Law Commons^™

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong

Faculty Publications

This article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the article is applicable to both domestic class arbitrations …

A Fiduciary Theory Of Jus Cogens, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

Atrocity Crimes Litigation: 2008 Year-In-Review, Beth Van Schaack

Faculty Publications

This survey of 2008's top developments in these international fora will focus on the law governing international crimes and applicable forms of responsibility. Several trends in the law are immediately apparent. The tribunals continue to delineate and clarify the interfaces between the various international crimes, particularly war crimes and crimes against humanity, which may be committed simultaneously or in parallel with each other. Several important cases went to judgment in 2008 that address war crimes drawn from the Hague tradition of international humanitarian law, and the international courts are demonstrating a greater facility for adjudicating highly technical aspects of this …

Collaborative Governance: Lessons For Europe From U.S. Electricity Restructuring, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Testimonial Deficiencies And Evidentiary Uncertainties In International Criminal Trials, Nancy Amoury Combs

Faculty Publications

In this article, the author describes the flaws inherent in the process of international criminal tribunals which seek to punish the inhumane actions of dictators. The author first describes how international criminal trials confront severe impediments to accurate factfinding. It continues on to discuss the failure of witnesses in these tribunals to accurately convey the information needed to make a fully- informed decision. This problem is compounded by the fact that what clear information is provided during witness testimony often is inconsistent with the information that the witness previously provided in a pre-trial statement. The author also explores the causes …

Deriving Peremptory Norms From Sovereignty, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

No abstract provided.

Conceptualizing Aggression, Noah Weisbord

Faculty Publications

The special working group tasked by the International Criminal Court’s Assembly of States Parties to define the supreme international crime, the crime of aggression, has produced a breakthrough draft definition.

This paper analyzes the key concepts that make up the emerging definition of the crime of aggression by developing and applying a future-oriented methodology that brings together scenario planning and grounded theory. It proposes modifications and interpretations of the constituent concepts of the crime of aggression intended to make the definition sociologically relevant today and in the foreseeable future.

Empowerment Or Estrangement: Liberal Feminism's Visions Of The “Progress” Of Muslim Women, Cyra Akila Choudhury

Faculty Publications

This paper presents some thoughts on the progress of Muslim women towards gender justice. It argues that Liberal Legal feminism shares a common understanding of history and progress with those Liberal political theories that justified the British Empire. Because of this genealogy, Liberal feminism seeks to reform cultures and societies that do not comport with a particular Liberal teleology that forecloses the expression of alternative ideas of history, progress, and human flourishing. It further argues that Muslim women's organizations that partner with Northern organizations sometimes seek to fulfill Liberal expectations of victimhood at the hands of their culture. The consequence …

Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele

Faculty Publications

In her article Toward an International Fair Use Doctrine in 2000, Professor Ruth Okediji hypothesized that the internationalization of copyright law would threaten the freedom of expression if some doctrine akin to U.S. “fair use” were not established as an international legal norm. Acknowledging the central concern of the Okediji article, this paper analyzes research and legal developments since that article to determine how the present state of the “fair use” concept in international copyright law differs from its state in 2000. The paper concludes that in the last eight years, though there has been no formal adoption of an …

Participation And The Right To Health: Lessons From Indonesia, Sam F. Halabi

Faculty Publications

The right to participation is the “the right of rights” — the basic right of people to have a say in how decisions that affect their lives are made. All legally binding international human rights treaties explicitly recognize the essential role of participation in realizing fundamental human rights. While the substance of the human right to health has been extensively developed, the right to participation as one of its components has remained largely unexplored. Should rights-based health advocacy focus on participation because there is a relationship between an individual’s or a community’s active involvement in health care decision-making and the …

Book Review: Protection Of Foreign Investment In Context: Nigeria's Investment Laws, Treaties, And Petroleum Agreements, Duncan E. Alford

Faculty Publications

No abstract provided.

Regionalizing International Criminal Law?, Charles Chernor Jalloh

Faculty Publications

This article examines the initially cooperative but increasingly tense relationship between the International Criminal Court (ICC) and Africa. It assesses the various legal and political reasons for the mounting criticisms of the ICC by African governments, especially within the African Union (AU), following the indictment of incumbent Sudanese President Omar Hassan Al Bashir. The author situates the ICC within broader African efforts to establish more peaceful societies through the continent-wide AU. He submits that the ICC, by prosecuting architects of serious international crimes in Africa’s numerous conflicts, could contribute significantly to the continent’s fledgling peace and security architecture which aims …

Obstacles On The Road To Gender Justice: The International Criminal Tribunal For Rwanda As Object Lesson, Beth Van Schaack

Faculty Publications

Although the substantive law concerned with gender violence is now well established, and the principle of legality can no longer serve as a barrier to prosecutions for gender violence, significant obstacles remain to ensuring a robust system of gender justice in international criminal law in the face of continued violations. These obstacles are less visible than defects in positive law because they emerge in the practice of international criminal law at crucial yet shrouded stages of the penal process: investigation, charging, pre-trial plea negotiations, trial preparation, theprovision of protective measures, and appeals. Most importantly, strong positive law is irrelevant where …

Book Review Of Freedom From Poverty As A Human Right: Who Owes What To The Very Poor?, Michael Ashley Stein

Faculty Publications

No abstract provided.

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

The Language Of Law And The Practice Of Politics: Great Powers, Small States, And The Rhetoric Of Self-Determination In The Cases Of Kosovo And South Ossetia, Christopher J. Borgen

Faculty Publications

If international law is all but irrelevant to international relations why do states spend so much time and effort justifying their actions under international law? The immediate reaction by many is to dismiss this as "cheap talk," a rhetorical fig leaf or simple bluster of little consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages.

This Article seeks to elucidate what …

Constitutional Displacement, Timothy Zick

Faculty Publications

This Article examines the intersection between territory and constitutional liberty. Territoriality, as defined by Robert Sack, is the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area. Territoriality affects constitutional liberty in profound ways. These effects have been apparent in certain infamous historical episodes, including the territoriality of racial segregation, the geographic exclusion and internment of Japanese-Americans during World War II, early state migratory exclusions, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including detention of enemy …

Cedaw, Compliance, And Custom: Human Rights Enforcement In Sub-Saharan Africa, Angela M. Banks

Faculty Publications

No abstract provided.

Foreword: Security Detention, Michael P. Scharf, Gwen Gillespie

Faculty Publications

Foreword to the International Committee of the Red Cross (ICRC) and the Frederick K. Cox International Law Center at Case Western Reserve University organized a two-day experts meeting on security detention, Cleveland, OH, 2009

A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares

Faculty Publications

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 27, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends case type, party identity, income level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased …

No Way Out? The Question Of Unilateral Withdrawals Of Referrals To The Icc And Other Human Rights Courts, Michael P. Scharf, Patrick Dowd

Faculty Publications

Growing out of the authors' work for the International Criminal Court, which was sponsored by a grant from the Open Society Institute, No Way Out examines one of the most vexing legal questions facing the International Criminal Court - whether a State that has referred a case to the Court can subsequently withdraw its referral as part of a domestic peace agreement? The issue has arisen with respect to Uganda's interest in withdrawing its self-referral as part of a peace deal with the leaders of the Lord's Resistance Army. This article examines the Rome Statute, the drafting history, and the …

Foreword: After Guantanamo, Michael P. Scharf, Sonia Vohra

Faculty Publications

“Guantanamo Bay.” To many around the world those two words conjure up haunting images of orange jumpsuit-clad detainees imprisoned behind barbed-wire fences, subjected to the cruelest imaginable interrogation techniques, and held indefinitely without trial, or awaiting trial before military commissions whose procedures violate international law. It is no surprise, then, that the new U.S. administration perceived the Guantanamo Bay detention center and associated detainee policies as an indelible stain on America's moral authority and an impediment to the success of future U.S. foreign policy.

International Law And The Torture Memos, Michael P. Scharf

Faculty Publications

This article explores the influence of international law in the evolution of the Bush Administration's policies toward detainees in the global war on terror. The detainee case study provides a modern lens for evaluating Jack Goldsmith and Eric Posner's hypothesis set forth in THE LIMITS OF INTERNATIONAL LAW that international law exerts no “compliance pull” on American policymakers in times of crisis.

International Law In Crisis: A Qualitative Empirical Contribution To The Compliance Debate, Michael P. Scharf

Faculty Publications

In the aftermath of the terrorist attacks of September 11, 21, Professors Jack Goldsmith and Eric Posner published The Limits of International Law, a potentially revolutionary book that employs rational choice theory to argue that international law is really just “politics” and does not render a “compliance pull” on State decisionmakers. Critics have pointed out that Goldsmith and Posner’s identification of the role of international law in each of their case studies is largely conjectural, and that what is needed is qualitative empirical data that identifies the international law-based arguments that were actually made and the policy-makers’ responses to such …

Research In International Commercial Arbitration: Special Skills, Special Sources, S. I. Strong

Faculty Publications

Experts agree that international commercial arbitration relies far more heavily on written advocacy than litigation does, yet very few practitioners and arbitrators have ever received any specialized training in how to research and present written arguments in this unique area of law. Newcomers to the field are particularly disadvantaged, since the legal authorities used in international commercial arbitration are unique and novices often do not know how to find certain materials, if they are even aware that these items exist. This article helps deepen the understanding of the practice of international commercial arbitration by describing how experienced international advocates and …