International Law Commons^™

Authoritarian Privacy, Mark Jia

Georgetown Law Faculty Publications and Other Works

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first turns to several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its …

New Media, Free Expression, And The Offences Against The State Acts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability …

Common Capital: A Thought Experiment In Cross-Border Resolution, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Cross-border bank resolution efforts focus on burden-sharing between bank owners, private creditors and the public. There is little talk of burden-sharing among governments, despite the rich history of governments trying to stick one another with the cost of financial conglomerate failures. There is an unspoken fear that acknowledging the need to allocate losses among governments would undermine post-crisis pledges of No More Bailouts. This symposium essay argues for making government stakes in private financial firms more transparent, and for using the contingent public share as a key to loss allocation among governments in cross-border banking crises.

Lessons For International Law From The Arab Spring, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Not all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state; in Libya, the anti-Qaddafi movement has fractured along tribal and factional lines; in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces. Throughout the Middle East—from Egypt, Libya and Syria to Yemen, Tunisia, Bahrain and elsewhere—the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations. The Arab Spring brought both progress …

Overview And Operation Of U.S. Financial Sanctions, Including The Example Of Iran, Barry E. Carter, Ryan Farha

Georgetown Law Faculty Publications and Other Works

Financial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services.

In spite of …

Euro Zone Crisis Management And The New Social Europe, Philomila Tsoukala

Georgetown Law Faculty Publications and Other Works

This article analyzes the changes in European governance since the beginning of the euro crisis in relation to the project of constructing Social Europe. The article tracks the incorporation of a structural reform agenda originally designed as bailout conditionality for countries on the verge of default into EU economic governance as a strategy for growth. Beyond the contestable grounds of this reform agenda, its adoption by the EU in the mode of crisis management poses serious questions of legitimacy. The new enhanced economic coordination process includes obligatory guidelines in domains under the legislative competence of Member States, such as labor …

Proportionality In Constitutional And Human Rights Interpretation, Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author, in a context in which principles and the principle of proportionality are at the heart not only of jurisprudence but also of constitutional and human rights interpretation, claims that when there were those ready to raise the hand to declare a unanimous winner, some critics and skeptics appeared. In addition, to the traditional objections, they worry that proportionality invites to doing unnecessary balancing between existing rights, inventing new rights out of nothing at all (in detriment of those already well-established ones), and even worse in doing so balancing some rights away. In order to answer …

Narratives Of The European Crisis And The Future Of (Social) Europe, Philomila Tsoukala

Georgetown Law Faculty Publications and Other Works

This article examines two distinct types of narratives prevalent in academic writing and popular press regarding the causes of the crisis in Europe. The first type, a morality tale, attributes the crisis to profligate southern states that refused to abide by the strictures of the Stability and Growth Pact. The second type is focused on the structural reasons for the crisis, emphasizing the nature of the European Union as a non-optimal currency area, and the euro as a factor in the creation of trade imbalances and competitiveness problems within the euro zone. Each type of narrative suggests a different type …

Book Review Of The Impossible State By Wael Hallaq, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In his book The Impossible State, Wael Hallaq argues that the modern state is a bad fit for Muslims. This is so because the paradigm of “Islamic Governance”, developed through centuries of Islamic rule, and the modern state of the West are incompatibles if not altogether contradictory. The modern state, a European invention and an expression of the unique unfolding of Europe’s history, being premised on the deep penetration by the nation state of its population, a separation of powers between the executive, legislative and the judiciary that is always faltering, a separation between …

Reconstituting Constitutions—Institutions And Culture: The Mexican Constitution And Nafta: Human Rights Vis-À-Vis Commerce, Imer Flores

Georgetown Law Faculty Publications and Other Works

The aim of this Essay is threefold. First, this Essay will focus on the main characteristics of both the great transformation, experienced in the Mexican institutional economic framework during the last thirty-five years, in general, and within the past twenty years, in particular, that were made through constitutional reforms. In addition, the greater expectation that such structural reforms generated in the process of re-enacting the constitution in the political context, should be along the lines of human rights and separation of powers. Second, this Essay will attempt to bring into play the role of treaties in this transformational process, by …

Anonymous Withholding Agreements And The Future Of International Cooperation In Taxing Foreign Financial Accounts : Testimony Before The Finance Committee Of The German Bundestag, September 24, 2012 (Statement By Associate Professor Itai Grinberg, Geo. U. L. Center), Itai Grinberg

Georgetown Law Faculty Publications and Other Works

Chairwoman Reinemund and members of the Finance Committee, this testimony will make three key points:

• Automatic information exchange is superior to anonymous withholding for the purpose of combating tax evasion involving the use of foreign financial accounts.

• German ratification of the Swiss-German anonymous tax withholding agreement would stifle the emergence of a multilateral automatic information exchange system. As a result, Germany would be less able to address its own concerns with tax evasion through foreign accounts over the medium term. By ratifying this agreement, Germany would also slow the development of a multilateral system that would allow many …

Of Wife And The Domestic Servant In The Arab World, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

The author asserts to avoid common misunderstandings on the relevance of Sharia to modern women in the Arab World that a) Shari’s relevance to the lives of modern women in the Arab World has been largely confined to the area of family law, b) in the modern nation state Sharia has been codified, i.e., certain rules derived from Islamic jurisprudence on the family have been selected and passed as laws, each nation state having its own unique combination of such rules, c) the courts and the judges who adjudicate disputes on family law are either secular courts/judges, or judges trained …

Democracy Promotion: Done Right, A Progressive Cause, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

By the beginning of the Obama Administration, democracy promotion had become a rather tarnished idea, and understandably so. Like Islam or Christianity, much blood has been shed beneath its banner. It may be true that democracies don’t go to war with one another, but they certainly go to war, and their wars kill people just as dead as the wars undertaken by illiberal regimes. Anyone on the political left can tell the story: During the Cold War, the United States fought endless proxy wars and engaged in a great deal of overt and covert mischief, all in the name of …

Customary International Law As U.S. Law: A Critique Of The Revisionist And Intermediate Positions And A Defense Of The Modern Position, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they …

Withdrawing From International Custom: Terrible Food, Small Portions, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that differs only modestly from it (small portions). At the same time, the doctrinal change they propose would take customary international law in the …

The Advance Democracy Act And The Future Of United States Democracy Promotion Efforts, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

This article addresses whether and to what extent the Obama administration should continue the Bush administration policies relating to democracy promotion. The focus of the article is on the ADVANCE Act of 2007, a legislative enactment that institutionalized democracy promotion in the State Department. After explicating the key provisions of this Act, as well as their implementation status, the article addresses key critiques leveled at democracy promotion, as well as areas where the Obama administration can expand on what has been accomplished thus far in this field. In the end, democracy promotion should continue to be an integral component of …

The Case For Social Rights, Virginia Mantouvalou

Georgetown Law Faculty Publications and Other Works

This is part of the book Debating Social Rights (Oxford, Hart Publishing, 2010) where I am making the case for social rights and Professor Conor Gearty (LSE) is making the case against social rights. This paper argues that social and economic rights, defined as rights to the satisfaction of basic needs, are constitutional essentials at domestic level and claims of the highest priority at supranational level. Their inadequate legal protection in national and supranational orders is not justified. Social rights have common foundations with civil and political rights, but have been neglected in law because of Cold War ideologies. The …

Is Law An Economic Contest? French Reactions To The Doing Business World Bank Reports And Economic Analysis Of The Law, Anne-Julie Kerhuel, Bénédicte Fauvarque-Cosson

Georgetown Law Faculty Publications and Other Works

The economic analysis of law has provoked strong reactions among French academics, in particular since 2004 when the first of the Doing Business reports was published. French jurists have joined forces to expose the methodological limits inherent to these reports, which rated France a long way behind other legal systems allegedly more able to facilitate business. In its first part, this article examines the various reactions to these reports, almost all of which were published in French only. In the second part, the focus is on the position of economic analysis in French law, its role, and, in particular, the …

Codes And Hypertext: The Intertextuality Of International And Comparative Law, Marylin J. Raisch

Georgetown Law Faculty Publications and Other Works

The field of information studies reveals gaps in the literature of international and comparative law as part of interdisciplinary and textual studies. To illustrate the kind of theoretical and text-based work that could be done, this essay provides an example of such a study. Religious law texts, civil law codes, treaties and constitutional texts may provide a means to reveal the nature of hypertext as the new format for commentary. Margins used to be used for commentary, and now this can be done with hypertext and links in footnotes. Scholarly communication in general is now intertextual, and texts derive value …

Domestic Violence In Ghana: The Open Secret, Nancy Chi Cantalupo, Lisa Vollendorf Martin, Kay Pak, Sue Shin

Georgetown Law Faculty Publications and Other Works

This report discusses the findings of a Georgetown Law International Women’s Human Rights Clinic fact-finding team that traveled to Ghana, Africa in March 2003 to investigate domestic violence. The report reviews the contours of the domestic violence problem in Ghana and outlines the ways in which Ghanaian law and procedure was insufficiently addressing the problem at the time. Its chief findings include that the Ghanaian laws existing in 2003 inadequately punished perpetrators and protected victims of domestic violence and that court and police enforcement of the existing law was lacking, including because the government was allowing the removal of domestic …

The New Imperialism: Violence, Norms, And The "Rule Of Law", Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

The goal of this Article is to participate in the challenging project of carving out a new area of study in the place where international law, comparative law, and domestic law intersect. In this Article, I use the story of flawed rule-of-law assistance efforts to demonstrate the importance of this inquiry. I take as a basic premise that there are many situations in which it is justifiable and beneficial for the U.S. and other actors to seek to promote human rights and the rule of law abroad, and that at times even military interventions are a necessary and justifiable part …

Economic Incentives In Representing Publicly-Funded Criminal Defendants In England's Crown Court, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The flux now engulfing the way in which the defenders of indigent criminal defendants are compensated in England's Crown Court provides a sober lesson for U.S. lawyers. Once, U.S. lawyers, who themselves are appointed to represent indigent defendants, could have cited English practice to support a hefty increase in the meager compensation they receive in many jurisdictions. For in balancing the tension between encouraging effective representation, but at bearable social cost, U.S. jurisdictions stress the latter, all but ignoring the former. The English approach, by contrast, has paid generously, at least in serious cases, thereby implicitly recognizing that defenders could …