Digital Commons Network^™

Allocative Justice As A Constraint On Fiscal Imperialism In International Tax, Okanga Ogbu Okanga, Kim Brooks

Articles, Book Chapters, & Popular Press

Taxpayers’ cross-border activities often result in two (or more) states claiming the right to tax their income. To address concerns about how those tax liabilities might aggregate and suppress international activities, states typically agree to split the tax base between them. But how can states fairly share tax revenue from cross-border activities? Tax scholars and policymakers offer different normative perspectives to address this inter-nation equity conundrum. In this article, we conceptualize these normative perspectives into two types. One centres on identifying where the economic factors that lead to the ability to produce the income are located (and uses that determination …

Tax Treaty Arbitration: An Unacceptable Surrender Of National Sovereignty Or An Expression Of Sovereign Power?, Kim Brooks, Richard Krever

Articles, Book Chapters, & Popular Press

The release in 2016 by the Organisation for Economic Co-operation and Development of a draft multilateral treaty to modify thousands of global bilateral tax treaties was met with surprisingly strong support by the international community, with many states signing, ratifying, and implementing the treaty. One of the treaty’s most contentious elements is the addition to the dispute resolution measures in bilateral treaties, a process known as mutual agreement procedure, of a mandatory arbitration procedure that is to be available where agreement cannot be reached under the conventional process. In contrast to the mutual agreement procedure, which includes no requirement that …

Reparations For Civilian Victims In Ukraine And Gaza: Legal Frameworks, Normative Debates, And Implementation, Chiara Giorgetti

Law Faculty Publications

Reparations for the victims of armed conflict and mass human rights violations are a cornerstone of international law. Yet, as recent conflicts in Ukraine and Gaza illustrate well, reparations remain a difficult subject and raise important questions regarding the scope of State responsibility, the rights of individual victims, and the availability of appropriate mechanisms for adjudicating claims. [...]

Time For A New War Crimes Commission?, Diane Marie Amann

Scholarly Works

This essay begins by exposing gaps in accountability in the wake of Russia’s full-scale invasion of Ukraine in 2022. It explains why neither the International Criminal Court nor any other body is authorized to pursue all the crimes of that war, and then considers whether a more comprehensive approach might be found in the United Nations War Crimes Commission. In its five years of operation  (1943–1948) that multilateral institution gathered information on tens of thousands of potential suspects, and helped to coordinate trials against many of them – not only the Nuremberg proceedings, but also in Allied zones of occupation …

Reparations For Colonialism: Beyond Legal Responsibility, Steven R. Ratner

Articles

Reparations for colonialism and colonial-era atrocities have moved from an unrealized demand of citizens, politicians, and thinkers in the Global South to a project with some results in the real world. Key markers include the return of numerous art objects from museums in the Global North to their countries of origin; the release of the Caribbean Community and Common Market’s (CARICOM) proposal for reparations; and Namibia’s agreement with Germany on compensation for the German genocide against the Herero people in 1904–08 —along with the resultant controversy. These developments follow earlier claims for reparations directed to—and their eventual acceptance by—the governments …

Fletcher's Uncertainty Principle, Matthew L.M. Fletcher

Articles

am here to talk about the equal protection challenges facing Indian Country. I am going to give you my thesis right off the bat, which is that Haaland v. Brackeen decided the equal protection issue for us already, and we should behave as if it is decided.

I will explain what I mean by that. But first, let’s talk about what we will call the Mancari rule. The Mancari rule is fundamentally what Indian law is about, and it goes something like this—I am going to more or less paraphrase the guiding principle of Morton v. Mancari from 1974. Any …

Islamic Finance, Commercial Law, And Economic Justice: Apocalyptic Challenges To The Global Order, Ali Rod Khadem

Emory International Law Review

This Article engages with the heated debates about the Islamic finance industry, which range from praise as an ethical model of ESG principles to sharp criticism as a vehicle for financing terrorism. Offering a novel lens, this Article examines several case studies of Islamic thinkers and movements that have disrupted global politics, exploring how they deploy apocalyptic ideology to promote vastly different visions of future economic orders. Some of these case studies reinterpret key concepts from Islamic commercial law—like unjust enrichment, limited liability partnerships, insurance, almsgiving, and inheritance—while others call for a return to abandoned practices, such as slavery, discriminatory …

The Public Policy Exception In Choice Of Law, Symeon C. Symeonides

Emory International Law Review

No abstract provided.

The Effectiveness Of The Hague Convention In Addressing International Child Abduction, Areej A. Dakelallah Althubiti

Theses and Dissertations

Parental child abduction is a growing concern fueled by immigration, cross-cultural marriages, evolving family dynamics, and gaps in the implementation and enforcement of developed international frameworks. This study examines the effectiveness of and challenges to the enforcement of the Hague Convention on the Civil Aspects of International Child Abduction (HCCA), which was developed to address this problem. Specifically, the goal of this research is to assess the effect the HCCA has had on parental kidnapping, analyze its effectiveness in resolving international custody disputes, and identify the legal and practical obstacles that inhibit implementation. While the prevalence of parental kidnapping continues …

A Human Right To A Sustainable Climate?, Ottavio Quirico

William & Mary Environmental Law and Policy Review

Is a fundamental right to a sustainable climate progressively being recognized globally? Climate change is triggering parallel progressive developments in the human rights arena at both the domestic and international levels. Firstly, it is fostering an extensive interpretation of first- and second-generation human rights, protecting collective environmental interests rather than individual entitlements. Secondly, climate change has decisively accelerated the evolution of first and second generation human rights into a third generation right to a sustainable environment. Thirdly, emerging evidence discloses the possibility of conceiving a specific human right to a sustainable climate. This Article explores the trajectory of climate rights …

Common Article 2 And Non-State Reciprocity In The Law Of Armed Conflict, Eric Talbot Jensen, J. Stone Wilson

Emory International Law Review

The majority of today’s armed conflicts are waged between States and non-State actors. Because these conflicts are not between States, they do not fall under the coverage of Common Article 2 (CA2) of the 1949 Geneva Conventions which invokes the full corpus of international humanitarian law. However, the third paragraph of CA2, the “Reciprocity Clause”, was written to provide a mechanism for non-Parties to the Geneva Conventions to invoke the provisions of the Conventions in a conflict with a Party. State Parties agreed to be bound by the Conventions, even in conflicts with non-Parties, as long as those non-Parties agreed …

War Crime Or Ecocide? Ukraine’S Prosecution Of Environmental Crimes Committed By Russian Forces, Michael J. Kelly

Emory International Law Review

No abstract provided.

The Transnationalisation Of Civil Society In East Asia’S War Redress Movement, Timothy Webster

Faculty Scholarship

Transnational human rights litigation is commonly associated with developments in Europe and the Americas during the 1990s. But Asian actors have used legal mobilisation to hold corporate actors to account since at least the 1970s. This chapter charts the first usages of transnational litigation in East Asia’s Word War II redress movement, akin to the Holocaust Restitution movement of the West. Korean and Chinese forced labourers liaised with Japanese attorneys, activists and academics to press compensation claims against Japanese corporations for wartime human rights abuses in Tokyo. Legal mobilisation did not succeed in the traditional sense. Yet, the formation of …

Human Rights In Technology -- A Need For A New Norm, Els De Busser

Case Western Reserve Journal of International Law

The field of cyber security has relied on norms quite heavily to govern the behavior of states and non-state actors in cyberspace. However, existing norms do not offer guidance on integrating attention to human rights into the design and development of digital consumer products. This Paper introduces a way to foresee the human rights impact of new technology combined with a form of governance that regulates problems we do not know exist yet. (Abstract from author.)

The Geneva Conventions At 75: An Argument That New Legal Authority Is Needed To Fill Critical Gaps, Sandra Hodgkinson

Case Western Reserve Journal of International Law

For seventy-five years, the Geneva Conventions have served as the gold standard of treatment for military forces that take part in hostilities. However, modern developments on the battlefield, including the rise of non-state actors in today’s conflicts, have exposed gaps in the Geneva Conventions that require new legal authority. States should pursue avenues to fill these gaps with binding new legal authority, as well as continue the development of customary international law, and soft-law projects. (Abstract from author.)

The Inevitability Of Adaptability – Comparative Contributions To Understanding Originalism, Anna Conley

Emory International Law Review

What can comparative law teach us about originalism as a constitutional interpretation method? After synthesizing existing comparative analyses, this article seeks to redefine comparative law’s role in understanding originalism. When defining originalism strictly to require adherence to fixed original meaning, originalism is not used by courts anywhere in the world. Instead, courts use history purposively to understand the intent behind constitutional text as one of many methods of interpretation. Comparative works suggest historical constitutional interpretation has a complex relationship with rights, politics and culture.

Comparative law can provide not only descriptive understandings of originalism but also interrogate its mandate that …

Ai Art And U.S. Copyright Decisions: What The U.S. Can Do Differently Than China And The E.U. To Efficiently Promote Balance Between Ai Innovation And Copyright Regulation, Adam Pycior

Loyola University Chicago International Law Review

The rapid development of Artificial Intelligence ("Al") in recent years has spurred a plethora of discussions concerning ethical boundaries, government regulations, and more. Thaler v. Perlmutter highlights a unique one: the challenging question of if, and how, AI generated artworks may be copyrightable. The court denied copyright to plaintiff Stephen Thaler's work "A Recent Entrance to Paradise" generated by his AI system, "The Creativity Machine," holding that autonomously generated works cannot be copyrighted under the existing precedent. However, the court failed to answer, though it acknowledged, the pressing question as to the degree of human input necessary to copyright such …

The Next Chapter Of Apartheid Is "Gender Apartheid", Naheed A. Farid

University of San Francisco Law Review

No abstract provided.

Setting The Truth Free: The Case For Restoring The Central American University Of Nicaragua Through The Framework Of International Human Rights Law, Samuel Gearing

University of San Francisco Law Review

No abstract provided.

The Political Question Doctrine And The International Court Of Justice, Halil Rahman Basaran

University of San Francisco Law Review

No abstract provided.

‘Preventing Births’ As A Gender-Neutral Harm: Making Sense Of Reproductive Violence In South Africa’S Genocide Case Against Israel, Heidi Matthews

Articles & Book Chapters

Abstract In its genocide case against Israel at the International Court of Justice, South Africa alleges that, in the period since October 7, 2023, Israel has imposed measures intended to prevent births within the Palestinian group in Gaza. To the extent that South Africa’s case for ‘preventing births’ relies on the traditional framing of reproductive justice, wherein violations are conceptualized in terms of restrictions on reproductive (read: women’s) health and capacity, it risks advancing the human rights of ‘women and children’ at the expense of a more progressive development of the law of genocide. This article uses the ongoing genocidal …

International Claims Commissions As Reparations, Chiara Giorgetti

Law Faculty Publications

Breaches of international law have consequences. Under the Articles on the Responsibility of States for Internationally Wrongful Acts, the international responsibility of a state triggered by its internationally wrongful acts entails specific legal consequences, including the obligation to provide“full reparation” for the injury caused. However, obtaining reparations in the current international legal system often proves difficult. Existing international courts and tribunals often lack the jurisdiction to provide full reparations, especially when there are multiple and complex violations that caused injuries to numerous and diverse parties. International claims commissions can be effective instruments to provide reparations in such circumstances, including in …

Core Skills & "Cool Tools" From The Third Generation Of Fcil Librarians, Meredith Capps, Clement Lin, Devan Orr, Alison A. Shea, Loren Turner, Latia Ward

Library Staff Publications

There have been three generations of foreign, comparative, and international law (FCIL) librarians in the United States (US) in the postwar era. FCIL librarians of the first generation were foreign lawyers who emigrated to the US after World War II. Those of the second generation were American lawyer-librarians who built the infrastructure of FCIL librarianship into what it is today. The third generation of FCIL librarians includes the authors of this article. We perform many of the same research tasks as our predecessors, but we do so primarily online through an ever-evolving array of new and emerging technologies. This article …

Man On Mars: How Can International Space Law Limit The Environmental Consequences Of The Coming Rush For Resources In Space, Elizabeth Anne Henderson

Michigan Journal of International Law

The body of international law governing space has stood at a standstill for decades. The five central treaties regulating this area of law are not only vague, but they have also become a hindrance to the global community’s ability to address the rapidly intensifying second space race. The treaties do not adequately state who space belongs to, who is entitled to take advantage of the natural resources of celestial bodies, or what protections are afforded to celestial environments in the face of impending mining and resource extraction projects. This impasse within international law has not stopped entrepreneurs and corporations from …

Teitiota And Climate Non-Refoulment: The International Law Obligation To Create Domestic Protection Mechanisms, Helen Kerwin

University of San Francisco Law Review

No abstract provided.

Ad Astra Per Aspera: Legal Revision Of Space Laws And Intellectual Property To Cultivate Global Alliance And Innovation, Jaiden E. Haggiag

Honors Undergraduate Theses

This thesis explores the inadequate nature of the current legal space regime and points out the gaps in outer space laws, including the following: Jurisdictional Challenges, Frameworks of Liability, and IP (Intellectual Property) Enforcement, utilizing laws such as the Outer Space Treaty (OST), the Liability Convention, the Registration Convention, the Moon Agreement, the Patent Cooperation Treaty (PCT), and TRIPS, along with national laws like the U.S. Commercial Space Launch Competitiveness Act and The Inventions in Outer Space Act (35 U.S.C. § 105.). Through analysis of current scholarly proposals and treaty evolution and synthesize to provide policy options, the goal of …

Crimes Against Humanity And Customary International Law, Leila Nadya Sadat

Scholarship@WashULaw

A draft text of a treaty on the prevention and punishment of crimes against humanity was finally sent to negotiations by the U.N. General Assembly on December 4, 2024, after six long years of advocacy by States and civil society. Questions remain, however, with regard to how crimes against humanity will be defined in the new treaty. On the one hand, some States have embraced a definition of crimes against humanity that tracks Article 7 of the Rome Statute of the International Criminal Court (“ICC”). Other States have rejected Article 7 as the basis for the new treaty, but theirs …

The Click-And-Commit World Order, Melissa (M.J.) Durkee

Scholarship@WashULaw

This essay explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet …

"In This House, We Pull Ourselves Up By Our Bootstraps": The Foundations Of Parliamentary Sovereignty In The United Kingdom, New Zealand, And Sweden, Andrew Hull

Emory International Law Review Recent Developments

This paper considers the legal foundations of parliamentary sovereignty in three states: the United Kingdom, the Realm of New Zealand, and the Kingdom of Sweden. Two of these countries hail from the common law legal family, while Sweden is a civil law country with Nordic legal characteristics. After initial discussion of parliamentary sovereignty and Carl Schmitt’s theory of sovereignty, I will consider each of these states’ examples of parliamentary sovereignty in turn. We shall see the historical development of these three countries’ parliamentary sovereignties deeply implicates the other four of Zweigert and Kötz’s factors for defining legal styles: legal thinking, …

Framing Legal Systems In New And Emerging Statelets: Autonomous Projects Of The Zapatistas Of Chiapas And The Democratic Autonomous Administration Of Northern And Eastern Syria, Samuel Wolff

Emory International Law Review Recent Developments

Autonomous movements within states are disruptions in the normal order and control that a state exerts over its territories. While there are some groups that aim to achieve autonomy and recognition while staying within the structure of the existing state, other groups seek to succeed and establish their own autonomous area completely succeeding and divorcing from the state. For a variety of reasons- from mistrust of a corrupt central government to violent repression of ethnic minorities- movements arise offering an alternative to the existing state. As these movements break, sometimes violently, from the state, they also break from the legal …