Law Commons^™

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In this article, I develop three theses. First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that disputes about legality based on disagreements over characterization have arisen in at least eight different subject areas, ranging from …

An Introduction To The History Of International Human Rights Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

As part of a lecture series given at the International Institute of Human Rights, in Strasbourg, France, in July 2003, the author presents an overview of the history of international human rights law. The author explores numerous religious, political, cultural, philosophical, economic and intellectual movements throughout history that have informed and guided the development of human rights law on the global stage. In doing so, the author examines the moral and ethical dimensions which underpin international human rights law, including what she defines as the innate human desire for protection from abuse. The author highlights the world's most significant historical …

Evolving Geneva Convention Paradigms In The 'War On Terrorism': Applying The Core Rules To The Release Of Persons Deemed 'Unprivileged Combatants', Sean D. Murphy

GW Law Faculty Publications & Other Works

The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global "war on terrorism," including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching …

Reserving, Edward T. Swaine

GW Law Faculty Publications & Other Works

The law of treaty reservations - which enables states to ask that their multilateral obligations be tailored to their individual preferences - has been controversial for over fifty years, and is at present subject to pitched battles within (and between) the International Law Commission and numerous other international institutions. There is broad agreement that existing scheme under the Vienna Convention on the Law of Treaties involves a sharp tradeoff between honoring the unalloyed consent of non-reserving states (that is, those agreeing to the treaty as originally negotiated, which may object to proposed reservations) and respecting the conditioned consent of reserving …

Poor Children: Child Witches And Child Soldiers In Sub-Saharan Africa, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This paper, written for a symposium on The Mind of a Child, examines two different aspects of the accountability of children: those children who are thrown away by their families because they are sorcerers, and those children who become soldiers and, through their involvement in armed conflict, inflict violence and death on others, including children. Like all other children, both sets of children are especially vulnerable because of their developmental (im)maturity. Indeed, as policy-makers struggle to develop strategies for responding to the needs of these children, the new neuroscientific literature provides yet another basis for arguing that children must be …

Taiwan's Wto Membership And Its International Implications, Steve Charnovitz

GW Law Faculty Publications & Other Works

In contrast to other international organizations, the World Trade Organization does not require its members to be states. This constitutional feature has allowed Taiwan to join the WTO alongside China. As a result, the WTO is now the only major international organization in which Taiwan can participate as a full member. This article explores some implications of this unique situation for Taiwan, for the WTO, and for international law. The article contends that Taiwan's membership in the WTO is not itself a bilateral treaty with China and does not itself change the legal relationship between Taiwan and China. What Taiwan's …

Nongovernmental Organizations And International Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article examines NGOs and their advocacy activities aimed at influencing international relations. The article addresses longstanding issues such as the legal status of NGOs, as well as new problems such as whether NGO lobbying in intergovernmental forums is democratically legitimate. In doing so, the article draws upon past scholarship to shed light on the guiding ideas in the contemporary debate regarding NGOs. Part I examines issues regarding the identity of NGOs and then catalogs the ways that state practice incorporates NGOs into authoritative decision making. Part II looks at the legal status of NGOs in international law. Part III …

Review Essay: 'Seeing Beyond The Limits Of International Law,' Jack L. Goldsmith And Eric A. Posner, 'The Limits Of International Law', Paul Schiff Berman

GW Law Faculty Publications & Other Works

In 'The Limits of International Law,' Jack Goldsmith and Eric Posner use the simplifying assumptions of rational choice theory in an attempt to demonstrate that international law has no independent valence whatsoever. Rather, according to the authors, each state single-mindedly pursues its own rational interest and obeys international legal norms only to the extent that such norms serve those pre-existing interests. In this Review Essay, I argue that their vision of international law is deeply flawed. In particular, I take issue with the authors' assumption that states simply have pre-existing unitary interests that they then rationally pursue. First, I argue …

Dialectical Regulation, Territoriality, And Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Scholarly and policy debates about territoriality and nation-state sovereignty are turning to the ways in which such concepts might be changing in an increasingly interconnected world of interlocking governance structures and systems of communication. Robert Ahdieh's provocative and generative essay, Dialectical Regulation, 38 Conn. L. Rev. 863 (2005-2006), attempts a model for understanding this new plural order. He argues that intersystemic regulation is now a significant legal reality, and analyzes the types of interactions we would expect to see among these multiple regulatory authorities. Ahdieh aims to define dialectical regulation, in which regulators exist in some kind of formal structural …

Restoring (And Risking) Interest In International Law, Edward T. Swaine

GW Law Faculty Publications & Other Works

Jack Goldsmith of Harvard Law School and Eric Posner of the University of Chicago Law School articulate a comprehensive and engaging theory of state behaviors in their new book, “The Limits of International Law,” but with several internal flaws. Their book uses rational choice theory to explain how states act rationally to maximize their interests, and how, in doing so, states align themselves (sometimes) with international law. This book review argues that while Limits is a skilled and pioneering work that deserves to be taken seriously, it also suffers from tensions and over-generalizations that undermine its claims. As a result, …

Conflict Of Laws, Globalization, And Cosmopolitan Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium at the January 2005 annual meeting of the Association of American Law Schools Section on Conflict of Laws. More than ten years ago, German theorist Gunther Teubner called for the creation of an "intersystemic conflicts law," derived not just from collisions between the distinct nation-states of private international law, but from what he described as "conflicts between autonomous social subsystems." Since then, the web of intersystemic lawmaking Teubner described has only grown more complex. The collision of these multiple legal and quasi-legal normative systems requires, as Teubner suggested, a broader approach to …

The Labor Dimension Of The Emerging Free Trade Area Of The Americas, Steve Charnovitz

GW Law Faculty Publications & Other Works

This study explores a potential labor dimension for the FTAA. The study is divided into four parts: Part 1 provides context by reviewing the history of Inter-American economic cooperation, especially on labor and trade. Part 2 examines how labor has been addressed in the major free trade agreements of the Americas. Part 3 looks at the normative basis for international labor cooperation. Part 4 makes specific recommendations for addressing labor issues in the FTAA. The ideas in Part 4 seek to stimulate practical, concerted action to address labor and employment problems of regional economic integration. My recommendations for the FTAA …

Encyclopedia Of Genocide And Crimes Against Humanity, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This three-volume encyclopedia contains information and photographs about historical and recent instances of genocide and crimes against humanity. The introduction provides a brief history of recognition and definitions of genocide and related war crimes. The volumes focus on the political leaders in charge of the genocides and war crimes in addition to other facts about the crimes themselves.

Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson

GW Law Faculty Publications & Other Works

The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although …

Beyond Retribution And Impunity: Responding To War Crimes Of Sexual Violence, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003.

Joseph …

The Constitutionality Of International Delegations, Edward T. Swaine

GW Law Faculty Publications & Other Works

Does the continuing assignment of legislative power to international institutions like the WTO, NAFTA, and the U.N. infringe the U.S. Constitution? The political controversy over the continued reliance on such organizations, and the potential effect on welfarist and democratic values, is increasingly perceived to have a legal dimension. Recent scholarship has taken two radically different views. One recent strain takes the position that such delegations are constitutionally problematic, chiefly in terms of the nondelegation doctrine and federalism, and proposes that the gap between these principles and constitutional practice be reduced. But others argue that these doctrines lack legal or normative …

The Challenge Of Cooperative Regulatory Relations After Enlargement, Francesca Bignami

GW Law Faculty Publications & Other Works

This paper conceptualises European governance as a continuous series of collective action games among national regulators. European administration is theorized as a set of mutually beneficial relations among independent regulators, rather than as a hierarchy of supranational institutions, courts, and national administrators. The collective action approach highlights the importance of certain factors in fostering regulatory cooperation and enabling the common market to become an administrative reality: repeated interactions, monitoring and sanctioning by the Commission and the courts, reciprocity norms, and trust. It also suggests that one of the most significant challenges of enlargement will be to establish cooperative regulatory exchanges …

Using Framework Statutes To Facilitate U.S. Treatymaking, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper examines the two tracks used by the United States to negotiate and approve international treaties - (1) the traditional treaty process requiring Senate consent by a two-thirds vote and (2) the newer fast track process used for trade agreements, requiring Congressional passage of a law to approve and implement the agreement. Several historical and current examples are used such as the Treaty of Versailles and the Kyoto Protocol on climate change. The paper explains why the latter process is superior in many ways, and asks whether it should be applied more broadly beyond the topic of trade. Three …

An Analysis Of Pascal Lamy's Proposal On Collective Preferences, Steve Charnovitz

GW Law Faculty Publications & Other Works

In September 2004, then-European Commissioner for Trade Pascal Lamy released his study on the political challenge of 'collective preferences' for the world trading system. Lamy defines 'collective preferences' as 'the end result of choices made by human communities that apply to the community as a whole'. The adoption of collective preferences by governments can complicate international trade when a good or service from an exporting country is not acceptable in an importing country. Collective preferences cause a problem for the WTO if the resulting measure violates WTO rules and yet the measure is too popular in the regulating country for …

Assessing The Legality Of Invading Iraq, Sean D. Murphy

GW Law Faculty Publications & Other Works

The recent invasion of Iraq challenges a cornerstone of contemporary international law: the prohibition on the use of force by one state against another state. The conventional wisdom is that the United States embarked on the invasion with little regard for international law or for the attitudes reflected by other nations, including the other members of the UN Security Council. This article disputes that conventional wisdom.

First, the Bush administration could have ignored international law and the Security Council, but in fact deployed a fairly sophisticated legal theory as to why U.S. actions were permissible under international law, a theory …

The Impact Of Economic Globalization On Compliance, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book begins by defining globalization and the novel notion of the “common concern of humanity” and describes the ethical, cultural, and economic considerations underlying protection of the biosphere. The chapter describes the evolution of the common concern of humanity in depth and describes the increased presence of international organizations. Next, the chapter introduces the Marrakesh Charter and its corresponding economic principles. The chapter concludes that there exists the need to create an international liability system for both states and individuals for environmental degradation caused by international trade.

China's Legal System And The Wto: Prospects For Compliance, Donald C. Clarke

GW Law Faculty Publications & Other Works

The impact of WTO membership both on China and its trading partners, both for good and for ill, has been greatly overstated. WTO treaty obligations and Dispute Settlement Body rulings will not become part of Chinese domestic unless specifically incorporated by Chinese legislation. Moreover, the WTO does not require a perfect legal system of its members; instead, it requires a degree of transparency and fairness in certain limited areas. Although some of China's WTO commitments will be difficult for it to fulfill, even non-fulfillment will not result in the predicted flood of WTO dispute settlement proceedings, since such proceedings can …

Taiwan And The Wt0, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper is about Taiwan and the World Trade Organization. It discusses the history of Taiwan's involvement in the world trading system and the accession to the WTO. The paper then notes some unique features of Taiwan's membership and discusses the current political tension with China in the WTO. The paper ends with a discussion of the implications of Taiwan's membership in the WTO for potential Taiwanese membership in other international organizations.

Against Principled Antitrust, Edward T. Swaine

GW Law Faculty Publications & Other Works

Competition policy is on the WTO agenda for the Doha Round, but it is unlikely that it will result in any substantive international standards; the goal, instead, seems to be to agree on core principles to guide the development of national law, including transparency, non-discrimination, and procedural fairness, perhaps extending to special and differential treatment for developing countries. While there is much to commend these principles, this paper takes a deliberately contrarian view, arguing that core principles are not at all where WTO competition policy should begin. It further disputes the appropriateness of applying an emerging meta-principle of the WTO …

Transitional Justice In Afghanistan: The Promise Of Mixed Tribunals, Laura T. Dickinson

GW Law Faculty Publications & Other Works

In the wake of the September 11th attacks on the World Trade Center and the Pentagon, how to apprehend, question, and punish the perpetrators remains a difficult question to answer. Moreover, the question of where, and how, to try suspects raises a series of deeper questions about the role of criminal accountability in times of conflict and war.

Scholars in the emerging field of transitional justice do not focus on the question of terrorism specifically, however, they study the ways in which societies that are attempting to confront past and lingering mass atrocities do so through a variety of means: …

Using Legal Process To Fight Terrorism: Detentions, Military Commissions, International Tribunals, And The Rule Of Law, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Following the 9/11 terrorist attacks, those arguing that international law cannot serve as an effective tool in the fight against terrorism have grown. The ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite, has swelled. In November 2001, President Bush issued an executive order asserting the authority to use military commissions to try individual terrorism suspects captured by the United States. Such commissions would be conducted unilaterally and would not be required to include procedural safeguards to protect the rights of the accused. This crisis has …

Triangulating The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

This Article presents an analytic method for considering proposals to expand the scope of the WTO. In doing so, the Article organizes competing ideas concerning the rationale for the WTO and shows how varying assumptions can lead to different conclusions on the proper content of international trade law. This Article seeks to advance the debate by comparing these assumptions and also considering the key literature about trade linkage. The Article proceeds in three parts. Part I shows why the purpose of the WTO is not self-evident and how a framework can be useful for improving the debate about the organization's …

Rethinking Wto Trade Sanctions, Steve Charnovitz

GW Law Faculty Publications & Other Works

The paper presents an outline of the issues and a preliminary appraisal of the use of trade sanctions by the World Trade Organization (WTO) as a means of promoting compliance by parties. The WTO is unique among intergovernmental organizations (IGOs) in using trade sanctions to enforce independent adjudications. Many commentators have suggested using trade sanctions analogously in other IGOs, or alternatively broadening trade rules so that the sanctions can be used for other purposes, such as enforcing basic human rights. The paper examines the advantages and disadvantages of the use of such compliance sanctions by the WTO and concludes that …

Transnational Civil Society Dialogues, Francesca Bignami, Steve Charnovitz

GW Law Faculty Publications & Other Works

Among the most interesting features of the New Transatlantic Agenda are the initiatives that are designed to link private actors and enable them to influence official policy making. Called "building bridges across the Atlantic" or "people-to-people links," these initiatives are intended to generate broad-based support for intergovernmental cooperation in trade liberalization, deregulation, immigration, justice, and a host of other areas (Wayne 1998; Krenzler 1998). This chapter surveys the efforts to institutionalize transatlantic civil society dialogue and offers suggestions on how the undertaking can be improved.

Crosby As Foreign Relations Law, Edward T. Swaine

GW Law Faculty Publications & Other Works

This brief essay addresses the Supreme Court's end-of-term decision in Crosby v. National Foreign Trade Council, which preempted Massachusetts's law limiting public procurement from companies doing business in Burma. The essay addresses the perception that Crosby was limited in its implications for foreign relations law, and explores the Court's minimalist approach to inescapably constitutional questions - concluding, in the end, that the Court made foreign relations law without professing to do so, and without fully appreciating its consequences or capitalizing on its benefits.