Law Commons^™

The Holocaust Insurance Accountability Act Of 2010: Hearing Before The United States House Of Representatives, Committee On The Judiciary, Subcommittee On Commercial And Administrative Law. 111th Congress, 2nd Session, Michael P. Van Alstine

Congressional Testimony

The testimony explores the essential legal issue of the extent to which executive agreements related to H.R. 4596 have any force as law in the United States. The agreements made it clear that they did not, by themselves, “provide an independent legal basis for dismissal” of claims of Holocaust victims filed in any courts of the United States. Instead, the executive branch simply agreed to file a “statement of interest” in such lawsuits to the effect “that U.S. policy interests favor dismissal on any valid legal ground.” Some lower courts have nonetheless given the statements of interest preemptive effect as …

A Unified Theory Of International Law, The State, And The Individual: Transnational Legal Harmonization In The Context Of Economic And Legal Globalization, James D. Wilets

Faculty Scholarship

This Article presents an original theory of international law which reconciles the norm-making processes occurring at the international, state, and individual levels. It is the central thesis of this paper that economic globalization is not happening in a vacuum, but it is rather engendering legal globalization, much in the way that centralized regulation followed trans-state economic globalization within the United States and Europe.

Traditional definitions of international law do not address this phenomenon and consider these new forms of transnational norm creation as simply exceptions to the general rule that international law is created by nation-states within the framework of …

It's A Bird, It's A Plane, It's Jus Cogens!, Anthony D'Amato

Faculty Working Papers

What we require—like the third bowl of soup in the story of the three bears—is a theory of jus cogens that is Just Right. I do not know if such a theory is possible. I don't even know if one is conceivable. But if someone conceives it, that person deserves the very next International Oscar. To qualify for the award, the theory must answer the following questions:

Whales: Their Emerging Right To Life, Anthony D'Amato, Sudhir K. Chopra

Faculty Working Papers

We have contended in this article that the evolution of the opinio juris of nations has encompassed five, and perhaps six, inexorable qualitative stages: free resource, regulation, conservation, protection, preservation and entitlement. We have argued that assigning whales an entitlement to life is the consequence of an emerging humanist right in international law — an example of the merging of the "is" and the "ought" of the law in the process of legitimization

Defending A Person Charged With Genocide, Anthony D'Amato

Faculty Working Papers

I was asked to represent Dr. Milan Kovacevic who had been indicted by the International Criminal Tribunal for Yugoslavia ("ICTY") for complicity in genocide. Had he lived through it, his trial would have been the first by the ICTY for the crime of genocide. I would like to describe some of the tribulations of defending clients accused of grave humanitarian offenses in the ICTY.

Israel's Air Strike Against The Osiraq Reactor: A Retrospective, Anthony D'Amato

Faculty Working Papers

Solarz argued that Israel's air strike "must be considered an understandable and legitimate act of self-defense." The point is that if a war exists between Iraq and Israel, Israel's bombing of the Osiraq nuclear reactor is just a normal and legitimate part of the general conduct of war. Whether or not Israel or Iraq, or both, regarded themselves as being in a state of war, any hostilities between them would amount to separate breaches of the peace in the eyes of the international community and would subject either country to forcible intercession by the U.N. Security Council. I quoted the …

Purposeful Ambiguity As International Legal Strategy: The Two China Problem, Anthony D'Amato

Faculty Working Papers

For every definable term in international law there are clear cases and fuzzy cases. Everyone accepts that the term "state" applies to Paraguay, Poland, Portugal and over a hundred other clear cases, but does it apply to Puerto Rico, Western Samoa, the Isle of Man, the Channel Islands, Gibraltar, or the Vatican City? The word "treaty" has thousands of clear applications, but does it apply to an exchange of faxes between two governments or a handshake between two diplomats at a cocktail party? In addition to ambiguities of this kind, international law is replete with deliberately created ambiguities. One of …

Softness In International Law: A Self-Serving Quest For New Legal Materials: A Reply To Jean D’Aspremont,, Anthony D'Amato

Faculty Working Papers

As international law grows and spreads into non-traditional areas such as the international ecosystem, the global economy, and human rights, some say it is becoming fragmented. This notion can actually appeal to those scholars who want to become experts in a fragment without having the burden of connecting it to the rest of international law. Another group views the idea of isolated specialization with apprehension; they feel that international law is and must be a coherent set of principles and rules—coherent in the sense that no member of the set contradicts any other member. The burden of resolving the tension …

A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato

Faculty Working Papers

If any one sentence about international law has stood the test of time, it is Louis Henkin's: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." If this is true, why is this true? What makes it true? How do nations invent rules that then turn around and bind them? Are international rules simply pragmatic and expedient? Or do they embody values such as the need for international cooperation? Is international law a mixed game of conflict and cooperation because of its rules, or do its rules make …

Is International Law Really ‘Law’?, Anthony D'Amato

Faculty Working Papers

International law is enforced by the process I describe as reciprocal-entitlement violation. The violation may be of the same entitlement or, more likely, of a different entitlement. But it is on the whole an effective process—as effective for the international legal system as is the enforcement of most laws in domestic systems via the state-sanctioned deprivation of one or more entitlements held by individual citizens or corporations. It is impossible to understand why nations do or refrain from doing the things they do without understanding what the entitlements are and how nations act to preserve their full complement of existing …

Three Obstacles To The Promotion Of Corporate Social Responsibility By Means Of The Alien Tort Claims Act: The Sosa Court's Incoherent Conception Of The Law Of Nations, The "Purposive" Action Requirement For Aiding And Abetting, And The State Action Requirement For Primary Liability, David A. Dana, Michael Barsa

Faculty Working Papers

The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court's ahistorical and incoherent formulation of the "law of nations" fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts' confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we …

International Law And Rawls' Theory Of Justice, Anthony D'Amato

Faculty Working Papers

The complexity of present-day international law stands in an uneasy relation to the scheme of justice propounded by Rawls. The problems facing international lawyers may pose a conceptual threat to some of the fundamental bases upon which Rawls builds his entire theoretical edifice.

Plural Vision: International Law Seen Through The Varied Lenses Of Domestic Implementation, D. A. Jeremy Telman

Law Faculty Publications

No abstract provided.

Traditional Knowlege: Is Perpetual Protection A Good Idea?, J. Janewa Oseitutu

Faculty Publications

Most of the international dialogue about traditional knowledge has taken place within the context of an intellectual property framework with the World Intellectual Property Organization (WIPO) as the primary facilitator of the discussion. Following more than a decade of dialogue, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) has been given until the Fall of 2011 to come up with something concrete. Due to the intersection between traditional knowledge and intellectual property, the resulting text is likely to be a significant development for international intellectual property law.

Developing countries have long advocated …

Supervisory Colleges: The Global Financial Crisis And Improving International Supervisory Coordination, Duncan E. Alford

Faculty Publications

No abstract provided.

Things Fall Apart: The Concept Of Collective Security In International Law, Peter G. Danchin

Faculty Scholarship

This chapter provides an introduction to the analytical and historical aspects of the concept of collective security in international law. Taking the examples of Italy’s invasion of Ethiopia in 1935 during the League of Nations and the complaint brought by Hyderabad against India at the very inception of the United Nations in 1948, the chapter traces the complex dialectics of normativity and concreteness in debates concerning collective security. Mirroring the normative and institutional dilemmas underlying the two cases of Ethiopia and Hyderabad, it is observed that the questions of “external threats” (the threat or use of force between States) and …

A No-Excuse Approach To Transitional Justice: Reparations As Tools Of Extraordinary Justice, David C. Gray

Faculty Scholarship

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of an abusive regime granted outside of a legal process. While some reparations claims succeed—such as those made by Americans of Japanese decent interned during World War II and those made by European Jews against Germany after World War II—most do not. The principal culprits in these …

Accountability For System Criminality, Mark A. Drumbl

Scholarly Articles

Not available.

Balancing Security And Liberty In Germany, Russell A. Miller

Scholarly Articles

Scholarly discourse over America’s national security policy frequently invites comparison with Germany’s policy. Interest in Germany’s national security jurisprudence arises because, like the United States, Germany is a constitutional democracy. Yet, in contrast to the United States, Germany’s historical encounters with violent authoritarian, anti-democratic, and terrorist movements have endowed it with a wealth of constitutional experience in balancing security and liberty. The first of these historical encounters – with National Socialism – provided the legacy against which Germany’s post-World War II constitutional order is fundamentally defined. The second encounter – with leftist domestic radicalism in the 1970s and 1980s – …

Hybrid Courts: Examining Hybridity Through A Post-Colonial Lens, Elizabeth M. Bruch

Law Faculty Publications

No abstract provided.

International Human Rights Law In Japan: The View At Thirty, Timothy Webster

Faculty Publications

Japanese courts have become increasingly open to the use of international human rights law in the past two decades. This paper examines several of the key decisions that reflect the judiciary's embrace of international law, particularly in the areas of criminal procedure and minority rights. I argue that the judiciary has eclipsed the other branches of government as the primary disseminator of human rights norms in Japan.

"A Guantanamo On The Sea": The Difficulties Of Prosecuting Pirates And Terrorists, Eugene Kontorovich

Faculty Working Papers

As a surge in pirate attacks in the seas around the Horn of Africa threatens to seriously damage international trade, the nations of the world have refused to enforce international law against these criminals. The dozens of nations patrolling the Gulf of Aden have ample legal authority to detain and prosecute pirates. Yet the United States and other navies have, as a matter of policy, been releasing apprehended pirates because of the difficulty of detaining or successfully prosecuting them. These fears are not unwarranted. As this Essay shows, while on the one hand international law requires all nations to fight …

An Empirical Examination Of Universal Jurisdiction For Piracy, Eugene Kontorovich, Steven Art

Faculty Working Papers

This Essay presents the first systematic empirical study of the incidence of universal jurisdiction prosecutions over an international crime. Using data on the number of piracies committed in a twelve year period (1998-2009) obtained from international agencies and maritime industry groups, we determine the percentage of acts of piracy where nations prosecuted under universal jurisdiction we determine the percentage of these cases where nations exercised UJ. Studies of the worldwide use of UJ over other crimes simply count how often UJ has been exercised, but do not attempt to determine the rate of prosecution.

We find that of all clearly …

Is International Law Part Of Natural Law?, Anthony D'Amato

Faculty Working Papers

The affinity of international law to natural law goes back a long way to the classic writers of international law. "Natural law" is the method of dispute resolution based on a conscious attempt to perpetuate past similarities in dispute resolution. "International law" has a deep affinity to this natural law method, for it consists of those practices that have "worked" in inter-nation conflict resolution.

International Human Rights At The Close Of The Twentieth Century, Anthony D'Amato

Faculty Working Papers

Speculates as to why the human-rights revolution is increasingly likely to dominate our foreign-policy attentions in the decades to come. Ventures some predictions, of particular interest perhaps to international lawyers, about where the cause of international human rights is heading.

Israel's Air Strike Upon The Iraqi Nuclear Reactor, Anthony D'Amato

Faculty Working Papers

The destructive potential of nuclear weapons is so enormous as to call into question any and all received rules of international law regarding the trans-boundary use of force. Many of the old rationales for these rules no longer apply. At the same time, the shared values underlying the rules apply more emphatically than ever, for the stake is global survival. I have tried to suggest some of the questions that must be asked about as apparently "simple" an incident as the Israeli attack on the nuclear reactor in Iraq.

Legal And Moral Dimensions Of Churchill's Failure To Warn, Anthony D'Amato

Faculty Working Papers

Churchill had been given at least forty-eight hours' warning that Coventry would be hit. He could have warned the people of Coventry of the impending attack. Yet Churchill determined that any advance warning to the people of Coventry would have enabled the Germans to deduce that their top secret code had been broken. The coded intercepts provided evidence of the Holocaust in progress. Other ways to reveal information that could have by-passed the code system existed, thus providing warning to the public while maintaining a strategic advantage. The international law of genocide would have to develop to go beyond intentional …

State Responsibility For The Exportation Of Nuclear Power Technology, Anthony D'Amato, Kirsten H. Engel

Faculty Working Papers

Should nations that export nuclear power plants to developing countries be potentially liable to the people of those countries for catastrophic accidents? Risk of accident can be reduced if international law compels upgrading of safety design and construction of nuclear plants. Both the international law of state responsibility and an international regulatory agency have roles to play.

There Is No Norm Of Intervention Or Non-Intervention In International Law, Anthony D'Amato

Faculty Working Papers

Comments on Prof. Jianming Shen's position that humanitarian intervention is unlawful under international law and that there is a principle of non-intervention in international law that is so powerful that it amounts to a jus cogens prohibition.

Cross-Country Adoption: A Call To Action, Anthony D'Amato

Faculty Working Papers

Although a free press is an integral part of democratic governance, intercountry adoption is one case in which the media makes it virtually impossible for governments to send children abroad for adoption. A country (State A) which gives up a child for intercountry adoption should receive a "credit" for that child which will entitle any other family within State A that may want to adopt a child to priority on the list at the Vatican. The second major function for the Intercountry Adoption Agency might be called the "annual report" function. All adoptive parents who take a child from the …