Law Commons^™

Lawyers And Precedent, Harlan G. Cohen

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Despite common references to the “invisible college of international lawyers,” and the doctrinal role granted to “the most highly qualified publicists of the various nations,” the role of lawyers, as lawyers, in the creation, development, and maintenance of the international legal order remains oddly underexplored. This short essay, prepared as part of a symposium on “The Role of Non-State Actors in International Law,” explores the role of lawyers as independent actors within international law. It argues that focusing on lawyers can help provide insights into how international law develops — specifically here, how and why a practice of precedent seems …

Book Review: Reimagining Child Soldiers In International Law And Policy By Mark A. Drumbl., Diane Marie Amann

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Book review of Reimagining Child Soldiers in International Law and Policy by Mark A. Drumbl(New York: Oxford Univ. Press, 2012).

International Law’S Erie Moment, Harlan G. Cohen

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Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.

Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the …

Children And The First Verdict Of The International Criminal Court, Diane Marie Amann

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Child soldiers were a central concern in the first decade of the International Criminal Court; indeed, the court’s first trial, Prosecutor v. Lubanga, dealt exclusively with the war crimes of conscripting, enlisting, and using child soldiers. This article compares the attention that the court has paid to children – an attention that serves the express terms of the ICC Statute – with the relative inattention in post-World War II international instruments such as the statutes of the Nuremberg and Tokyo tribunals. The article then analyzes the Lubanga conviction, sentence, and reparations rulings. It recommends that the ICC focus attention on …

International Law In A Time Of Scarcity: An Introduction, Harlan G. Cohen

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Does international law have the resources to manage, if not solve, this complex global problem of scarcity? Different areas of international law governed by different regimes have their own ways of conceptualizing and managing scarcity. International human rights law may frame the problem as one of individual economic and social rights or as one of the right of indigenous groups. For the most part though, these models from different areas of international law operate in isolation from one another, following their own internal logics.

The problem of scarcity has started to get the attention of international law scholars and experts, …

Persuasion Treaties, Melissa J. Durkee

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All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties along a fault line: Treaties that govern the behavior of state parties and their agents fall on one side. Treaties in the second category — those I call “persuasion” treaties — commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas …

A Janus Look At International Criminal Justice, Diane Marie Amann

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Invoking the name of Janus, the Roman god who looked simultaneously at the past and the future, this article examines international criminal justice at a watershed moment, when a number of 20-year-old ad hoc tribunals were winding down even as the International Criminal Court was entering its teen years. First explored are challenges posed by politics – that is, the need to secure cooperation from states and from the U.N. Security Council – and economics – that is, the need to work within budgetary constraints. The article then surveys significant developments in each of a half-dozen international criminal courts and …