Law Commons^™

Of Treaties And Torture: How The Supreme Court Can Restrain The Executive, Jeffrey C. Goldman

Duke Law Journal

No abstract provided.

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck

Articles in Law Reviews & Other Academic Journals

The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …

Treaties As Laws: A Defense Of The Last-In-Time Rule For Treaties And Federal Statutes, Julian G. Ku

Indiana Law Journal

For nearly 150 years, courts have applied the "last-in-time" rule to resolve conflicts between treaties and federal statutes by giving effect to whichever was enacted later in time. Despite its acceptance by the courts, this rule has received unanimous criticism in the legal academy. In this article, I present the first comprehensive defense of the last-in-time rule on textual, structural, historical, and functional grounds. I argue that the last-in-time rule should be applied because the text of the Constitution grants treaties the status of enacted domestic law. As such, treaties are subject to the principle of statutory construction, leges posteriors …

Treaty Solutions From The Land Down Under: Reconciling American Federalism And International Law, Cyril R. Emery

ExpressO

No abstract provided.

The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan Franck

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Saving Customary International Law, Andrew T. Guzman

Michigan Journal of International Law

This Article offers a theory of CIL-one that provides a firm and modem theoretical foundation for the analysis of custom. Though this is not the first article to propose a view of CIL through a rational choice lens, it is the first to map out a general theory of CIL based on such a model.

Juridical Substance Or Myth Over Balance-Of-Payment: Developing Countries And The Role Of The International Monetary Fund In The World Trade Organization, Ugochukwu Chima Ukpabi

Michigan Journal of International Law

This Note attempts to chart the division of labor in respect of balance-of-payment between the Fund and the WTO. More importantly, it reflects on how the intertwined relationship between the Fund and the WTO over balance-of-payment might impact on developing countries in the unfolding architecture of trade.

Resolving Treaty Conflicts, Christopher J. Borgen

Faculty Publications

The viability of international law rests largely on the viability of treaties as a source of law. In the second half of the twentieth century, the international state system was supported by the development of treaties. States focused the majority of their regime-building efforts on three sets of concerns: restraining interstate conflict, securing human rights, and managing the economic system. States used treaties as the primary tool in the construction of these international institutions and in the codification of these norms. Moreover, treaties shift issues from the political arena into a juridical, rule-based, forum.

The very success of treaties as …

Is There A Subjective Element In The Refugee Convention's Requirement Of 'Well-Founded Fear'?, James C. Hathaway, William S. Hicks

Articles

Linguistic ambiguity in the refugee definition's requirement of "well-founded fear" of being persecuted has given rise to a wide range of interpretations. There is general agreement that a fear is "well-founded" only if the refugee claimant faces an actual, forward-looking risk of being persecuted in her country of origin (the "objective element"). But it is less clear whether the well-founded "fear" standard also requires a showing that the applicant is not only genuinely at risk, but also stands in trepidation of being persecuted. Beyond vague references to the subjective quality of "fear," few courts or commentators have undertaken the task …

Re-Establishing The Sisseton-Wahpeton Oyate's Reservation Boundaries: Building A Legal Rationale From Current International Law, Angelique A. Eaglewoman

American Indian Law Review

No abstract provided.

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

Civil Aircraft As Weapons Of Large-Scale Destruction: Countermeasures, Article 3bis Of The Chicago Convention, And The Newly Adopted German "Luftsicherheitsgesetz", Robin Geiß

Michigan Journal of International Law

It is thus the aim of this Article to map out the international legal framework relevant for designing countermeasures against nonstate actors who convert civil aircraft into weapons of destruction. As a first step, this Article sketches out the applicable rules relating to international civil aviation security and highlights the dichotomy between nonstate actor threats and interstate threats at the base of these rules. As will be seen below, nonstate actors abusing civil aircraft as weapons of destruction is a new challenge not only in terms of destructive quality but also in a legal sense, in that the question of …

Judicial Regrets And The Case Of The Cushman Dam, William H. Rodgers, Jr.

Articles

This essay is a criticism of the Ninth Circuit's en banc decision in Skokomish Indian Tribe v. United States [401 F.3d 979 (9th Cir. 2005]. It finds particular fault with the court's understanding of Indian treaty rights as "something given," and its outlandish conclusion that fishing was not a "primary purpose" of the Stevens treaties.

The article further criticizes the court's treatment of the "continuing nuisance" doctrine that is applied to afford a statute of limitations defense to enterprises that did lasting environmental damage by diverting the entire North Fork of the Skokomish River out of the watershed.

It concludes …

Be Reasonable! Thoughts On The Effectiveness Of State Criticism In Enforcing International Law, Michael Y. Kieval

Michigan Journal of International Law

This Note examines the effectiveness of diplomatic criticism in enforcing international law, particularly in the counter-terrorism (or anti-insurgency) context. It is not concerned with determining what international law does or does not "in fact" allow States to do in combating terrorism and other existential threats.

The Promotion Of Free-Trade Areas Viewed In Terms Of Most-Favored-Nation Treatment And "Imperial Preference", Sydney M. Cone Iii

Michigan Journal of International Law

This Article will first examine the relevant WTO provisions that permit free-trade agreements as exceptions to MFN treatment. It will then situate current U.S. policy in the context of the history and purpose of those provisions. Next, the discussion of history and purpose will take up a key debate in the original GATT negotiations, in which the United States championed MFN treatment, while European countries, in particular, Great Britain, sought to retain preferential trading arrangements-arrangements once associated with the rubric of "imperial preference." Against this background, the article will explore the question of whether current U.S. policy represents a reversion …

Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson

Michigan Journal of International Law

As background for this critique of the Constitution, Part II of this Article provides a brief overview of the existing EU Treaties, their shortcomings, and the political processes that culminated in the creation of the new Constitution. Of particular interest are certain goals articulated for the new document, such as the desire to replace the complex Treaties with a simpler, more approachable instrument. Part III is a summary of the Constitution's textual content, details that are necessary to illuminate the analysis that follows. Part IV offers a critical review of the awkward manner in which the Constitution is organized. In …

Staying Within The Negotiated Framework: Abiding By The Non-Discrimination Clause In Trips Article 27, Kevin J. Nowak

Michigan Journal of International Law

This Note argues that the Panel in Canada-Generic Medicines correctly decided that the non-discrimination clause in Article 27 applies to the exceptions of Articles 30 and 31. Because Article 27 is the guiding force of Section 5, any exceptions to the rights granted under Section 5 must comply with the requirements set forth in Article 27. Although extreme applications of the non-discrimination clause could be limiting upon some exceptions, Articles 30 and 31 were not placed into TRIPs as complete escape clauses from the framework of Section 5. Additionally, the application of the non-discrimination clause to Articles 30 and 31 …

Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde

Michigan Journal of International Law

This Article considers the significant role that extraterritorial activity is playing in the post-9/11 foreign policy of some States and the idea that this activity somehow takes place "outside" the law or, at least, outside an arena where legal norms apply as a matter of course rather than only when and to the extent that the State involved decides these norms will apply. It begins in Section II by mapping out the extraterritorial state activities conducted since 9/11, covering activities with a personalized object-such as the military action taken in Afghanistan against Al Qaeda-and activities with a spatial (territorial) object-such …

The Right Of States To Repatriate Former Refugees, James C. Hathaway

Articles

Armed conflict often results in the large-scale exodus of refugees into politically and economically fragile neighboring states. The burdens on asylum countries can be extreme, and may only be partly offset by the arrival of international aid and protection resources. Moreover, difficulties inherent in the provision of asylum have been exacerbated in recent years by the increasing disinclination of the wealthier countries that fund the United Nations High Commissioner for Refugees (UNHCR) and most other assistance agencies to meet the real costs of protection. In such circumstances, it is unsurprising that as conflicts wind down, host countries ordinarily seek to …

Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia

Articles

Globalization and fre trade are usually discussed in a political context in the United States as well as in other areas of the world. As a consequence, it can be difficult to find neutral, basic information about recent new trade agreements, such as the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), because much of the information found in the news or on the Web is polemical, and it takes time for the legal literature to provide the kind of legal analysis needed by practicing attorneys. This short piece is an attempt to provide links to free, Web-based information on CAFTA-DR …

The Michigan Guidelines On Well-Founded Fear, Colloquium On Challenges In International Refugee Law

Other Publications

An individual qualifies as a Convention refugee only if he or she has a "well-founded fear" of being persecuted. While it is generally agreed that the "well-founded fear" requirement limits refugee status to persons who face an actual, forward-looking risk of being persecuted (the "objective element"), linguistic ambiguity has resulted in a divergence of views regarding whether the test also involves assessment of the state of mind of the person seeking recognition of refugee status (the "subjective element").

Energy, Environment & Sustainable Development, Lakshman D. Guruswamy

Publications

No abstract provided.

Direct Vs. Indirect Obligations Of Corporations Under International Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

International law today addresses the conduct of private corporations in a variety of areas. With very few exceptions, however, international law regulates corporate conduct indirectly--that is, by requiring states to enact and enforce regulations applicable to corporations and other non-state actors. Only a small number of international legal norms--primarily those relating to war crimes, crimes against humanity, and forced labor--apply directly to non-state actors. Scholars have argued forcefully that international law should move in the direction of directly imposing obligations on corporations. These arguments overlook important aspects of the problem. If international legal norms were extended to corporations and backed …

The Politics Of The Geneva Conventions: Avoiding Formalist Traps, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The Geneva Conventions were drafted in 1949, in another world. The world of the Geneva Conventions' "framers" is still familiar to all of us, though increasingly it is familiar from movies and books rather from the evening news or, still less, our own lived experience. The world in which the Conventions were drafted was a world of states: powerful states, weak states, predatory states, law-abiding states, but states all the same. Soldiers wore uniforms designed by their states, carried weapons issued by their states, obeyed orders given by their commanders, and fought against the armies of other states.

Well--most of …

The Design Of International Agreements, Andrew T. Guzman

Andrew T Guzman

States entering into international agreements have at their disposal several tools to enhance the strength and credibility of their commitments, including the ability to make the agreement a formal treaty rather than soft law, provide for mandatory dispute resolution procedures, and establish monitoring mechanisms. Each of these strategies – referred to as ‘design elements’ – increases the costs associated with the violation of an agreement and, therefore, the probability of compliance. Yet even a passing familiarity with international agreements makes it clear that states routinely fail to include these design elements in their agreements. This article explains why rational states …