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Human Rights, Trans Rights, Prisoners’ Rights: An International Comparison, Tom Butcher

Northwestern Journal of Law & Social Policy

In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant …

Paradox Of Hierarchy And Conflicts Of Values: International Law, Human Rights, And Global Governance, Jootaek Lee

Northwestern Journal of Human Rights

In an international society, hierarchies are set up differently among different countries and societies based on different values, which are naturally conflicting and colliding with each other and result in unstable conditions. Is hierarchy really necessary in an international society? Does more hierarchical order in international society mean more peace? Do we need a supranational organization like the European Union whose laws can pierce state sovereignty and bind citizens of each member state? Does the United Nations need to be reformed to create an effective hierarchy, which will give international society more peace, security, and protection of human rights? This …

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

Northwestern University Law Review

No abstract provided.

The Penalties For Piracy: An Empirical Study Of National Prosecution Of International Crime, Eugene Kontorovich

Faculty Working Papers

This Article examines the sentences imposed by courts around the world in prosecutions of Somali pirates captured on the high seas. Somali piracy has become perhaps the highest-volume area of international criminal law by national courts. As with other international crimes, international law is silent on the subject of penalties. The large number of parallel prosecutions of offenders from a single international "situation" offers an empirical window into the interactions between international and national law in municipal courts; into factors affecting punishment for international crimes and the hierarchy of international offenses; and of course into potential concerns with the current …

The Multiple Roles Of International Courts And Tribunals: Enforcement, Dispute Settlement, Constitutional And Administrative Review, Karen J. Alter

Faculty Working Papers

This chapter is part of an upcoming interdisciplinary volume on international law and politics. The chapter defines four judicial roles states have delegated to international courts (ICs) and documents the delegation of dispute settlement, administrative review, enforcement and constitutional review jurisdiction to ICs based on a coding of legal instruments defining the jurisdiction of 25 ICs. I show how the design of ICs varies by judicial role and argue that the delegation of multiple roles to ICs helps explain the shift in IC design to include compulsory jurisdiction and access for nonstate actors to initiate litigation. I am interested in …

Discretion, Delegation, And Defining In The Constitution's Law Of Nations Clause, Eugene Kontorovich

Faculty Working Papers

Never in the nation's history has the scope and meaning of Congress's power to "Define and Punish. . . Offenses Against the Law of Nations" mattered as much. The once obscure power has in recent years been exercised in broad and controversial ways, ranging from civil human rights litigation under the Alien Tort Statue (ATS) to military commissions trials in Guantanamo Bay. Yet it has not yet been recognized that these issues both involve the Offenses Clauses, and indeed raise common constitutional questions.First, can Congress only "Define" offenses that clearly already exist in international law, or does it have discretion …

The Global Spread Of European Style International Courts, Karen J. Alter

Faculty Working Papers

Europe created the model of embedded international courts (IC), where domestic judges work with international judges to interpret and apply international legal rules that are also part of national legal orders. This model has now diffused around the world. This article documents the spread of European-style ICs: there are now eleven operational copies of the European Court of Justice (ECJ), three copies of the European Court of Human Rights, and a handful of additional ICs that use Europe's embedded approach to international law. After documenting the spread of European-style ICs, the article then explains how two regions chose European style …

The Relation Of Theories Of Jurisprudence To International Politics And Law, Anthony D'Amato

Faculty Working Papers

In this essay we shall be concerned with the real world relevance of theories of international law; that is, with the question of the theories themselves as a factor in international decision-making. To do this it is first necessary to review briefly the substance of the jurisprudential debate among legal scholars, then to view some basic jurisprudential ideas as factors in international views of "law," and finally to reach the question of the operative difference a study of these theories might make in world politics.

New Approaches To Customary International Law, Anthony D'Amato

Faculty Working Papers

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law.

After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.

Non-State Actors From The Perspective Of The Policy-Oriented School: Power, Law, Actors And The View From New Haven, Anthony A. D'Amato

Faculty Working Papers

Law needs Power for enforcement of its rules; Power utilizes Law for creating conditions of stability that enhance its salience. Yet when the New Haven school tries to include international law in its power-oriented view of international relations, it ends up with a misleading two-dimensional descriptivism.

Partisan Conflicts Over Presidential Authority, Jide Okechuku Nzelibe

Faculty Working Papers

A prevailing view in the legal and political science literature assumes that power holders seek to expand or contract their constitutional authority based on incentives that are intrinsic to the logic of the institutional offices they occupy. For instance, it is generally assumed that Presidents are empire builders who will almost always prefer maximum flexibility in shaping their policy objectives, whereas members of Congress may sometimes shirk their institutional prerogatives because of electoral incentives or collective action problems. A similar institutional logic underpins the view that federal courts will often seek to expand their interpretive authority in constitutional controversies at …

Whales: Their Emerging Right To Life, Anthony D'Amato, Sudhir K. Chopra

Faculty Working Papers

We have contended in this article that the evolution of the opinio juris of nations has encompassed five, and perhaps six, inexorable qualitative stages: free resource, regulation, conservation, protection, preservation and entitlement. We have argued that assigning whales an entitlement to life is the consequence of an emerging humanist right in international law — an example of the merging of the "is" and the "ought" of the law in the process of legitimization

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 tension …

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 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 existing …

International Law And Rawls' Theory Of Justice, Anthony D'Amato

Faculty Working Papers

The complexity of present-day international law stands in an uneasy relation to the scheme of justice propounded by Rawls. The problems facing international lawyers may pose a conceptual threat to some of the fundamental bases upon which Rawls builds his entire theoretical edifice.

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.

Legal And Moral Dimensions Of Churchill's Failure To Warn, Anthony D'Amato

Faculty Working Papers

Churchill had been given at least forty-eight hours' warning that Coventry would be hit. He could have warned the people of Coventry of the impending attack. Yet Churchill determined that any advance warning to the people of Coventry would have enabled the Germans to deduce that their top secret code had been broken. The coded intercepts provided evidence of the Holocaust in progress. Other ways to reveal information that could have by-passed the code system existed, thus providing warning to the public while maintaining a strategic advantage. The international law of genocide would have to develop to go beyond intentional …

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.

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.

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.

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 it …

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.

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 …

The Concept Of Special Custom In International Law, Anthony D'Amato

Faculty Working Papers

General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare, and so forth, apply equally to all states having occasion to be concerned with these areas. Similarly, the facts of a given case may suggest exclusively the application of general custom—such as cases concerning collision on the high seas between ships of different countries, cases involving general principles of international law, cases …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Faculty Working Papers

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The European Court’S Political Power Across Time And Space, Karen Alter

Faculty Working Papers

This article extracts from Alter's larger body of work insights on how the political and social context shapes the ECJ's political power and influence. Part I considers how the political context facilitated the constitutionalization of the European legal system. Part II considers how the political context helps determine where and when the current ECJ influences European politics. Part III draws lessons from the ECJ's experience, speculating on how the European context in specific allowed the ECJ to become such an exceptional international court. Part IV lays out a research agenda to investigate the larger question of how social support shapes …

International Responses To Territorial Conquest, Eugene Kontorovich

Faculty Working Papers

The prohibition on territorial conquest is a cornerstone of the international legal order. The United Nations Charter bans the use of force as a tool of international relations, even when used to rectify prior injustices. Thus territory taken by force has the status of ill-gotten gains, and cannot be kept by the victor. An important corollary is that third-party states cannot recognize the sovereignty of the conqueror or otherwise treat the acquisition as lawful.

Despite the Charter, nations sometimes acquire or try to acquire territory through force. This paper, part of the proceedings of the American Society of International Law's …

Why Is International Law Binding?, Anthony D'Amato

Faculty Working Papers

Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …

Courting Genocide: The Unintended Effects Of Humanitarian Intervention, Jide Nzelibe

Faculty Working Papers

Invoking memories and imagery from the Holocaust and other German atrocities during World War II, many contemporary commentators and politicians believe that the international community has an affirmative obligation to deter and incapacitate perpetrators of humanitarian atrocities. Today, the received wisdom is that a legalistic approach, which combines humanitarian interventions with international criminal prosecutions targeting perpetrators, will help realize the post-World War II vision of making atrocities a crime of the past. This Article argues, in contrast, that humanitarian interventions are often likely to create unintended, and sometimes perverse, incentives among both the victims and perpetrators of atrocities. The problem …