Law Commons^™

International Legal Standards Governing The Use Of Child Soldiers, Dorcas B. Mulira

LLM Theses and Essays

This paper seeks to analyze the international laws governing the use of children in armedconflict. Despite the prohibition of the use of child soldiers in armed conflict in internationallaw, States and non-State actors continue to actively recruit, abduct, and directly use children,some as young as eight, in hostilities. International humanitarian law's limited scope prevents itfrom protecting the worldÕs most vulnerable children, child soldiers, while human rightsinstruments adopted to make up for these limitations lack enforcement mechanisms, thereforerendering the much-needed protection for child soldiers inadequate. As development ofinternational law concerning child soldiers progresses on paper, progress on the ground lagsbehind, thus …

Rights Relationships And The Experience Of Children Orphaned By Aids, Jonathan Todres

Faculty Publications By Year

The global AIDS pandemic has left more than fifteen million children orphaned. These children constitute one of the most vulnerable populations, yet their situation has received relatively little scrutiny from legal scholars. This Article intends to fill that void by explicating the experience of children orphaned by AIDS, situating it in the broader context of the HIV/AIDS pandemic, and evaluating protections available under international human rights law. Analyzing human rights law as applied to children orphaned by AIDS exposes the extent to which rights are interrelated, particularly for marginalized populations.

In current scholarship, the interrelationship among rights, for the most …

The Expressive Capacity Of International Punishment: The Limits Of The National Law Analogy And The Potential Of International Criminal Law, Robert D. Sloane

Faculty Scholarship

Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the …

Egypt: Criminal Procedure, Sadiq Reza

Faculty Scholarship

This chapter presents the criminal-procedure law of Egypt according to the sources of that law: the 1971 Constitution, the 1950 Code of Criminal Procedure, the 1958 Emergency Law, and other legislation; decisions by the Supreme Constitutional Court (SCC), the Court of Cassation, and other organs of the Egyptian judiciary; and administrative and executive regulations. Included are references to controversial aspects of this law and its practice, such as the use of military courts, state security courts, and emergency courts and powers. The chapter thus serves as an introduction to modern Egyptian criminal procedure and a reference source for scholars and …

Article Iii And Supranational Judicial Review, Henry Paul Monaghan

Faculty Scholarship

With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions offederal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the "essential attributes of the judicial power established by Article III." Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court's recent decisions regarding Article …

Pursuing Accountability For Atrocities After Conflict: What Impact On Building The Rule Of Law?, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

In countries ravaged by widespread violence, the trauma does not end when the guns fall silent. On the contrary, atrocities have cast a long shadow in places such as the Balkans, where brutal massacres, mass rapes, and ethnic cleansing were regular features of war; in Rwanda, where a devastating genocide killed hundreds of thousands of people; and in Sierra Leone, where the civil war was marked by forced recruitment of child soldiers, rapes and murders, and the gruesome mutilation of civilians. In Afghanistan, Iraq, East Timor, and many other societies, severe abuses have also left deep pain and trauma in …

Universal Proceduralism, Edward J. Janger

Faculty Scholarship

No abstract provided.

The Legacy Of Louis Henkin: Human Rights In The "Age Of Terror" – An Interview With Sarah H. Cleveland, Sarah H. Cleveland

Faculty Scholarship

What effect has Professor Henkin's work had upon your own thoughts or scholarship in the human rights field?

My scholarly work spans the fields of international human rights and U.S. foreign relations law. I am particularly interested in the process by which human rights norms are implemented into domestic legal systems, the role the United States plays in promoting the internalization of human rights norms by other states, and the mechanisms by which the values of the international human rights regime are incorporated into the United States domestic legal system.

To say that Professor Henkin's work has contributed to my …

Hidden Foreign Aid, David Pozen

Faculty Scholarship

Few issues in global politics are as contentious as foreign aid – how much rich countries should give, in what ways, to whom. For years, it has been a commonplace that U.S. policies are stingy. The Organization for Economic Cooperation and Development (OECD) routinely ranks the United States far behind its industrialized peers in official development assistance (ODA), measured as a percentage of gross national income (GNI). An endless parade of critics has implored the government to do more; some suggest that the Bush Administration's support for the Monterrey Consensus, which sets a goal of increasing assistance to 0.7% of …

Suing Islam: Tort, Terrorism, And The House Of Saud, Don Garner, Robert L. Mcfarland

Oklahoma Law Review

No abstract provided.

Architecture Amidst Anarchy: Global Health's Quest For Governance, David Fidler

Articles by Maurer Faculty

Increased concern about global health has focused attention on governance questions, and calls for new governance architecture for global health have appeared. This article examines the growing demand for such architecture and argues that the architecture metaphor is inapt for understanding the challenges global health faces. In addition to traditional problems experienced in coordinating State behavior, global health governance faces a new problem, what I call “open-source anarchy.” The dynamics of open-source anarchy are such that States and non-State actors resist governance reforms that would restrict their freedom of action. In this context, what is emerging is not governance architecture …

Mining And The World Heritage Convention: Democratic Legitimacy And Treaty Compliance, Natasha Affolder

All Faculty Publications

International treaties and the institutions which administer them are increasingly the subjects of democratic scrutiny. In recent disputes surrounding mining projects in and around World Heritage Sites, the legitimacy of the World Heritage Convention regime has been attacked for a host of democratic failings. These accusations of democratic deficits originate from both opponents and supporters of the Convention regime. They challenge the compatibility of international processes with national law and institutions, raise questions of accountability and transparency, and revisit tensions between state sovereignty and common heritage. To foster compliance with the World Heritage Convention, we need to boldly engage with …

Rehabilitation Or Revenge: Prosecuting Child Soldiers For Human Rights Violations, Nienke Grossman

All Faculty Scholarship

International law provides no explicit guidelines for whether or at what age child soldiers should be prosecuted for grave violations of international humanitarian and human rights law such as genocide, war crimes, and crimes against humanity. This paper argues that the hundreds of thousands of children under age eighteen participating in armed conflicts around the globe should be treated primarily as victims, not perpetrators, of human rights violations and that international law may support this conclusion. In the case of children, the world community should choose rehabilitation and reintegration over criminal prosecution because of children's unique psychological and moral development, …

Balancing Lives: Individual Accountability And The Death Penalty As Punishment For Genocide (Lessons From Rwanda), Melynda J. Price

Law Faculty Scholarly Articles

The purpose of this Article is not to answer the question of whether the death penalty is an appropriate punishment for genocide. One could safely argue that there is an emerging norm in international law against the death penalty, but individual countries have maintained their right to use the death penalty and continue to do so in code and in practice. This Article, using Rwanda as a case study, evaluates the real outcomes of such discrepancies in punishment at the domestic and international level, and the ability of both approaches to bring justice to the victims of genocide. Both domestic …

The Ban On The Bomb – And Bombing: Iran, The U.S., And The International Law Of Self-Defense, Mary Ellen O'Connell, Maria Alevras-Chenl

Journal Articles

Since the March 2003, U.S.-led invasion of Iraq, rumors have persisted of a United States plan to attack Iran. Some U.S. officials are apparently willing to contemplate the use of military force to prevent Iran from developing nuclear weapons. Under international law, however, there is no right without Security Council authorization to use significant military force on the territory of another state to stop nuclear research. Knowing this, alternative arguments are being floated by those sympathetic to the plan to attack Iran. One such argument asserts that the U.S. could attack Iran on the basis of collective self-defense with Iraq …

A Tale Of Two Platforms, Tim Wu

Faculty Scholarship

This paper discusses future competitions between cellular and computer platforms, in the context of a discussion of Jonathan Zittrain, The Generative Internet, 119 Harv. L. Rev. 1974 (2006).

Social Security For Migrant Workers: The Eu, Ilo & Treaty Based Regimes, Barbara Fick, Alma Clara Garcia Flechas

Journal Articles

Migrant workers face special problems in terms of qualifying for, and receiving payment under, national social security systems. In an effort to mitigate these problems, many states coordinate their social security systems. This paper explores how coordination schemes work in regional mechanisms such as the European Union, in international conventions adopted by the International Labour Organisation, and in multi-lateral treaties such as the Andean Social Security Instrument.

International Antitrust Negotiations And The False Hope Of The Wto, Anu Bradford

Faculty Scholarship

Multinational corporations ("MNCs") operate today in an increasingly open global trade environment. While tariff barriers have collapsed dramatically, several states and numerous scholars have raised concerns that the benefits of trade liberalization are undermined by various non-tariff barriers ("NTBs") to trade, including the anticompetitive business practices of private enterprise. As a result, demands to link trade and antitrust policies more closely by extending the coverage of the World Trade Organization ("WTO") to incorporate antitrust law have gathered momentum over the last decade.

Most advocates of a WTO antitrust agreement base their normative claims on largely intuitive assumptions about the necessity …

Globalization Of Law Firms: A Survey Of The Literature And A Research Agenda For Further Study, D. Daniel Sokol

UF Law Faculty Publications

The international expansion of law firms plays a critical role in understanding the business of law and the nature of globalization. This article responds to two articles on law firm expansion in the Indiana University - Bloomington Law School symposium on the Globalization of the Legal Profession. The article utilizes management studies' theoretical work on internationalization and applies it to law firm expansion to explain law firm strategic decision-making. The author creates a six part taxonomy for types of law firm expansion and provides a snapshot of the increasing U.S./U.K. dominance of capital markets, corporate and mergers and acquisitions legal …

Preserving The Peace: The Continuing Ban On War Between States, Mary Ellen O'Connell

Journal Articles

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the …

The U.N. Disability Convention: Historic Process, Strong Prospects And Why The U.S. Should Ratify, Tara J. Melish

Journal Articles

On December 13, 2006, the United Nations General Assembly unanimously adopted the Convention on the Rights of Persons with Disabilities. The Convention is historic and path-breaking on several levels, both in protection terms for the world's 650 million persons with disabilities who may now draw upon its provisions in defense of their internationally-protected rights, and in relation to the unprecedented level of civil society input and engagement in the negotiation process. This sustained and constructive engagement has given rise to a dynamic process of dialogue, cooperation, and mutual trust that will fuel monitoring and implementation work, at national and international …

Regime Theory, Anu Bradford

Faculty Scholarship

Regime theory is an approach within international relations theory, a sub-discipline of political science, which seeks to explain the occurrence of co-operation among States by focusing on the role that regimes play in mitigating international anarchy and overcoming various collective action problems among States (International Relations, Principal Theories; State; see also Co-operation, International Law of). Different schools of thought within international relations have emerged, and various analytical approaches exist within the regime theory itself (see Sec. F.3 below). However, typically regime theory is associated with neoliberal institutionalism that builds on a premise that regimes are central in facilitating international co-operation …

Re-Evaluating The Theoretical Basis And Methodology Of International Criminal Trials, Dermot Groome

Faculty Scholarly Works

No abstract provided.

Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility?, Dermot Groome

Faculty Scholarly Works

Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used …

Can We Compare Evils? The Enduring Debate On Genocide And Crimes Against Humanity, Steven R. Ratner

Articles

A look back at the twentieth century reveals that the most critical steps in the criminalization of mass human rights constituted the academic work of Raphel Lemkin and his conceptualization of genocide; the International Military Tribunal Charter’s criminalization of crimes against humanity and the trials that followed; and the conclusion and broad ratification of the Genocide Convention. The Convention was the first treaty since those of slavery and the “white slave traffic” to criminalize peacetime actions by a government against its citizens. Since that time, customary international law has recognized the de-coupling of crimes against humanity from wartime.

Partially Odious Debts?, Omri Ben-Shahar, Mitu Gulati

Articles

The despotic ruler of a poor nation borrows extensively from foreign creditors. He spends some of those funds on building statues of himself, others on buying arms for his brutal secret police, and he places the remainder in his personal bank accounts in Switzerland. The longer the despot stays in power, the poorer the nation becomes. Although the secret police are able to keep prodemocracy protests subdued by force for many years, eventually there is a popular revolt. The despot flees the scene with a few billion dollars of his illgotten gains. The populist regime that replaces the despot now …

Refugee Solution, Or Solutions To Refugeehood?, James C. Hathaway

Articles

This is the text of a lecture delivered by James C. Hathaway in London in October 2006 to mark the twenty-fifth anniversary of the founding of Jesuit Refugee Service. The lecture was sponsored jointly by the Centre for the Study of Human Rights, London School of Economics; the Heythrop Institute for Religion, Ethics, and Public Life; and Jesuit Refugee Service (UK).

Tax Competition, Tax Arbitrage And The International Tax Regime, Reuven S. Avi-Yonah

Articles

In the past ten years, I have argued repeatedly that a coherent international tax regime exists, embodied both in the tax treaty network and in domestic laws, and that it forms a significant part of international law (both treaty-based and customary). The practical implication is that countries are not free to adopt any international tax rules they please, but rather operate in the context of the regime, which changes in the same ways international law changes over time. Thus, unilateral action is possible, but is also restricted, and countries are generally reluctant to take unilateral actions that violate the basic …

The New United States Model Income Tax Convention, Reuven S. Avi-Yonah, Martin B. Tittle

Articles

On 15 November 2006, the United States Treasury released its long-awaited new Model Income Tax Convention (“New Model”), which replaced the 1996 US Model (“Old Model”). This article reviews some of the major differences between the New and Old Models, as well as some of the major differences between the New Model and the current (2005) OECD Model Tax Convention. The article also discusses some new trends in US treaty policy which are not reflected in the New Model. The article concludes by evaluating the New Model in light of the emerging trend to use tax treaties not just to …

To Condone Or Condemn? Regional Enforcement Actions In The Absence Of Security Council Authorization, Monica Hakimi

Faculty Scholarship

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second …