Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 26 of 26

Full-Text Articles in Law

The Popular But Unlawful Armed Reprisal, Mary Ellen O'Connell Apr 2018

The Popular But Unlawful Armed Reprisal, Mary Ellen O'Connell

Journal Articles

The United States and Iran carried out armed reprisals in Syria during 2017 in the wake of chemical and terror attacks. Despite support for their actions even by countries such as Germany and France, retaliatory uses of force are clearly prohibited under international law. International law generally prohibits all use of armed force with narrow exceptions for self-defense, United Nations Security Council authorization, and consent of a government to participate in a civil war. Military force after an incident are reprisals, which have been expressly forbidden by the UN. Prior to the Trump administration, the U.S. consistently attempted to ...


White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry Jan 2016

White Paper: Options For A Treaty On Business And Human Rights, Douglass Cassel, Anita Ramasastry

Journal Articles

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.

The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a ...


21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, And Wmds, Mary Ellen O'Connell Jan 2015

21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, And Wmds, Mary Ellen O'Connell

Journal Articles

The world faces tough arms control challenges from preventing the development and use of weapons of mass destruction to regulating the new weapons of the computer revolution. This article considers what works in arms control. Using military force in violation of international law to destroy nuclear facilities, to stop weapons shipments, or to punish the use of prohibited weapons typically fails. Diplomacy paired with lawful counter-measures has the superior track record. Reviving the art of diplomacy and re-committing to authentic international law will pay dividends in peace and security.


What Is Agression?: Comparing The Jus Ad Bellum And The Icc Statute, Mary Ellen O'Connell, Mirakmal Niyazmatov Jan 2012

What Is Agression?: Comparing The Jus Ad Bellum And The Icc Statute, Mary Ellen O'Connell, Mirakmal Niyazmatov

Journal Articles

Under the international law on resort to force, the jus ad bellum, any serious violation of the United Nations Charter prohibition on the use of force amounts to aggression. Despite a close connection for over a century between the prohibition on aggression by states and the crime of aggression for which individuals may be held accountable, delegates to the 2010 International Criminal Court Review Conference in Kampala, Uganda felt compelled to bifurcate the two prohibitions and reach a compromise. Today, the ICC Statute contains a detailed provision on the crime of aggression, but with a byzantine procedure for entry into ...


The Nobel Effect, Roger P. Alford Jan 2009

The Nobel Effect, Roger P. Alford

Journal Articles

No abstract provided.


The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark Jan 2009

The Federal Common Law Of Nations, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' perfect rights (or close analogues) under the ...


The Nobel Effect: Nobel Peace Prize Laureates As International Norm Entrepreneurs, Roger P. Alford Jan 2008

The Nobel Effect: Nobel Peace Prize Laureates As International Norm Entrepreneurs, Roger P. Alford

Journal Articles

For the first time in scholarly literature, this article traces the history of modern international law from the perspective of the constructivist theory of international relations. Constructivism is one of the leadings schools of thought in international relations today. This theory posits that state preferences emerge from social construction and that state interests are evolving rather than fixed. Constructivism further argues that international norms have a life cycle composed of three stages: norm emergence, norm acceptance (or norm cascades), and norm internalization. As such, constructivism treats international law as a dynamic process in which norm entrepreneurs interact with state actors ...


Arbitrating Human Rights, Roger P. Alford Jan 2008

Arbitrating Human Rights, Roger P. Alford

Journal Articles

Corporate liability for human rights abuses is one of the most important developments in current international law and practice. With the advent of human rights litigation against corporations, there is now the prospect of a deep-pocket defendant that is complicit in grave human rights abuses, subject to personal jurisdiction, and not immune from suit. Indeed, if a corporation is accused of "aiding and abetting" human rights abuses, this is all but a concession that the corporate actor is not the principal wrong-doer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about ...


Beyond Wealth: Stories Of Art, War, And Greed, Mary Ellen O'Connell Jan 2008

Beyond Wealth: Stories Of Art, War, And Greed, Mary Ellen O'Connell

Journal Articles

The article tells three stories of great art and priceless antiquities: one about early Christian mosaics from Cyprus, another about five paintings by the Viennese master, Gustav Klimt, and the third about an ancient statute of a Sumerian king from Iraq. All three stories discuss the international law protecting cultural heritage in time of war and occupation. They all tell of individuals pursuing extraordinary profits from the sale of the objects despite the international law that, properly applied, should have protected them from damage and kept them all in places of public display.

The article also tells how in each ...


The Ban On The Bomb – And Bombing: Iran, The U.S., And The International Law Of Self-Defense, Mary Ellen O'Connell Jan 2007

The Ban On The Bomb – And Bombing: Iran, The U.S., And The International Law Of Self-Defense, Mary Ellen O'Connell

Journal Articles

Since the March 2003, U.S.-led invasion of Iraq, rumors have persisted of a United States plan to attack Iran. Some U.S. officials are apparently willing to contemplate the use of military force to prevent Iran from developing nuclear weapons. Under international law, however, there is no right without Security Council authorization to use significant military force on the territory of another state to stop nuclear research. Knowing this, alternative arguments are being floated by those sympathetic to the plan to attack Iran. One such argument asserts that the U.S. could attack Iran on the basis of ...


Preserving The Peace: The Continuing Ban On War Between States, Mary Ellen O'Connell Jan 2007

Preserving The Peace: The Continuing Ban On War Between States, Mary Ellen O'Connell

Journal Articles

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the ...


Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford Jan 2006

Foreign Relations As A Matter Of Interpretation: The Use And Abuse Of Charming Betsy, Roger P. Alford

Journal Articles

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States' performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to ...


Four Mistakes On The Debate On "Outsourcing Authority", Roger P. Alford Jan 2006

Four Mistakes On The Debate On "Outsourcing Authority", Roger P. Alford

Journal Articles

The purpose of this Article is to discuss common mistakes in the current debate on outsourcing authority. The first mistake in the debate on outsourcing authority is about the protagonists. To focus solely on the fact that some justices espouse this approach, while others do not, distorts the true picture of the rich debate that is ongoing at the bar, the bench, the academy, and beyond. Mistaking the voices in the debate will distort what is at issue in the discussion. The reality is much more complex. There is a groundswell of opposition to this trend from various corners and ...


Rules Of Evidence For The Use Of Force In International Law's New Era, Mary Ellen O'Connell Jan 2006

Rules Of Evidence For The Use Of Force In International Law's New Era, Mary Ellen O'Connell

Journal Articles

No abstract provided.


In Search Of A Theory For Constitutional Comparativism, Roger P. Alford Jan 2005

In Search Of A Theory For Constitutional Comparativism, Roger P. Alford

Journal Articles

Constitutional comparativism - the notion that international and foreign material should be used to interpret the U.S. Constitution - is gaining currency. Yet proponents of this practice rarely offer a firm theoretical justification for the practice. This Article contends that constitutional comparativism should be examined from the perspective of constitutional theory. The use of comparative and international material must be deemed appropriate or inappropriate based on a particular judge's interpretive mode of constitutional analysis. The Article presents four classic constitutional theories - originalism, natural law, majoritarianism, and pragmatism - and addresses the propriety of constitutional comparativism under each theory. This theoretical approach ...


The End Of Legitimacy, Mary Ellen O'Connell Jan 2004

The End Of Legitimacy, Mary Ellen O'Connell

Journal Articles

No abstract provided.


Misusing International Sources To Interpret The Constituion, Roger P. Alford Jan 2004

Misusing International Sources To Interpret The Constituion, Roger P. Alford

Journal Articles

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our Constitution unless ...


Subsidiarity As A Structural Principle Of International Human Rights Law, Paolo G. Carozza Jan 2003

Subsidiarity As A Structural Principle Of International Human Rights Law, Paolo G. Carozza

Journal Articles

This article argues that the principle of subsidiarity should be recognized as a structural principle of international human rights law primarily because of the way that it mediates between the universalizing aspirations of human rights and the fact of the diversity of human communities in the world. The idea of subsidiarity is deeply consonant with the substantive vision of human dignity and the universal common good that is expressed through human rights norms. Yet, at the same time it promotes respect for pluralism by emphasizing the freedom of more local communities to realize their own ends for themselves.

Looking at ...


Lawful Self-Defense To Terrorism, Mary Ellen O'Connell Jan 2002

Lawful Self-Defense To Terrorism, Mary Ellen O'Connell

Journal Articles

No abstract provided.


The Internationalization Of Legal Relations, Roger P. Alford Jan 2002

The Internationalization Of Legal Relations, Roger P. Alford

Journal Articles

No abstract provided.


Does International Human Rights Law Make A Difference?, Douglass Cassel Jan 2001

Does International Human Rights Law Make A Difference?, Douglass Cassel

Journal Articles

Does international human rights law make a difference? Does it protect rights in practice? The importance of these questions for rights protection is obvious: the institutions of international human rights law deserve our energetic support only to the extent they contribute meaningfully to protection of rights, or at least promise eventually to do so. Moreover, at the moment these questions have added urgency. They underlie an ongoing debate, fomented in part by this Journal, on the extent to which the United States should be prepared to cede degrees of its national sovereignty to international human rights institutions, in return for ...


Elihu Root And Crisis Prevention, Mary Ellen O'Connell Jan 2001

Elihu Root And Crisis Prevention, Mary Ellen O'Connell

Journal Articles

No abstract provided.


The Proliferation Of International Courts And Tribunals: International Adjudication In Ascendance, Roger P. Alford Jan 2000

The Proliferation Of International Courts And Tribunals: International Adjudication In Ascendance, Roger P. Alford

Journal Articles

While there has been a significant focus on a few international tribunals, there have been insufficient efforts to compare and contrast the various courts and tribunals. Even a cursory comparison of these tribunals reveals that there are many unanswered questions regarding the interrelationship of these courts and tribunals and, more disturbing, a profound lack of attention to the collective impact these international tribunals are having on the field of international law. That is changing, as is evidenced by the new Project on International Courts and Tribunals at New York University School of Law, but we as an international legal community ...


Regulating The Use Of Force In The 21st Century: The Continuing Importance Of State Autonomy, Mary Ellen O'Connell Jan 1998

Regulating The Use Of Force In The 21st Century: The Continuing Importance Of State Autonomy, Mary Ellen O'Connell

Journal Articles

No abstract provided.


Uses And Misuses Of Comparative Law In International Human Rights: Some Reflections On The Jurisprudence Of The European Court Of Human Rights, Paolo G. Carozza Jan 1998

Uses And Misuses Of Comparative Law In International Human Rights: Some Reflections On The Jurisprudence Of The European Court Of Human Rights, Paolo G. Carozza

Journal Articles

No abstract provided.


Lessons From The Americas: Guidelines For International Response To Amnesties For Atrocities, Douglass Cassel Jan 1996

Lessons From The Americas: Guidelines For International Response To Amnesties For Atrocities, Douglass Cassel

Journal Articles

Amnesty guidelines modeled on international law as defined by Latin American tribunals and treaties should be adopted and used by the United Nations, the Organization of American States, and national governments involved in remedying human rights violations. The 10 guidelines are stringent and would rarely result in the granting of amnesty. They may better serve their function than treaties or customary laws be cause they are guidelines and not mandatory.