Law Commons^™

Death Is Different And A Refugee’S Right To Counsel, John R. Mills, Kristen M. Echemendia, Stephen Yale-Loehr

Cornell International Law Journal

No abstract provided.

Attempt, Conspiracy, And Incitement To Commit Genocide, Jens David Ohlin

Cornell Law Faculty Publications

In these brief commentaries to the U.N. Genocide Convention, I explore three criminal law modes of liability as they apply to the international crime of genocide. Part I analyzes attempt to commit genocide and uncovers a basic tension over whether attempt refers to the genocide itself (the chapeau) or the underlying offense (such as killing). Part I concludes that the tension stems from the fact that the crime of genocide itself is already inchoate in nature, since the legal requirements for the crime do not require an actual, completed genocide, in the common-sense understanding of the term, but only a …

Enhancing Enforcement Of Economic, Social And Cultural Rights Using Indicators: A Focus On The Right To Education In The Icescr, Sital Kalantry, Joycelyn E. Getgen, Steven Arrigg Koh

Cornell Law Faculty Working Papers

Nearly fifteen years ago, Audrey R. Chapman emphasized the importance of ascertaining violations of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a means to enhance its enforcement. Today, the violations approach is even more salient given the recent adoption of the ICESCR’s Optional Protocol, a powerful tool to hold States parties accountable for violations.

Indicators are essential tools for assessing violations of economic, social and cultural rights (ESCRs) because they are often the best way to measure progressive realization. Proposed guidelines on using indicators give guidance on the content of States parties reports to treaty monitoring …

Joint Criminal Confusion, Jens David Ohlin

Cornell Law Faculty Publications

Article 25 on individual criminal responsibility has generated more conflicting interpretations than any other provision in the Rome Statute. Part of the problem is that it is impossible to construct a coherent and nonredundant interpretation of Article 25(3)(d) on group complicity. Because of unfortunate drafting, both the required contribution and the required mental element are impossible to discern from the inscrutable language. As a result, it is nearly impossible to devise a holistic interpretation of Article 25(3)(d) that fits together with the rest of Article 25 and Article 30 on mental elements. One possible solution is to repair Article 25 …

Ecj Review Of Member State Measures For Compliance With Fundamental Rights, John J. Barceló Iii

Cornell Law Faculty Working Papers

This essay explores the avenues through which a European-level system of fundamental rights might be effectively enforced against EU Member State measures. The parallel concept in the U.S. occurred when, starting in 1938, the U.S. Supreme Court began ruling that different distinct guarantees in the Federal Bill of Rights of the U.S. Constitution controlled State government measures. In the EU, the European Court of Justice (ECJ) could conceivably follow a similar line of development within the EU system, or, on the other hand, the European Court for Human Rights (ECtHR) could play that role. This essay explores these options and …

In The Name Of Sovereignty? The Battle Over In Dubio Mitius Inside And Outside The Courts, Christophe J. Larouer

Cornell Law School Inter-University Graduate Student Conference Papers

Contrary to some prominent legal scholars’ predictions, the principle of in dubio mitius, that is, the principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states, has not disappeared. Worse, the Appellate Body (AB) of the World Trade Organization (WTO) has carried it into the 21st Century, reigniting the ideological debate dividing the legal doctrine over the conception of what the relationship between domestic and international law should be. Therefore, after retracing the history of this principle during which key legal figures opposed one another, this article examines the divergent positions defended by the proponents and …

Multilateralism Or Regionalism; What Can Be Done About The Proliferation Of Regional Trading Agreements?, Luwam G. Dirar

Cornell Law School Inter-University Graduate Student Conference Papers

Regional trading agreements are treaties entered into by states. States enter into regional trading agreements for different reasons some of which are economic, political and security reasons. Regional trading agreements (herein after RTAs) have been successful in achieving trade liberalization at a much faster speed than the World Trade Organization (herein after WTO). The most notable example of RTAs is the European Communities that has been successful to liberalize both trade in goods and services.

Members of those Regional Trading Agreements create rules of origin. Rules of origin are important in allocating the appropriate duty for imported goods. They tell …

Does One Size Fit All? A Comparative Study To Determine An Alternative To International Patent Harmonization, Rohan K. George

Cornell Law School Inter-University Graduate Student Conference Papers

The Agreement for Trade Related Aspects of Intellectual Property Rights (TRIPS) was ratified by a majority of the countries of the world in 1994 as a precondition to membership in the World Trade Organization. Today, 153 of the countries of the world are parties to the TRIPS Agreement. The effect of the TRIPS Agreement was to create the first international substantive standards of patent harmonization, and to cause many countries to adopt intellectual property laws far stronger than they had in existence at the time. Today, the process of patent harmonization initiated with the TRIPS Agreement moves forward, through a …

The United Nations Declaration On The Rights Of Indigenous Peoples: A New Dawn For Indigenous Peoples Rights?, Ronald Kakungulu

Cornell Law School Inter-University Graduate Student Conference Papers

Governments in many countries of the world struggle with how to accommodate properly the needs and claims [rights] of native/indigenous peoples within their jurisdictions whose presence long predates European conquest and occupation. In this paper, a comparison and contrast of the approaches of the African and other jurisdictions whose jurisprudence is informative to the protection of the rights of African indigenous peoples, like the Inter-American Court of Human Rights compared with the US, Canada, New Zealand and Australia ‘the big four’ who voted against the UN Declaration on the Rights of Indigenous on September 13, 2007 at the UN General …

Meta-Theory Of International Criminal Procedure: Vindicating The Rule Of Law, Jens David Ohlin

Cornell Law Faculty Publications

International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence …

Measuring State Compliance With The Right To Education Using Indicators: A Case Study Of Colombia’S Obligations Under The Icescr, Sital Kalantry, Jocelyn Getgen, Steven A. Koh

Cornell Law Faculty Working Papers

The right to education is often referred to as a “multiplier right” because its enjoyment enhances other human rights. It is enumerated in several international instruments, but it is codified in greatest detail in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite its importance, the right to education has received limited attention from scholars, practitioners, and international and regional human rights bodies as compared to other economic, social and cultural rights (ECSRs). In this Article, we propose a methodology that utilizes indicators to measure treaty compliance with the right to education. Indicators are essential to measuring compliance …

Protecting Against Plunder: The United States And The International Efforts Against Looting Of Antiquities, Asif Efrat

Cornell Law Faculty Working Papers

In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern …

International Law In Domestic Courts: A Conflict Of Laws Approach, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Working Papers

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between …

Towards A Unique Theory Of International Criminal Sentencing, Jens David Ohlin

Cornell Law Faculty Publications

International criminal law currently lacks a robust procedure for sentencing convicted defendants. Legal scholars have already critiqued the sentencing procedures at the ad hoc tribunals, and the Rome Statute does little more than refer to the gravity of the offense and the individual circumstances of the criminal. No procedures are in place to guide judges in exercising their discretion in a matter that is arguably the most central aspect of international criminal law - punishment. This paper argues that the deficiency of sentencing procedures stems from a more fundamental theoretical deficiency - the lack of a unique theory of punishment …

The United Nations Responses To The Sexual Abuse And Exploitation Of Women And Girls By Peacekeepers During Peacekeeping Missions, Muna Ndulo

Cornell Law Faculty Publications

No abstract provided.

International Law In Domestic Courts: A Conflict Of Laws Approach, Karen Knop, Ralf Michaels, Annelise Riles

Cornell Law Faculty Publications

The relationship between international law and domestic law is rarely understood as a conflict of laws. Understanding it in this way opens up a parallel with the field of conflict of laws: the field for which the relationship between legal systems, especially the role of another system's jurisdiction, laws, and judgments vis-à-vis the domestic legal system, are exactly the bread-and-butter issues. We argue for such an approach to international law in domestic courts: an approach that we elaborate as "theory through technique."

In our view, conflicts should be seen broadly as the discipline that developed to deal with conflicts between …