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State Intelligence Gathering: Conflict Of Laws, Charles H.B. Garraway

Michigan Journal of International Law

This Article begins with an examination of the development of the law of war (Part II) and human rights law (Part III) before looking at the differing legal categories of armed conflict (Part IV). It then examines the applicability of human rights law in situations of armed conflict (Part V) and the increasing complexity of defining violence, whether as armed conflict or otherwise (Part VI). The Article proceeds with an examination of the overlap between the law of war and human rights law (Part VII) and the risk of divergence that this overlap causes (Part VIII). Finally, it seeks to …

Counterintuitive: Intelligence Operations And International Law, Glenn Sulmasy, John Yoo

Michigan Journal of International Law

The question before us is whether international law is useful or required to govern the covert intelligence-gathering activities of nation-states during peacetime. The very notion that international law is currently capable of regulating intelligence gathering is dubious. In fact, we suggest that international regulation of intelligence operations could have the perverse effect of making international conflict more, rather than less, likely. Certainly, there is legitimate space for coordination and cooperation between states in sharing intelligence, but such "sharing" does not involve significant needs for universal regulation by international law. Simply stated, it is not in the interests of nation-states or …

What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Michigan Journal of International Law

This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.

Clash Of The Titans: Collisions Of Economic Regulations And The Need To Harmonize Prescriptive Jurisdiction Rules, Milena Sterio

Law Faculty Articles and Essays

Part I of this article describes regulatory clashes involving different states' public laws, and then focuses on certain areas of law, including antitrust, securities, and Internet commerce and publishing, where such clashes are most likely to take place. Part II focuses on the different solutions to this regulatory puzzle invoked by scholars, advocating either territorial-based or substance-based approaches. Part III then critiques the two approaches, while emphasizing the need to address the issue from a global perspective, that is, by seeking to harmonize jurisdiction-allocating rules on an international level.

Individual And State Responsibility For Intelligence Gathering, Dieter Fleck

Michigan Journal of International Law

It is the purpose of this contribution to examine relevant norms and principles for assessing acts of intelligence gathering under international law (Part I), evaluate legal problems of attribution of such acts (Part II), and, where governments commit wrongful acts, look into circumstances precluding their wrongfulness (Part III). Based on these considerations, legal consequences for criminal accountability (Part IV) and reparation (Part V) will be discussed. Finally, some conclusions may be drawn (Part VI).

Non-Governmental Organizations, Prevention, And Intervention In Internal Conflicts: Though The Lens Of Darfur, J. J. Welling

Indiana Journal of Global Legal Studies

This Note argues that cases like the humanitarian crisis and the conflict in Darfur, Sudan, present an intrastate collective action problem that has not been satisfactorily addressed by a traditional multilateral approach. Instead, the Darfur crisis demonstrates the need for an expanded view of modern international law in the face of intrastate conflict that includes systematic intervention procedures and preventive aid, as well as a multifaceted approach that recognizes and integrates NGOs and NGO alliances. This Note asserts that the Sudan crisis has posed a collective action problem requiring not only multilateral state collective action, but also multifaceted, coordinated action …

Biosecurity Under The Rule Of Law, David Fidler, Lawrence O. Gostin

Articles by Maurer Faculty

No abstract provided.

Let Privateers Marque Terrorism: A Proposal For A Reawakening, Robert P. Dewitte

Indiana Law Journal

No abstract provided.

Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility?, Dermot Groome

Faculty Scholarly Works

Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used …

Destructive Ambiguity: Enemy Nationals And The Legal Enabling Of Ethnic Conflict In The Middle East, Michael Kagan

Scholarly Works

In the course of the Middle East conflict since 1948, both the Arab states and Israel have tended to take harsh measures against civilians based on their national, ethnic, and religious origins. This practice has been partially legitimized by a norm in international law that permits states to infringe the liberty and property interests of enemy nationals during armed conflict. Middle Eastern governments have misused the logic behind this theoretically exceptional rule to justify far-reaching measures that undermine the “principle of distinction” between civilians and combatants and erode the principle of non-discrimination that lies at the center of human rights …

Legal Analysis Of The 2006 U.N. Security Council Resolutions Against North Korea's Wmd Development, Eric Yong-Joong Lee

Fordham International Law Journal

In Part I, the author will clarify the facts regarding the evolution of the incidents and the adoption of the resultant resolutions. In Part II, the author will analyze the legal questions regarding the two resolutions. Part II will first examine the legality of the missile launch on the basis of Security Council Resolution 1540, customary international law and the Chicago Convention on International Civil Aviation. Second, Part II will examine Resolution 1695's terminology by comparing it to previous resolutions. Third, it will discuss the sanctions based on national legal authorities and legislations. Fourth, Part II will examine international law …

Suing Islam: Tort, Terrorism, And The House Of Saud, Don Garner, Robert L. Mcfarland

Oklahoma Law Review

No abstract provided.

Fifty Years Of European Integration: A Remarkable Achievement, Desmond Dinan

Fordham International Law Journal

The following sections outline four main phases in the history of European integration. First, this Article examines the decisive contribution that European integration made in the immediate postwar years to solving the German question and achieving Franco-German rapprochement. Second, it looks at the steps taken in the mid-1950s to launch the broader European Economic Community (“EEC”). The next section explains the difficulties encountered in completing the single market, which were eventually overcome in the late 1980s. The mixed record of the EU, launched in 1993 following ratification of the Treaty on European Union ("Maastricht Treaty"), is then examined. The final …

Attaining Optimal Deterrence At Sea: A Legal And Strategic Theory For Naval Anti-Piracy Operations, Michael Bahar

Vanderbilt Journal of Transnational Law

On January 21, 2006, a guided missile destroyer accomplished the U.S. Navy's first capture of suspected pirates in recent memory. As the Staff Judge Advocate for the NASSAU Strike Group, the Author advised the seizure, led the onboard investigation, oversaw the shipboard detentions, and testified at the trial in Kenya.

Drawing upon this experience, the Author constructs a comprehensive legal and strategic theory for piracy, defining the legal status of pirates and deriving the due process rights that should be afforded them.

The Article also analyzes the evolution of customary and positive international law to demonstrate that, contrary to conventional …

U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This essay, originally prepared for a symposium on Guantanamo and international law, provides an brief overview of the elements that a comprehensive US counterterrorism should encompass. This overview is set against the question of how the US, as the world's superpower, ought to address its international law obligations. The essay then sets that question against the still-further question of what it means to be the superpower in a world that some believe is gradually evolving into a multipolar world, but which is currently a world of a conjoined US-international global system of security.

The essay defends the concept of counterterrorism …

Advances And Missed Opportunities In The International Prosecution Of Gender-Based Crimes, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In the past decade, and particularly since 1998, there has been an incredible transformation in the treatment of sex-based and gender- based violence' in the fields of international humanitarian law and international criminal law. Before this, crimes committed exclusively or disproportionately against women and girls, in times of conflict, were largely either ignored, or at most, treated as secondary to other crimes. Despite the fact that rape and other forms of sexual violence had been widely reported during World War HI, for instance, the crime of rape was not expressly included in either the London Charter, establishing the International …

Invasive Seaweed: Global And Regional Law And Policy Responses, Meinhard Doelle, Moira Mcconnell, David Vanderzwaag

Articles, Book Chapters, & Popular Press

We consider law and policy responses to invasive seaweeds at global and regional levels. Key global regimes considered include the 1982 United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, the Ramsar Convention and the Bonn Convention on Migratory Species. Contributions from the Food and Agriculture Organization and the International Maritime Organization are also considered in the global context. At a regional level, examples of efforts in North America and Europe are offered to illustrate challenges and opportunities for regional responses to invasive seaweeds. We conclude with law and policy recommendations, most notably the need …

Who's Afraid Of Geneva Law?, Aya Gruber

Publications

According to many internationalists, the terrorism detention cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld are exemplary of a movement on the part of the Supreme Court toward greater incorporation of and respect for international law. Recent death penalty cases, statements of individual justices, and the increasing transnationalism of the Court's docket have lead many to believe, as Justice Ginsburg does, that the Court's "island or lone ranger mentality is beginning to change." This Article takes the contrary position that Hamdi and Hamdan are not internationalist because of their meticulous avoidance of the issue of Geneva Convention self-execution. Briefly, the …

An Emerging International Criminal Law Tradition: Gaps In Applicable Law And Transnational Common Laws, Benjamin Perrin

All Faculty Publications

This thesis critically examines the origins and development of international criminal lave to identify the defining features of this emerging legal tradition. It critically evaluates the experimental approach taken in Article 21 of the Rome Statute of the International Criminal Court, which attempts to codify an untested normative super-structure to guide this legal tradition. International criminal law is a hybrid tradition which seeks legitimacy and answers to difficult questions by drawing on other established legal traditions. Its development at the confluence of public international law, international humanitarian law, international human rights law and national criminal laws has resulted in gaps …

International Legal Standards Governing The Use Of Child Soldiers, Dorcas B. Mulira

LLM Theses and Essays

This paper seeks to analyze the international laws governing the use of children in armedconflict. Despite the prohibition of the use of child soldiers in armed conflict in internationallaw, States and non-State actors continue to actively recruit, abduct, and directly use children,some as young as eight, in hostilities. International humanitarian law's limited scope prevents itfrom protecting the worldÕs most vulnerable children, child soldiers, while human rightsinstruments adopted to make up for these limitations lack enforcement mechanisms, thereforerendering the much-needed protection for child soldiers inadequate. As development ofinternational law concerning child soldiers progresses on paper, progress on the ground lagsbehind, thus …

A Tale Of Two Platforms, Tim Wu

Faculty Scholarship

This paper discusses future competitions between cellular and computer platforms, in the context of a discussion of Jonathan Zittrain, The Generative Internet, 119 Harv. L. Rev. 1974 (2006).

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

Treaties' Domains, Tim Wu

Faculty Scholarship

When and why do American judges enforce treaties? The question, always important, has become pressing in an age where the United States is party to over 12,000 international agreements. Article VI of the United States Constitution declares "all treaties" the "supreme Law of the Land," and American judges have long had the potential power, under the Constitution, to enforce treaties as they do statutes. But over the history of the United States, judges have not enforced treaties that way. Instead, judicial treaty enforcement is widely seen as unpredictable, erratic, and confusing. As a result, the question of treaty enforcement has …

Moderator's Report: Legal Experts' Workshop On The Future Global Legal Order, Craig H. Allen

Articles

In late 2006, as part of its multifaceted effort to help the Chief of Naval Operations develop a new, contemporary maritime strategy for the nation, the Naval War College convened a “Delphi group” of experts—in this case, in international law—to provide the maritime strategy development team a candid assessment of the probable state of the global legal order in 2020. The workshop, chaired by Craig H. Allen, the Charles H. Stockton Professor of International Law, was held 31 October–1 November 2006 in the College’s Decision Support Center (equipped with an advanced World Wide Web–based group collaboration and decision-support system), in …

Noble Human Rights Defender Or International Band-Aid? On Contemporary Humanitarianism, Kurt Mills

Human Rights & Human Welfare

A review of:

The Humanitarians: The International Committee of the Red Cross by David P. Forsythe. Cambridge: Cambridge University Press, 2005.

Making Sense Of A Senseless War, J. Peter Pham

Human Rights & Human Welfare

A review of:

A Dirty War in West Africa: The RUF and the Destruction of Sierra Leone by Lansana Gberie. Bloomington, IN: Indiana University Press, 2005.

and

Young Soldiers: Why They Choose to Fight by Rachel Brett and Irma Specht. Boulder, CO: Lynne Rienner Publishers, 2005.

Violations Of Human Rights During Military Operations In Chechnya, Federico Sperotto

Human Rights & Human Welfare

The case-law of the European Court of Human Rights concerning violations of human rights law during armed conflict has been extended after the first decisions on cases arose from violations, committed during the war in Chechnya between 1999 and 2000. In the words of the Court, at that time the situation called for exceptional measures, in order to regain control over the Republic and suppress an illegal armed insurgency. The Court has been ready to admit those measures, including the deployment of army units equipped with heavy combat weapons, military aviation and artillery, were necessary to counter the aggressiveness of …

Advancing The Rule Of Law: Report On The International Rule Of Law Symposium Convened By The American Bar Association November 9-10, 2005, Katharina Pistor

Faculty Scholarship

The American Bar Association hosted the first International Rule of Law Symposium in Washington, D.C. on November 9-10, 2005. The Symposium brought together representatives from all over the world who share a common interest in advancing the rule of law as a means to tackle major obstacles that hamper social and economic growth and development around the globe. Some were ministers and government officials, others entrepreneurs and business people, yet others represented non-governmental organizations or employees of multilateral donor organizations. The topics addressed at the Symposium were equally far reaching in scope, covering everything from poverty alleviation and improving public …

Breaking The Silence: Rape As An International Crime, Mark Ellis

Case Western Reserve Journal of International Law

No abstract provided.

Biosecurity Under The Rule Of Law, Lawrence O. Gostin, David P. Fidler

Case Western Reserve Journal of International Law

No abstract provided.