Law Commons^™

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

Articles, Book Chapters, & Popular Press

Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

The Important Contributions Of The Special Court For Sierra Leone On Amnesties And Immunities: Reinforcing Foundational Principles Of International Criminal Law, Leila Nadya Sadat

Scholarship@WashULaw

The book that is the centerpiece of this Micro-Symposium, The Legal Legacy of the Special Court for Sierra Leone, is an important contribution to international law and practice. Authored by Charles Jalloh, a distinguished practitioner of international criminal law, the book is essential reading for anyone who wishes to understand the legal ramifications of the Special Court and its work. It is comprehensive, without being overwhelming, and analyzes many of the most important elements of the Court’s legal work. It is a perfect companion to his equally excellent edited book on the subject, The Sierra Leone Special Court and Its …

Business & Human Rights: Optimism And Concern From The U.S. Perspective, Christiana Ochoa

Articles by Maurer Faculty

Forty-five years passed between the release of the first major United Nations report referencing the need to regulate transnational corporations and the release of the Zero Draft. Those years were accompanied by vibrant scholarly work and debate, as well as a significant jurisprudence, corporate engagement, and civil society discourse and activism that, cumulatively, has resulted in a much better understanding of how the once very distinct ideas of “business” and “human rights” are now merged by an ampersand. The field of business & human rights signifies the introduction of polycentric governance and law that binds businesses, sometimes softly and sometimes …

Assessing The International Criminal Court, Beth A. Simmons, Mitchell Radtke, Hyeran Jo

All Faculty Scholarship

One of the most important issues surrounding international courts is whether they can further the dual causes of peace and justice. None has been more ambitious in this regard than the International Criminal Court (ICC). And yet the ICC has been the object of a good deal of criticism. Some people claim it has been an expensive use of resources that might have been directed to other purposes. Others claim that its accomplishments are meager because it has managed to try and convict so few people. And many commentators and researchers claim that the Court faces an inherent tension between …

Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks

Publications

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to …

Corporate Criminal Responsibility For Human Rights Violations: Jurisdiction And Reparations, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Backlash Against International Courts In West, East And Southern Africa: Causes And Consequences, Karen J. Alter, James T. Gathii, Laurence R. Helfer

Faculty Scholarship

This paper discusses three credible attempts by African governments to restrict the jurisdiction of three similarly-situated sub-regional courts in response to politically controversial rulings. In West Africa, when the ECOWAS Court upheld allegations of torture by opposition journalists in the Gambia, that country’s political leaders sought to restrict the Court’s power to review human rights complaints. The other member states ultimately defeated the Gambia’s proposal. In East Africa, Kenya failed in its efforts to eliminate the EACJ and to remove some of its judges after a decision challenging an election to a sub-regional legislature. However, the member states agreed to …

The Indeterminate International Law Of Jurisdiction, The Presumption Against Extraterritorial Effect Of Statutes, And Certainty In U.S. Criminal Law, Kenneth S. Gallant

Faculty Scholarship

It is, in certain cases, impossible for persons to tell in advance which states will have effective legislative jurisdiction over their acts. In these cases, it is impossible to tell in advance whose law the person must obey. This quandry arises where some national law purports to regulate outsiders and their acts in a manner arguably inconsistent with the international law of legislative jurisdiction. If the regulating state's courts do not allow challenges to jurisdiction based on international law, and the state of the outsider's nationality fails to protect her diplomatically, the outsider has no protection against excessive claims of …

Kiobel V. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism In Retreat, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign …

Jurisdiction And Human Rights Accountability In Indian Country, Kristen Matoy Carlson

Law Faculty Research Publications

No abstract provided.

Kiobel: Muddling The Distinction Between Prescriptive And Adjudicative Jurisdiction, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This brief symposium Essay addresses whether and in what ways the Alien Tort Statute (ATS) constitutes an exercise of prescriptive jurisdiction by the United States to regulate conduct or an exercise of adjudicative jurisdiction by U.S. courts to entertain suit, as well as the implications of that classification. The Essay begins with a central and hotly contested focal point in ATS suits — most prominently, in Kiobel v. Royal Dutch Petroleum recently decided by the Supreme Court. Namely: how to conceptualize the applicable law in ATS suits and, more specifically, whether courts apply international law directly or some form of …

Spatial Legality, Due Process, And Choice Of Law In Human Rights Litigation Under U.S. State Law, Anthony J. Colangelo, Kristina Kiik

Faculty Journal Articles and Book Chapters

Framing the topic of this symposium as “Human Rights Litigation in State Courts and Under State Law” effectively orients the discussion around the rights of plaintiffs from the outset, the central question being whether they have enforceable rights in U.S. state courts under state law. Standing in the way are various legal doctrines. In broad strokes, the relevant questions become: Which doctrines do, or should, either facilitate or obstruct human rights litigation in U.S. state courts and under state law? How are courts applying these doctrines? How should courts apply these doctrines?

Many of the doctrines that potentially stand in …

Mass Torts And Universal Jurisdiction, Vivian Grosswald Curran

Articles

The technologies of the present era mean that injuries have become more massive in dimension. Mass torts affect greater numbers of people and larger geographical areas. Consequently, they can cross borders, affecting the populations of multiple countries. One of the two mechanisms in tort law for remedying mass catastrophes. restricted to cases involving jus cogens violations (namely, violations of human rights so grave as to be against international customary law, or the "law of nations"), is universal jurisdiction pursuant to the Alien Tort Statute (ATS).

Despite the distinctive official restriction of universal jurisdiction to the criminal law domain in civilian …

A Tort Statute, With Aliens And Pirates, Eugene Kontorovich

Faculty Working Papers

The pirates of the Caribbean are back. Not in another fantastical film but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since they dealt with the legal issues raised by a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing piracy. This crime has emerged as the test case for evaluating the major controversies about the reach of the statute -- namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Shell, justices of all persuasions …

Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand

Articles

In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Scholarly Works

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of International Armed Conflict, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

Faculty Journal Articles and Book Chapters

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

Are You Still My Mother?: Interstate Recognition Of Adoptions By Gays And Lesbians, Rhonda Wasserman

Articles

Parents and their biological children routinely cross state borders safe in the assumption that the parent-child relationship will be recognized wherever they go. The central issue raised in this Article is whether the law guarantees parents and their adopted children the same security if the parents are gay. This question is part of a broader debate about the obligation of states to recognize changes in family status effected under the laws of other states, such as same-sex marriages and migratory divorces. The debate is divisive because it pits the family against the state; one state against another; and the needs …

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

Creating A Roadmap For Achieving Intergenerational Environmental Justice, Clifford Rechtschaffen

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Clifford Rechtschaffen, Professor of Law and Director, JD Environmental Law Program; Co-Director, Environmental Law and Justice Clinic, Golden Gate University School of Law

5 pages.

Catching Up With The Past: Recent Decisions Of The Inter-American Court Of Human Rights Addressing Gross Human Rights Violations Perpetrated During The 1970-1980s, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Saddam Hussein's Trial In Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis, Christian Eckart

Cornell Law School J.D. Student Research Papers

The paper focuses on Saddam Hussein’s trial in front of the Iraqi High Criminal Court in Baghdad. After providing an overview of the facts surrounding the court’s installation, the applicable international law is identified and the fairness and legitimacy of the current proceedings are analyzed. The paper finishes by considering whether the trial should be relocated and addresses alternative venues that could have been chosen to prosecute Iraq’s ex-dictator.

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton

Vanderbilt Law School Faculty Publications

The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy …

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

A Community Of Courts: Toward A System Of International Criminal Law Enforcement, William W. Burke-White

All Faculty Scholarship

No abstract provided.

Reconciling Amnesties With Universal Jurisdiction - A Reply To Mr. Phenyo Keiseng Rakate, Juan E. Mendez, Garth Meintjes

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Reconciling Amnesties With Universal Jurisdiction, Juan E. Mendez, Garth Meintjes

Articles in Law Reviews & Other Academic Journals

No abstract provided.

La Preuve Pénale Et Des Tests Génétiques: United States Report, Christopher L. Blakesley

Scholarly Works

A major problem for those analyzing U.S. criminal law and procedure is that it does not fit the Continental or British mold. There is no one single system, but parallel federal and 50 state systems each with its own legislature, laws, courts (including trial, appellate, and supreme courts), police, prosecutors and prisons. The authorities who enact and implement these laws are sovereign within their respective jurisdictions. Each state has police power over its people. The 10th amendment to the U.S. Constitution controls allocation of federal and state authority. It provides that whatever the Constitution has not designated as being within …