Transnational Law Commons^™

No Witness, No Case: An Assessment Of The Conduct And Quality Of Icc Investigations, Dermot Groome

Dermot M Groome

The conduct and quality of investigations pursued by the Office of the Prosecutor of the International Criminal Court have come under increasing scrutiny and criticism from judges on the Court. Criticism is directed at the time and length of investigations; the quality of the evidence advanced in court; the inappropriate delegation of investigative functions, and the failure to interview witnesses in a way that is consistent with the Prosecution’s obligation to conduct investigations fairly under Article 54 of the Rome Statute. This essay explores these criticisms and concludes that the judges are justified in their concerns regarding the Prosecution’s investigative …

Translating Scholarship Into Policy, Scott Sigmund Gartner, Amy C. Gaudion

Amy C. Gaudion

There is an ever widening gap between conflict resolution policy makers and scholars—a tragedy given practitioners’ dire need for new ideas to help resolve deadly conflicts and the growing knowledge researchers have to share. Research tends to swing like a pendulum between analytic and rigorous methods and accessible and relevant approaches. We reject this tradeoff. We believe that research can be simultaneously rigorous and relevant, and analytic and accessible. Given the devastating loss of life associated with armed conflict, the need for translating research results into policy prescriptions is especially strong in peacemaking. The goal of this issue of the …

The Relevance Of Fatf’S Recommendations And Fourth Round Of Mutual Evaluations To The Legal Profession, Laurel S. Terry, José Carlos Llerena Robles

Laurel S. Terry

Truth Commission Impact: A Participation-Based Implementation Agenda, Tara J. Melish

Tara Melish

With a focus on truth commissions, this Essay argues for a new approach to assessing the impact or effectiveness of transitional justice mechanisms. It recognizes at least four discernible approaches to impact assessment in the current literature. I term these “Quantifiable Truth,” “Victim Perception,” “Formal Political Rights,” and “Redistributive Development.” While each has added important and complementary insights to the field, each has also exhibited important weaknesses in its ability to speak persuasively to the question of meaningful long-term impact on the societal dynamics and institutions that lead to violence in the first place. To help fill this gap, I …

From Paper To Electronic Order: The Digitalization Of The Check In The Usa*, Benjamin Geva

Benjamin Geva

No abstract provided.

International Activity And Domestic Law, Adam I. Muchmore

Adam I. Muchmore

This essay explores the ways States use their domestic laws to regulate activities that cross national borders. Domestic-law enforcement decisions play an underappreciated role in the development of international regulatory policy, particularly in situations where the enforcing State's power to apply its law extraterritorially is not contested. Collective action problems suggest there will be an undersupply of enforcement decisions that promote global welfare and an oversupply of enforcement decisions that promote national welfare. These collective action problems may be mitigated in part by government networks and other forms of regulatory cooperation.

Infinity Within The Brackets, Annelise Riles

Annelise Riles

The ethnographic subjects of this article are UN-sponsored international conferences and their legal documents. Drawing upon fieldwork among Fiji delegates at these conferences, in this article I demonstrate the centrality of matters of form, as distinct from questions of “meaning,” in the negotiation of international agreements. A parallel usage of documents and of mats among Fijian negotiators provides a heuristic device for exploring questions of pattern and scale in the aesthetics of negotiation.

China-United States Trade Negotiations And Disputes: The Wto And Beyond, Pasha L. Hsieh

Pasha L. Hsieh

This article examines trade negotiations and disputes between China and the United States. It begins by ascertaining the unique political aspects of China-U.S. bilateral economic ties and explains the historical background underlying the relations. The article then argues that trade frictions between China and the United States are unlikely to repeat the Depression-era trade wars. The article observes that both the Chinese and U.S. governments are aware that the adoption of WTO-inconsistent measures may result in retaliatory actions from the other side. Hence, the two governments have attempted to resolve potential disputes through high-level official talks. Even when certain issues …

The Prohibition On The Use Of Force For Arms Control: The Case Of Iran’S Nuclear Program, Mary Ellen O'Connell, Reyam El Molla

Mary Ellen O'Connell

International law does not permit the use of military force against Iran to attempt to end its nuclear program. The resort to military force in international relations is covered first and foremost by Article 2(4) of the United Nations Charter. Article 2(4) is a general prohibition on resort to force that includes resort to military force for arms control, including nuclear weapons control. The Charter has two express but limited exceptions to the ban on military force. A state that is the victim of a significant armed attack may use force in necessary and proportional self-defense; the United Nations Security …

Law, Objectives Of Government And Regimes Of Truth: Foucault’S Understanding Of Law And The Transformation Of The Law Of The Eu Internal Market, Leila Brännström

Leila Brännström

Drawing on Security, Territory, Population and The Birth of Biopolitics, this article aims, firstly, to consolidate our understanding of Foucault’s engagement with law by fleshing out his approach to law and by clarifying that he distinguishes between different kinds of law on the basis of the objectives that law serves and the regime of truth that it embodies. Secondly, using this understanding, the article proceeds to illustrate how the objectives and the regime of truth of the EU internal market law have been displaced in the last few decades. It is argued that this body of law has increasingly come …

Proportionality, General Principles Of Law, And Investor-State Arbitration: A Response To Jose Alvarez, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram

David Ingram

In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike …

China-United States Trade Negotiations And Disputes: The Wto And Beyond, Pasha L. Hsieh

Pasha L. Hsieh

This article examines trade negotiations and disputes between China and the United States. It begins by ascertaining the unique political aspects of China-U.S. bilateral economic ties and explains the historical background underlying the relations. The article then argues that trade frictions between China and the United States are unlikely to repeat the Depression-era trade wars. The article observes that both the Chinese and U.S. governments are aware that the adoption of WTO-inconsistent measures may result in retaliatory actions from the other side. Hence, the two governments have attempted to resolve potential disputes through high-level official talks. Even when certain issues …

China-Taiwan Trade Relations: Implications Of The Wto And Asian Regionalism, Pasha L. Hsieh

Pasha L. Hsieh

Cross-strait relations underwent a fundamental change when both China and Taiwan joined the World Trade Organization (WTO) in 2001. The WTO is the first world-wide multilateral organization in which China and Taiwan share equal statuses. Thus, the WTO provides a neutral forum for China and Taiwan to resolve trade conflicts. More importantly, the WTO requires the two states to behave toward one another in a manner consistent with WTO norms. Consequently, the trade policies of China and Taiwan would change in response to their WTO obligations. In addition to the WTO, Asian regionalism, which refers to the recent accelerated integration …

Facing China: Taiwan’S Status As A Separate Customs Territory In The World Trade Organization, Pasha L. Hsieh

Pasha L. HSIEH

On Nov 11, 2001, in Doha, Qatar, the Fourth Ministerial Conference of the World Trade Organization (WTO) unanimously approved Taiwan's application for WTO membership, just 24 hours after approving China's admission. Taiwan's choice as the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, abbreviated as Chinese Taipei, in the WTO, instead of its official name, Republic of China (PRC), shows its reluctant compromise with political reality. The PRC's claim that accession procedures applying to Taiwan and Hong Kong should be identical erroneous because, under international trade law, the ROC is the automatic government acting on behalf of Taiwan and …

You Say You Want A (Nonviolent) Revolution, Well Then What? Translating Western Thought, Strategic Ideological Cooptation, And Institution Building For Freedom For Governments Emerging Out Of Peaceful Chaos, Donald J. Kochan

Donald J. Kochan

With nonviolent revolution in particular, displaced governments leave a power and governance vacuum waiting to be filled. Such vacuums are particularly susceptible to what this Article will call “strategic ideological cooptation.” Following the regime disruption, peaceful chaos transitions into a period in which it is necessary to structure and order the emergent governance scheme. That period in which the new government scheme emerges is particularly fraught with danger when growing from peaceful chaos because nonviolent revolutions tend to be decentralized, unorganized, unsophisticated, and particularly vulnerable to cooptation. Any external power wishing to influence events in societies emerging out of peaceful …

Recent International Law Developments In Singapore, Warren B. Chik

Warren Bartholomew Chik

No abstract provided.

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

Felice J Batlan

This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.