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Codification And Progressive Development Of International Law: A Legislative History Of Article 13(1)(A) Of The Charter Of The United Nations, Arnold N. Pronto

FIU Law Review

No abstract provided.

The Scottish Independence Referendum And The Principles Of Democratic Secession, Benjamin Levites

Brooklyn Journal of International Law

On September 18, 2014, Scottish voters decided whether to sever the 307 years of unity between Scotland and the United Kingdom in an independence referendum. While the voters ultimately rejected independence, the process by which the Scots accomplished this historic exercise will inform further democratic secession movements.

This Note examines the significant implications of Scotland’s independence referendum by assessing the history of independence referendums and the present scope of relevant international law. The formative history of the independence referendum and modern precedential examples established the requirements for democratic secession. In turn, the Scottish independence referendum, in the context of evolving …

The (Re-) Constitution Of The Public, Gianluigi Palombella

Gianluigi Palombella

This article deals with the prospect of public law in global governance. It analyses firstly the foundations of modern public law and considers what is left of them in the global setting. Are they still holding through States’ de-centering practices, detached from the legitimating grounds of the modern ‘idea of publicness’? What is called here the duality of public law (in its State-related political and juridical strands) fades and decouples in the sphere where inherently ‘global’ legalities originate of a deracinated type: the distinctively global ‘public’ only provides a ‘suspended public law’ and politically unsaturated. The Constitution of the Public …

Legal Mechanization Of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response To Professor Branson With Some Supplemental Thoughts, Donald J. Kochan

Donald J. Kochan

This Response argues that as ATS jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must …

The Rule Of Law In Global Governance: Its Normative Construction, Function And Import, Gianluigi Palombella

Gianluigi Palombella

What does the Rule of law contribute in the frame of global governance? While addressing metamorphoses of law and the multiple legalities in the global context, this paper shows that the rule of law can consistently be extended externally being cherished internally. It takes seriously the concurrence of different legalities in their diverse ‘formats’, and the challenge of the “global administrative law” theoretical and empirical model. At the meta-level of the relations among legalities, the Rule of law has an essential role to play: it affects interactions and interdependence,and can cause content-dependent assessments to develop, without supporting self-closure or monistic …

A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato

Faculty Working Papers

If any one sentence about international law has stood the test of time, it is Louis Henkin's: "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." If this is true, why is this true? What makes it true? How do nations invent rules that then turn around and bind them? Are international rules simply pragmatic and expedient? Or do they embody values such as the need for international cooperation? Is international law a mixed game of conflict and cooperation because of its rules, or do its rules make …

Is International Law Part Of Natural Law?, Anthony D'Amato

Faculty Working Papers

The affinity of international law to natural law goes back a long way to the classic writers of international law. "Natural law" is the method of dispute resolution based on a conscious attempt to perpetuate past similarities in dispute resolution. "International law" has a deep affinity to this natural law method, for it consists of those practices that have "worked" in inter-nation conflict resolution.

There Is No Norm Of Intervention Or Non-Intervention In International Law, Anthony D'Amato

Faculty Working Papers

Comments on Prof. Jianming Shen's position that humanitarian intervention is unlawful under international law and that there is a principle of non-intervention in international law that is so powerful that it amounts to a jus cogens prohibition.

Human Rights And Genocide: The Work Of Lauterpacht And Lemkin In Modern International Law, Part I, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

2008 marked the sixtieth anniversary of the adoption of the Genocide Convention and Universal Declaration of Human Rights by the UN General Assembly. These two instruments adopted and proclaimed by then newly formed world body on successive days, 9 and 10 December 1948 respectively, represent two sides of one coin. Born of the horrors of the 1930s and 40s, the United Nations Charter speaks of human rights and to the importance of the rule of law. The Genocide Convention and UDHR are integral to the pursuit of these aims.

The work of two international lawyers, Hersch Lauterpacht and Raphael Lemkin, …

Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella

Gianluigi Palombella

The article shows how the global legal sphere attempts to compensate the lack of a system (hardware) and faces the proliferation of legal normativities (software). The author elaborates on the role of the rule of law: after stressing the ambiguities and the contestability of its current uses in the confrontations between legal orders and regulatory regimes, it is explained that the persistence and promise of the rule of law in the global setting depend on the weaving of a set of meta-rules (a special kind of software) developed through various areas and sources of legalities in the international environment. Eventually, …

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international …

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent of …

No Longer Little Known But Now A Door Ajar: An Overview Of The Evolving And Dangerous Role Of The Alien Tort Statute In Human Rights And International Law Jurisprudence, Donald J. Kochan

Donald J. Kochan

Human rights’ and other international law activists have long worked to add teeth to their tasks. One of the most interesting avenues for such enforcement has been the Alien Tort Statute (“ATS”). The ATS has become the primary vehicle for injecting international norms and human rights into United States courts – against nation-states, state actors, and even private individuals or corporations alleged to actually or in complicity or conspiracy been responsible for supposed violations of international law. This Symposium Article provides an overview of the ATS evolution (or revolution), discusses the most recent significant development in the evolution arising from …

Constitutional Structure As A Limitation On The Scope Of The "Law Of Nations" In The Alien Tort Claims Act, Donald J. Kochan

Donald J. Kochan

Jurisdiction matters. Outside of the set of jurisdictional constraints, the judiciary is at sea; it poses a threat to the separation of powers and risks becoming a dangerous and domineering branch. Jurisdictional limitations serve a particularly important function when the judiciary is dealing with issues of international law. Since much of international law concerns foreign relations, the province of the executive and, in part, the legislature, the danger that the judiciary will act in a policy-making role or will frustrate the functions of the political branches is especially great. The Framers of the Constitution were particularly concerned with constructing a …

The Neo-Positivist Concept Of International Law, Anthony D'Amato

Faculty Working Papers

The question "Is international law really law?" has not proved troublesome, according to Hart, because "a trivial question about the meaning of words has been mistaken for a serious question about the nature of things." Hart defends international law in Bentham's terms as "sufficiently analogous" to municipal law. It is important to see in what way this analogy is viewed by Hart in order to determine whether the reasoning he offers is too high a price to pay for accepting a neo-positivist into the circle of those who hold that international law is really law.