Law Commons^™

Aesthetics And Human Rights, Winston Nagan, Aitza Haddad

Winston P Nagan

This article seeks to contribute to a better understating of the relationship between aesthetics and fundamental human rights. The initial challenge was to develop a more clarified conception of aesthetics as a social process in order to better mark those aspects of aesthetics that have clear human rights implications. This required us to contextualize the aesthetics process in terms of the generally accepted model of communications theory, and then to deepened the inquiry using this model as the broad architectural foundation for unpacking the social process of aesthetics. These ideas were put into the context of significant contributions from the …

Laws Without Order: The Price The U.S. Pays For No Codes, James R. Maxeiner

James R Maxeiner

Codification is a ubiquitous feature of modern legal systems. Codes are hailed as tools for making law more convenient to find and to apply than law found in court precedents or in ordinary statutes. Codes are commonplace in most countries. Most reports and presentations at the Congress deal with how codification is effected and not with whether it is.

The United States is anomalous. It does not have true codes. In the nineteenth and early twentieth centuries, when many countries adopted systematic civil, criminal and procedural codes, the United States considered, but did not adopt such codes.

Where other reports …

Protecting A Hidden Treasure: The U.N International Law Commission And The International Law Of Transboundary Ground Water Resources , Gabriel E. Eckstein

Gabriel Eckstein

No abstract provided.

A Hydrogeological Approach To Transboundary Ground Water Resources And International Law, Gabriel Eckstein, Yoram Eckstein

Gabriel Eckstein

No abstract provided.

U.S. Asylum Law As A Path To Religious Persecution, Jack Dolance

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …

U.S. Asylum Law As A Path To Religious Persecution, Jack Dolance

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …

Autonomous Weapon Systems: A Coming Legal Singularity?, Benjamin N. Kastan

Benjamin N Kastan

Military robotics has long captured the popular imagination in movies, books and magazines. In recent years, this technology has moved from the realm of science fiction to reality. The precursors to truly autonomous weapons, the so-called “drones”, have generated a great deal of discussion. Few authors, however, have applied current law to the developing technology of autonomous military robots, or “autonomous weapon systems”. The treatment of such subjects in the ethics, robotics, and popular literature has generally assumed that autonomous systems either fit perfectly into existing legal regimes or threaten long-standing paradigms. This article demonstrates that neither assumption is correct. …

U.S. Asylum Law As A Path To Religious Persecution, Jack Dolance

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …

U.S. Asylum Law As A Path To Religious Persecution, Jack Dolance

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark, however—at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion”—in whatever form that religion may take. In the asylum context, then, “religion” must be defined broadly. Protection from …

The Emerging Restrictions Of Sovereign Immunity: Premptory Norms Of International Law, The Un Charter, And The Application Of Modern Communications Theory, Winston P. Nagan

Winston P Nagan

The article is titled The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of International Law, the UN Charter, and the Application of Modern Communications Theory. The article provides a fresh re-examination of the conceptual foundations of the sovereign immunity doctrine in the light of the changing character of sovereignty itself. This is done in the context of the changing expectations in international law generated by the UN Charter, and the development of human rights and humanitarian law. The article applies the innovative communications theories generated by the New Haven School to provide a more realistic and relevant approach to the …

Global Health Justice: Towards A Framework Convention On Global Health—A Transformative Agenda For Global Governance For Health, Lawrence O. Gostin

Lawrence O. Gostin

Global health inequities cause 20 million deaths annually, mostly among the world’s poor. Yet, international law to reduce these inequalities is sparse. We propose a new global health treaty, a Framework Convention on Global Health (FCGH), based on the human right to health. Already endorsed by the UN Secretary-General, the FCGH would re-imagine global governance for health, offering a new post-Millennium Development Goals vision. A global coalition of civil society and academics has formed an international campaign to advocate for an FCGH—the Joint Action and Learning Initiative (JALI). This article provides the first systematic account of the goals and justifications …

Global Health Justice: Towards A Framework Convention On Global Health—A Transformative Agenda For Global Governance For Health, Lawrence O. Gostin

Lawrence O. Gostin

Global health inequities cause 20 million deaths annually, mostly among the world’s poor. Yet, international law to reduce these inequalities is sparse. We propose a new global health treaty, a Framework Convention on Global Health (FCGH), based on the human right to health. Already endorsed by the UN Secretary-General, the FCGH would re-imagine global governance for health, offering a new post-Millennium Development Goals vision. A global coalition of civil society and academics has formed an international campaign to advocate for an FCGH—the Joint Action and Learning Initiative (JALI). This article provides the first systematic account of the goals and justifications …

Patent Chokepoints In The Influenza-Related Medicines Industry: Can Patent Pools Provide Balanced Access?, Dana Beldiman

Dana Beldiman

Release of samples of biological materials with high imminent commercial potential, such as the influenza virus samples, is likely to cause a “race” to patent and to gain market share among recipients. This “race” may give rise to sub-optimal functioning of the patent system, in the nature of patent thickets and hold-outs, prompted by conditions such as multiple parties inventing based on a single biological resource, high growth markets, a congested patent scene and narrow and fragmented patents. This paper examines the causes of the sub-optimal functioning of the patent system under these circumstances, using the WHO Pandemic Influenza Preparedness …

Reconstructing World Politics: Norms, Discourse, And Community, Sungjoon Cho

Sungjoon Cho

This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its …

Iosco's Response To The Financial Crisis, Roberta S. Karmel

Roberta S. Karmel

ABSTRACT FOR IOSCO’S RESPONSE TO THE FINANCIAL CRISIS BY ROBERTA S. KARMEL, Centennial Professor, Brooklyn Law School Like other international financial bodies, the International Organization of Securities Commissions (IOSCO) has responded to the financial crisis of 2008. IOSCO thus revised its Objectives and Principles and added eight new Principles, including two that specifically focused on systemic risk. IOSCO’s ongoing efforts to support these new Principles are parallel to efforts by other financial regulators to deal with systemic risk. Yet, IOSCO’s efforts focus on somewhat different issues in the capital markets than the issues of interest to bank regulators. This Article …

Deconstructing International Distributive Justice: Fairness As Insurance, Ilan Benshalom

Ilan Benshalom

A common perception among international relations policymakers and theorists is that states’ primarily self-serving motivations inhibit their participation in promoting international distributive-fairness considerations. This Article asserts that this notion is significantly incomplete and misleading; it results in deficient theories and, more importantly, in sub-optimal international arrangements. The deficiency of current approaches is that they view distributive fairness as only performing a normative wealth redistribution function and fail to recognize its practical insurance function. In a very crude way, “distributive fairness” means that countries should pay for the provision of international public goods (e.g., controlling global warming by reducing emissions) according …

Is Complementarity The Right Approach For The International Criminal Court's Crime Of Aggression?, Jennifer -. Trahan

Jennifer - Trahan

At the first Review Conference on the Rome Statute of the International Criminal Court, the Assembly of States Parties to the ICC adopted an amendment defining the crime of aggression and conditions for the ICC’s exercise of jurisdiction over it. Because the definition will be incorporated into the existing framework of the Rome Statute, the crime will be subject to the “complementarity” provision contained therein. That provision specifies that a case becomes “inadmissible” before the ICC if there are national investigations and/or prosecutions (unless there is unwillingness or inability to investigate or prosecute). By contrast, the relationship between national courts, …

Public Participation: A Bottoms-Up Approach To Law-Making And Enforcement, Myanna Dellinger

Myanna Dellinger

No abstract provided.

Operation Geronimo: The Legality Of The Targeted Killing Of Osama Bin Laden, Amanda M. Gibbens

Amanda M. Gibbens

My recent article entitled, Operation Geronimo: The Legality of the Targeted Killing of Osama bin Laden addresses cutting-edge legal issues such as: counter-terrorism, self-defense, state sovereignty, and targeted killing. Due to the contemporary nature of the topic, few authors have published detailed assessments of the legality of the killing of Osama bin Laden. In my writing I analyze Operation Geronimo under both self-defense and law enforcement principles of treaty-based and customary international law. Additionally, I discuss U.S. constitutional law, the Authorization for Use of Military Force, and Executive Order 12,333 prohibiting assassinations.

Practical Training In Law In The Netherlands: Big Law Model Or Clinical Model, And The Call Of Public Interest Law, Richard J. Wilson

Richard J. Wilson

The Zionist Model As An Ironically Workable Diplomatic Strategy For Post-Mubarak Egypt, Benjamin L. Zeskind

Benjamin L Zeskind

The fundamental question for post-Mubarak Egypt, and central focus of this comment, is whether the 2011 revolution will retune Egypt as a transcending advocate of democratic principles for countries undergoing similar transformations; or lead Egypt down the theologically repressive path toward failed statehood. Within the context of this question, this article further examines the interplay between the shortcomings of international human rights law, former President Hosni Mubarak’s politically oppressive regime and the development of civic-minded communal groups such as the Muslim Brotherhood that give Egypt the best chance for sustainable self-governance. This article proposes that by applying the early 20th …

Promoting Social Change In Asia And The Pacific: The Need For A Disability Rights Tribunal To Give Life To The Un Convention On The Rights Of Persons With Disabilities, Michael L. Perlin

Michael L Perlin

ABSTRACT

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.

In Asia and the Pacific region, however, there is no such body. Although …

Toda Joia, Toda Beleza! Finding What Is Left In The Margins Or Regime Collisions: A Pluralist Take On Managerialism, Luigi Russi, Alfonso Encinas Escobar

Luigi Russi

This paper has two authors, two titles and is written in the form of a dialogue, rather than conveying a unitary voice, as one would instead expect of a coauthored paper. The reason for this is that the articulation of the authors' disagreement, despite the identification of each of them with “the left”, is precisely the object of inquiry. After briefly introducing the problem on which the authors’ discussion takes place, namely regime collisions, and the clash of approaches that are available to (decide whether to) deal with them, a dialogue follows, in which the authors’ voices are clearly separated …

Rio + 20: What Difference Has Two Decades Made To State Practice In The Regulation Of Invasive Alien Species?*, Sophie Riley

Sophie Riley

Invasive alien species (IAS) are alien species that threaten ecosystems, habitats or other species. Article 8(h) of the Convention on Biological Diversity (CBD) requires the contracting parties to ‘prevent the introduction of or control or eradicate those alien species that threaten ecosystems, habitats or species’. Members are also required to lodge National Reports with the secretariat of the CBD, specifying how they are fulfilling their international obligations with respect to IAS. While the threats to biodiversity posed by IAS have been extensively documented, to date, no study has examined States’ perceptions of their IAS regimes. This paper collects and analyses …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Myanna Dellinger

Myanna Dellinger

No abstract provided.

Note: Guiding The Modern Lawyer Through A Global Economy: An Analysis On Outsourcing And The Aba's 2012 Proposed Changes To The Model Rules, Patrick Poole

Patrick Poole

Over the last few decades, the dramatic changes that have occurred in the global economy have similarly altered the landscape for outsourced work both domestically and internationally. One study estimates that as many as 3.3 million white-collar jobs could be shipped abroad by 2015. This growing trend has also substantially affected the unique nature of the legal field. For the past year and a half, the American Bar Association (ABA) Ethics 20/20 Commission has been considering changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. The revision process has included soliciting input from …

States Side Story: Career Paths Of International Ll.M. Students, Or “I Like To Be In America”, Carole Silver

Carole Silver

This Article draws on an empirical study of the careers of international law graduates who earned an LL.M. in the United States, and considers the role of a U.S. LL.M. as a path for building a legal career in the United States. It identifies the institutional, political, and economic forces that present challenges to graduates who attempt to stay in the United States. While U.S. law schools prize the international diversity of their graduate students, this study reveals that the U.S. legal profession is most accessible to international students from English-speaking common law countries, whose language and background allow them …

Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect?, Stephen Joseph Powell, Trisha Low

Stephen Joseph Powell

As WTO Members relentlessly pursue new regional trade agreements to achieve even faster economic growth than the extraordinary numbers posted by global trade rules, the smaller number of parties and their greater cultural affinity have led negotiators to address the intersection of trade with human rights to an extent unparalleled in the culturally disparate and near-unmanageable 150-plus member WTO itself. These new provisions have used trade’s huge power to improve worker rights, secure environmental protections, and make initial inroads toward defending indigenous populations from trade’s adverse effects. Employing the perspectives both of trade negotiators and students of this halting progress …

Foreword: Global Justice, History And Law: Between Fela's Teachers Teaching "Nonsense" And Bob Marley's "Small Axe" For A Big Tree, Ernesto A. Hernandez-Lopez

Ernesto A. Hernandez

No abstract provided.

Vertical Dimensions In The Quality Of Law, Bartram Brown

Bartram Brown

No abstract provided.