Law Commons^™

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by …

Human “Wrongs”?: The U.S. Takes An Unpopular Stance In Opposing A Strong International Criminal Court, Gaining Unlikely Allies In The Process, Tomas A. Kuehn

Pepperdine Law Review

No abstract provided.

Federal Constitutions, Global Governance, And The Role Of Forests In Regulating Climate Change, Blake Hudson

Indiana Law Journal

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain subject matter may constrain national governments during international negotiations—a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. While federal nations that grant subnational governments exclusive regulatory control obviously place value on stringent decentralization and the benefits it provides in those regulatory areas, the difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. Recent scholarship …

Bio-Cultural Knowledge And The Challenges Of Intellectual Property Rights Regimes For African Development, Ikechi Mgbeoji

Dalhousie Law Journal

African states have, since the colonial encounter, been part of the international regimes on intellectual property rights. Formal accession to various treaties and conventions on intellectual property rights instruments should not be mistaken for actual internalization of the policies, structures and norms required for reaping the promised benefits of participation in such regimes. There is ample evidence showing that most African states do not have the requisite structures for fruitful engagement with international intellectual property rights regimes. Until this anomaly is rectified, African states' engagement with international intellectual property regimes will remain structurally flawed and inimical to the human development …

Contractualism In The Law Of Treaties, Omar M. Dajani

Michigan Journal of International Law

When Henry Sumner Maine famously observed that "the movement of the progressive societies has hitherto been a movement from Status to Contract," he was invoking contract not as a device for binding parties to their commitments but, rather, as a metaphor for freedom. That metaphor lies at the heart of what legal scholars have come to call contractualism (or, sometimes, contractarianism)-the idea that people should be free to decide with whom, for what, and on which terms they enter agreements and that the law should minimize the constraints it places on these decisions. It is a proposition rooted in the …

Do Investment Treaties Prescribe A Deferential Standard Of Review, Anna T. Katselas

Michigan Journal of International Law

The dramatic rise in foreign investment in recent decades has brought with it a corresponding increase in the number of bilateral investment treaties (BITs) and, in turn, the number of international investment disputes arising under those treaties. Investment treaty arbitration is the predominant method used to settle those disputes and has certain advantages for both foreign investors and host states compared to available alternatives, but it can tread on delicate issues typically within the domaine rieservd of states. The concern about due regard for sovereign interests in this context is far from purely academic. In the past twenty years, the …

Satmed: Legal Aspects Of The Physical Layer Of Satellite Telemedicine, Stephen Rooke

Michigan Journal of International Law

In 2003, Paul Hunt, the U.N. Commission on Human Rights' Special Rapporteur on the Right to Health, presented a report on the global availability of health care. Special Rapporteur Hunt argued that states are obligated to implement a right to health. Included in this right is the obligation "to ensure that no international agreement or policy adversely impacts upon the right to health, and that .. . international organizations take due account of the right to health, as well as the obligation of international assistance and cooperation, in all policy-making matters." One area Hunt left unexplored in his report was …

Agenda: Drafting Model Laws On Indoor Pollution For Developing And Developed Nations, University Of Colorado Boulder. Center For Energy & Environmental Security, Colorado Natural Resources, Energy And Environmental Law Review

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

On July 12 and 13, 2012, experts convened at Colorado Law to demonstrate the extent to which a model law could help address the global problem of indoor air pollution from inefficient cook stoves. The air pollution that results from inefficiently burning biomass as fuel for cooking has serious health and climatic consequences. The workshop produced two sets of Model Laws and commentaries to help nations solve the problem, and the commentaries were published in the Colorado Natural Resources, Energy, and Environmental Law Review.

Drafting Model Laws On Indoor Pollution For Developing And Developed Nations Workshop, July 12-13, 2012, Boulder, Colorado: Introduction, Lakshman Guruswamy

Drafting Model Laws on Indoor Pollution for Developing and Developed Nations (July 12-13)

11 pages.

"This Essay introduces the framework for deliberation and legislative drafting undertaken at the workshop: Drafting Model Laws on Indoor Pollution for Developing and Developed Nations on July 12-13, 2012, in Boulder, Colorado. There are a number of fundamental premises upon which the workshop was based, and this Essay refers to the most salient among them."-- Excerpted from 24 Colo. Nat. Resources, Energy & Envtl. L. Rev. 319 (2013).

Revisiting Extraterritoriality After Al-Skeini: The Echr And Its Lessons, Barbara Miltner

Michigan Journal of International Law

On July 7, 2011, the European Court of Human Rights, sitting as a Grand Chamber, handed down two long-awaited judgments on the subject of the extraterritorial reach and scope of the European Convention on Human Rights (ECHR). In both Al-Skeini v. United Kingdom and Al-Jedda v. United Kingdom, the underlying issue was whether or not the United Kingdom was bound by its treaty obligations under the ECHR with regard to its military presence in Iraq. Al-Skeini involved the joined claims of six Iraqi nationals whose relatives were killed while allegedly under U.K. jurisdiction in Iraq; they claimed a lack of …

Gsp And Development: Increasing The Effectiveness Of Nonreciprocal Preferences, Matthew G. Snyder

Michigan Journal of International Law

The intellectual foundations of nonreciprocal preferences were first laid out in the 1960s, as several scholars noted developing countries' increasing reliance on highly volatile, low-value-added exports like agricultural and mineral commodities. The Generalized System of Preferences (GSP), which became the mechanism for implementing nonreciprocal preferential market access, was developed in this context. GSP was envisioned as part of a larger development strategy that included import-substitution policies, infant industry protection, and preferential access to developed countries' markets. As GSP granted preferential access over World Trade Organization (WTO) most favored nation (MFN) rates, development economists anticipated that it would provide developing countries' …

Pows Left In The Cold: Compensation Eludes American Wwii Slave Laborers For Private Japanese Companies, Jennifer Joseph

Pepperdine Law Review

No abstract provided.

Chief Justices Marshall And Roberts And The Non-Self-Execution Of Treaties, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article is a response to David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int'l L L.J. 135 (2012).

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties. The author agrees with much of it, as he agrees with much of Professor Sloss’ other writing on treaties. In particular, the author agrees that the two-step approach to treaty enforcement that Professor Sloss proposes is generally the right approach, and he agrees that the “intent-based” approach to the self-execution issue …

Contextualing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon

Michigan Law Review

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes-institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well-studied agency and trade association examples. The newer regimes mix public and …

Law And Ethics For Robot Soldiers, Kenneth Anderson, Matthew Waxman

Popular Media

Policy Review American University, WCL Research Paper No. 2012-32 Columbia Law School Public Law & Legal Theory Working Paper Group Paper No.12-313AbstractLethal autonomous machines will inevitably enter the future battlefield — but they will do so incrementally, one small step at a time. The combination of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. The inevitability of these technologies comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply “smarter” machines that can be programmed to kill or destroy, while the increasing tempo of …

Law And Ethics For Robot Soldiers, Kenneth Anderson, Matthew Waxman

Popular Media

Policy Review American University, WCL Research Paper No. 2012-32 Columbia Law School Public Law & Legal Theory Working Paper Group Paper No.12-313AbstractLethal autonomous machines will inevitably enter the future battlefield — but they will do so incrementally, one small step at a time. The combination of inevitable and incremental development raises not only complex strategic and operational questions but also profound legal and ethical ones. The inevitability of these technologies comes from both supply-side and demand-side factors. Advances in sensor and computational technologies will supply “smarter” machines that can be programmed to kill or destroy, while the increasing tempo of …

Rebalancing Trips, Molly Land

Michigan Journal of International Law

Application of the World Trade Organization's (WTO) dispute resolution procedures to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) has provoked a variety of reactions over time. At its inception, the decision to enforce the treaty through the WTO's dispute resolution process was widely viewed as a loss for developing countries. Many feared it would lead to an explosion of litigation against developing countries and cause distortions in domestic intellectual property (IP) policy making. More recent scholarship, however, has argued that these fears were unfounded. Few disputes before WTO panels have involved violations of the TRIPS Agreement, even …

Hope For Reform Springs Eternal: How The Sponsorship System, Domestic Laws And Traditional Customs Fail To Protect Migrant Domestic Workers In Gcc Countries, Heather E. Murray

Cornell International Law Journal

No abstract provided.

Renegotiate The Wto Schedules Of Commitments: Technological Development And Treaty Interpretation, Shin-Yi Peng

Cornell International Law Journal

The interpretation of schedules has been the subject of several Panel and Appellate Body reports in recent years, and it is anticipated that challenges to schedules related to information and communication technologies before the dispute settlement body will increase. The recent decisions of the Panel and the Appellate Body in EC-IT Products and China-Audiovisual Services may become significant leading cases on the issues of how to interpret "schedules of commitments" in this rapidly changing digital era. I conclude in this article that the Panel appropriately recognized in EC-IT Products that the Information Technology Agreement is not relevant in determining the …

The Boundaries Of Most Favored Nation Treatment In International Investment Law, Tony Cole

Michigan Journal of International Law

Contemporary international investment law is characterized by fragmentation. Disputes are heard by a variety of tribunals, which often are constituted solely for the purpose of hearing a single claim. The law applicable in a dispute is usually found in a bilateral agreement, applicable only between the two states connected to the dispute, rather than in a multilateral treaty or customary international law. Moreover, the international investment community itself is profoundly divided on many issues of substantive law, meaning both that the interpretation given to international investment law by a tribunal will be determined largely by those who sit on it, …

Security Council Resolution 1887 And The Quest For Nuclear Disarmament, Usman Ahmed, Raghav Thapar

Michigan Journal of International Law

Nuclear weapons pose an increased international threat to security in the modem era. Cheap transportation and the opening of national borders for trade have made it easy for nuclear materials to cross national boundaries. Informal networks have sprouted up, facilitating the proliferation and exchange of nuclear materials and the technology required to turn those materials into weapons. Advances in technology have made it easier to enrich uranium, instilling concerns of increased nuclear weapons proliferation. These changes in technology, the development of informal nuclear networks, and lax security in safeguarding weapons by states such as Russia and Pakistan have fueled global …

Codifying Custom, Timothy L. Meyer

Scholarly Works

Codifying decentralized forms of law, such as the common law and customary law, has been a cornerstone of the positivist turn in legal theory since at least the nineteenth century. Commentators laud codification’s purported virtues, including systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules, and therefore to justify and explain codification. The codification literature, however, overlooks codification’s distributive consequences. In so doing, the literature misses the primary motive for codification: to define legal rules in a way that advantages individual codifying institutions, regardless of how codification affects …

Negotiating With Deity: Strategies And Influences Related To Recent North Korean Negotiating Behavior , Jesse D. Steele

Pepperdine Dispute Resolution Law Journal

As images of nuclear missiles flash across television screens and news reports containing indiscernible Asian writing warn of conflict on the other side of the world, this article addresses one of the single greatest threats to global stability-the North Korean Nuclear Weapons Crisis-and assesses the negotiation strategies that have brought the world to its current situation. By looking at the historical negotiation tactics that have been utilized by each of the parties involved, particularly in light of societal norms and cultural influences, one can ascertain a great deal of insight regarding each party's respective strategies and objectives. This insight gleaned …

Save Our Sharks: Using International Fisheries Law Within Regional Fisheries Management Organizations To Improve Shark Conservation, Stijn Van Osch

Michigan Journal of International Law

Like many fish, sharks are facing unprecedented overfishing. They have been targeted both directly for their fins and caught accidentally (bycaught) in, for instance, tuna fisheries. This has led to collapsing stocks around the world. Overfishing has led to what has been termed a mass extinction among ocean species, and sharks are no exception-they are in fact especially vulnerable. As a result, many species of sharks are now listed on the Red List of the International Union for Conservation of Nature (IUCN). This problem can only be tackled through coordinated, cooperative action by all states. This Note explores one avenue …

Federal Constitutions, Global Governance, And The Role Of Forests In Regulating Climate Change, Blake Hudson

Journal Articles

Federal systems of government present more difficulties for international treaty formation than perhaps any other form of governance. Federal constitutions that grant subnational governments virtually exclusive regulatory authority over certain subject matter may constrain national governments during international negotiations - a national government that cannot constitutionally bind subnational governments to an international agreement cannot freely arrange its international obligations. While federal nations that grant subnational governments exclusive regulatory control obviously place value on stringent decentralization and the benefits it provides in those regulatory areas, the difficulty lies in striking a balance between global governance and constitutional decentralization in federal systems. …

The U.K. Bribery Act: Endless Jurisdictional Liability On Corporate Violaters, Jessica A. Lordi

Case Western Reserve Journal of International Law

No abstract provided.

Reclaiming Global Environmental Leadership: Why The United States Should Ratify Ten Pending Environmental Treaties, Noah M. Sachs

Law Faculty Publications

For more than a century, the United States has taken the lead in organizing international responses to international environmental problems. The long list of environmental agreements spearheaded by the United States extends from early treaties with Canada and Mexico on boundary waters and migratory birds to global agreements restricting trade in endangered species and protecting against ozone depletion.

In the last two decades, however, U.S. environmental leadership has faltered. The best known example is the lack of an effective response to climate change, underscored by the U.S. decision not to join the Kyoto Protocol. But that is not the only …

Filling In The Gaps: A New Approach To Treaty Implementation Reconciling The Supremacy Clause And Federalism Concerns, Tess Deliefde

University of Miami Law Review

No abstract provided.

Flexibility In International Agreements, Laurence R. Helfer

Faculty Scholarship

This chapter is a contribution to the forthcoming edited volume INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: TAKING STOCK (Jeffrey Dunoff & Mark A. Pollack eds., Cambridge University Press 2012). The chapter provides an overview of flexibility mechanisms in international agreements and the role of such mechanisms in promoting or inhibiting international cooperation. Part I reviews the many flexibility devices available to treaty makers. It divides these tools into two broad categories: formal mechanisms (such as reservations, escape clauses, and withdrawal provisions) and informal practices (such as auto-interpretation, nonparticipation, and noncompliance). Part II reviews the international law and international relations scholarship on …

Treaty Signature, Curtis A. Bradley

Faculty Scholarship

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Under international law, in order for a State to become a party to a treaty, it must express its consent to be bound by the treaty. Such consent can be expressed in a variety of ways, including through signature of the treaty by a proper representative of the State. Under modern treaty practice, however, States often express their consent to be bound by a separate act of ratification that is carried out after signature. When a treaty is subject to discretionary …