Law Commons^™

Wrong-Sizing International Justice? The Hybrid Tribunal In Sierra Leone, Chandra Lekha Sriram

Faculty Scholarship

As institutions of international justice proliferate, so do disputes about their legitimacy, and about what shape they ought to take. As truly international tools such as the International Criminal Court and the exercise of universal jurisdiction face political and practical challenges, some scholars and practitioners have advocated a distinct institutional solution: the hybrid court. These are courts that are neither purely national nor international, but rather that pursue accountability in the country where abuses and crimes occurred, but with both national and international staff, and utilizing a mixture of national and international law. Many have suggested that these tribunals represent …

Forging A Multilayered System Of Global Governance, Charlotte Ku

Faculty Scholarship

The world in which we find ourselves today is no longer governable entirely by resort to the classical system of international law. Even more seriously, it would seem that the purposes and principles of the United Nations Charter are no longer being served sufficiently in light of new concerns. The text adopted in 1945 does not convey the image of a world tormented by terrorists. Nor does it reflect the most pressing commitments of our time: to democratic governance, to environmental responsibility, and to a freer and more equitable system of world trade. Increasingly, the international law community acknowledges the …

A Hydrogeological Perspective Of The Status Of Ground Water Resources Under The Un Watercourse Convention, Gabriel Eckstein

Faculty Scholarship

When the U.N. General Assembly adopted the Convention on the Non-Navigational Uses of International Watercourses in 1997, it took a decisive step in recognizing the important role that transboundary ground water resources play in human progress and development. In so doing, it also acknowledged the need to establish principles of law governing this "invisible" but valuable natural resource. Transboundary ground water historically has been neglected in treaties, ignored in projects with international implications, and cursorily misunderstood in much of legal discourse.

While the Convention provides substantial clarification on the status of ground water under international law, it also leaves considerable …

The Ad Hoc International Criminal Tribunals And A Jurisprudence Of The Deviant, Maya Steinitz

Faculty Scholarship

This short article is a synopsis of a doctoral thesis entitled Law as Communication: A Concept of International Law. Embedded in the legal theory of philosopher Joseph Raz - who argued that "whatever else the law is, it either claims legitimate authority, is held to possess it, or both" - this analysis of international law's claim of legitimate authority is based on an ethnographic study of the International Criminal Tribunals for the former- Yugoslavia and Rwanda.

The analysis of international law's claim of legitimate authority, which uses semiotics and performance-studies perspective, is then used as a basis for an examination …

The Milosevic Trial - Live: An Iconical Analysis Of International Law's Claim Of Legitimate Authority, Maya Steinitz

Faculty Scholarship

It has been argued that international law has recently "come of age", that it is a fully-fledged legal system like any other. It has also been argued that in order for a normative system to qualify as "law" it must, at the least, claim to possess legitimate authority and to be supreme to other normative systems. This article examines one highly visible development in international law - the criminal war trials - from a sociological perspective, trying to discern whether and how international law claims legitimate authority and supremacy. Specifically, it focuses on a deeply symbolic example of international criminal …

Co-Teaching International Criminal Law: New Strategies To Meet The Challenges Of A New Course, Stacy Caplow, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Inadmissible In Iberia: The Fate Of Asylum Seekers In Spain And Portugal, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Re-Establishing The Sisseton-Wahpeton Oyate's Reservation Boundaries: Building A Legal Rationale From Current International Law, Angelique Eaglewoman

Faculty Scholarship

This article examines one tribal nation as an example of the many land loss issues facing Tribes at present. Through the example of the Sisseton-Wahpeton Oyate history of treaties, agreements, land cessions, and finally a federal ruling of reservation disestablishment, the policies of the United States regarding Indian lands will be shown. To reestablish the territorial boundaries of the Sisseton-Wahpeton Oyate, federal recognition is necessary in the United States. International law principles from the United Nations, the International Labor Organization, and the Organization of American States may provide legal support for the re-recognition of the reservation boundaries.

Facts, Rights, And Remedies: Implementing International Law In The Israel/Palestine Conflict, George Bisharat

Faculty Scholarship

No abstract provided.

Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland

Faculty Scholarship

In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.

Globalizing Savigny: The State In Savigny’S Private International Law, And The Challenge Of Europeanization And Globalization, Ralf Michaels

Faculty Scholarship

How can conflict of laws respond to the challenges from globalization? Some argue that state-based approaches like governmental interest analysis are inadequate, and advocate a return to the approach taken by the German scholar Savigny in the 19th century. The article shows that the assumption is correct: state-based approaches have indeed become problematic. However, a return to Savigny's approach will not help: While Savigny's approach is multilateral and pays little regard to governmental interest, closer analysis reveals how central the state is to his theory. The consequences are shown in an analysis of a recent European case. It follows that …

American Exceptionalism: The Exception Proves The Rule American, Philip C. Bobbitt

Faculty Scholarship

As a statement about proof, the phrase 'the exception proves the rule' is nonsense. Proof comes from the affirmation of a meaningful proposition, and behavior that contradicts a rule can scarcely be said to confirm it. But consider instead that the word 'prove' at one time meant 'provide,' and then make the substitution. Does the exception provide the rule? Indeed it does. It tells us the boundary conditions for the application of the rule: IT' before "e" except after "c"; months have thirty or thirty-one days, excepting February. This is the case even, perhaps especially, in law: all persons born …

The Law And The Non-Law, Katharina Pistor

Faculty Scholarship

The common theme of the articles assembled for this issue is a focus on Asian societies and their struggle with the conceptualization of "non-law" and its relation to law. This brief Comment reflects on the construction of the "non-law" as analytical categories in the four contributions. It suggests that the struggle with "non-law" reflects a deeper confusion about the role of law in ordering social relations broadly defined.' Focusing on the "non-law" assumes implicitly that "law" is a useful and well-delineated category for analyzing governance structures within and across states and thus can serve as a benchmark for analyzing "non-law." …

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

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Given the world's considerable reliance on this precious resource, it is reasonable to assume that international attention to, and especially legal consideration of, ground water would be substantial. Nothing is further from the truth. Despite the growing dependence, legal and regulatory attention to ground water resources have long been secondary to surface water, especially among legislatures and policymakers and above all in the international …

Exiting Treaties, Laurence R. Helfer

Faculty Scholarship

This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.

Self-Determination In International Mediation: Some Preliminary Reflections , Jacqueline Nolan-Haley

Faculty Scholarship

Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the "selves" endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of …

Law, Politics, And Impeachment: The Impeachment Of Roh Moo-Hyun From A Comparative Constitutional Perspective , Youngjae Lee

Faculty Scholarship

In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh's presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This Article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the Constitutional Court's decision, this Article discusses …

The Simplification Of International Data Privacy Rules, Joel R. Reidenberg

Faculty Scholarship

The variation and complexity of national data privacy rules pose significant challenges for international data flows. Data protection laws range from ad hoc narrow legal rights, like those found in the United States, to comprehensive fair information practice statutes like those found in Europe. Because data processing frequently occurs across national borders, multiple data protection laws might apply simultaneously to international data flows. At the same time, data protection regimes may prohibit the circumvention of national standards by processing personal information at a foreign site. Global information processing thus presents a data controller with important burdens and obstacles related to …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

The European Union’S New Ambitions, Francesca E. Bignami

Faculty Scholarship

No abstract provided.

Terrorism: The Politics Of Prosecution, Madeline Morris

Faculty Scholarship

No abstract provided.

Agora: Icj Advisory Opinion On Construction Of A Wall In The Occupied Palestinian Territory: Editors' Introduction, Lori Fisler Damrosch, Bernard H. Oxman

Faculty Scholarship

Only rarely does an international judicial opinion attract attention on the front pages of newspapers around the world, and spur activism-or condemnation-from diverse segments of global civil society. The advisory opinion of the International Court of Justice Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory is such a case. As the Court recognized in addressing the question put to it by the United Nations General Assembly, the choice of the term "wall" to designate the subject matter of the proceeding already opens up an area of debate, since not all of the contested structure is …

Global Democracy, Joshua Cohen, Charles F. Sabel

Faculty Scholarship

In this Article, we describe an emerging arena of global administration. We claim that this arena, not bounded by a state, raises accountability problems of a kind different from those addressed by conventional administrative law. And we argue that measures designed to address these problems will have potentially large implications for democratic theory and practice.

Our argument starts from the premise – stated here without nuance – that something new is happening politically beyond the borders of individual states and irreducible to their voluntary interactions. To distinguish these developments from what is commonly called "international law and politics," we use …

The Ethics Of Empire, Again, Jedediah S. Purdy

Faculty Scholarship

Noah Feldman has emerged as one of the most serious and thoughtful contributors to U.S. strategy in the age of terrorism and counterterrorism. Professor Feldman spent a good chunk of 2003 in Baghdad as a constitutional advisor to the Iraqi Governing Council, which was established under the occupation government of Ambassador Paul Bremer. Since then, Feldman has become an important commentator on U.S. policy in Iraq. Many young political operatives cycled through Iraq in 2003 and 2004, but Feldman was unusually well qualified for his position. He holds a degree in Islamic thought, speaks fluent Arabic, and specializes in the …

The Status Of Detainees From The Iraq And Afghanistan Conflicts, Srividhya Ragavan, Michael S. Mireles

Faculty Scholarship

The paper is premised on the idea that the future course of international law will be impacted by the United States' ability to adhere to international treaties to which it is a signatory. Hence, the current administration bears a responsibility to avoid unwisely stretching, distorting, or avoiding the principles of international law for short-term gain in a manner that jeopardizes long-term sustainable policy. The United States should be wary of creating a dangerous precedent - not only for the world, but for itself. If the United States shirks from or misinterprets international legal principles, it leaves the forum open for …

Medellin V. Dretke: Federalism And International Law, Curtis Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This evening, we're going to have, at the very least, a discussion which may blossom into a debate-we will see as the evening progresses. However one characterizes the event, we're here to discuss the Medellin v. Dretke case and, more broadly, we are going to be discussing cutting edge issues of international law, including the operation of self-executing treaties and state legal systems, the weight to be given to judgments of international courts interpreting such treaties, and the duties of state and federal judiciaries in this process, all in the context of death penalty cases. Let me give you a …

Introduction By George A. Bermann, George A. Bermann

Faculty Scholarship

The accountability of states and state actors on the international scene is on a forward march. The fora in which this development is playing itself out are multiple: national courts of the state actor, national courts of other states, international tribunals of a more or less public law variety, private international law tribunals, and all manner of hybrids.

An Idea Whose Time Has Come – But Where Will It Go, Jane C. Ginsburg

Faculty Scholarship

This Reply picks up where Professor Miller's bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller's article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of statebased idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea …