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Human Rights As Part Of Customary International Law:A Plea For Change Of Paradigms, Anthony D'Amato 2010 Northwestern University School of Law

Human Rights As Part Of Customary International Law:A Plea For Change Of Paradigms, Anthony D'Amato

Faculty Working Papers

The question for us international lawyers is how, and how much of, public sentiment for human rights has been transformed into binding international law.


Softness In International Law: A Self-Serving Quest For New Legal Materials: A Reply To Jean D’Aspremont,, Anthony D'Amato 2010 Northwestern University School of Law

Softness In International Law: A Self-Serving Quest For New Legal Materials: A Reply To Jean D’Aspremont,, Anthony D'Amato

Faculty Working Papers

As international law grows and spreads into non-traditional areas such as the international ecosystem, the global economy, and human rights, some say it is becoming fragmented. This notion can actually appeal to those scholars who want to become experts in a fragment without having the burden of connecting it to the rest of international law. Another group views the idea of isolated specialization with apprehension; they feel that international law is and must be a coherent set of principles and rules—coherent in the sense that no member of the set contradicts any other member. The burden of resolving the ...


A Few Steps Toward An Explanatory Theory Of International Law, Anthony D'Amato 2010 Northwestern University School of Law

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 ...


The Coerciveness Of International Law, Anthony D'Amato 2010 Northwestern University School of Law

The Coerciveness Of International Law, Anthony D'Amato

Faculty Working Papers

This article shows that an important part of the deep structure of international law is its self-referential strategy of employing its own rules to protect its rules. International law tolerates a principled violation of its own rules when necessary to keep other rules from being broken. It extends a legal privilege to states to use coercion against any state that has selfishly attempted to transgress its international obligations. International law thus protects itself through the opportunistic deployment of its own rules.


International Law From A Machiavellian Perspective, Anthony D'Amato 2010 Northwestern University School of Law

International Law From A Machiavellian Perspective, Anthony D'Amato

Faculty Working Papers

Machiavelli leaves one with both an optimistic and a pessimistic prognostication for the post-Cold War world. On the one hand, the end of that conflict has opened the way for the spread of liberal, constitutional regimes, which he would say are inclined to be more and more meticulous in honoring their commitments. On the other, the temptation to use force to create new facts and thereby force international law into new paths will remain as long as politics is practiced. The contemporary relevance of Machiavelli may be seen in that he urged both realities upon us. I focus on a ...


On Genocide, Anthony D'Amato 2010 Northwestern University School of Law

On Genocide, Anthony D'Amato

Faculty Working Papers

The crime of genocide is the newest international crime. It must be kept as a separate, distinct, and coherent concept. It is the first truly subjective crime; all other crime, though requiring mens rea, require only that the defendant consciously committed the criminal acts. In the case of genocide, however, the underlying criminal acts are no different from the acts required to prove ordinary crimes. The difference is one of motive. What is being punished by the crime of genocide is the selection of victims according to their involuntary membership in four kinds of groups: national, ethnical, racial, or religious ...


The Moral And Legal Basis For Sanctions, Anthony D'Amato 2010 Northwestern University School of Law

The Moral And Legal Basis For Sanctions, Anthony D'Amato

Faculty Working Papers

In order to analyze the moral and legal basis for sanctions in international relations, we have to begin at a stage where there is no centralized government in place. We first need to get a picture of the range of possible sanctions. Next, we need to see what role sanctions play in the international system. Finally, we turn to the intertwined moral and legal considerations that make well-designed sanctions efficacious in today's world. The fundamental objective of sanctions in interstate relations is to make it expensive for a target state to refrain from doing what the sanctioning state wants ...


Purposeful Ambiguity As International Legal Strategy: The Two China Problem, Anthony D'Amato 2010 Northwestern University School of Law

Purposeful Ambiguity As International Legal Strategy: The Two China Problem, Anthony D'Amato

Faculty Working Papers

For every definable term in international law there are clear cases and fuzzy cases. Everyone accepts that the term "state" applies to Paraguay, Poland, Portugal and over a hundred other clear cases, but does it apply to Puerto Rico, Western Samoa, the Isle of Man, the Channel Islands, Gibraltar, or the Vatican City? The word "treaty" has thousands of clear applications, but does it apply to an exchange of faxes between two governments or a handshake between two diplomats at a cocktail party? In addition to ambiguities of this kind, international law is replete with deliberately created ambiguities. One of ...


World Conferences And The Cheapening Of International Norms, Anthony D'Amato 2010 Northwestern University School of Law

World Conferences And The Cheapening Of International Norms, Anthony D'Amato

Faculty Working Papers

As long as we understand that world conferences only address problems, we will not be disappointed in them. We will only be disappointed if we think that a world conference is supposed to solve problems. Is there any point in getting a lot of people together, at great expense, just to address a problem without any prospect of solving it? My answer is a qualified yes. A world conference is a cultural artifact. It has an impact upon our collective sense of civilization.


The Path Of International Law, Anthony D'Amato 2010 Northwestern University School of Law

The Path Of International Law, Anthony D'Amato

Faculty Working Papers

Is there a need for yet another student-edited international law journal? Practicing attorneys retrieve relevant articles when working on cases with international law issues, although they may be oblivious to the name of the journal or the prestige of the law school that supports it. For student editors, serving on a new international law journal is not just an intellectual experience; it is an empowering one. The more one looks into custom and treaty and the other sources of international law, the more one finds complexity and intellectual challenge.


The Speluncean Explorers--Further Proceedings, Anthony D'Amato 2010 Northwestern University School of Law

The Speluncean Explorers--Further Proceedings, Anthony D'Amato

Faculty Working Papers

Lon L. Fuller's The Case of the Speluncean Explorers is a classic in jurisprudence. The case presents five judicial opinions which clash with each other and produce for the reader an exhilarating excursion into fundamental theories of law and the state and the role of courts vis-i-vis legislatures and executives. Though the issues articulated by Fuller are timeless, the past thirty years in jurisprudential scholarship have produced at least one major new vantage point—the "rights thesis".


The Relation Of The Individual To The State In The Era Of Human Rights, Anthony D'Amato 2010 Northwestern University School of Law

The Relation Of The Individual To The State In The Era Of Human Rights, Anthony D'Amato

Faculty Working Papers

I address the question of the relation of the individual to the state and, in so doing, invoke Hegel, the preeminent philosopher of relationships. As students of international law, we should look forward to achieving the complex synthesis implicit in Hegel's philosophy: to promote the human rights of all persons in the natural context of the unique nation in which they live. Examines a legal problem that highlights this interrelatedness: Frolova v. Union of Soviet Socialist Republics.


Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe 2010 Northwestern University School of Law

Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe

Faculty Working Papers

Traditional accounts in both the international law and international relations literature largely assume that great powers like the United States enter into international legal commitments in order to resolve global cooperative problems or to advance objective state interests. Contrary to these accounts, this Article suggests that an incumbent regime (or partisan elites within the regime) may often seek to use international legal commitments to overcome domestic obstacles to their narrow policy and electoral objectives. In this picture, an incumbent regime may deploy international law to expand the geographical scope of political conflict across borders in order to isolate the domestic ...


Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn 2010 Northwestern University School of Law

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition ...


Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato 2010 Northwestern University School of Law

Consent, Estoppel, And Reasonableness: Three Challenges To Universal International Law, Anthony D'Amato

Faculty Working Papers

Like consent and estoppel, the concept of reasonableness, while failing to provide an adequate explanation of the source of obligation in customary international law, does play an important psychological role in adding to the pressure of international norms upon states. The result is to increase the sense of legality of the rules that are accepted by states as part of "customary international law." This is not to say that each and every alleged rule of universal international law must contain one or more of the elements of consent, estoppel, or reasonableness in order for it to be "valid."


Is International Law Really ‘Law’?, Anthony D'Amato 2010 Northwestern University School of Law

Is International Law Really ‘Law’?, Anthony D'Amato

Faculty Working Papers

International law is enforced by the process I describe as reciprocal-entitlement violation. The violation may be of the same entitlement or, more likely, of a different entitlement. But it is on the whole an effective process—as effective for the international legal system as is the enforcement of most laws in domestic systems via the state-sanctioned deprivation of one or more entitlements held by individual citizens or corporations. It is impossible to understand why nations do or refrain from doing the things they do without understanding what the entitlements are and how nations act to preserve their full complement of ...


Public Wrongs And Private Bills: Indemnification And Government Accountability In The Early Republic, James E. Pfander, Jonathan L. Hunt 2010 Northwestern University School of Law

Public Wrongs And Private Bills: Indemnification And Government Accountability In The Early Republic, James E. Pfander, Jonathan L. Hunt

Faculty Working Papers

Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued ...


Article Iii And The Scottish Enlightenment, James E. Pfander 2010 Northwestern University School of Law

Article Iii And The Scottish Enlightenment, James E. Pfander

Faculty Working Papers

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone's famous Commentaries on the Laws of England offers a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of ...


The Limits Of Legal Realism, Anthony D'Amato 2010 Northwestern University School of Law

The Limits Of Legal Realism, Anthony D'Amato

Faculty Working Papers

This article will address some criticisms of legal realism, primarily those of H.L.A. Hart, that have been unanswered in the literature and have appeared to discredit the realist approach to law. The article will also articulate what I believe to be more difficult problems with legal realism.


Judicial Legislation, Anthony D'Amato 2010 Northwestern University School of Law

Judicial Legislation, Anthony D'Amato

Faculty Working Papers

My argument will be that it is unjust in the broadest view of our legal system for judges to legislate, even if they confine their legislation to the narrowest limits in the closest of cases. To the extent that my argument is successful in diminishing the judicial legislation position, it would tend to serve to corroborate Dworkin's rights thesis.


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