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2014

International law

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Full-Text Articles in Law

China's Nine-Dashed Map: Maritime Source Of Geopolitical Tension, Bert Chapman Oct 2014

China's Nine-Dashed Map: Maritime Source Of Geopolitical Tension, Bert Chapman

Libraries Faculty and Staff Scholarship and Research

The South China Sea (SCS) is becoming an increasingly contentious source of geopolitical tension due to its significance as an international trade route, possessor of potentially significant oil and natural gas resources, China’s increasing diplomatic and military assertiveness, and the U.S.’ recent and ongoing Pacific Pivot strategy. Countries as varied as China, Taiwan, the Philippines, Indonesia and other adjacent countries have claims on this region’s islands and natural resources. China has been particularly assertive in asserting its SCS claims by creating a nine-dash line map claiming to give it de facto maritime control over this entire region ...


Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian Faulhaber Sep 2014

Charitable Giving, Tax Expenditures, And Direct Spending In The United States And The European Union, Lilian Faulhaber

Faculty Scholarship

This Article compares the ways in which the United States and the European Union limit the ability of state-level entities to subsidize their own residents, whether through direct subsidies or through tax expenditures. It uses four recent charitable giving cases decided by the European Court of Justice (ECJ) to illustrate the ECJ’s evolving tax expenditure jurisprudence and argues that, while this jurisprudence may suggest a new and promising model for fiscal federalism, it may also have negative social policy implications. It also points out that the court analyzes direct spending and tax expenditures under different rubrics despite their economic ...


No Right At All: Putting Consular Notification In Its Rightful Place After Medellin, Alberto R. Gonzales, Amy L. Moore Jul 2014

No Right At All: Putting Consular Notification In Its Rightful Place After Medellin, Alberto R. Gonzales, Amy L. Moore

Law Faculty Scholarship

This Article covers the history of consular notification and presentation in the U.S. federal and state courts and in the International Court of Justice. Article 36 of the Vienna Convention on Consular Relations provides that nation-states should notify detained foreign nationals of their right to contact their consulate about their detention. This Article argues that the U.S. Supreme Court, as matters of institutional responsibility and judicial economy, should have concluded that the Vienna Convention on Consular Relations does not contain an enforceable individual right. Moreover, no analog for this right has been found in American jurisprudence.


Rogue Debtors And Unanticipated Risk, S. I. Strong Jul 2014

Rogue Debtors And Unanticipated Risk, S. I. Strong

Faculty Publications

Commercial actors are becoming increasingly concerned about the effect that various types of political risk, including the risk of sovereign default, has on their investments. This Essay considers the problem of rogue debtors (i.e., states that intentionally ignore their legal and financial obligations) as a type of unanticipated risk and analyzes how well various responses, including domestic litigation, interstate negotiation and investment arbitration, address investors’ needs. In particular, the discussion focuses on how effective investment arbitration is in overcoming a number of difficulties traditionally associated with rogue debtors and the various means by which states are attempting to bypass ...


Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble May 2014

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the Third International Intellectual Property Scholars Roundtable, which was held at the DePaul University College of Law on May 1, 2014.


Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer Apr 2014

Book Review, Economic Foundations Of International Law, By Eric A. Posner And Alan O. Sykes, Timothy L. Meyer

Scholarly Works

This essay reviews Eric Posner’s and Alan Sykes’ Economic Foundations of International Law. In the last ten years or so, economic analysis of international law has established itself as a mainstream discipline, providing insights into why international law is structured as it is, the conditions under which it is effective, and how it might be improved. Economic Foundations consolidates and extends these insights. As such, the book is destined to be a starting place for economic analysis of international law. The book is divided into five parts. Part I provides an introduction to international law and the tools necessary ...


On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius Jan 2014

On The Ninth Circuit's New Definition Of Piracy: Japanese Whalers V. The Sea Shepherd-Who Are The Real "Pirates" (I.E. Plunderers)?, Barry H. Dubner, Claudia Pastorius

Faculty Scholarship

No abstract provided.


Deciding To Intervene, Anna Spain Jan 2014

Deciding To Intervene, Anna Spain

Articles

Decisions about intervention into today's armed conflicts are difficult, dangerous, and politically complicated. There are no safe choices. Amid the climate of urgency and uncertainty in which intervention decision-making occurs, international law serves as a guide by providing rules about the legality of intervention. These rules assert that, except for in cases of self-defense, choices about when and how to intervene are to be made by the United Nations Security Council. What the rules do not provide, however, is effective guidance for the political choices the Council makes, such as how to prioritize among competing norms. When, for example ...


The Judge And The Drone, Justin Desautels-Stein Jan 2014

The Judge And The Drone, Justin Desautels-Stein

Articles

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge's role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the ...


Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski Jan 2014

Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski

Articles

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of ...


Book Review, Anna Spain Jan 2014

Book Review, Anna Spain

Articles

No abstract provided.


Indigenous Peoples And The Jurisgenerative Moment In Human Rights, Kristen A. Carpenter, Angela R. Riley Jan 2014

Indigenous Peoples And The Jurisgenerative Moment In Human Rights, Kristen A. Carpenter, Angela R. Riley

Articles

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples' claims against states and even influences indigenous groups' internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global "human rights culture" to articulate rights ranging from ...


The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson Jan 2014

The United States, China, And Freedom Of Navigation In The South China Sea, James W. Houck, Nicole M. Anderson

Journal Articles

The need for a uniform understanding of international norms regarding freedom of navigation is increasingly important as more States develop capacity to act in the international maritime realm. Nowhere is the issue of freedom of navigation more contentious, with more potential to spark wider conflict, than in the South China Sea (SCS). Both the United States and China profess an interest in the free navigation of commercial vessels in the region. Beyond commercial shipping, however, the two nations disagree on the important issue of freedom of navigation for military vessels. The United States believes all nations have wide latitude under ...


Introduction-Papers From The 2013 American Society Of Comparative Law Annual Meeting, Sarah Howard Jenkins, Kenneth S. Gallant Jan 2014

Introduction-Papers From The 2013 American Society Of Comparative Law Annual Meeting, Sarah Howard Jenkins, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.


Accelerated Formation Of Customary International Law, Michael P. Scharf Jan 2014

Accelerated Formation Of Customary International Law, Michael P. Scharf

Faculty Publications

This article examines the phenomenon of accelerated formation of customary international law. It argues that in periods of fundamental change (which the author characterizes as "Grotian Moments"), whether by technological advances, the commission of new forms of crimes against humanity, or the development of new means of warfare or terrorism, customary international law may form much more rapidly and with less state practice than is normally the case to keep up with the pace of developments. The article examines several case studies that explore the application and contours of the concept of "Grotian Moments."


Introduction To Intervention Under International Law, Mortimer N.S. Sellers Jan 2014

Introduction To Intervention Under International Law, Mortimer N.S. Sellers

All Faculty Scholarship

The lawfulness or legitimacy of "external" intervention in the "internal" affairs of sovereign states is one of the most basic controversies in modern international law. The question arises in three separate but related forms: When is intervention lawful? When is intervention legitimate? And when should intervention occur? Discussion here will focus on the legal question, but legitimacy, morality, and brutal reality all form and sometimes trump the law. They dictate the parameters within which all legal determinations take place, including the legality of cross-border interventions. By "intervention" I mean any activity by one state or its agents that influences the ...


Crimea And The International Legal Order, William W. Burke-White Jan 2014

Crimea And The International Legal Order, William W. Burke-White

Faculty Scholarship at Penn Law

A key balance between two of the most fundamental principles of the post-World War II international legal and political order is at stake today in Ukraine. Particularly in its annexation of Crimea, Russia has exploited the tension between a fundamental principle that prohibits the acquisition of territory through the use of force and an equally fundamental right of self-determination. Russia’s reinterpretation of these two principles could well destabilize the tenuous balance between the protection of individual rights and the preservation of states’ territorial integrity that undergirds the post World War II order. In determining the precedent that will be ...


The Spratly Islands Dispute: International Law, Conflicting Claims, And Alternative Frameworks For Dispute Resolution, Robin Gonzales Jan 2014

The Spratly Islands Dispute: International Law, Conflicting Claims, And Alternative Frameworks For Dispute Resolution, Robin Gonzales

Calvert Undergraduate Research Awards

The Spratly islands dispute is a regional maritime territorial sovereignty dispute which involves six countries in the South China Sea – China, Taiwan, Vietnam, Philippines, Malaysia and Brunei. Underscored by the prospects of large natural energy reserves, control of strategic global maritime areas, and shifting global power dynamics, the dispute has significant international geo-strategic, economic, political and legal implications. This Honors Thesis evaluates the international legal standards for resolving maritime sovereignty disputes, provides a historiography of the six countries’ competing claims, and analyzes the legal soundness of their claims. This thesis also proposes and examines potential political and diplomatic frameworks as ...


Country Report On Counterterrorism: United States Of America, Sudha Setty Jan 2014

Country Report On Counterterrorism: United States Of America, Sudha Setty

Faculty Scholarship

The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.

This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of ...


International Criminal Law For Retributivists, Alexander K.A. Greenawalt Jan 2014

International Criminal Law For Retributivists, Alexander K.A. Greenawalt

Pace Law Faculty Publications

Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing ...


Limits Of Procedural Choice Of Law, S. I. Strong Jan 2014

Limits Of Procedural Choice Of Law, S. I. Strong

Faculty Publications

Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.

Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may ...


Table Of Mimetic Influences Related To Steve Charnovitz, “What The World Trade Organization Learned From The Ilo,” In Adelle Blackett & Anne Trebilcock Eds., Research Handbook On Transnational Labour Law (Edward Elgar, Forthcoming 2015), Steve Charnovitz Jan 2014

Table Of Mimetic Influences Related To Steve Charnovitz, “What The World Trade Organization Learned From The Ilo,” In Adelle Blackett & Anne Trebilcock Eds., Research Handbook On Transnational Labour Law (Edward Elgar, Forthcoming 2015), Steve Charnovitz

GW Law Faculty Publications & Other Works

This table shows how the features of the ILO complaint procedures originating in 1919 became a model for the dispute settlement procedures written into the Charter of the International Trade Organization (ITO) in 1948 and the Dispute Settlement Understanding of the World Trade Organization.


From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer Jan 2014

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer

Scholarly Works

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the ...


Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain Jan 2014

Overview Of Panel: Judges, Diplomats, And Peacebuilders: Evaluating International Dispute Resolution As A System, Anna Spain

Articles

No abstract provided.


A State Preferences Account Of Customary International Law Adjudication, Curtis A. Bradley Jan 2014

A State Preferences Account Of Customary International Law Adjudication, Curtis A. Bradley

Faculty Scholarship

The standard account today of customary international law (CIL) is that it arises from the widespread and consistent practice of states followed out of a sense of legal obligation. Although commonly recited, this account is plagued by evidentiary, normative, and conceptual difficulties, and it has been subjected to increasing criticism in recent years. This paper posits a different account of CIL, considered from the perspective of international adjudication. A fundamental problem with much of the theorizing about CIL, the paper contends, is that it fails to identify which decisionmaker it has in mind. Instead, the discussion proceeds as if CIL ...


Two Myths About The Alien Tort Statute, Bradford R. Clark, Anthony J. Bellia Jr. Jan 2014

Two Myths About The Alien Tort Statute, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States...with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court ...


Green Subsidies And The Wto, Steve Charnovitz Jan 2014

Green Subsidies And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper provides a detailed explanation how the law of the World Trade Organization regulates environmental subsidies with a focus on renewable energy subsidies. The paper begins by discussing the economic justifications for such subsidies and the criticisms of them and then gives examples of different categories of subsidies. Next the paper provides an overview of the relevant WTO rules and caselaw, including the recent Canada-Renewable Energy case. The paper also makes specific recommendations for how WTO law can be improved, and discusses the existing literature discussing reform proposals. The study further finds that because of a lack of clarity ...


The Domestic And International Enforcement Of The Oecd Anti-Bribery Convention, Rachel Brewster Jan 2014

The Domestic And International Enforcement Of The Oecd Anti-Bribery Convention, Rachel Brewster

Faculty Scholarship

International corruption law is a growing, if understudied, area of international economic law. This Article examines two aspects of governments' enforcement of the OECD's Anti-Bribery Convention. The first aspect is the member state's efforts to enforce its own national legislation prohibiting foreign corruption within its territory and with regards to its nationals doing business abroad. The OECD Treaty's obligation concerning member states' enforcement of their own national legislation is somewhat ambiguous. While the obligation to pass particular national legislation is quite clear and specific, the treaty does not specify what resources that a state must dedicate to ...


Why The State?, Joseph Raz Jan 2014

Why The State?, Joseph Raz

Faculty Scholarship

The paper provides a broadly sketched argument about the importance of state-law and its limits, and the way current developments in international relations and international law tend to transform it without displacing its key position among legal systems in general. It argues that state law is (at least until present time) the most comprehensive law-based social organization within its domain. A standing which is manifested by acknowledged legitimacy by those subject to it (or many of them) and sovereignty, namely independence or external bodies. The paper argues that globalisation (broadly conceived) and attending developments in international greatly reduce the sovereignty ...


The Limits Of Legality: Assessing Recent International Interventions In Civil Conflicts In The Middle-East, Feisal Amin Istrabadi Jan 2014

The Limits Of Legality: Assessing Recent International Interventions In Civil Conflicts In The Middle-East, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.