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Between A Rock And A Hard Place? Ict Companies, Armed Conflict, And International Law, Arturo J. Carrillo
Between A Rock And A Hard Place? Ict Companies, Armed Conflict, And International Law, Arturo J. Carrillo
GW Law Faculty Publications & Other Works
What is an ICT company to do when operating in the midst of international armed conflict like the one raging in Ukraine? How should tech company executives respond to urgent government demands – often conflicting -- to propagate or censor online content arising in the context of war, including disinformation? And what of their demands to access the personal data or communications of users, ostensibly to safeguard security but nonetheless presenting the potential for abuse? Governments make difficult demands of ICT companies by seeking to impose heavy restrictions on the free flow of information and data privacy via the latter’s …
The Expanding Labor Dimension Of Us-Negotiated Regional Trade Agreements: Tpp And Usmca, Steve Charnovitz
The Expanding Labor Dimension Of Us-Negotiated Regional Trade Agreements: Tpp And Usmca, Steve Charnovitz
GW Law Faculty Publications & Other Works
During the past several years, the US government has negotiated two regional trade agreements with far reaching labor provisions — the Trans-Pacific Partnership (TPP) and the United States-Mexico-Canada Agreement (USMCA). Signed in early 2016, the TPP labor chapter enhances second-generation worker rights in several significant ways: First, the TPP obligates each party to "adopt and maintain" statutes, regulations, and practices governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health, as determined by that party. Second, the obligation not to waive or derogate from fundamental labor rights or conditions of work is …
The Price Of Prevention: Anti-Terrorism Pre-Crime Measures And International Human Rights Law,, Arturo J. Carrillo
The Price Of Prevention: Anti-Terrorism Pre-Crime Measures And International Human Rights Law,, Arturo J. Carrillo
GW Law Faculty Publications & Other Works
How far can law go to prevent violent acts of terrorism from happening? This Article examines the response by a number of Western democratic States to that question. These States have enacted special legal mechanisms that can be called ‘anti-terrorist pre-crime measures.’ Anti-terrorist pre-crime measures, or ATPCMs for short, are conditions or restrictions imposed on a person by law enforcement authorities as the outcome of a legal process set up to identify and neutralize potential sources of terrorist activity before it occurs. The issue is whether the ATCPMs regimes in existence today comply with the corresponding States’ international obligations under …
Green Subsidies And The Wto, Steve Charnovitz
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 …
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.
Two Myths About The Alien Tort Statute, Bradford R. Clark, Anthony J. Bellia Jr.
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, however, misperceived …
The Jus Ad Bellum And The 1998 Initiation Of The Eritrean-Ethopian War, Sean D. Murphy, Won Kidane, Thomas R. Snider
The Jus Ad Bellum And The 1998 Initiation Of The Eritrean-Ethopian War, Sean D. Murphy, Won Kidane, Thomas R. Snider
GW Law Faculty Publications & Other Works
From May 1998 to December 2000, Eritrea and Ethiopia engaged in an armed conflict that cost the lives of thousands of individuals, injured thousands more, and displaced tens of thousands of men, women, and children from their homes. In December 2000, the two sides concluded a comprehensive agreement that ended the war. Among other things, the agreement established the Eritrea-Ethiopia Claims Commission. Consisting of five arbitrators, the Commission’s mandate was to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other” that were “related to the conflict” and that “resulted from violations of …
Holocaust-Era Claims In The 21st Century: Hearing Before The S. Comm. On The Judiciary, 112th Cong., June 20, 2012 (Statement Of Edward T. Swaine, Professor Of Law, Gw Law School), Edward T. Swaine
GW Law Faculty Testimony Before Congress & Agencies
No abstract provided.
Using Law And Equity For Poor And The Environment, Dinah L. Shelton
Using Law And Equity For Poor And The Environment, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This chapter discusses ways of overcoming “adaptation apartheid,” a term used to describe the differences in reactions to environmental disasters between poor and wealthy people and countries. The chapter focuses on “environmental protection and poverty alleviation.” The first section describes the connections between poverty and environmental damage, and the second section discusses distributive justice, defined as “an ethical imperative based on the notion of moral reciprocity.” Third, the chapter lists the sources of law pertaining to environmental justice, including private law, regulation, market mechanisms, and rights-based approaches. The chapter concludes by noting the advantages and challenges to a rights-based approach …
Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (Introduction), Paul Schiff Berman
Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (Introduction), Paul Schiff Berman
GW Law Faculty Publications & Other Works
We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is inevitably confusing, and we cannot expect territorial borders to solve all the problems that arise because legal norms inevitably flow across such borders. At the same time, trying to create one universal set of legal rules is also often unsuccessful because the sheer variety of human communities and interests thwarts such efforts. Instead, we need an alternative jurisprudence, one …
Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy
Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy
GW Law Faculty Publications & Other Works
In proceedings before the International Court of Justice (I.C.J.), a “counter-claim” is “an autonomous legal act” by the Respondent in a contentious case, “the object of which is to submit a new claim to the Court,” one that is “linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to" the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of the principal claim. Hence, the reason for allowing a counter-claim to …
Book Review Of Marc Weller, Contested Statehood: Kosovo’S Struggle For Independence, Oxford University Press, 2009 (321 Pp.), Sean D. Murphy
Book Review Of Marc Weller, Contested Statehood: Kosovo’S Struggle For Independence, Oxford University Press, 2009 (321 Pp.), Sean D. Murphy
GW Law Faculty Publications & Other Works
How an area measuring no more than about 11,000 square kilometers could become arguably “ground zero” for the formation of post-Cold War international law is a bit of a mystery, but the province (and now country) of Kosovo, in the late twentieth/early twenty-first centuries, somehow managed to pull off that feat. In Contested Statehood: Kosovo’s Struggle for Independence Marc Weller provides the best history to date of the Kosovo crisis from the end of the Cold War up to the point that Kosovo’s independence was declared in February 2008. In its July 2009 advisory opinion on that legality of that …
Human Rights And The Environment: Substantive Rights, Dinah L. Shelton
Human Rights And The Environment: Substantive Rights, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This chapter focuses on the relationship between human rights and the environment. The chapter describes multiple sources of human rights and environmental obligations, including international treaties, national law, and the judicial decisions of international courts. Human rights that indirectly call for environmental conservatism include the rights to life, health, privacy, and standard of living. This chapter concludes by noting that governments must balance human rights related to the environment with other concerns such as economic advancement.
Comments On The Normative Challenge Of Environmental “Soft Law”, Dinah L. Shelton
Comments On The Normative Challenge Of Environmental “Soft Law”, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This paper describes the increased presence of non-binding soft law in international environmental law and begins by listing the possible uses of a “non-binding normative instrument.” Next, the paper describes the relationship between soft law and customary international law and notes that soft law may result in subsequent codification of those principles or interpret existing treaty obligations. The paper then contemplates why states are utilizing soft law in international environmental law and discusses issues regarding compliance with non-binding soft law. The paper concludes that the complicated nature of the international system prevents a prediction of the extent to which states …
International Human Rights: Problems Of Law, Policy, And Practice, Dinah L. Shelton, Hurst Hannum, S. James Anaya
International Human Rights: Problems Of Law, Policy, And Practice, Dinah L. Shelton, Hurst Hannum, S. James Anaya
GW Law Faculty Publications & Other Works
The introductory chapter of this book discusses how a unifying concern for human dignity led to the establishment of human rights as part of the body of international law. Next, the chapter includes excerpts from multiple writers’ works to employ slavery as a case study to demonstrate how the international community has used the notion of human rights to create binding law. Third, this chapter discusses the philosophical drivers of human rights by including writings from other scholars and the history of the presence of human rights in international law. The chapter concludes that increasing concern for human rights may …
International Law And Domestic Legal Systems: Incorporation, Transformation, And Persuasion (Introduction), Dinah L. Shelton
International Law And Domestic Legal Systems: Incorporation, Transformation, And Persuasion (Introduction), Dinah L. Shelton
GW Law Faculty Publications & Other Works
This book discusses developments in international law and their relationship to national legal systems. The introduction of the book notes that countries who received their independence from authoritarian regimes are more receptive to international law. A country may adopt either a monist approach to international law, where it considers international law part of its domestic law, or a dualist approach, in which a country separates its national law from international law. The introduction then proceeds to identify sources of international law, including treaties and countries’ methods of complying, customary international law, and declarations. The introduction concludes by noting the increasing …
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 …
Intergenerational Equity, Dinah L. Shelton
Intergenerational Equity, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This essay analyzes the legal meaning of “intergenerational equity” and evaluates the practical implementation of the concept. The essay begins by considering the meaning of the two terms in the phrase: “intergenerational” and “equity.” It then looks at the various rationales given for concern with this topic and how they link to the topic of solidarity, followed by an overview of some of the main subject areas in which the issue of intergenerational equity arises. It proceeds to assess the status of intergenerational equity in international law and to identify various principles associated with the concept. Finally, it turns to …
Book Review Of Alan Boyle And Christine Chinkin, The Making Of International Law, Oxford University Press, 2007, Sean D. Murphy
Book Review Of Alan Boyle And Christine Chinkin, The Making Of International Law, Oxford University Press, 2007, Sean D. Murphy
GW Law Faculty Publications & Other Works
Abstract:
An Extraordinary Range of International "Rules" or "Norms" are Created Today Through Mechanisms that Do Not Fit Easily into the Traditional Sources of International Law. In the Making of International Law, Professors Alan Boyle of the University of Edinburgh and Christine Chinkin of the London School of Economics Set Their Sights on Providing a Broad Account of Such Law-Making, Looking Across Different Areas of Organizational Behavior, Both Governmental and Non-Governmental. Although this Volume Has Some Shortcomings, it is an Excellent Starting Point for Those Interested in an Engaging and Informed Survey of Various Ways in Which International Law is …
Bespoke Custom, Edward T. Swaine
Bespoke Custom, Edward T. Swaine
GW Law Faculty Publications & Other Works
Curtis Bradley and Mitu Gulati’s stimulating article, “Withdrawing from International Custom,” argues for a view of customary international law (CIL) in which unilateral exit rights may be revitalized. This response suggests that Bradley and Gulati’s understanding of the intellectual history of CIL is contestable and that, they tend both to understate the novelty of their approach and overstate the rigidity of the views to which they react. Their tentativeness in endorsing exit options makes it difficult to assess the normative implications of their position, but their argument notably lacks a comprehensive consideration of alternative lawmaking forms.
New Opportunities For Nongovernmental Actors In The International Law Commission, Steve Charnovitz
New Opportunities For Nongovernmental Actors In The International Law Commission, Steve Charnovitz
GW Law Faculty Publications & Other Works
Four years ago, I wrote an essay for the Centennial celebration of the American Journal of International Law on the topic of “Nongovernmental Organizations and International Law.” In the section of that essay where I discussed whether, under international law, states and international organizations have a duty to consult nongovernmental organizations (NGOs), I surveyed some current practices of consultation in international organizations. My invitation to participate in this symposium has presented me an opportunity to revisit those thoughts, to conduct more research, and to update our scholarship on how the ILC processes use input from private actors. My presentation contains …
Conservation With Justice: A Rights-Based Approach, Dinah L. Shelton, Thomas Greiber, Melinda Janki, Marcos Orellana, Annalisa Savaresi
Conservation With Justice: A Rights-Based Approach, Dinah L. Shelton, Thomas Greiber, Melinda Janki, Marcos Orellana, Annalisa Savaresi
GW Law Faculty Publications & Other Works
This article suggests a rights-based approach (RBA) to conservation of environmental resources. The article points out benefits of an RBA model, such as identifying the causes of environmental impacts on citizens’ human rights and bettering the regulation of environmental resources. However, the RBA also poses challenges, such as resistance from non-State actors, comparing the importance of different rights, and a commitment of many resources. The article next identifies substantive and procedural rights provided by international law. An RBA implicates, among others, the right to life, the right to health, the right to an adequate standard of living, the right to …
The Federal Common Law Of Nations, Bradford R. Clark
The Federal Common Law Of Nations, Bradford R. Clark
GW Law Faculty Publications & Other Works
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 …
International Human Rights In A Nutshell, Thomas Buergenthal, Dinah L. Shelton, David P. Stewart
International Human Rights In A Nutshell, Thomas Buergenthal, Dinah L. Shelton, David P. Stewart
GW Law Faculty Publications & Other Works
This book describes the development of international human rights law. The main difference today is that individuals receive protection as individuals independent from their affiliation with a nation, as compared to the traditional consideration that only states had rights under international law. The law of humanitarian intervention first suggested that states do not receive unlimited discretion in their behavior under international law. The first chapter describes the earliest treaties and agreements giving rise to the current status of international law, such as the League of Nations and the International Labor Organization.
Form, Function, And The Powers Of International Courts, Dinah L. Shelton
Form, Function, And The Powers Of International Courts, Dinah L. Shelton
GW Law Faculty Publications & Other Works
At the end of the nineteenth century, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration. Since then, numerous courts and tribunals have been created on the international stage. This Article examines the interplay of form, function, and the powers exercised by international courts. It first considers the functions or attributes of any institution that carries the name "court" or "tribunal" and reflects upon whether there are powers that must be deemed inherent in such an institution to allow it to fulfill the judicial function, irrespective of limitations placed on the court's …
Prohibited Discrimination In International Law, Dinah L. Shelton
Prohibited Discrimination In International Law, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This essay assesses how the prohibition of discrimination is understood in contemporary international human rights law. The essay aims to determine whether human rights bodies apply coherent theories when deciding which distinctions are permitted and which are invidious. The essay begins by surveying the provisions of human rights instruments such as the U.N. Charter that call for non-discrimination and equality. Next, the essay examines the jurisprudence of international tribunals and monitoring bodies, including judgments, advisory opinions, general comments, and observations on state periodic reports. The conclusion draws from this body of law a general approach to discrimination in international human …
Taking Care Of Treaties, Edward T. Swaine
Taking Care Of Treaties, Edward T. Swaine
GW Law Faculty Publications & Other Works
There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope …
Regional Protection Of Human Rights (Introduction), Dinah L. Shelton
Regional Protection Of Human Rights (Introduction), Dinah L. Shelton
GW Law Faculty Publications & Other Works
This book focuses on regional approaches to human rights. It discusses regional tools such as treaties, conventions, and case law. The book then discusses state obligations under regional agreements and during various conditions, such as an emergency. Next, the book discusses regional institutions such as courts and the procedures for attempting to receive redress. The book concludes by discussing responses to violations of human rights and looking ahead by examining suggestions for moving forward.
Soft Law, Dinah L. Shelton
Soft Law, Dinah L. Shelton
GW Law Faculty Publications & Other Works
International law is a largely consensual system, consisting of norms that states in sovereign equality freely accept to govern themselves and other subjects of law. International law is thus created by states, using procedures that they have agreed are legislative, that is, through procedures identified by them as the appropriate means to create legally-binding obligations. In contrast to the agreed sources listed in the International Court of Justice (ICJ) Statute, state practice in recent years, inside and outside international organizations, increasingly has placed normative statements in non binding political instruments such as declarations, resolutions, and programs of action, and has …
Toward A 'New' New Haven School Of International Law?, Laura T. Dickinson
Toward A 'New' New Haven School Of International Law?, Laura T. Dickinson
GW Law Faculty Publications & Other Works
We are currently in an era when the divergent methodologies of international law scholarship and the very idea that international norms might play a useful role are hotly contested. The debate about international law's impact, relevance, and role in the world has become increasingly intense as a particular version of rational choice theory, dressed up as non-normative empirical political science, has sought to advance a crabbed view of international law and to limit its influence. Scholars adhering to this view have argued that nation-state self-interest both is and should be the primary reason for forming and enforcing international law; that …