International Law Commons^™

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia Gonzalez

Thalia Gonzalez

No abstract provided.

Strengthening The Foundation For World Peace - A Case For Democratizing The United Nations, Jarvis J. Lagman Esq.

Jarvis J. Lagman Esq.

ABSTRACT Strengthening the Foundation for World Peace: A Case for Democratizing the United Nations By Jarvis J. Lagman, Esq. The objective of this treatise is to show how the democratization of the United Nations would strengthen the foundation for world peace by increasing its effectiveness as a transnational governmental institution, promoting the harmonization of how different political systems value political legitimacy and facilitating the diffusion of democratic culture in a manner that minimizes conflict with existing political hegemonies. The achievement of a sustainable world peace requires the global harmonization of political systems to recognize each individual’s right to self-determination. Given …

An Other History Of Knowledge And Decision In Precautionary Approaches To Sustainability, Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

In this paper, I offer an alternative reading of precaution with the hope of recovering the capacity of this ethic to facilitate legal and political decisions. Despite being a popular instrument of international environmental governance, decision-makers continue to understand this principle as reflecting an immemorial and natural instinct for preserving the environment in cases of scientific uncertainty. Such a reading, however, ignores the history and moral basis underlying this principle and thereby renders it obvious, and automatically adaptable to the politics of Sustainable Development. By offering a thicker history of precautionary governance at exemplary moments of ecological crisis I trace …

Conflating Politics And Development? Examining Investment Treaty Arbitration Outcomes, Susan Franck

Articles in Law Reviews & Other Academic Journals

International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Science And Compliance In The Arctic: A Constructivist Approach To The Un Commission On The Limits Of The Continental Shelf, Sari M. Graben, Peter Harrison

Sari M Graben

The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to sea bed resources in the Arctic Ocean. Positivist theories of international law generally source Arctic state compliance to the binding effect of Article 76 of the UN Convention on the Law of the Sea. However, positivist explanations fail to answer why the Arctic states, which are authorized to establish their own limits, would accept the sovereignty costs associated with the Commission’s legal and scientific interpretations. In order to better understand how the Commission …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Nancy J. Knauer

The Global Recession of 2008 and ensuing austerity measures have renewed the urgency surrounding the call for fundamental tax reform. Before embarking on fundamental tax reform, this Article proposes adding a critical lens to existing US tax policy to ensure that any proposals for change are informed, transparent, and responsive to the needs (and abilities) of individual taxpayers. This Article makes the case for a specific method of inquiry – Critical Tax Policy – that is built on the articulation of difference rather than false assumptions of sameness. Critical Tax Policy incorporates the insights of a growing international tax equity …

Enforcing International Law: States, Ios, And Courts As Shaming Reference Groups, Roslyn Fuller, Sandeep Gopalan

Roslyn Fuller

We seek to answer the question as to whether international law imposes meaningful constraints on state behaviour. Unabated drone strikes by the dominant superpower in foreign territories, an ineffective United Nations, and persistent disregard for international law obligations, as evidenced by states killing their own citizens, all suggest that the sceptics have won the debate about whether international law is law and whether it affects state behaviour. We argue that such a conclusion would be in error because it grossly underestimates the complex ways in which IL affects state behaviour. We argue that scholars who claim that the lack of …

South Dakota: Making Dollars And Sense Of Indian Child Removal, Rachael Whitaker

Rachael Whitaker

South Dakota- Making Dollars and Sense of Indian Child Removal By: Rachael Whitaker In 2004, a South Dakota Governor’s Commission report adamantly denied claims that the state’s Department of Social Services (DSS) is “harvesting Indian children as a cash crop” and “runs nothing more than a state sponsored kidnapping program.” National Public Radio (NPR) broke a story in 2011, claiming South Dakota removed Indian children for profit. Since NPR’s report, the state has remained tight-lipped, advocates have threatened litigation, and Congress has asked for answers. South Dakota has a small population and economy, and it receives almost half of its …

Assimilation Anxiety: Islamic Migration As A Perceived Threat To Western Cultures, David Barnhizer

David Barnhizer

In this cynical age it is common to smirk at claims about what is sometimes called American Exceptionalism, a term standing for the conclusion that America is an historically distinct (and better) system. To some degree it does represent cultural arrogance founded on assumption rather than fact. It also ignores “exceptionally” dark chapters in American history, including slavery, seizing of lands from Native Americans and imprisoning of US citizens of Japanese descent. Nonetheless it seems that given the diversity of the population and the sheer enormity of the nation that, as stated by an Asian Indian friend who is a …

Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems In Comparative Approaches To Extreme Speech, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

All European states ban some form of hate speech. US law precludes such bans. In view of the political and symbolic importance of free speech, it becomes tempting to assume that trans-Atlantic differences towards hate speech reflect deeper cultural divisions.

However, we must pay attention to comparative methodology before drawing ambitious conclusions about cross-cultural social and political differences that derive solely from differences in formal, black-letter norms. In this volume, Robert Post claims that formal, constitutional requirements of content-neutral regulation reflect a freer public sphere in the US, in contrast to the European public sphere.

Yet a legal-realist approach casts …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner

ExpressO

On October 20, 2005, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a treaty – by a vote of 148-2, with 4 abstentions – that legitimates domestic legal measures aimed at the protection of local producers of "cultural activities, goods and services." Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France – its principal proponents – and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have …

The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani

ExpressO

The assaults on Fallujah by the United States military in April and November 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal as it could be argued to be a chemical weapon, a riot control agent, or incendiary weapon. Furthermore, the methods and …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Of Politics And Policy: Can The U.S. Maintain Its Credibility Abroad While Ignoring The Needs Of Its Children At Home?—Revisiting The U.N. Convention On The Rights Of The Child As A Transnational Framework For Local Governing, Cleveland Ferguson

ExpressO

The article uses the lens of the Convention on the Rights of the Child as a framework for developing solutions. It compares the world’s approach of using the underpinnings of the Convention to create the Millennium Development Goals (MDGs). This process represents a positive evolution in international human rights law. Use of the MDGs has met with some success. As a result, the article compares the U.S. go-it-alone approach with that of the collaborative model of the MDGs. Pointing out that child law is primarily state law, the article then discusses the ways in which local governments (cities, counties, and …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The World Bank And The Ideology Of Reform In International Development Discourse, Joel M. Ngugi

ExpressO

Does the current development reform agenda, especially the one operationalized by the World Bank, is Ideological? If so, does it matter? These are the two questions that animate this article. In answering both questions in the affirmative, the article first demonstrates how the current development reform agenda is Ideological. It then discusses why and how it matters that the development reform agenda is Ideological. First, the article argues that Ideological rendering of the development reform agenda effectively weakens the ability of Third World countries to articulate their economic and foreign policies in ways that would benefit their citizenry the most. …

Any Place For Ethnicity? The Liberal State And Immigration, David Abraham

ExpressO

When it comes to immigration, almost all liberal states are faced with the contradiction between their universalist principles and the real affinities they feel for ethnic kinsmen. This review essay (4000 words) addresses the different ways a number of liberal democracies have handled this dilemma.

On The Legal Construction Of Ethnic Cleansing, Timothy V. Waters

ExpressO

On the Legal Construction of Ethnic Cleansing

Timothy William Waters, Univ. Mississippi School of Law

Abstract

What is the true shape of our commitment to prohibit ethnic cleansing? This Article explores that question by considering a case observers have universally decided does not constitute ethnic cleansing. It examines the recent controversy in the European Union, when Sudeten Germans demanded that the Czech Republic apologize for having expelled them after WWII before being admitted to the EU. Their demands were universally rejected and the legality of the expulsions was reconfirmed by all relevant actors. So what is the consequence for customary …

Recalibrating The War On Terror By Enhancing Development Practices In The Middle East, Kevin J. Fandl

ExpressO

This research paper suggests that the cart has been placed before the horse, that democratization and open markets in the Middle East are more likely the result of effective development than the catalyst for it. The war on terror has been justified by the United States as an effective means of reducing the possibility of terrorist attacks. This paper analyzes the validity of those justifications by reviewing the linkage between democracy and economic growth and that between democracy and peace.

The paper begins by hypothesizing that the war on terror and forced democratization of the Middle East are leading to …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Moving From Impunity To Accountability In Post-War Liberia: Possibilities, Cautions, And Challenges, Rena L. Scott

ExpressO

Liberia has become the quintessential example of an African failed state. Though Liberia’s civil war is officially over, war criminals are free and some are even helping run the transitional government under the authority of Liberia’s Comprehensive Peace Agreement (CPA). This peace agreement calls for the consideration of a general amnesty for those involved in the Liberian civil war alongside the parceling of governmental functions among members of various rebel groups. The drafters of the agreement claim that this was the only viable solution for sustainable peace in Liberia. Meanwhile, Charles Taylor relaxes in Nigeria’s resort city of Calabar. To …

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

ExpressO

This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

ExpressO

Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …