Law Commons^™

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

The Right To An Effective Remedy For Victims Of Trafficking In Persons: A Survey Of International Law And Policy, Anne T. Gallagher

Anne T Gallagher

Remedies are a critical aspect of the international legal response to trafficking, confirming the status of trafficked persons as victims of crime and victims of human rights abuse. Over the past decade, States and the international community have come to better understand the true consequences of trafficking – an essential prerequisite to consensus on what constitutes ‘effective” and “appropriate’ remedies for trafficking-related harm. There have also been great improvements in the articulation and acceptance of legal obligations owed by States to prevent and respond to such harm. Unfortunately, and despite this important progress, victims of trafficking very rarely receive the …

International Civil Religion: Respecting Religious Diversity While Promoting International Cooperation, Amos Prosser Davis

Amos Prosser Davis

International civil religion grounds moral claims that permeate and transcend traditional religious paradigms. Given the inevitability of international interactions – interactions that cross geographic, religious, and cultural boundaries – our global society is in need of a universally endorsable framework that undergirds the United Nations international human rights regime. International civil religion provides that framework.

Numerous scholars and moral theorists have incrementally discerned the parameters of civil religion including, inter alia, Jean-Jacques Rousseau, Alexis de Tocqueville, Robert Bellah, Martin Marty, and Harold Berman. The tenets of international civil religion infuse the diplomatically drafted United Nations covenants and conventions on human …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

From Enemy Combatant To American Citizen: Protecting Our Constitution, Not Our Enemy, Annie Macaleer

Annie Macaleer

This Article advocates maintaining the use of Combatant Status Review Tribunals and military commissions in the framework that the executive and legislative branches have already established during the Bush administration, despite the Obama administration’s recent policy to try detainees in federal court. Furthermore, this Article argues against the use of Article III criminal courts as an arena to prosecute unlawful enemy combatants.

Child Soldiers And The Duty Of Nations To Protect Children From Participation In Armed Conflict, Luz Estella Nagle

Luz Estella Nagle

Children are used as armed combatants throughout the world. Some volunteer in order to alleviate family problems or escape from them, to achieve status in their cultures, or to gain protection and a sense of belonging. Many more, however, are coerced or forced to fight. The indoctrination process is brutal and can involve the most unspeakable depredations and assaults, with the goal being to break child soldiers down into killers who will do anything they are commanded to do.

The body of international law and international humanitarian law intended to protect children is impotent. In most situations where child combatants …

A Policy Of Disregarding Public Policy: Pursuing The Comity Of Nations In Private International Law, Anthony Bessette

Anthony Bessette

Private agreements stipulating the forum, procedure, and substantive law to govern commercial relationships have become a common feature of international business. Companies that enter international contracts, and thus the economies of their countries to an extent, rely on them for certainty and stability. Almost all countries that honor foreign jurisdiction clauses reserve an exception for public policy. U.S. law has drifted from international standards and its modern roots in Bremen by narrowing its public policy exception to the vanishing point. This article examine the history of foreign jurisdiction clauses, the way other countries approach them, and recent developments which may …

Fighting Homogenization: The Global Infiltration Of Technology And The Struggle To Preserve Cultural Distinctiveness., Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

While technology and globalization continue to pervade every aspect of the world, the scope for the sustenance of national or regional culture is rapidly disappearing. This paper will seek to use the lessons and experiences obtained through the controversies in the use of Direct Broadcasting Satellites in its more initial years and apply the same to the Internet to assess its effect on the culture of developing States. The eventual thesis proposed here argues that the freedom of information upheld through technology, and the human right to culture need not be seen as perpendicular interests, but that the latter may …

The Obligation Of Prevention And Reduction As An Essential Obligation For State Responsibility For Environmental Damage Caused By Nuclear Activities, Sayed Mohamed Mohamed Zeidan

Sayed Mohamed Mohamed Zeidan

The aim of this article is to discuss the legal basis of the principle of prevention as customary and general principle of international law and its effectiveness to be the basis for State responsibility to prevent and reduce environmental nuclear damage. The principle of prevention is a fundamental principle in international law for the protection of the environment. According to international law, the State has the right to conduct nuclear activities for peaceful purposes, but this right is not absolute and restricted by the fact that it has not to cause damage to other States and the global environment. The …

International Law And Domestic Political Coalitions: The Grand Theory Of Compliance With International Law, Joel P. Trachtman

Joel P Trachtman

Compliance with international law is always dependent upon a domestic political decision to engage in the behavior that constitutes compliance. This article articulates the importance of the interdependence between home state domestic politics and foreign state domestic politics in determining compliance. International legal commitments allow the formation of domestic coalitions between those who will benefit by their own state’s compliance with the international legal rule in question, and those who will benefit from other states’ compliance with the international legal rule. The theory developed in this paper is based on established approaches to international relations in the political science literature, …

Beyond The Court Of Public Opinion: Military Commissions And The Reputational Pull Of Compliance Theory, Keith A. Petty

Keith A. Petty

The decision to prosecute the suspected co-conspirators of the 9/11 terrorist attacks in either federal court or by military tribunal has reached a critical juncture. Central to this debate is whether the military commissions are consistent with domestic and international standards of justice. Utilizing the analytical framework of compliance theory, this article discusses the U.S. reputation for compliance in the context of the revised military commissions.

A decidedly negative reputation of the military commissions contributed to policies to amend the tribunal process, culminating in the Military Commissions Act of 2009. This supports empirical findings that States are pulled toward compliance …

Democratization Of The International Law, Timur R. Korotkiy

Timur R. Korotkiy

The article deals with the processes of democratization of international law, the establishment of democracy in the international legal system. Aside from that in the article explores the issues embodied in international law principles and norms containing liberal- democratic values, the development of international legal mechanisms for the establishment, maintenance and development of democratic institutions in the states and prevention of emergence and existence of undemocratic regimes, democratization of international rule-making procedures and enforcement of norms.

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez

Paul Enriquez

This Article builds upon Philip C. Jessup’s revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-à-vis international law. This theory, called metanationalism, rejects Harold Koh’s theory of transnationalism and demonstrates that …

Women And Private Military And Security Companies, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

Lack of clarity about the application of international law norms and inadequacies of existing regulatory regimes covering private military and security companies have reinforced concerns about transparency and accountability in respect of gender-related violence, harassment and discrimination. This chapter focuses on the main issues and legal concerns raised by the impact of the privatisation of war on women, both as PMSC employees and civilians. Part I highlights how armed conflict, civil unrest, occupation and transition have a detrimental effect upon the lives of women with particular reference to safety, displacement, health and economic disadvantage. Part II provides a summary of …

Ecological Considerations Relating To The Destruction Of Chemical Weapons, Aldo Zammit Borda

Aldo Zammit Borda

The Chemical Weapons Convention (CWC) not only establishes a global ban on the development of chemical weapons (CW), it also establishes an international obligation on possessor States to destroy their CW and production facilities. This is a central and mandatory obligation of the CWC, which aims at securing a world free of CW. In view of the risks posed by CW to human health and the environment, the obligation to destroy CW may be seen as directly connected to the right to a healthy environment. While the CWC seeks to set high standards for ensuring the safety of people and …

Eastphalia As A Return To Westphalia, Tom Ginsburg

Tom Ginsburg

Prognosticators of the international scene have focused on two claims on which there is broad agreement: First, globalization is producing deep integration among nations, moving in the direction of quasi-constitutional global governance; and, second, Asia will significantly influence the world in decades to come. These two claims are in tension with each other. Asian countries have hardly been leaders in deep integration of the constitutionalist variety, though they have been effective participants in globalized markets. Projecting forward, one expects an Asia-dominated international law to emphasize traditional concerns of sovereignty, non-interference, and mutual cooperation rather than the constitutionalist vision of supranational …

A Dark Descent Into Reality: The Case For An Objective Definition Of Torture, Michael W. Lewis

Michael W. Lewis

Abstract The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture …

Una Aproximación Al Debate Democrático En Derecho Internacional, Ignacio De La Rasilla Del Moral

Ignacio de la Rasilla del Moral, Ph.D.

Taking as it starting point a critical introduction to the democratic debate in international law, the object of the present work is that of contributing to the critical development of an appropiate methodology for the exam of the normative pretension according to which the international legal order would be developing within itself a particular conception of the liberal State. Such a conception would be premised in the gradual emergence of an international legal obligation that would command the development within every sovereign state of institutions of democratic governance, thus marking the transition from the paradigm of equivalence of domestic political …