Social and Behavioral Sciences Commons^™

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

All Faculty Scholarship

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

The Right To Food Comes To America, Wendy Heipt

Journal of Food Law & Policy

The people of Maine recently exercised an opportunity no citizen of this country has ever had before: the ability to vote on whether to enshrine a right to food in their state constitution. This Essay provides an overview of Maine’s experience with food rights in order to explain how the state came to occupy this unique position.

Domestic Courts And The Generation Of Norms In International Law, Charles T. Kotoby Jr.

Articles

International law in the form of treaty and custom is primarily shaped by national executives and legislatures. To be sure, “judicial decisions” are deemed a “subsidiary means for the determination of [international] law,” but that still does not give domestic courts an everyday role in the generation of universal norms and international law. This article proposes a more dynamic reality which elevates the importance of municipal courts in the generation and creation of international law. The truth is that domestic courts interact regularly to announce and create important universal norms—by, for instance, adjudicating expropriation claims, passing on the recognition and …

The Proof Is In The Process: Self-Reporting Under International Human Rights Treaties, Cosette D. Creamer, Beth A. Simmons

All Faculty Scholarship

Recent research has shown that state reporting to human rights monitoring bodies is associated with improvements in rights practices, calling into question earlier claims that self-reporting is inconsequential. Yet little work has been done to explore the theoretical mechanisms that plausibly account for this association. This Article systematically documents—across treaties, countries, and years—four mechanisms through which reporting can contribute to human rights improvements: elite socialization, learning and capacity building, domestic mobilization, and law development. These mechanisms have implications for the future of human rights treaty monitoring.

Rulers Or Rules? International Law, Elite Cues And Public Opinion, Anton Strezhnev, Beth A. Simmons, Matthew D. Kim

All Faculty Scholarship

One of the mechanisms by which international law can shape domestic politics is through its effects on public opinion. However, a growing number of national leaders have begun to advocate policies that ignore or even deny international law constraints. This article investigates whether international law messages can still shift public opinion even in the face of countervailing elite cues. It reports results from survey experiments conducted in three countries, the United States, Australia and India, which examined attitudes on a highly salient domestic political issue: restrictions on refugee admissions. In each experimental vignette, respondents were asked about their opinion on …

International Law And Political Philosophy: Uncovering New Linkages, Steven R. Ratner

Articles

The legal regime regulating cross-border investment gives key rights to foreign investors and places significant duties on states hosting that investment. It also raises distinctive moral questions due to its potential to constrain a state’s ability to manage its economy and protect its people. Yet international investment law remains virtually untouched as a subject of philosophical inquiry. The questions of international political morality surrounding investment rules can be mapped through the lens of two critiques of the law – that it systemically takes advantage of the global South and that it constrains the policy choices of states hosting investment. Each …

From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith

All Faculty Scholarship

Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich …

Presidential War Powers As A Two-Level Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

All Faculty Scholarship

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

Ending Security Council Resolutions, Jean Galbraith

All Faculty Scholarship

The Security Council resolution implementing the Iran deal spells out the terms of its own destruction. It contains a provision that allows any one of seven countries to terminate its key components. This provision – which this Comment terms a trigger termination – is both unusual and important. It is unusual because, up to now, the Security Council has almost always either not specified the conditions under which resolutions terminate or used time-based sunset clauses. It is important not only for the Iran deal, but also as a precedent and a model for the use of trigger terminations in the …

Framing For A New Transnational Legal Order: The Case Of Human Trafficking, Paulette Lloyd, Beth A. Simmons

All Faculty Scholarship

How does transnational legal order emerge, develop and solidify? This chapter focuses on how and why actors come to define an issue as one requiring transnational legal intervention of a specific kind. Specifically, we focus on how and why states have increasingly constructed and acceded to international legal norms relating to human trafficking. Empirically, human trafficking has been on the international and transnational agenda for nearly a century. However, relatively recently – and fairly swiftly in the 2000s – governments have committed themselves to criminalize human trafficking in international as well as regional and domestic law. Our paper tries to …

East Asia, Investment, And International Law: Distinctive Or Convergent?, Beth A. Simmons

All Faculty Scholarship

International investment agreements (IIAs) are the primary legal instruments designed to protect and encourage foreign direct investment world-wide. This article argues that Asia has used IIAs just as much as have other regions of the world to attract foreign direct investment, but that Asia’s pattern of agreement provisions is somewhat distinctive. States in East and Southeast Asia have tended to enter into agreements that strike a balance somewhat more favorable to host states than to foreign firms, at least when compared to the rest of the world. This may be due to high growth in the region, which tends to …

Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe

Nicholas A Wolfe

International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.

Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …

Interpreting, Stephanie Jo Kent

Doctoral Dissertations

What do community interpreting for the Deaf in western societies, conference interpreting for the European Parliament, and language brokering in international management have in common? Academic research and professional training have historically emphasized the linguistic and cognitive challenges of interpreting, neglecting or ignoring the social aspects that structure communication. All forms of interpreting are inherently social; they involve relationships among at least three people and two languages. The contexts explored here, American Sign Language/English interpreting and spoken language interpreting within the European Parliament, show that simultaneous interpreting involves attitudes, norms and values about intercultural communication that overemphasize information and discount …

On The Language Of (Counter)Terrorism And The Legal Geography Of Terror, Nick J. Sciullo

Nick J. Sciullo

In this paper, I will discuss the difficulties in defining a place for the global war on terror and the implications this lack of terrestrial bounds has for the law. I will then discuss the way language impacts not only the idea of terrorism, but also the politics of place. On our journey will be philosophers Martin Heidegger and Jacques Derrida, discussed extensively below, who help flesh out the important politics of language and place. Ultimately, I will urge for a deconstructive approach to the global war on terror, which I hope will encourage a more thoughtful consideration of the …

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 Legitimating Role Of Consent In International Law, Matthew J. Lister

All Faculty Scholarship

According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but …

Notes In Defense Of The Iraq Constitution, Haider Ala Hamoudi

Articles

This paper is a defense of sorts of the Iraqi constitution, arguing that the language used in it was wisely designed to allow some level of flexibility, such that highly divided political forces could find incremental solutions to the deep rooted sources of division that have plagued Iraqi society since its inception. That Iraq has found itself in such dreadful political circumstances since constitutional ratification is therefore not a function of the open ended constitutional bargain, but rather of the failure of Iraqi legal and political elites to make use of the space that the constitution provided them to develop …

Adoption Of The Responsibility To Protect, William W. Burke-White

All Faculty Scholarship

This book chapter traces the legal and political origins of the Responsibility to Protect doctrine from its early origins in the International Commission on Intervention and State Sovereignty through the 2005 World Summit Outcome Document and up to January 2011. The chapter examines the legal meaning of the Responsibility to Protect, the obligations the Responsibility imposes on states and international institutions, and its implications in for the international legal and political systems. The chapter argues that while the Responsibility to Protect has developed with extraordinary speed, it is still a norm in development rather than a binding legal rule. Its …

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.

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 …

The Political Economy Of The Production Of Customary International Law: The Role Of Non-Governmental Organizations, Donald J. Kochan

Donald J. Kochan

Increasingly, United States courts are recognizing various treaties, as well as declarations, proclamations, conventions, resolutions, programmes, protocols, and similar forms of inter- or multi-national “legislation” as evidence of a body of “customary international law” enforceable in domestic courts, particularly in the area of tort liability. These “legislative” documents, which this Article refers to as customary international law outputs, are seen by some courts as evidence of jus cogens norms that bind not only nations and state actors, but also private individuals. The most obvious evidence of this trend is in the proliferation of lawsuits against corporations with ties to the …

The Mote In Thy Brother’S Eye: A Review Of Human Rights As Politics And Idolatry, William M. Carter Jr.

Articles

Michael Ignatieffs provocatively titled collection of essays, Human Rights As Politics and Idolatry [hereinafter Human Rights], is a careful examination of the theoretical underpinnings and contradictions in the area of human rights. At bottom, both of his primary essays, Human Rights As Politics and Human Rights As Idolatry, make a claim that is perhaps contrary to the instincts of human rights thinkers and activists: namely, that international human rights can best be philosophically justified and effectively applied to the extent that they strive for minimal ism. Human rights activists generally argue for the opposite conclusion: that international human rights be …

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.