Law Commons^™

Finding International Law: Rethinking The Doctrine Of Sources, Harlan G. Cohen

Scholarly Works

The doctrine of sources has served international law well over the past century, providing structure and coherence during a time when international law was expanding rapidly and dramatically. But the doctrine's explanatory power is increasingly being challenged. Current doctrine tells us that treaties are international law; empirical evidence, however, suggest that treaties are poor predictors of state practice. The expansion of the international community, the rise of human rights, developments in international legal theory, and the international system's need to adapt to changing circumstances, have all also put pressure on the reified role of "treaty" in identifying rules of international …

Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky

Scholarly Works

From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics -- at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments – not only absolute targets, …

What Is The Definition Of An "Organ" Under The Foreign Sovereign Immunities Act?, Peter B. Rutledge

Scholarly Works

Did the court of appeals have jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. 1447(d)?

does a company wholly owned by a Canadian crown corporation -- that is itself wholly owned by the Canadian Province of British Columbia and that performs obligations and exercises rights of the Province pursuant to a treaty with the United States -- quality as an "organ" of a foreign state or political subdivision under the Foreign Sovereign Immunities Act?

Punish Or Surveil, Diane Marie Amann

Scholarly Works

This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were …

Restitution As A Remedy For Refugee Property Claims In The Israeli-Palestinian Conflict, Michael Kagan

Scholarly Works

This Article examines restitution as an autonomous human right for refugees displaced in the Israeli-Palestinian conflict, and assesses the implications of taking such a rights-based approach. The author concludes that the refugees have a strong legal claim to restitution. In international law, compensation is relevant only when restitution is materially impossible, where property has been damaged or declined in value so that restitution is not a complete remedy for the victim's loss or where a refugee chooses not to seek restitution. Current empirical research about land usage in Israel indicates that a great deal, and possibly the majority, of lost …

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

Scholarly Works

Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

Scholarly Works

In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …