Law Commons^™

Newsletter, Fall 2011, Vol. 6, Issue 1, The Dean Rusk International Law Center

Newsletters

Ambassador Delivers Keynote at International Trade Conference; Georgia Democratic Leader Speaks at Civil Rights Conference; International Outreach and Education; International Law Colloquium Series; Conferences & Lectures; Notable Speakers Visit Rusk Center; Conference Focuses on Nuclear Security and Non-Proliferation; The TRIPS Agreement - Then and Now; In Memoriam: Professor Gabriel M. Wilner, 1938-2010; Law School Alum Joins Rusk Center Staff; International Judicial Training Program Continues to Expand.

Taking International Law At Its Word And Its Spirit: Re-Envisioning Responsibility To Protect As A Binding Principle Of International Law, Tessa R. Davis

Faculty Publications

No abstract provided.

The Evolution Of Operational Policies And Procedures At International Financial Institutions: Normative Significance And Enforcement Potential, Daniel Bradlow, Andria Naude Fourie

Working Papers

The exact contours of international organizations’ (IO) responsibility have not yet been clearly defined. While IOs – and international financial institutions (IFIs) in particular – have in the past avoided drawing those contours in more certain terms, this position is slowly changing: IFIs have been changing expectations about their standards of conduct, as reflected in their evolving operational policies and procedures (OP&P). This report provides an overview of the content, formulation, adoption, amendment and enforcement of OP&P at multilateral development banks (MDB) (a subset of IFIs). It highlights the impact of three developments that are strengthening the normative significance and …

The Origins Of Modern International Chemical Weapons Law, Albert H. Rivero

Maria Dittman Library Research Competition: Student Award Winners

No abstract provided.

Are Institutions And Empiricism Enough? A Review Of Allen Buchanan, Human Rights, Legitimacy, And The Use Of Force, Matthew J. Lister

All Faculty Scholarship

Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan’s recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan’s new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to …

From Rapists To Superpredators: What The Practice Of Capital Punishment Says About Race, Rights And The American Child, Robyn Linde

Faculty Publications

At the turn of the 20^th century, the United States was widely considered to be a world leader in matters of child protection and welfare, a reputation lost by the century’s end. This paper suggests that the United States’ loss of international esteem concerning child welfare was directly related to its practice of executing juvenile offenders. The paper analyzes why the United States continued to carry out the juvenile death penalty after the establishment of juvenile courts and other protections for child criminals. Two factors allowed the United States to continue the juvenile death penalty after most states in …

My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky

Faculty Scholarship

In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …

The Latin American Tradition Of Legal Failure, Jorge L. Esquirol

Faculty Publications

No abstract provided.

The Regulatory Turn In International Law, Jacob Katz Cogan

Faculty Articles and Other Publications

In the post-War era, international law became a talisman for the protection of individuals from governmental abuse. Such was the success of this "humanization of international law" that by the 1990s human rights had become "part of... international political and legal culture." This Article argues that there has been an unnoticed contemporary counter trend -- the "regulatory turn in international law." Within the past two decades, states and international organizations have at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal, that impose and enforce direct and indirect international duties upon …

"So Vast An Area Of Legal Irresponsibility"? The Superior Orders Defense And Good Faith Reliance On Advice Of Counsel, Mark W.S. Hobel

National Security Law Program

This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled by government lawyers prior to using techniques that likely constituted torture. However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.

Part I of …

The Evolving International Judiciary, Karen J. Alter

Faculty Working Papers

This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …

The Global Spread Of European Style International Courts, Karen J. Alter

Faculty Working Papers

Europe created the model of embedded international courts (IC), where domestic judges work with international judges to interpret and apply international legal rules that are also part of national legal orders. This model has now diffused around the world. This article documents the spread of European-style ICs: there are now eleven operational copies of the European Court of Justice (ECJ), three copies of the European Court of Human Rights, and a handful of additional ICs that use Europe's embedded approach to international law. After documenting the spread of European-style ICs, the article then explains how two regions chose European style …

Is International Law Really Law? Theorizing The Multi-Dimensionality Of Law, Elizabeth M. Bruch

Law Faculty Publications

No abstract provided.

A Sui Generis Regime For Traditional Knowledge: The Cultural Divide In Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

To some extent, traditional knowledge can be protected under various intellectual property laws, but there is no effective international legal protection for this subject matter. This has led to proposals for a sui generis regime to protect traditional knowledge. The precise contours of the right are yet to be determined but a sui generis right could include perpetual protection. It could also result in protection for historical communal works and for knowledge that may be useful but that is not inventive according to the standards of intellectual property law.

Developing countries have been more supportive of an international traditional knowledge …

Seeking Deliberation On The Unborn In International Law, S De Freitas, G Myburgh

Law Papers and Journal Articles

International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide a credible framework for constructing common norms among nations and across cultures is both powerful and attractive. If the protection of being human serves as the common denominator in human rights discussion, and if human rights are deeply inclusive, despite being culturally and historically diverse, then a failure to deliberate on the legal status and protection of the unborn may be seen as a failure to extend respect where …

The Power Of Definition: Brazil's Contribution To Universal Concepts Of Indigeneity, Jan Hoffman French

Sociology and Anthropology Faculty Publications

This article builds on discussions about the potential benefits and difficulties with developing a universal definition of indigenous peoples. It explores the spaces made available for theorizing indigeneity by the lack of a definition in the United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007. Specifically, this article addresses the challenge presented by the diversity of groups claiming indigenous status in Brazil. To what extent do distinct cosmologies and languages that mark Amazonian Indians as unquestionably indigenous affect newly recognized tribes in the rest of Brazil who share none of the indicia of authenticity? This article theorizes …

The Legitimating Role Of Consent In International Law, Matthew J. Lister

All Faculty Scholarship

According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but …

Law On The Books Vs. Law In Action: Under-Enforcement Of Morocco’S Reformed 2004 Family Law, The Moudawana, Ann M. Eisenberg

Faculty Publications

Morocco shares cultural, religious, and linguistic roots with more conservative countries in the region, yet the Moroccan government has interpreted similar traditions to yield the starkly different stance that gender equality is desirable. Morocco’s Moudawana, the 2004 legislation on family law with provisions largely derived from Islamic sources, confers unprecedented rights on Moroccan women. Part I of this Note evaluates the Moudawana in light of its break with traditional Shari’a, alongside its fidelity to other Islamic law principles in giving Moroccan women unprecedented rights. While the new Moudawana has provisions addressing inheritance, children’s rights, and assets within a marriage, this …

A Realist Defense Of The Alien Tort Statute, Robert Knowles

Law Faculty Publications

This Article offers a new justification for modern litigation under the Alien Tort Statute (ATS), a provision from the 1789 Judiciary Act that permits victims of human rights violations anywhere in the world to sue tortfeasors in U.S. courts. The ATS, moribund for nearly 200 years, has recently emerged as an important but controversial tool for the enforcement of human rights norms. “Realist” critics contend that ATS litigation exasperates U.S. allies and rivals, weakens efforts to combat terrorism, and threatens U.S. sovereignty by importing into our jurisprudence undemocratic international law norms. Defenders of the statute, largely because they do not …

Notes In Defense Of The Iraq Constitution, Haider Ala Hamoudi

Articles

This paper is a defense of sorts of the Iraqi constitution, arguing that the language used in it was wisely designed to allow some level of flexibility, such that highly divided political forces could find incremental solutions to the deep rooted sources of division that have plagued Iraqi society since its inception. That Iraq has found itself in such dreadful political circumstances since constitutional ratification is therefore not a function of the open ended constitutional bargain, but rather of the failure of Iraqi legal and political elites to make use of the space that the constitution provided them to develop …

The Relation Of Theories Of Jurisprudence To International Politics And Law, Anthony D'Amato

Faculty Working Papers

In this essay we shall be concerned with the real world relevance of theories of international law; that is, with the question of the theories themselves as a factor in international decision-making. To do this it is first necessary to review briefly the substance of the jurisprudential debate among legal scholars, then to view some basic jurisprudential ideas as factors in international views of "law," and finally to reach the question of the operative difference a study of these theories might make in world politics.

New Approaches To Customary International Law, Anthony D'Amato

Faculty Working Papers

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law.

After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.

Non-State Actors From The Perspective Of The Policy-Oriented School: Power, Law, Actors And The View From New Haven, Anthony A. D'Amato

Faculty Working Papers

Law needs Power for enforcement of its rules; Power utilizes Law for creating conditions of stability that enhance its salience. Yet when the New Haven school tries to include international law in its power-oriented view of international relations, it ends up with a misleading two-dimensional descriptivism.

Partisan Conflicts Over Presidential Authority, Jide Okechuku Nzelibe

Faculty Working Papers

A prevailing view in the legal and political science literature assumes that power holders seek to expand or contract their constitutional authority based on incentives that are intrinsic to the logic of the institutional offices they occupy. For instance, it is generally assumed that Presidents are empire builders who will almost always prefer maximum flexibility in shaping their policy objectives, whereas members of Congress may sometimes shirk their institutional prerogatives because of electoral incentives or collective action problems. A similar institutional logic underpins the view that federal courts will often seek to expand their interpretive authority in constitutional controversies at …

The Evolution Of Operational Policies And Procedures At International Financial Institutions: Normative Significance And Enforcement Potential, Daniel D. Bradlow, Andria Naude Fourie

Articles in Law Reviews & Other Academic Journals

The exact contours of international organizations’ (IO) responsibility have not yet been clearly defined. While IOs – and international financial institutions (IFIs) in particular – have in the past avoided drawing those contours in more certain terms, this position is slowly changing: IFIs have been changing expectations about their standards of conduct, as reflected in their evolving operational policies and procedures (OP&P). This report provides an overview of the content, formulation, adoption, amendment and enforcement of OP&P at multilateral development banks (MDB) (a subset of IFIs). It highlights the impact of three developments that are strengthening the normative significance and …

Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn

Articles in Law Reviews & Other Academic Journals

On the eve of the United States’ entry into the Anti-Counterfeiting Trade Agreement (“ACTA”), there is considerable confusion as to just what legal effect the agreement will have. In written answers to Senator Ron Wyden, the United States Trade Representative (“USTR”) went to lengths to describe ACTA as non-binding, asserting that “ACTA does not constrain Congress’ authority to change U.S. law,” and that it would operate only as an “Executive Agreement” that “can be implemented without new legislation.” But European negotiators have described the agreement to their legislature in very different terms, asserting that ACTA is “a binding international agreement …

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 …

Medellin And Sanchez-Llamas: Treaties From John Jay To John Roberts, Lori Fisler Damrosch

Faculty Scholarship

Medellin v. Texas and Sanchez-Llamas v. Oregon were the first opportunities for the U.S. Supreme Court to speak in the voice of Chief Justice John Roberts on several of the biggest questions at the connecting points between the U.S. legal order and the rest of the world. In writing for the majority in these cases, the new Chief Justice sent signals to several different audiences about whether and how the United States will fulfill its international obligations. The messages differ markedly from those sent by the divided Court in Hamdan v. Rumsfeld, in which Roberts did not participate. Hamdan was …

The United States Supreme Court: An Introduction, Bert I. Huang

Faculty Scholarship

The Supreme Court of the United States has always occupied a center place in the comparative study of judicial institutional design and the role of courts. In this roundtable discussion, National Taiwan University College of Law is honored to have Professor Bert I. Huang from Columbia Law School, United States, who had served as the law clerk of Supreme Court Justice David H. Souter, to unveil the ways that the U.S. Supreme Court functions by introducing the certiorari process and the system of law clerks. Based on his own experience, Professor Huang provides his insight on the institution of law …

Kiobel And Corporate Immunity Under The Alien Tort Statute: The Struggle For Clarity Post-Sosa, Dorothy S. Lund

Faculty Scholarship

In September 2010, a two-judge Second Circuit majority ruled that corporations are immune from liability under the Alien Tort Statute (“ATS”). This statute, which grants aliens access to federal district courts, has emerged as a controversial tool for international norm enforcement in the last thirty years. The unexpected decision to foreclose corporate liability has generated a wave of criticism from human rights activists and international law scholars who claim that the decision is grounded in a fundamental misunderstanding of international law.

This commentary examines the Kiobel decision against other recent interpretations of the ATS, especially those following the Supreme Court’s …