International Law Commons^™

(De)Legitimation At The Wto Dispute Settlement Mechanism, Cosette D. Creamer, Zuzanna Godzimirska

Vanderbilt Journal of Transnational Law

International courts employ a variety of legitimation strategies in order to establish and maintain a sound basis of support among their constituents. Existing studies on the legitimating efforts and legitimacy of the World Trade Organization's (WTO) judicial bodies have relied largely on theoretical or normative priors about what makes them legitimate. In contrast, this Article directly connects the study of courts' legitimating efforts with their effects by empirically mapping the reception of the WTO Dispute Settlement Mechanism's (DSM) exercise of authority by the system's primary constituents--WTO Members. Using an original data set of WTO Member statements within meetings of the …

Response: "Quid," Not "Quantum": A Comment On "How The International Criminal Court Threatens Treaty Norms", Roger O'Keefe

Vanderbilt Journal of Transnational Law

Mike Newton's article performs a considerable service in reminding the reader of some incontrovertible tenets of the law of international organizations (loosely so called in the case of an organ like the ICC) and of the law of treaties. First, the ICC is competent to exercise only that power vested in it by the States Parties to its Statute. In turn, the States Parties are not competent to transfer to the Court a power that they do not possess. "Nemo plus iuris transferre potest quam ipse habet," as Cicero may or may not have put it. Secondly, a treaty may …

Ukraine And The International Criminal Court: Implications Of The Ad Hoc Jurisdiction Acceptance And Beyond, Dr. Iryna Marchuk

Vanderbilt Journal of Transnational Law

The Article examines an array of important legal issues that arise out of the acceptance of the jurisdiction of the International Criminal Court by Ukraine, a non-State Party to the Rome Statute, within the framework of Article 12(3) with respect to the alleged crimes against humanity committed during the 2014 Maydan protests (Declaration I) and the alleged war crimes committed in eastern Ukraine and Crimea (Declaration II). It provides an in-depth analysis of constitutional law issues linked to the acceptance of the jurisdiction by Ukraine and discusses its possible implications on the proceedings before the ICC. The Article criticizes the …

"Measuring" The Erosion Of Academic Freedom As An International Human Right, Klaus D. Beiter, Terence Karran, Kwadwo Appiagyei-Atua

Vanderbilt Journal of Transnational Law

This Article reports and comments on the results of an assessment of the legal protection of the right to academic freedom (an examination of its factual protection to be undertaken at a future point) in EU member states, having examined these countries' constitutions, laws on higher education, and other relevant legislation. The assessment relied on a standard scorecard, developed by utilizing indicators of protection of academic freedom, notably as reflected in UNESCO's Recommendation concerning the Status of Higher-Education Teaching Personnel, a document of 1997 that is not legally, but "politically" binding, and which concretizes international human rights requirements in respect …

An International Commission Of Inquiry For The South China Sea?, Ryan Mitchell

Vanderbilt Journal of Transnational Law

The multilateral territorial dispute over the South China Sea has intensified in recent years. In response, some observers endorse the apparent turn to "lawfare" on display in the ongoing Philippines v. China arbitration, conducted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). Yet the limited subject matter of this arbitration means that it can contribute only modestly to any ultimate resolution between claimants. Indeed, the Chinese side has argued against tribunal jurisdiction precisely on the basis of the primacy of questions over territorial sovereignty--which are barred from UNCLOS proceedings--to the determination of all other …

Why China Established The Asia Infrastructure Investment Bank, Daniel C.K. Chow

Vanderbilt Journal of Transnational Law

On January 16, 2016, China officially opened the Asia Infrastructure Investment Bank (AIIB) for business, representing what might be a seismic shift in economic power from the United States to China. The AIIB creates a challenge to the U.S.-dominated World Bank and International Monetary Fund (IMF), two venerable international financial institutions created at the end of World War II. The World Bank lends money to developing countries to promote economic development, but these loans come with conditions called the Washington Consensus--a set of policies designed to promote the use of private markets, protect the environment, protect human and workers' rights, …

Making International Health Regulations Work: Lessons From The 2014 Ebola Outbreak, Tsung-Ling Lee

Vanderbilt Journal of Transnational Law

Many legal scholars believe that the lack of enforcement mechanisms provided by the International Health Regulations (IHR) in part explains the slow containment of the deadly Ebola virus disease outbreak in West Africa in 2014. In contrast, some global health practitioners deem funding for global health emergencies as a key remedy to the ineffective international infectious disease control regime. Such belief underpinned the creation of the Pandemic Emergency Facility (PEF), the World Bank's new financing initiative, aiming to finance global disaster response. Some commentators hope that the establishment of the PEF will resuscitate international interest in global health security and …

Private Governance Can Increase Shipping's Efficiency And Reduce Its Impacts, Daniel J. Metzger

Vanderbilt Journal of Transnational Law

The shipping industry is a huge component of the world economy, and although it is often described as an efficient mode of transport, it still contributes as much carbon dioxide to the atmosphere as a major industrialized nation. Efficiency technologies and practices are available that would significantly lessen shipping's environmental impact, but "amazing loophole[s]" in international environmental law and a set of market failures have prevented them from being widely adopted. These problems have been studied before, but the public regulatory proposals being discussed run into steep, if not insurmountable obstacles. This Note argues that shipping inefficiency can be better …

A Post-Millennial Inquiry Into The United Nations Law Of Self-Determination: A Right To Unilateral Non-Colonial Secession?, Dr. Glen Anderson

Vanderbilt Journal of Transnational Law

The present Article inquires whether a right to unilateral non-colonial (UNC) secession is grounded in the United Nations (UN) law of self-determination. The Article argues that peoples subjected to deliberate, sustained, and systematic human rights abuses in extremis (e.g., ethnic cleansing, mass killings, or genocide) by the existing state have an international customary law right to UNC secessionist self-determination. This right is coextensive with the "remedial-rights-only" philosophical approach to UNC secession. The Article further argues that in the post-millennial era two developments are likely for the law of UNC secessionist self-determination: first, the right will become available in response to …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

How The International Criminal Court Threatens Treaty Norms, Michael A. Newton

Vanderbilt Journal of Transnational Law

This Article demonstrates the disadvantages of permitting a supranational institution like the International Criminal Court (ICC) to aggrandize its authority by overriding agreements between sovereign states. The Court's constitutive power derives from a multilateral treaty designed to augment sovereign enforcement efforts rather than annul them. Treaty negotiators expressly rejected efforts to confer jurisdiction to the ICC based on its aspiration to advance universal values or a self-justifying teleological impulse to bring perpetrators to justice. Rather, its jurisdiction derives solely from the delegation by States Parties of their own sovereign prerogatives. In accordance with the ancient maxim "nemo plus iuris transfer …

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

Response: The Icc, Pre-Existing Jurisdictional Treaty Regimes, And The Limits Of The Nemo Dat Quod Non Habet Doctrine--A Reply To Michael Newton, Carsten Stahn

Vanderbilt Journal of Transnational Law

It is a pleasure and a privilege to provide a few reflections on Michael Newton's thought-provoking essay on "How the ICC Threatens Treaty Norms." His article marks an important piece of scholarship. It reflects significant concerns about the reach and function of the International Criminal Court (ICC) that merit further attention and explanation in ICC practice. Newton makes a provocative argument. He argues that the ICC might undermine sovereign law enforcement efforts and exceed its powers if it exercises jurisdiction over American forces in Afghanistan or Israeli offenses in the West Bank or the Gaza Strip. This argument is not …