Law Commons^™

Gender-Based Violence In International Human Rights Law: Evolution Towards A Binding Post-Binary Framework, Tatsiana Ziniakova

William & Mary Journal of Race, Gender, and Social Justice

The present Article seeks to analyze the notion of gender-based violence, in light of the evolving gender discourse, and identify the problems associated with effectively addressing it in international human rights law. It analyzes the definitions of gender, enshrined in various human rights documents, and suggests using performative theory of gender to form a comprehensive view on gender-based violence. It also critically addresses three aspects of regulating gender-based violence: inclusivity, patriarchy, and normativity. It concludes that, in the long term, the commitment to eradicate gender-based violence should be strengthened by framing it as a binding treaty obligation on the universal …

Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty

William & Mary Journal of Race, Gender, and Social Justice

COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century developed …

Family In The Balance: Barton V. Barr And The Systematic Violation Of The Right To Family Life In U.S. Immigration Enforcement, David Baluarte

William & Mary Journal of Race, Gender, and Social Justice

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” …

The Authority Of International Refugee Law, Evan J. Criddle, Evan Fox-Decent

William & Mary Law Review

As COVID-19 has spread around the world, many states have suspended their compliance with a core requirement of international refugee law: the duty to refrain from returning refugees to territories where they face a serious risk of persecution (the duty of non-refoulement). These measures have prompted some observers to question whether non-refoulement will survive the pandemic as a nonderogable legal duty. This Article explains why the international community should embrace non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the coronavirus pandemic. Viewed from a global justice perspective, the …

On Trust: The U.N. Security Council As Fiduciary, Devika Hovell

William & Mary Law Review

Perceived failures by the U.N. Security Council have been characterized as “betrayals of trust,” which threaten to impact the strength of the Council’s authority. In certain legal cultures, fiduciary law has been recognized as an effective legal mechanism to underwrite trust in the exercise of authority. This Article considers the potential value in applying the fiduciary construct to the Security Council setting as a way to consolidate trust. In doing so, it is necessary to unpack two different conceptions of the fiduciary construct: the precept of law (derived from domestic private law) and the precept of authority (sometimes described as …

Forced Marriage: Terminological Coherence And Dissonance In International Criminal Law, Valerie Oosterveld

William & Mary Bill of Rights Journal

No abstract provided.

Common Law Evidence And The Common Law Of Human Rights: Towards A Harmonic Convergence?, John D. Jackson

William & Mary Bill of Rights Journal

This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect …

The Bemba Appeals Chamber Judgment: Impunity For Sexual And Gender-Based Crimes?, Susana Sácouto, Patricia Viseur Sellers

William & Mary Bill of Rights Journal

No abstract provided.

Human Rights In International Criminal Proceedings—The Impact Of The Judgment Of The Kosovo Specialist Chambers Of 26 April 2017, Göran Sluiter

William & Mary Bill of Rights Journal

By their very nature, international criminal tribunals will in their operation impact individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings.

However, the circumstances under which international criminal tribunals are established are often complex, while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position and …

Understanding Crime Gravity: Exploring The Views Of International Criminal Law Experts, Stuart Ford

William & Mary Bill of Rights Journal

No abstract provided.

Epilogue: From Too Tall To Trim And Small, Mark A. Drumbl

William & Mary Bill of Rights Journal

No abstract provided.

The Waters Of Antarctica: Do They Belong To Some States, No States, Or All States?, Linda A. Malone

William & Mary Environmental Law and Policy Review

Major issues and complexities arise when one is looking at the international puzzle that is Antarctica. Despite being uninhabited year round and lacking substantial long-term international law rules for sovereignty, states still try to claim their sovereignty over various parts of Antarctica. The consortium of states under the Antarctica Treaty System (“ATS”) then further aggravates these complexities, especially when other states outside of the ATS have been arguing for different regimes and approaches to dealing with Antarctica and resource exploitation. Due to these major issues and a desperate need for a resolution in times of global climate change, this Article …

Leveraging Regional Human Rights Mechanisms Against Universal Human Rights: The Oic Independent Permanent Human Rights Commission Study On Sexual Orientation, Robert C. Blitt

William & Mary Law Review Online

This article critically assesses a recent study on sexual orientation and gender identity (SOGI) prepared by the Organization for Islamic Cooperation’s (OIC) Independent Permanent Human Rights Commission (IPHRC). The first two parts review the establishment of the IPHRC and the norms governing regional human rights mechanisms (RHRMs). Following this, the article demonstrates that the methodology and conclusions evidenced in the IPHRC’s SOGI study diametrically oppose substantive international human rights law, and furthermore undermine the intended purpose of RHRMs within the human rights system. The article concludes by recommending that human rights advocates and others clearly and publicly call out these …

The Icc Policy Paper On Sexual And Gender-Based Crimes: A Crucial Step For International Criminal Law, Valerie Oosterveld

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Reimagining Justice For Gender-Based Crimes At The Margins: New Legal Strategies For Prosecuting Isis Crimes Against Women And Lgbtiq Persons, Lisa Davis

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Gender Violence And Human Rights In An Era Of Backlash, Julie Goldscheid

William & Mary Journal of Race, Gender, and Social Justice

This Article brings the lens of civil cases seeking accountability for gender violence to the question of how international human rights decisions interpret gender and gender norms. It argues that a broad interpretation of gender is particularly critical as we face increasing backlash globally. It demonstrates how international human rights decisions assessing state responses to gender violence recognize the role of historic gender biases and stereotypes in holding states to account for redressing discriminatory responses to abuse, and considers structural limitations in those instruments that could impede those instruments’ transformative reach.

The Role Of International Human Rights Law In Mediating Between The Rights Of Parents And Their Children Born With Intersex Traits In The United States, Cristian González Cabrera

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn

William & Mary Law Review

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S. military to …

Encryption, Asymmetric Warfare, And The Need For Lawful Access, Geoffrey S. Corn

William & Mary Bill of Rights Journal

No abstract provided.

The Battle Over Scientific Whaling: A New Proposal To Stop Japan’S Lethal Research And Reform The International Whaling Commission, Laura Hoey

William & Mary Environmental Law and Policy Review

No abstract provided.

The Common Law Of War, Jens David Ohlin

William & Mary Law Review

In recent litigation before U.S. federal courts, the government has argued that military commissions have jurisdiction to prosecute offenses against the “common law of war,” which the government defines as a body of domestic offenses, such as inchoate conspiracy, that violate the American law of war. This Article challenges that definition by arguing that stray references to the term “common law of war” in historical materials meant something completely different. By examining the Lieber Code, the writings of early natural law theorists, and early American judicial decisions, this Article concludes that the “common law of war” referred to a branch …

The Logic Of Contract In The World Of Investment Treaties, Julian Arato

William & Mary Law Review

Investment treaties protect foreign investors who contract with sovereign states. It remains unclear, however, whether parties are free to contract around these treaty rules, or whether treaty provisions should be understood as mandatory terms that constrain party choice. While investment treaties clearly apply to contracts in some way, they are silent as to how these instruments ultimately interact. Moreover, arbitral jurisprudence has varied wildly on this point, creating significant problems of certainty, efficiency, and fairness—for states and foreign investors alike.

This Article reappraises the treaty/contract issue from the ex ante perspective of contracting states and foreign investors. I advance three …

Putting The Spotlight On “The Terminator”: How The Icc Prosecution Of Bosco Ntaganda Could Reduce Sexual Violence During Conflict, Sarah T. Deuitch

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Sustainable Mining: Incentivizing Asteroid Mining In The Name Of Environmentalism, Kevin Macwhorter

William & Mary Environmental Law and Policy Review

No abstract provided.

The Hedge Fund Regulation Dilemma: Direct Vs. Indirect Regulation, Hossein Nabilou, Alessio M. Pacces

William & Mary Business Law Review

This Article studies regulatory strategies to address the potential systemic risk of hedge fund operation in financial markets. Due to the implications of the choice of regulatory strategies and instruments in terms of mitigating systemic risk, the Article focuses on one critical aspect of hedge fund regulation, namely the choice between direct regulation and indirect regulation. This Article defines the distinction between direct and indirect regulation, maps this distinction’s implications in terms of regulatory techniques and instruments, and analyzes the arguments for and against direct and indirect regulation of hedge funds. This Article argues that the indirect regulation of hedge …

Determining Extraterritoriality, Franklin A. Gevurtz

William & Mary Law Review

This Article addresses an underexplored but critical aspect of the presumption against extraterritoriality. The presumption against extraterritoriality—which the United States Supreme Court has increasingly invoked in recent years—calls for courts to presume that Congress does not intend U.S. statutes to govern events outside the United States. The most difficult issue presented by the presumption arises when relevant events occur both inside and outside the United States, as in the classic example, if a shooter on one side of the border kills a victim on the other, or if, as in the leading case, false statements originating inside the United States …

Rethinking Legal Globalization: The Case Of Transnational Personal Jurisdiction, Donald Earl Childress Iii

William & Mary Law Review

Under what circumstances may a United States court exercise personal jurisdiction over alien defendants? Courts and commentators have yet to offer a coherent response to this question. That is surprising given that scholars have been calling for the globalization of U.S. law since the late 1980s as part of a transnational litigation narrative.

Through doctrinal and empirical analysis, this Article argues that a U.S. court should have power to exercise personal jurisdiction over an alien defendant not served with process within a state’s borders when (1) the defendant has received constitutionally adequate notice, (2) the state has a constitutionally sufficient …

How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young

William & Mary Law Review

No abstract provided.

Why Jurisprudence Doesn't Matter For Customary International Law, Steven Walt

William & Mary Law Review

No abstract provided.

Immigration Policy From Scratch: The Universal And The Unique, Stephen H. Legomsky

William & Mary Bill of Rights Journal

No abstract provided.