Law Commons^™

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Adopting Nationality, Irina D. Manta, Cassandra Burke Robertson

Washington Law Review

Contrary to popular belief, when a child is adopted from abroad by an American citizen and brought to the United States, that child does not always become an American citizen. Many adoptees have not discovered until years later (sometimes far into adulthood) that they are not actually citizens, and some likely still do not know. To address this problem, the Child Citizenship Act of 2000 (CCA) was enacted to automate citizenship for certain international adoptees, but it does not cover everyone. Tens of thousands of adoptees still live under the assumption that they are American citizens when, in fact, they …

The Chorus Doctrine: Promoting Sub-National Diplomacy In Regional Growth Management, Conor J. Mannix

Washington Law Review

Sub-national diplomacy, also known as paradiplomacy, occurs when sub-national actors (think cities or states) engage in international relations, either with other sub-national actors or nation-states. Though typically the province of foreign policy scholarship, paradiplomacy touches on several legal issues, particularly where sovereignty and legal frameworks collide. In the United States, the federal system established by the Constitution gives individual states plenary power but reserves international relations to the federal government through the Supremacy Clause. However, the lines between federal power and state power with regards to international relations remain fuzzy.

Sub-national actors are taking advantage of this lack of sharply …

Customary International Law In United States Courts, Gary Born

Washington Law Review

Over the past two decades, the status of customary international law in U.S. courts has been the subject of vigorous debate. On the one hand, proponents of the “modernist” position contend that rules of customary international law are presumptively rules of federal law, which apply directly in U.S. courts and preempt inconsistent state law even in the absence of federal legislative or executive authorization. On the other hand, the “revisionists” argue that, in the absence of congressional legislation or a U.S. treaty, rules of customary international law are generally not matters of federal law, and will therefore generally be governed …

A Natural Progression Of Restrictive Immunity: Why The Jasta Amendment Does Not Violate International Law, Eric T. Kohan

Washington Law Review

On September 11, 2001, terrorists from extremist group al-Qaeda hijacked four commercial flights and flew two into the World Trade Center towers in New York City and one into the Pentagon in Washington, D.C. Many sought justice for friends and loved ones harmed in the attacks by bringing lawsuits against Saudi Arabia. These lawsuits alleged that Saudi Arabian leaders knowingly donated to charities that funded al-Qaeda which helped the group to pay for the September 11th terror attacks. The Second Circuit, however, dismissed the lawsuit on sovereign immunity grounds in 2008. Frustrated with the ruling, Congress passed the Justice Against …

The Globalization Of Corporate Law: The End Of History Or A Never-Ending Story?, Franklin A. Gevurtz

Washington Law Review

Considerable scholarship during the last few decades addresses the question of whether corporate laws are becoming global by converging on commonly accepted approaches. Some scholars have asserted that such convergence is occurring around the most efficient laws and institutions, thereby marking the “End of History” for corporate law. This Article responds to such assertions by developing three claims not previously given due attention in the convergence literature. First, it demonstrates that the history of corporations and corporate law has been one of seemingly constant movement toward global convergence, yet the resulting convergence is always incomplete or transitory. Next, it points …

Global Warming: A Second Coming For International Law?, Deepa Badrinarayana

Washington Law Review

Currently, there are no adequate mechanisms under international law to balance the competing tensions climate change presents to state sovereignty. On one hand, climate change threatens state sovereignty because the catastrophic loss of life and property of millions of people would deprive states of control over their domestic territories. Yet, other states rely on claims of their sovereignty to reject international legal obligations to mitigate climate change. This Article attributes the inadequacy of international law in the climate context to the evolution of the international community into an economic union that has historically privileged material interests over legal rights. It …

The Power Of The Well-Known Trademark: Courts Should Consider Article 6bis Of The Paris Convention An Integrated Part Of Section 44 Of The Lanham Act, Brandon Barker

Washington Law Review

The Paris Convention for the Protection of Industrial Property outlines important international trademark principles for its signatory nations, including the United States. Specifically, article 6bis of the Paris Convention creates the well-known marks doctrine, a provision that allows foreign owners of well-known trademarks to bring infringement actions against citizens of other member nations using the same or similar trade names. Such foreign trademark holders can assert these rights regardless of whether their mark is directly used or registered in the native country of the alleged infringer. Although the Paris Convention provides a list of trademark rights within its articles, the …

International Delegations And The New World Court Order, Julian G. Ku

Washington Law Review

In Medellin v. Dretke, the U.S. Supreme Court squarely considered the domestic judicial enforceability of a judgment by the International Court of Justice for the first time. Although the Court ultimately dismissed the case due to President George W. Bush's intervention, the issue that won the Court's attention—the domestic legal status of international tribunal judgments—will almost certainly return to the Court in the near future. When it does, the Court will be faced with calls from leading scholars to enforce the judgments of international courts and tribunals as part of a "new world court order," characterized by cooperation between …

Ex Parte Young And Federal Remedies For Human Rights Treaty Violations, David Sloss

Washington Law Review

The doctrine of Ex parte Young is typically described as an exception to the immunity granted by the Eleventh Amendment of the U.S. Constitution. This Article contends that the Young doctrine also stands for the proposition that the Supremacy Clause creates an implied right of action for injunctive relief against state and local government officers who violate federal statutes or treaties. That right of action is available to plaintiffs who seek to enforce federal statutes or treaties against government officers unless Congress foreclosed the availability of a Young remedy when it enacted the statute, or the treaty makers foreclosed the …

Truce In The Salmon War: Alternatives For The Pacific Salmon Treaty, Karol De Zwager Brown

Washington Law Review

The 1985 Pacific Salmon Treaty was heralded as an end to the ongoing international dispute between the United States and Canada over Pacific salmon fishing rights. The Treaty, however, failed to define adequately the principles and processes for allocating salmon harvests between the two countries. The parties to the Treaty have been unable to reach consensus on annual salmon harvests since 1992, fueling a growing conflict which has threatened to spill over to issues beyond the fishery dispute. This Article examines the historical context of the "salmon war," highlighting changes in international law and domestic politics that affected the formation …

Reevaluating The Forum Non Conveniens Doctrine In Multiterritorial Copyright Infringement Cases, Brenda Tiffany Dieck

Washington Law Review

The tension between the internationalization of copyright and the territorial remedies national laws provide is illustrated when the same infringer infringes a copyright in multiple countries. The copyright owner can bring suit in each country separately or attempt to consolidate all claims into one forum. Commentators have identified that in consolidated suits, even if jurisdiction over the foreign claims is proper, the discretionary forum non conveniens doctrine rmains a "wild card." This Comment explores in greater depth why the doctrine is unpredictable and argues that it is being abused by U.S. federal courts in multiterritorial copyright suits, exacerbating the problem …

A Lion In The Path? The Influence Of International Law On The Immigration Policy Of The United States, Joan Fitzpatrick, William Mckay Bennett

Washington Law Review

This article explores the place of international law in the immigration policy process in four settings: (1) the tentative and ultimately failed efforts of the executive and the judiciary to keep Congress within the bounds of internationally law-abiding conduct with respect to Chinese exclusion; (2) the almost complete disregard by Congress and the executive of international norms concerning health-related travel restrictions relating to HIV/AIDS; (3) Congressional inaction in the face of executive and judicial hypocrisy toward fundamental principles of refugee law in relation to interdiction of asylum-seekers; and (4) the emergence of a perverse canon presuming the abrogation of uncodified …

Valuation And International Regulation Of Forest Ecosystems: Propects For A Global Forest Agreement, Michael B. Saunders

Washington Law Review

Deforestation poses severe environmental problems for temperate and tropical regions world-wide. An international forest agreement is necessary to protect these forests. Previous international environmental agreements provide, at best, limited protection for endangered natural resources. To conserve the world's forests, an effective forest agreement must recognize the economic value of forest ecosystems. This forest agreement should define a twofold rule of responsibility: that states have a duty to protect forests located within their borders, and that other states that benefit from forests have a legal obligation to share in conservation costs.

How Persistent Must The Persistent Objector Be?, David A. Colson

Washington Law Review

This essay has three parts. The first part discusses several ways states invoke international law which provide the opportunity for a persistent objector to make its views known. The second part, following the second part of Ted Stein's essay, addresses the formation of customary law and the legal relationships between States and the means by which objections to the formation of such law may be made. The third part suggests that any answer to the question of "how persistent must the persistent objector be" must take into account the context in which the principle is applied.

Ted L. Stein On The Iran-U.S. Claims Tribunal—Scholarship Par Excellence, Mark B. Feldman

Washington Law Review

I am fortunate to have known Ted Stein as professional colleague and friend during his years at the Office of the Legal Adviser, where he was one of the brightest of a very bright group of young staff attorneys. His analysis of legal problems relating to the conduct of United States foreign relations was always original and helpful, and his contribution was beyond his years. We have been deprived of a great deal by Ted's untimely death, but the work he was able to accomplish in so short a time was extraordinary. In the pages that follow, I would like …

Rights For Canadian Members Of International Unions Under The (U.S.) Labor-Management Reporting And Disclosure Act, Alan Hyde

Washington Law Review

This article addresses the question of whether the short answer makes sense; whether, in other words, Canadian members of international unions based in the United States acquire any rights under the Labor-Management Reporting and Disclosure Act (LMRDA) which they can enforce in the courts of the United States. It concludes that Canadian members of United States-based international unions may sue their internationals in United States courts for violation of the LMRDA.

"Generally Accepted" International Rules, Louis B. Sohn

Washington Law Review

It is universally agreed that "usages generally accepted as expressing principles of law" constitute one of the main sources of international law. It is the purpose of this paper to investigate how a rule becomes "generally accepted" as a part of customary international law. There are several different ways in which international law deals with this subject. Ordinarily, a rule is considered generally accepted when it is supported by constant practice of states acting on the conviction that the practice is obligatory. Alternatively, an international agreement sometimes incorporates certain rules as ones considered to be generally accepted; or an agreement …

Uniformity And Diversity In A Divided-Power System: The United States' Experience, Eric Stein

Washington Law Review

The modest purpose of this paper is to inquire, in a specific contemporary context, why, by whom, and through what process a uniform rule is accepted or imposed in place of diverse rules. The first, methodological part of the paper offers a pattern for an analysis; the second part applies the pattern and illustrates the working of the process in the field of family law. I have chosen family law because in that field there has traditionally been concern for regional differences and because there has been an instructive interplay between regional and central powers. It may not come as …

International Agreements And The Development Of Customary International Law, Jonathan I. Charney

Washington Law Review

It has never been clear, however, which circumstances of negotiation and conclusion of international agreements contribute to new rules of customary law. The issues can be appreciated if one goes beyond generalities and explores the relationship of specific agreements to customary law. Such an examination has been facilitated by the American Law Institute's Restatement of the Foreign Relations Law of the United States (Revised) which contains a contemporary review of a wide range of public and private international law topics. This Restatement represents the views of some of the best international law experts of the United States and abroad. It …

Reaccepting The Compulsory Jurisdiction Of The International Court Of Justice: A Proposal For A New United States Declaration, Douglas J. Ende

Washington Law Review

This Comment analyzes the administration's cessation of its obligations under the ICJ's compulsory jurisdiction and concludes that the decision was unwarranted in failing to recognize valid alternatives which answer objections to the Court's alleged politicization. An examination of the role of compulsory jurisdiction in ICJ adjudication, United States practice under compulsory jursidiction, and the bases for the administration's decision provide an analytic foundation for the evaluation of alternatives to outright termination. Those alternatives are analyzed in light of the administration's specific grievances. The Comment recommends reconsideration of the decision and adoption of procedural innovations in the form of proposed "reservations" …

The International Law Commission's Study Of International Liability For Nonprohibited Acts As It Relates To Developing States, Daniel Barstow Magraw

Washington Law Review

The International Law Commission of the United Nations is engaged in studying a topic that at least some have argued should encompass aspects of many or all of the issues mentioned above. That topic is titled "International Liability for Injurious Consequences Arising out of Acts Not Prohibited by International Law" (hereinafter "international liability"). Part I of this Article briefly describes the Commission's current approach to international liability. Part II examines that approach in detail as it relates to developing states.

Reflections On The Role Of The International Court Of Justice, Stephen M. Schwebel

Washington Law Review

I would like this evening to share with you some reflections on the role of the International Court of Justice in an unjust world. You will appreciate that, while I shall try to speak the truth as I see it, I am not able to speak the whole truth; not only because I do not know it, but because of the constraints of my position and the confidentiality of aspects of the work of the Court. In particular, I shall not speak about matters which are sub judice, either in these remarks or in the answers to questions which some …

Construing The Pelly And Packwood-Magnuson Amendments: The D.C. Circuit Court Harpoons Executive Discretion—American Cetacean Society V. Baldridge, 768 F.2d 425 (D.C. Cir. 1985), Cert. Granted Sub Nom. Japan Whaling Association V. American Cetacean Society, 106 S. Ct. 787 (1986) (Nos. 85-954, 955), Erin K. Flory

Washington Law Review

The court declared that the Secretary of Commerce has no discretion to refuse certifying the Japanese for exceeding the IWC sperm whaling quota. The court permanently enjoined the Secretary from agreeing not to certify, and from failing to certify, any Japanese whaling activities exceeding IWC quotas. The court ordered the Secretary to certify the Japanese sperm whaling under both the Pelly and the Packwood-Magnuson Amendments. On appeal, the District of Columbia Circuit Court of Appeals affirmed the district court decision on slightly different grounds. The Supreme Court granted certiorari and will hear the case during the 1985-86 term. A careful …

The Outward Limit Of The Department Of Interior's Authority Over Submerged Lands—The Effect Of Customary International Law On The Outer Continental Shelf Lands Act, Donna Darm

Washington Law Review

After briefly establishing the relevant background of the controversy, this Comment suggests that neither the President's proclamation nor the new customary law of the EEZ operates to change domestic law and concludes that DOI's claim exceeds its authority under domestic law.

Respective Roles Of Senate And President In The Making And Abrogation Of Treaties—The Original Intent Of The Framers Of The Constitution Historically Examined, Arthur Bestor

Washington Law Review

The first part of the present article examines the specific question of the placement in the constitutional system of the power to terminate a treaty originally ratified by and with the advice and consent of the Senate, two-thirds of the members present concurring. The power of terminating a treaty is, of course, only a particular segment or subdivision of the far more inclusive power of determining the foreign policy of the Nation. Accordingly, after considering the evidence bearing directly upon the narrow question of treaty abrogation, the present article turns to the larger question of the relationship the framers intended …

International Law—Act Of State Doctrine—First National City Bank V. Banco Nacional De Cuba, 406 U.S. 759 (1972), Jack E. Sands

Washington Law Review

International comity demands that one sovereign ordinarily recognize the legitimacy of the acts of another, questioning their validity under neither internal nor international law. A challenge to the legality of the acts of another nation-state may entail serious international repercussions; such challenges thus have been considered grave matters of national diplomatic policy within the exclusive competency of the political branches of government. Judicial recognition of this fact is reflected in the act of state doctrine—the refusal of the courts of one nation-state to investigate the legality of official governmental acts performed in another. This doctrine, accepted in varying degrees by …

Treaties And The Constitution, Isao Sato

Washington Law Review

Problems of the validity of treaties in a constitutional order concern aspects of both international and constitutional law. The chief concern of this article, however, is the effect of the Japanese Supreme Court's power of judicial review upon the validity of treaties in domestic law. The relationship of treaties and the Constitution long has been a favorite theme of Japanese international law scholars. Under the new Constitution it has become an urgent and unavoidable issue for constitutional law scholars as well; the present constitution, unlike the Meiji Constitution, has provisions, (Articles 81 and 98), which bear directly upon the problem.

Japan And International Conventions Relating To North Pacific Fisheries, Shigeru Oda

Washington Law Review

This paper will begin with a treatment of the North Pacific Fisheries Convention of 1952. After exploring this treaty and the abstention formula embodied in it, a study of the Northwest Pacific Fisheries Convention of 1956 and the formula incorporated therein will be undertaken. After studying the 1952 and 1956 Conventions, the paper will proceed to examine the recent fisheries agreement of 1965 between Japan and the Republic of Korea. This last agreement contains an idea of equal sharing of high seas fish resources among the nations concerned.

Aspects Of Internal Decision-Making Processes In Intergovernmental Fishery Commissions, William T. Burke

Washington Law Review

The purpose of this paper is to examine certain aspects of the decision-making processes of intergovernmental institutions established for regulating interactions in the exploitation of ocean fisheries. The aspects selected are those denominated as internal constitutional arrangements; embracing, more specifically, the grant of capacity to the group, membership provisions, structure, objectives, and distribution of certain authority functions within the commissions. Very little attention is devoted to the external decision-making process involving the fishery commissions with other participants, including members and other public or private entities which a more comprehensive study would embrace. Fortunately, in light of anticipated developments in world …