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The Peacetime Right Of Approach And Visit And Effective Security Council Sanctions Enforcement At Sea, Craig H. Allen

International Law Studies

Naval forces deployed across the world’s seas to enforce counterproliferation sanctions imposed by the U.N. Security Council must surmount any number of operational and legal challenges. High seas boardings by any State other than the vessel’s flag State remain controversial. The 1982 Law of the Sea Convention’s high seas articles carefully balance the principles of freedom of navigation and exclusive flag-State jurisdiction with the shared interest in ensuring effective enforcement of laws against certain serious offenses. The peacetime right of visit is a limited but invaluable compromise between those competing interests. Some commentators have suggested expanding the right to address …

Law As Strategy: Thinking Below The State In Afghanistan, Charles H. Norchi

International Law Studies

In Doha, Qatar the government of the United States has conducted successive rounds of negotiations with a non-State, the Islamic Emirate of Afghanistan (the Taliban) over the future of a State that was not present—the Government of Afghanistan. Regardless of the outcome, the United States will retain a national security interest in Afghanistan and the region. Contextually nuanced strategic choices will be critical and law could be a key strategy. This article identifies relevant Afghan history—a collective longue durée—appraises the severable sovereignty of the Afghan State, and underscores the imperative of working below the State. Drawing on a 1952 …

The Occupation Of Maritime Territory Under International Humanitarian Law, Marco Longobardo

International Law Studies

This article explores whether it is possible to apply the law of occupation beyond land territory, to maritime areas characterized here as “maritime territory.” The article argues that the definition of territory under Article 42 of the 1907 Hague Regulations comprises internal waters, territorial sea, and archipelagic waters, whereas other areas such as the continental shelf, the exclusive economic zone, and high seas fall outside the scope of Article 42. Accordingly, internal waters, the territorial sea, and archipelagic waters may be placed under occupation if a hostile force exercises actual authority over them without valid legal title. The article describes …

Global Justice Vs. U.S. Global Hegemony: Rejecting Bolton’S Opposition To The Icc, Norman Swazo

Cardozo International & Comparative Law Review

Former U.S. National Security Advisor John R. Bolton has announced that as an official Trump Administration national security policy, the USA will not support the International Criminal Court (ICC) and instead will work for its demise. At issue here is a concept of global justice versus insistence on US global hegemony and a Pax Americana. Here, the author argues against Bolton's position rejecting the legitimacy of international law and the ICC. Bolton 's appeal to a principle of consent must yield to a principle of salience, as defended by Ronald Dworkin; a concept ofjustice, as advocated by Amartya Sen; and …

Case Global: Cwru Law Students Document War Crimes In Yemen Conflict, Case Western Reserve University School Of Law, The Frederick K. Cox International Law Center

Case Global Newsletter

Vol. 11, No. 1 (2019)

• Special Report: Students Document War Crimes in Yemen Conflict
• Trade Law Q&A with Professor Colares
• Special Report: Advocating for Refugees from Cleveland to Burma
• Frederick K. Cox International Law Center Names New Director
• Foreign Concurrent Degree Program Leads to Elite Law Firm Employment
• CWRU Teams Triumph at International Moot Court Competitions…
• International Law Curriculum: Sequence to Success
• Dean Scharf Featured on United Nations Audiovisual Library of International Law 
• CWRU’s Talking Foreign Policy Radio Program Examines the Crisis in Yemen
• CWRU Expands its Reach in Asia
• Fulbright Scholar Professor Cover Teaches International Law in Kenya
• Law …

The Promise And Challenge Of Humanitarian Protection In The United States: Making Temporary Protected Status Work As A Safe Haven, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried …

Can We Starve The Civilians? Exploring The Dichotomy Between The Traditional Law Of Maritime Blockade And Humanitarian Initiatives, Phillip J. Drew

International Law Studies

The contemporary practice of maritime blockade can trace its origins to the Dutch Placaat of 1564, under which the Dutch Navy enforced the closure of Spanish ports to maritime traffic, both inbound and outbound. Although originally designed to stop all military reinforcements from reaching an area, in the ensuing 450 years, blockade has developed into a method of warfare whose effects are primarily economic. As a result of the urbanization of much of the world’s population over the past 200 years, many States have become heavily reliant on imported foodstuffs and commodities, most of which moves by sea. When those …

Marine Insurance Prohibitions In Contemporary Economic Warfare, Richard L. Kilpatrick, Jr.

International Law Studies

As States and supranational actors increasingly employ economic sanctions to promote security objectives, a recent trend has focused on the regulation of commercial shipping activities. These maritime sanctions have restricted port access for designated vessels, banned the import and export of certain cargo classes, enhanced authorization for vessel inspections, and even justified vessel seizures. Critically, these techniques have also included targeted prohibitions on marine insurance covering designated vessels and cargo. Designed to frustrate sanctioned actors in their attempts to utilize maritime assets for malign purposes, marine insurance prohibitions thwart these efforts and also blunt the ability to generate revenue through …

Maritime Autonomous Vehicles Within The International Law Framework To Enhance Maritime Security, Natalie Klein

International Law Studies

Technological developments necessitate a review of long-standing and diverse international legal principles. The law of the sea is no exception in this regard where the introduction of different Maritime Autonomous Vehicles (MAVs) has prompted consideration of how the laws of naval warfare and rules governing the safety of international shipping accommodate these craft. This paper shifts the focus to the international laws relating to maritime security. It assesses how well the existing international legal framework for maritime security can account for the use of MAVs by law enforcement agencies and by non-state actors who are turning to MAVs for criminal …

The Future Of War: Cyber-Attacks And Aggression In International Law, Jamie Hogan

University Honors Theses

Cyber-attacks are becoming more advanced, and more dangerous, but can these simple lines of code be considered acts of war? My research looks at cyber-attacks through international law framework regarding jus ad bellum, the resort to war. After looking at cyber-attacks through this lens, it is possible to declare certain types of cyber-attacks as acts of aggression, and ultimately allow states to invoke their right of self-defense in response to these attacks. My research will then address the need for international law regulating these new weapons of war.

Armed Groups And The Protection Of Health Care, Ezequiel Heffes

International Law Studies

That armed groups have been responsible for attacks against health care personnel and for violating the protection of health care is not news. This is one of the greatest humanitarian challenges of contemporary armed conflict. Armed groups, however, have also attempted to evacuate and treat wounded enemy fighters and civilians and, in certain contexts, they have even provided health care services for the civilian population living in the territories under their control. This article describes some of the key issues related to the variation of armed groups’ behaviors when dealing with the protection of health care, inquiring into why some …

Classification Of Cyber Capabilities And Operations As Weapons, Means, Or Methods Of Warfare, Jeffrey T. Biller, Michael N. Schmitt

International Law Studies

Despite several persistent controversies regarding how international law applies to cyber operations during an armed conflict, general understanding of the law in this domain is maturing. Reasoning by analogy to non-cyber application and interpretation of international law underlies much of the progress. Yet, although preexisting normative structures and legal terminology enable legal advisors and scholars to usefully draw upon previously acquired experience and understanding, there are obstacles to definitive analogizing that result from fundamental differences between cyber and kinetic operations. The number of imperfect analogies that underlie some of the normative uncertainty in the field underscores this point.

One key …

Improving The Odds: Strengthening The Prospects For Accountability In The Syrian Conflict By Regulating The Marketplace For Information On Atrocity Crimes, Kaitlin Owens

University of Miami International and Comparative Law Review

No abstract provided.

Between Politics And Morality: Hans Kelsen's Contributions To The Changing Notion Of International Criminal Responsibility, Jason Kropsky

Dissertations, Theses, and Capstone Projects

The pure theory of law analyzes the legal normative basis of jurisprudence. According to its author, Hans Kelsen (1881-1973), the study of law as a science can only arise once “alien elements” associated with sociology, politics, ethics and psychology are extracted from strict legal cognition. But what happens when the international sphere of law that possesses the special quality of holding state officials accountable for core international crimes requires intrusion by extra-legal sources? Does Kelsen’s structural edifice collapse? Or is it reconstituted? In examining how international criminal responsibility, a test case for Kelsen’s positive law claims derives its legitimacy, this …

Indeterminacy In The Law Of Armed Conflict, Adil Ahmad Haque

International Law Studies

Controversy and confusion pervade the law of armed conflict. Its most basic rules may seem ambiguous, vague, incomplete, or inconsistent. The prevailing view of customary international law confronts serious problems, in principle and in practice, when applied to the customary law of armed conflict. Legal indeterminacy, in its different forms, might be reduced or resolved in light of the object and purpose of the law of armed conflict, or by taking into account other relevant rules of international law. Unfortunately, the purpose of the law of armed conflict is itself the subject of deep disagreement. So is the relationship between …

Casualties Of War? Refining The Civilian-Military Dichotomy In World War I, Eric Grube

Madison Historical Review

Throughout the First World War, newspapers around the world mocked the British state for its lavish spending on captured German officers kept at Donington Hall, a refurbished English estate. Why was this camp such a controversial space of perceived decadence? I argue that its comforts seemed to linger from an earlier era, one in which military men exuded genteel civility as integral to their supposedly heroic service. The British state essentially enabled such treatment, and the public decried this space for sustaining the anachronism of aristocratic privilege in the face of a globalized total war. However, the German inmates expected …

Peeling Back The Onion Of Cyber Espionage After Tallinn 2.0, David A. Wallace, Amy H. Mccarthy, Mark Visger

Maryland Law Review

Tallinn 2.0 represents an important advancement in the understanding of international law’s application to cyber operations below the threshold of force. Its provisions on cyber espionage will be instrumental to states in grappling with complex legal problems in the area of digital spying. The law of cyber espionage as outlined by Tallinn 2.0, however, is substantially based on rules that have evolved outside of the digital context, and there exist serious ambiguities and limitations in its framework. This Article will explore gaps in the legal structure and consider future options available to states in light of this underlying mismatch.

Debugging The Tallinn Manual 2.0'S Application Of The Due Diligence Principle To Cyber Operations, Colin Patrick

Washington International Law Journal

As global cyber connectivity increases, so does opportunities for large-scale nefarious cyber operations. These novel circumstances have necessitated the application of old-world customs to an increasingly complex world. To meet this challenge, the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations was created. The Manual provides 154 black letter rules detailing how international law applies to cyber operations during peacetime. Of particular import is the Manual’s interpretation of the due diligence principle. This principle, which defines the contours of a state’s obligation to prevent their territory to inflict extraterritorial harm, is increasingly significant in light of the …

Table Of Contents, Cardozo International & Comparative Law Review, Vol. 2, Iss. 3

Cardozo International & Comparative Law Review

No abstract provided.

Rethinking The Law And Ethics Of Undercover Warfare, Raphael Bitton

Cardozo International & Comparative Law Review

This paper offers a new ethical and legalframework for undercover warfare. It begins by criticizing the traditional reasoning for the duty to wear unform. It demonstrates the insufficiency of the principle of 'distinction'. which dominates current discourse. It argues, instead, that the rationale for the duty to wear unforms is based on a new principle in international law that this paper advocates: the principle of accountability. The active form of global accountability requires some degree of states' transparency about their military activity. This allows other states to respond by exercising passive form of accountability and punish violations of international law. …

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

Election Hacking: A Trifecta Of Sovereignty, Intervention, And Use Of Force Violations In International Law, Arlen Printz

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

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 …

License To Kill: An Analysis Of The Legality Of Fully Autonomous Drones In The Context Of International Use Of Force Law, Andrew Figueroa

Pace International Law Review

We live in a world of constant technological change; and with this change, comes unknown effects and consequences. This is even truer with weapons and warfare. Indeed, as the means and methods of warfare rapidly modify and transform, the effects and consequences on the laws of war are unknown. This Article addresses one such development in weapon and warfare technology—Fully Autonomous Weapons or “Killer Robots”—and discusses the inevitable use of these weapons within the current international law framework. Recognizing the current, inadequate legal framework, this Article proposes a regulation policy to mitigate the risks associated with Fully Autonomous Weapons. But …

The Popular But Unlawful Armed Reprisal, Mary Ellen O'Connell

Ohio Northern University Law Review

No abstract provided.

Dogs Of War Get A New Lease On Life: Why The Military Extraterritorial Jurisdiction Act Violates The Eighth Amendment In Light Of United States V. Slatten, Michael D. Stinnett-Kassoff

Washington and Lee Journal of Civil Rights and Social Justice

The United States has relied on Private Military Firms (PMFs) extensively to carry out its numerous overseas military missions since the end of the Cold War. Civilians and contractors have always had a place in American wars, even during the American Revolution and beyond. But the recent American incursions into Afghanistan and Iraq brought an unprecedented number of private contractors into the forefront of these conflict zones, the discussions surrounding them, and the legal questions arising from their ashes. Particularly, private contractors in Iraq seemed to be operating in a legal grey area—they clearly were not soldiers, and they clearly …

Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with …

Medical Care In Urban Conflict, Kenneth Watkin

International Law Studies

The potential for urban violence is increasing as the world population continues to migrate towards cities. Recent examples of urban warfare with insurgent groups has occurred in Damascus, Mosul, Raqqa, Marawi, Ramadi, and Fallujah, although non-State actor conflict covers a wide range of violence from ordinary crime, to terrorism and transnational crime, to near conventional conflict. Further, transnational terrorist groups have sought to extend the conflict into countries seen as the “far enemy.” A key issue is determining if an armed conflict is in existence so that the protective focus of international humanitarian law regarding the provision of medical care …

Conflict Free In The Drc, Sabrina Reyes

Santa Clara Journal of International Law

Conflict Free in the DRC

Applicability Of International Humanitarian Law To Non-State Actors, Dr. Waseem Ahmad Qureshi

Santa Clara Journal of International Law

Applicability of International Humanitarian Law to Non-State Actors