, the International Law Commission has increasingly produced soft law, such as principles and draft conclusions, in addition to hard law like draft treaty articles This essay explores the implications of the International Law Commission’s transition toward a greater emphasis on soft law. Soft law is an effective vehicle for the International Law Commission’s mission of codification and progressive development of international law; the International Law Commission’s involvement increases the clarity and accessibility of international law norms and promotes a dynamic, synergistic relationship between hard law and soft law that contributes to the effective evolution of international law. …
Global Investment Rules As A Site For Moral Inquiry, Steven R. Ratner
Global Investment Rules As A Site For Moral Inquiry, Steven R. Ratner
Articles
The legal regime regulating cross-border investment gives key rights to foreign investors and places significant duties on states hosting that investment. It also raises distinctive moral questions due to its potential to constrain a state’s ability to manage its economy and protect its people. Yet international investment law remains virtually untouched as a subject of philosophical inquiry. The questions of international political morality surrounding investment rules can be mapped through the lens of two critiques of the law – that it systemically takes advantage of the global South and that it constrains the policy choices of states hosting investment. Each …
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
Articles
The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical …
Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand
Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand
Articles
In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and …
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
In this section: Congress Enacts Sanctions Legislation Targeting Russia • United States and Qatar Sign Memorandum of Understanding over Terrorism Financing • Trump Reverses Certain Steps Toward Normalizing Relations with Cuba • United States Announces Plans to Withdraw from Paris Agreement on Climate Change • President Trump Issues Trade-Related Executive Orders and Memoranda • United States, Russia, and Jordan Sign Limited Ceasefire for Syria • Trump Administration Recertifies Iranian Compliance with JCPOA Notwithstanding Increasing Concern with Iranian Behavior
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson
Articles
In this section: • United States Abstains on Security Council Resolution Criticizing Israeli Settlements • United States Sanctions Russian Individuals and Entities After Accusing Russian Government of Using Hacking to Interfere with U.S. Election Process; Congressional Committees and Intelligence and Law Enforcement Agencies Continue to Investigate President Trump’s Connections to Russian Officials • Second Circuit Overturns $655 Million Jury Verdict Against Palestine Liberation Organization and Palestinian Authority • New Legislation Seeks to Confirm Immunity of Artwork and Facilitate Cultural Exchange • United States Confronts China over Seizure of Unmanned Drone in the South China Sea • International Criminal Court Prosecutor …
Human Rights Proxy Wars, Johanna Kalb
Regime Shifts And Panarchies In Regional Scale Social-Ecological Water Systems, Barbara Cosens
Regime Shifts And Panarchies In Regional Scale Social-Ecological Water Systems, Barbara Cosens
Articles
In this article we summarize histories of nonlinear, complex interactions among societal, legal, and ecosystem dynamics in six North American water basins, as they respond to changing climate. These case studies were chosen to explore the conditions for emergence of adaptive governance in heavily regulated and developed social-ecological systems nested within a hierarchical governmental system. We summarize resilience assessments conducted in each system to provide a synthesis and reference by the other articles in this special feature. We also present a general framework used to evaluate the interactions between society and ecosystem regimes and the governance regimes chosen to mediate …
Is There A Right To Be Free From Corruption?, Anita Ramasastry
Is There A Right To Be Free From Corruption?, Anita Ramasastry
Articles
Scholars and policymakers have, for some time, focused on the link between corruption and human rights. This has been to illustrate that corruption is not a victimless crime. While this has publicized the impact of corruption on individuals and on society, it has not changed the lack of political will to prosecute many instances of corruption. Thus citizens often stand by as their leaders plunder national treasuries. Rather than focusing solely on human rights, or trying to create a new “human right” to be free from corruption, this article explores the right to a legal remedy for victims of corruption …
The Persuasive Authority Of Internationalized Criminal Tribunals, Elena Baylis
The Persuasive Authority Of Internationalized Criminal Tribunals, Elena Baylis
Articles
After a period in which it seemed as though hybrid criminal tribunals were waning, proposals for such tribunals are proliferating again. The recent success of the Extraordinary African Chambers in trying Hisséne Habré highlights the resurgent trend toward ad hoc internationalized courts and chambers to try cases of genocide, war crimes, and crimes against humanity. The international community could make strategic choices in designing this new generation of tribunals to maximize their effectiveness. One way that international courts spread their influence is through their persuasive authority. Even if their decisions are not binding on the concerned national courts, by persuading …
How And Why International Law Binds International Organizations, Kristina Daugirdas
How And Why International Law Binds International Organizations, Kristina Daugirdas
Articles
For decades, controversy has dogged claims about whether and to what extent international law binds international organizations (“IOs”) like the United Nations and the International Monetary Fund. The question has important consequences for humanitarian law, economic rights, and environmental protection. In this Article, I aim to resolve the controversy by supplying a theory about when and how international law binds IOs. I conclude that international law binds IOs to the same degree that it binds states. That is, IOs are not more extensively or more readily bound; nor are they less extensively or less readily bound. This means that IOs, …
A Global Solution To A Global Refugee Crisis, James C. Hathaway
A Global Solution To A Global Refugee Crisis, James C. Hathaway
Articles
The author argues that the time is right to change the way that refugee law is implemented. Specifically, Hathaway advocates a shift towards a managed and collectivized approach to the implementation of refugee protection obligations. He contends that while the obligations under the Convention remain sound, the mechanisms for implementing those obligations are flawed in ways that too often lead States to act against their own values and interests, and which produce needless suffering amongst refugees. The author concludes with a five-point plan to revitalize the Refugee Convention.
U.S. Discovery And Foreign Blocking Statutes, Vivian Grosswald Curran
U.S. Discovery And Foreign Blocking Statutes, Vivian Grosswald Curran
Articles
What is the reality between U.S. discovery and the foreign blocking statutes that impede it in France and other civil law states? How should we understand their interface at a time when companies are multinational in composition as well as in their areas of commerce? U.S. courts grapple with the challenge of understanding why they should adhere to strictures that seem to compromise constitutional or quasi-constitutional rights of American plaintiffs, while French and German lawyers and judges struggle with the challenges U.S. discovery poses to values of privacy and fair trial procedure in their legal systems. This article seeks to …
Forging Path For Women's Rights In Customary Law, Tamar Ezer
Forging Path For Women's Rights In Customary Law, Tamar Ezer
Articles
No abstract provided.