Law Commons^™

The World Health Organization Was Born As A Normative Agency: Seventy-Five Years Of Global Health Law Under Who Governance, Lawrence O. Gostin, Benjamin Mason Meier, Safura Abdool Karim, Judith Bueno De Mesquita, Gian Luca Burci, Danwood Chirwa, Alexandra Finch, Eric A. Friedman, Roojin Habibi, Sam F. Halabi, Tsung-Ling Lee, Brigit Toebes, Pedro Villarreal

Georgetown Law Faculty Publications and Other Works

The World Health Organization (WHO) was born as a normative agency and has looked to global health law to structure collective action to realize global health with justice. Framed by its constitutional authority to act as the directing and coordinating authority on international health, WHO has long been seen as the central actor in the development and implementation of global health law. However, WHO has faced challenges in advancing law to prevent disease and promote health over the past 75 years, with global health law constrained by new health actors, shifting normative frameworks, and soft law diplomacy. These challenges were …

Financing Reforms To Meet A Pivotal Moment In Global Health, Kevin A. Klock, Alexandra Finch, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

2024 will be the most important moment for global health since the World Health Organization’s founding in 1948, but only if states give major reforms their full political and financial backing. Bold new commitments in disease surveillance, capacity building, and more equitable access to health products cannot be achieved without ample and sustainable funding. In this essay, we discuss major reforms found in the emerging pandemic agreement and reformed International Health Regulations and then explore the significant challenges and opportunities for financing them.

Advancing Equity In The Pandemic Treaty, Lawrence O. Gostin, Kevin A. Klock, Katherine Ginsbach, Sam F. Halabi, Taylor Hall-Debnam, Janelle Lewis, Vanessa S. Perlman, Katie Robinson

Georgetown Law Faculty Publications and Other Works

There is a broad consensus around equity’s importance. Even countries that hoarded supplies during the acute phase of COVID-19 seem to understand that the international community must find a means to ensure fairer allocation of medical resources when the next health crisis hits. But there has been little agreement about the concrete steps needed to operationalize fairer access and benefit sharing. That is, what are the workable mechanisms that could reduce the divide between richer and poorer populations? The World Health Assembly, the governing body of the World Health Organization, has appointed an Intergovernmental Negotiating Body to develop a pandemic …

Privacy And/Or Trade, Anupam Chander, Paul M. Schwartz

Georgetown Law Faculty Publications and Other Works

International privacy and trade law developed together, but now are engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power …

Abila Keynote Address: Beyond International Law? A Dangerous Time, Gregory Shaffer

Georgetown Law Faculty Publications and Other Works

In this keynote address for the 2023 International Law Weekend conference of the American Branch of the International Law Association (ABILA), I first address the dangers of the conference theme “beyond international law” at a time when challenges to international law and institutions increase and aim to constrain international law’s normative force. We have been here before. The world today recalls that of the interwar period, a time of growing economic insecurity and inequality that helped to catalyze the rise of authoritarian movements. During that period, Carl Schmitt was a leading legal theorist who eventually became a member of the …

International Investment Law In The Shadow Of Populism: Between Redomestication And Liberalism Re‐Embedded, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

The international investment regime is in crisis, nowhere more so than in regard to the investor–state dispute settlement system. While several developing countries have been critical of the system for some time, rich countries like the US and EU states—once the principal promoters of this regime—are now acknowledging problems and advancing reforms. This change of position has been fueled by the mobilization of civil society and the emergence of domestic populist movements on both the right and the left, reflecting widespread discontent with the past three decades of neoliberal globalization and its effects on job losses, lower wages, and increasing …

The Rule Of Law Under Challenge: The Enmeshment Of National And International Trends, Gregory Shaffer, Wayne Sandholtz

Georgetown Law Faculty Publications and Other Works

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This framework paper defines core concepts, analyzes the relation of national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in …

Trade, Economy, And Work: A Shared Agenda For A Stronger Economic Future, Alvaro Santos, Christopher Wilson

Georgetown Law Faculty Publications and Other Works

The economies of the United States and Mexico have become inextricably linked. For both countries, the other is their top trading partner, with an annual value of $616.38 billion in 2019. Beyond cross-border trade, however, our global competitiveness is linked due to the depth of manufacturing integration. As a result, job creation and export growth are largely regional enterprises. Well over a billion dollars in commerce crosses the border each day, and the GDP of the six Mexican and four U.S. border states is larger than the GDP of all but the three largest countries in the world.

The new …

Sovereignty 2.0, Anupam Chander, Haochen Sun

Georgetown Law Faculty Publications and Other Works

Digital sovereignty—the exercise of control over the internet—is the ambition of the world’s leaders, from Australia to Zimbabwe, a bulwark against both foreign state and foreign corporation. Governments have resoundingly answered first-generation internet law questions of who if anyone should regulate the internet—they all will. We now confront second generation questions—not whether, but how to regulate the internet. We argue that digital sovereignty is simultaneously a necessary incident of democratic governance and democracy’s dreaded antagonist. As international law scholar Louis Henkin taught us, sovereignty can insulate a government’s worst ills from foreign intrusion. Assertions of digital sovereignty, in particular, …

Storming Zuckerberg’S Castle, Anupam Chander

Georgetown Law Faculty Publications and Other Works

A company’s server is its castle, Richard Epstein once declared. Because of this, anyone sending an email to that server needs permission to enter. Within its own logic, this seems incontrovertible, but it depends on a few logical steps worth unpacking. It begins with the premise that a man’s home is his castle. (The masculine pronoun in the early formulation seems relevant.) Let us accept that premise for the purpose of argument. Combining this premise with the investiture of legal personhood on a corporation, we might then deduce that a company’s home must be its castle. Finally, combining that …

The Stellenbosch Consensus On The International Legal Obligation To Collaborate And Assist In Addressing Pandemics: Clarifying Article 44 Of The International Health Regulations, Margherita Cinà, Steven J. Hoffman, Gian Luca Burci, Thana Cristina De Campos, Danwood Chirwa, Stéphanie Dagron, Mark Eccleston-Turner, Lisa Forman, Lawrence O. Gostin, Roojin Habibi, Benjamin Mason Meier, Stefania Negri, Gorik Ooms, Sharifah Sekalala, Allyn Taylor, Alicia Ely Yamin

Georgetown Law Faculty Publications and Other Works

The International Health Regulations (IHR), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to potential global health emergencies such as the ongoing covid-19 pandemic. While Article 44 of this binding legal instrument requires countries to collaborate and assist each other in meeting their respective obligations, recent events demonstrate that the precise nature and scope of these legal obligations are ill-understood. A shared understanding of the level and type of collaboration legally required by the IHR is a necessary step in ensuring these obligations can be acted upon …

The Stellenbosch Consensus On Legal National Responses To Public Health Risks: Clarifying Article 43 Of The International Health Regulations, Roojin Habibi, Steven J. Hoffman, Gian Luca Burci, Thana Cristina De Campos, Danwood Chirwa, Margherita Cinà, Stéphanie Dagron, Mark Eccleston-Turner, Lisa Forman, Lawrence O. Gostin, Benjamin Mason Meier, Stefania Negri, Gorik Ooms, Sharifah Sekalala, Allyn Taylor, Alicia Ely Yamin

Georgetown Law Faculty Publications and Other Works

The International Health Regulations (IHR), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to global health emergencies such as the ongoing COVID-19 pandemic. Countries are permitted to exercise their sovereignty in taking additional health measures to respond to such emergencies if these measures adhere to Article 43 of this legally binding instrument. Overbroad measures taken during recent public health emergencies of international concern, however, reveal that the provision remains inadequately understood. A shared understanding of the measures legally permitted by Article 43 is a necessary step in …

Drug Policy Reform In The Americas: A Welcome Challenge To International Law, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Drug policy in the American hemisphere is in flux. After decades whereby a prohibitionist regime reigned supreme and proposing alternatives was taboo, several countries have begun to reconsider policy, particularly in the case of marijuana. International law has been instrumental in building the legal and institutional regime of prohibition, and it has remained largely impervious to critiques of its disastrous consequences. Indeed, when it comes to drug law and policy, international law has been part of the problem. Nevertheless, countries in the Americas have begun to adopt innovative strategies that also embrace international obligations. In this essay, I examine the …

The Trouble With Identity And Progressive Origins In Defending Labour Law, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Debate about labour regulation is not new. What is new is the urgency with which labour law reform is promoted as an important fix to economic woes. In recent years, calls for reform resound in poor and rich countries alike. The economic crisis in the United States and in Europe has intensified these debates, making labour regulation a prime target for reform. In several US states public sector unions have been under attack, depicted as a privileged class that drains public funds with high wages, cosy benefits, and retirement privileges that no other workers enjoy. Several European countries have introduced …

New Media, Free Expression, And The Offences Against The State Acts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability …

Formulating The International Tax Debate: Where Does Formulary Apportionment Fit?, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

As the contributions in this volume are being written, the Inclusive Framework nations, a group drawn together by the Organisation for Economic Co-operation and Development (OECD) as part of its Base Erosion and Profit Shifting (BEPS) project, are in the midst of a consultation process intended to revise the international corporate tax profit allocation and nexus rules. At the end of May 2019, the OECD released its Programme of Work to Develop a Consensus Solution to the Tax Challenges Arising from the Digitalisation of the Economy. At the beginning of June 2019, this Programme was endorsed by the G20 …

International Law And Theories Of Global Justice, Steven Ratner, David Luban, Carmen Pavel, Jiewuh Song, James Stewart

Georgetown Law Faculty Publications and Other Works

International law informs, and is informed by, concerns for global justice. Yet the two fields that engage most with prescribing the normative structure of the world order – international law and the philosophy of global justice – have tended to work on parallel tracks. Many international lawyers, with their commitment to formal sources, regard considerations of substantive (and not merely procedural) justice as ultra vires for much of their work. Philosophers of global justice, in turn, tend to explore the moral commitments of international actors without grappling with the international legal doctrine or institutions. In recent years, however, both disciplines …

The Promise And Challenge Of Humanitarian Protection In The United States: Making Temporary Protected Status Work As A Safe Haven, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried …

The Legal Determinants Of Health: Harnessing The Power Of Law For Global Health And Sustainable Development, Lawrence O. Gostin, John T. Monahan, Jenny Kaldor, Mary Debartolo, Eric A. Friedman, Katie Gottschalk, Susan C. Kim, Ala Alwan, Agnes Binagwaho, Gian Luca Burci, Luisa Cabal, Katherine Deland, Timothy Grant Evans, Eric Goosby, Sara Hossain, Howard Koh, Gorik Ooms, Mirta Roses Periago, Rodrigo Uprimny, Alicia E. Yamin

Georgetown Law Faculty Publications and Other Works

Health risks in the 21st century are beyond the control of any country. In an era of globalization, promoting public health and equity requires cooperation and coordination both within and among states. Law can be a powerful tool for advancing global health, yet it remains significantly underutilised and poorly understood. Working in partnership, public health lawyers and health professionals can become champions for evidence-based laws to ensure the public’s health and safety.

The O'Neill Institute/Georgetown University Lancet Commission on Law and Global Health articulates the vital role of law – through legal instruments, legal capacities, and institutional reforms, as well …

Exoatmospheric Plowshares: Using A Nuclear Explosive Device For Planetary Defense Against An Incoming Asteroid, David A. Koplow

Georgetown Law Faculty Publications and Other Works

What should be done if we suddenly discover a large asteroid on a collision course with Earth? The consequences of an impact could be enormous—scientists believe that such a strike 60 million years ago led to the extinction of the dinosaurs, and something of similar magnitude could happen again. Although no such extraterrestrial threat now looms on the horizon, astronomers concede that they cannot detect all the potentially hazardous “near-Earth objects,” and even more striking, they acknowledge that if such a danger were discerned, there is currently no proven capability for diverting or destroying it.

One possible response to this …

From Protecting Lives To Protecting States: Use Of Force Across The Threat Continuum, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

The increasing prominence in recent years of non-international armed conflicts that extend across state borders has strained the traditional legal categories that we use to regulate state use of force. Simultaneous with this phenomenon has been growing acceptance that human rights law and international humanitarian law should co-exist, with the former informing interpretations of the latter to varying degrees. Scholars continue to debate vigorously the implications of these developments and how these bodies of law should interact. As Kenneth Watkin’s book Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict observes, however, commanders have no choice …

Business And Human Rights As A Galaxy Of Norms, Elise Groulx Diggs, Milton C. Regan, Beatrice Parance

Georgetown Law Faculty Publications and Other Works

In the last several years, there has been an increasing tendency to view the impacts of transnational business operations through the lens of human rights law. A major obstacle to holding companies accountable for the harms that they impose, however, has been the separate legal identity of corporate subsidiaries and of contractors in a company's supply chain. France's recently enacted duty of vigilance statute seeks to overcome this obstacle by imposing a duty on companies to identify potential serious human rights violations by their subsidiaries and by companies with which they have an “established commercial relationship.” Failure to engage in …

New Ebola Outbreak In Africa Is A Major Test For The Who, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On May 8, the Democratic Republic of Congo (DRC) notified the World Health Organization (WHO) of a confirmed outbreak of Ebola in Bikoro, on the shores of Lake Tumba in Équateur Province. Ebola in the DRC is not unexpected. The first-ever identified Ebola outbreak occurred in the DRC—then Zaire—in 1976. This is the ninth of DRC’s outbreaks, which until now have been confined mainly to rural areas. With high fatality rates, earlier outbreaks quickly burned out due to the natural firewall of remoteness.

Bikoro and a nearby village, Ikoko-Impenge, are rural, but on May 16, the WHO confirmed spread to …

Legal Capacities Required For Prevention And Control Of Noncommunicable Diseases, Roger S. Magnusson, Benn Mcgrady, Lawrence O. Gostin, David Patterson, Hala Abou Taleb

Georgetown Law Faculty Publications and Other Works

Law lies at the centre of successful national strategies for prevention and control of noncommunicable diseases. By law we mean international agreements, national and subnational legislation, regulations and other executive instruments, and decisions of courts and tribunals. However, the vital role of law in global health development is often poorly understood, and eclipsed by other disciplines such as medicine, public health and economics. This paper identifies key areas of intersection between law and noncommunicable diseases, beginning with the role of law as a tool for implementing policies for prevention and control of leading risk factors. We identify actions that the …

The Lessons Of Tpp And The Future Of Labor Chapters In Trade Agreements, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

The agenda to link labor standards to trade agreements, in the hopes of improving working conditions in developing countries and preventing unfair labor competition for workers in rich countries, reached its culmination in TPP. Beginning with NAFTA and over a span of twenty-five years, labor standards became fully included in trade agreements and their violation subject to trade sanctions as means of enforcement. Thus, proponents of TPP offered it as the “gold standard” of globalization. This chapter argues that the debate about TPP, and the US labor movement’s opposition to it, made clear that this was not a story of …

R2h And The Prospects For Peace: An Essay On Sovereign Responsibilities, David Luban

Georgetown Law Faculty Publications and Other Works

This essay examines novel threats to peace – social and political threats as well as military and technological. It worries that familiar conceptions of state sovereignty cannot sustain a legal order capable of meeting those threats, not even if we understand sovereignty as responsibility to protect human rights. The essay tentatively proposes that recent efforts to reformulate state sovereignty as responsibility to humanity – ‘R2H’ for short – offer a better hope. Under this reformulation, states must take into account the interests of those outside their sovereign territory as well as those of the of their own people – in …

The Extraterritorial Application Of Federal Criminal Statutes: Analytical Roadmap, Normative Conclusions, And A Plea To Congress For Direction, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

Under what circumstances can crimes that cross national boundaries be prosecuted in federal court? This question is critical given the increasing frequency with which criminal conduct crosses borders. This Article provides a guide through extant extraterritoriality analysis--warts and all--and then considers what the answer should be.

First, this Article provides a step-by-step roadmap for those seeking to answer the questions of where a crime that spans borders was committed and, if it is deemed to have been committed outside the territory of the United States, whether the applicable statute and Constitution would countenance such a prosecution. This roadmap will reveal …

Treaty Self-Execution As “Foreign” Foreign Relations Law?, Duncan B. Hollis, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This contribution to the Oxford Handbook on Comparative Foreign Relations considers how a state’s approach to foreign relations problems may have an external origin, or what we call “foreign” Foreign Relations Law (FFRL). Using the distinction between self-executing and non-self-executing treaties as a case study, we find close parallels between manifestations of this distinction in various states and how it evolved in the United States, where the distinction was first articulated. The chapter explores whether these parallels reflect the distinction’s transplantation from one legal system to another or the organic development of similar doctrines to address similar problems within the …

General Counsel Of The Fbi, James Baker, In Conversation With Professor Mary Derosa On The Fbi And International Justice, Mary B. Derosa

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Mary DeRosa, Georgetown Law Professor, former Deputy Counsel to President Obama for National Security Affairs, former Legal Advisor to the National Security Council under President Obama, and former Deputy Legal Adviser to the National Security Council in the Clinton Administration, interviewed current General Counsel of the Federal Bureau of Investigation (FBI), James Baker. The two discussed the FBI’s role in international law enforcement and the domestic tension between technological advancement and law enforcement duties.

Who Runs The Internet?, Anupam Chander

Georgetown Law Faculty Publications and Other Works

There is no single answer to the question of who runs the Internet. Is it the United States, often seen as the hegemon of the Internet, home to so many of the world’s leading Internet enterprises? Is it China, which erects a “Great Firewall” to assert control over the portion of the Internet available in China? Is it the European Union, which extends its power globally through its data protection regime, designating countries as “adequate” or (implicitly) “inadequate” to receive its data? Is it ICANN, the California not-for-profit organization that controls how Internet addresses are allocated? Is it the World …