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Articles 31 - 52 of 52
Full-Text Articles in Law
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
International Law And Institutions And The American Constitution In War And Peace, Thomas H. Lee
Faculty Scholarship
This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.
Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams
Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams
Faculty Scholarship
This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …
Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival
Human Rights And The Evolution Of Global Environmental Law, Robert V. Percival
Faculty Scholarship
Environmental problems that jeopardize the health of humans increasingly implicate concerns that have played an important role in the development of international human rights. While some have questioned the wisdom or effectiveness of focusing human rights concerns on environmental problems, it seems an inevitable response to the failure of many countries to protect their citizens adequately from harm caused by environmental degradation. This paper reviews efforts to apply human rights concerns to environmental problems. It describes how these developments illustrate the growth of a kind of “global environmental law” that blurs traditional distinctions between domestic and international law and public …
Where Should Europe’S Investment Path Lead?: Reflections On August Reinisch, “Quo Vadis Europe?”, Julie A. Maupin
Where Should Europe’S Investment Path Lead?: Reflections On August Reinisch, “Quo Vadis Europe?”, Julie A. Maupin
Faculty Scholarship
Relative to the past policies of its Member States, will the European Union’s new comprehensive international investment policy constitute a step forward, a step backward, or a perpetuation of the status quo? Professor Reinisch’s contribution to this volume opens a wide window on the current state of the debate. His cogent analysis suggests that, at present, all three possibilities remain live ones, although some basic contours of a likely trajectory are beginning to take shape. I use his musings as a springboard to investigate two questions which follow naturally from his. That is, in view of Professor Reinisch’s response to …
Revisiting Sovereign Bankruptcy, Lee C. Buchheit, Anna Gelpern, Mitu Gulati, Ugo Panizza, Beatrice Weder Di Mauro, Jeromin Zettelmeyer
Revisiting Sovereign Bankruptcy, Lee C. Buchheit, Anna Gelpern, Mitu Gulati, Ugo Panizza, Beatrice Weder Di Mauro, Jeromin Zettelmeyer
Faculty Scholarship
Sovereign debt crises occur regularly and often violently. Yet there is no legally and politically recognized procedure for restructuring the debt of bankrupt sovereigns. Procedures of this type have been periodically debated, but so far been rejected, for two main reasons. First, countries have been reluctant to give up power to supranational rules or institutions, and creditors and debtors have felt that there were sufficient instruments for addressing debt crises at hoc. Second, fears that making debt easier to restructure would raise the costs and reduce the amounts of sovereign borrowing in many countries. This was perceived to be against …
Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman
Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman
Faculty Scholarship
Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and …
The Paradoxes Of Restitution, Mark A. Edwards
The Paradoxes Of Restitution, Mark A. Edwards
Faculty Scholarship
Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.
First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.
Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes …
Introductory Note To Prosecutor V. Germain Katanga: Judgment On The Appeal Against The Decision Of Trial Chamber Ii Of 21 November 2012 (Int'l Crim. Ct.), Steven Arrigg Koh
Introductory Note To Prosecutor V. Germain Katanga: Judgment On The Appeal Against The Decision Of Trial Chamber Ii Of 21 November 2012 (Int'l Crim. Ct.), Steven Arrigg Koh
Faculty Scholarship
The Appeals Chamber of the International Criminal Court (ICC) in the case of Prosecutor v. Germain Katanga held that a Trial Chamber, during the deliberations stage of trial proceedings, may, pursuant to Regulation 55 of the Regulations of the Court (Regulation 55), give notice of a possible modification of the legal characterization of the facts in its final Judgment, so long as the trial remains fair. This Introductory Note will provide background on the Katanga case and Regulation 55, summarize the Appeals Chamber's Judgment, and discuss the implications of this ruling.
Due Process In Islamic Criminal Law, Sadiq Reza
Due Process In Islamic Criminal Law, Sadiq Reza
Faculty Scholarship
Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …
New Modes Of Pluralist Global Governance, Gráinne De Burca, Robert O. Keohane, Charles F. Sabel
New Modes Of Pluralist Global Governance, Gráinne De Burca, Robert O. Keohane, Charles F. Sabel
Faculty Scholarship
This paper describes three modes of pluralist global governance. Mode One refers to the creation and proliferation of comprehensive, integrated international regimes on a variety of issues. Mode Two describes the emergence of diverse forms and sites of cross-national decision making by multiple actors, public and private as well as local, regional and global, forming governance networks and “regime complexes,” including the orchestration of new forms of authority by international actors and organizations. Mode Three, which is the main focus of the paper, describes the gradual institutionalization of practices involving continual updating and revision, open participation, an agreed understanding of …
Private Lawyer In Disguise? On The Absence Of Private Law And Private International Law In Martti Koskenniemi’S Work, Ralf Michaels
Private Lawyer In Disguise? On The Absence Of Private Law And Private International Law In Martti Koskenniemi’S Work, Ralf Michaels
Faculty Scholarship
No abstract provided.
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Faculty Scholarship
No abstract provided.
Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster
Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster
Faculty Scholarship
The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …
Transparency In International Investment Law: The Good, The Bad, And The Murky, Julie A. Maupin
Transparency In International Investment Law: The Good, The Bad, And The Murky, Julie A. Maupin
Faculty Scholarship
How transparent is the international investment law regime, and how transparent should it be? Most studies approach these questions from one of two competing premises. One camp maintains that the existing regime is opaque and should be made completely transparent; the other finds the regime sufficiently transparent and worries that any further transparency reforms would undermine the regime’s essential functioning. This paper explores the tenability of these two positions by plumbing the precise contours of transparency as an overarching norm within international investment law. After defining transparency in a manner befitting the decentralized nature of the regime, the paper identifies …
Anticipatory Self-Defense And The Israeli-Iranian Crisis: Some Remarks, Charles J. Dunlap Jr.
Anticipatory Self-Defense And The Israeli-Iranian Crisis: Some Remarks, Charles J. Dunlap Jr.
Faculty Scholarship
No abstract provided.
How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young
How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young
Faculty Scholarship
No abstract provided.
Globalization And Law: Law Beyond The State, Ralf Michaels
Globalization And Law: Law Beyond The State, Ralf Michaels
Faculty Scholarship
The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished—globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state—territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need …
A New International Human Rights Court For West Africa: The Ecowas Community Court Of Justice, Karen J. Alter, Laurence R. Helfer, Jacqueline R. Mcallister
A New International Human Rights Court For West Africa: The Ecowas Community Court Of Justice, Karen J. Alter, Laurence R. Helfer, Jacqueline R. Mcallister
Faculty Scholarship
The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional …
Collective Action Clauses For The Eurozone, Michael Bradley, Mitu Gulati
Collective Action Clauses For The Eurozone, Michael Bradley, Mitu Gulati
Faculty Scholarship
One of the primary policy initiatives instituted in response to the Eurozone sovereign debt crisis is a requirement that all Eurozone sovereign bonds issued after January 1 2013 include provisions referred to as Collective Action Clauses or CACs. These CACs allow for a super-majority of creditors to impose restructuring terms on minority holdouts. This article assesses the likely effect of this proposal on the borrowing costs of sovereign debtors. Contrary to much of the literature, we find that the presence of CACs leads to a lower cost of capital, especially for below-investment grade bonds
Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity
Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity
Faculty Scholarship
The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …
Incorporating Rights: Empire, Global Enterprise, And Global Justice, Erika George
Incorporating Rights: Empire, Global Enterprise, And Global Justice, Erika George
Faculty Scholarship
This Article traces the history and evolution of corporate responsibility under international law to contextualize the developing discourse on business and human rights. It explores the role of private industry in contributing to colonial expansion, slavery, and conflict, and examines the advocacy efforts of abolitionists, anti-imperialism activists, and peace movements to craft reforms and create norms to control corporate conduct. First, the Article outlines the challenge that regulating private commercial power presents for a system of public international law premised on the sovereign power of states. Then, using the example of colonial era European charter companies the Article offers a …
The Rights Of Palestinian Refugees And Territorial Solutions In Historic Palestine, Susan M. Akram
The Rights Of Palestinian Refugees And Territorial Solutions In Historic Palestine, Susan M. Akram
Faculty Scholarship
The chapter addresses the territorial implications of the rights of Palestinian refugees in the Israeli-Palestinian conflict as measured under international law. The chapter focuses on the central issues, addressing the questions: how do rights of return, property restitution and compensation affect the claims to state territory? Concerning self-determination in the territory of former Palestine, which people are entitled to self-determination -- Palestinians, the Jewish people, Israeli Jews, or Israelis? And over which territory are the 'people' entitled to exercise their self-determination. The main legal principles and sources that provide the framework to address these questions are set out and examined.