Digital Commons Network^™

Enforcing Human Rights In U.S. Courts And Abroad: The Alien Tort Statute And Other Approaches, John B. Bellinger, Iii

Vanderbilt Journal of Transnational Law

U.S. foreign policy--under every Administration--involves promoting respect for human rights around the world. Most of you probably know that the State Department spends a great deal of time and effort abroad, persuading foreign governments to change their human rights behavior and administering programs to advance the cause of human rights. What many of you may not be aware of, though, is that we are now quite frequently occupied "domestically" with suits by foreign plaintiffs in U.S. courts--often arising from conduct that occurred in other countries and has no significant connection to the U.S., that may not be consistent with our …

Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen

Vanderbilt Journal of Transnational Law

Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect …

The Kosovo Crisis: A Dostoievskian Dialogue On International Law, Statecraft, And Soulcraft, Robert J. Delahunty, Antonio F. Perez

Vanderbilt Journal of Transnational Law

The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in international law that began with NATO's 1999 intervention in Kosovo. NATO'S intervention called into question the authority and viability of the UN Charter system for maintaining international peace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt another blow to the post-War legal rules and institutions for controlling and mitigating great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for destabilizing the international …

You Get What You Pay For?: Rethinking U.S. Organ Procurement Policy In Light Of Foreign Models, J. Andrew Hughes

Vanderbilt Journal of Transnational Law

The U.S. organ transplant system is in crisis due to the paucity of transplantable organs. Such a shortage exists because otherwise viable organs are too often buried along with the bodies in which they reside. Organs are wasted because the existing U.S. organ transplant system sets up barriers to organ donation--chiefly the legal presumption of unwillingness to donate ("voluntary donation') and the National Organ Transplant Act's ban on the transfer of organs for valuable consideration. This Note surveys the qualified successes of Austria, Belgium, Brazil, and France with their various "presumed consent" models of organ procurement. It also considers other …

A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares

Vanderbilt Journal of Transnational Law

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends Case Type, Party Identity, Income Level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased …

The Millennium Challenge Account: Influencing Governance In Developing Countries Through Performance-Based Foreign Aid, Rebecca Stubbs

Vanderbilt Journal of Transnational Law

The United States actively impacts the legal and political environments of developing countries through the Millennium Challenge Account (MCA). This new approach to foreign development aid presents both an incredible opportunity to encourage good governance as well as a serious danger of U.S. political agendas manipulating foreign aid to serve partisan interests. The MCA should seek to develop a nonpartisan strategy and focus primarily on pure rule of law, governance, and political freedom indicators and programming in order to maintain its current successes in improving the legal and policy environment of developing countries competing for MCA funding.

The direction and …

Striking A Sensible Balance On The Legality Of Defensive First Strikes, David A. Sadoff

Vanderbilt Journal of Transnational Law

This Article seeks to develop a clear and sensible legal standard governing defensive first strikes writ large in inter-state conflicts. Imprecise or improperly gauged legal parameters can contribute to an increased risk of hostilities, whether due to abuse, error, or even reasoned calculation. The implications of such conduct for states and their populations alike can be enormous. Although many proposals posit constructive guideposts for such a standard, they tend to be either abstract in structure or limited in material application. This Article sets forth a legal standard that aims to be simultaneously systematic in approach, comprehensive in scope, and functional …

Treaty Bodies And The Interpretation Of Human Rights, Kerstin Mechlem

Vanderbilt Journal of Transnational Law

The eight United Nations human rights treaty bodies play an important role in establishing the normative content of human rights and in giving concrete meaning to individual rights and state obligations. Unfortunately, their output often suffers from methodological weaknesses and lack of coherence and analytical rigor, which compromise its legitimacy.

This Article suggests that these deficits could in large part be addressed if the committees applied the customary legal rules of interpretation codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (Vienna Convention), which requires attention to the text, context, and object and purpose …

International Legal Responses To Kosovo's Declaration Of Independence, Jure Vidmar

Vanderbilt Journal of Transnational Law

On February 17, 2008, Kosovo declared independence. As of March 6, 2009, fifty-six states have recognized Kosovo's independence, while a number of states maintain that Kosovo's declaration of independence is illegal. There is no specific resolution calling for nonrecognition, yet whether an obligation of nonrecognition stems from UN Security Council Resolution 1244 is a highly disputed issue.

Resolution 1244 established an international territorial administration, affirmed Serbia's territorial integrity, and called for a political process leading to settlement of Kosovo's future status. Unlike in East Timor, the political process in Kosovo did not result in a prenegotiated path to independence, confirmed …

Targeting Enemy Forces In The War On Terror: Preserving Civilian Immunity, Richard D. Rosen

Vanderbilt Journal of Transnational Law

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media) provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it allows terrorist and insurgent groups to gain strategic and tactical advantages through their own noncompliance with the law and their adversaries' observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This Article proposes structural changes to the law governing targeting …

The Emperor Is Still Naked: Why The Protocol On The Rights Of Women In Africa Leaves Women Exposed To More Discrimination, Kristin Davis

Vanderbilt Journal of Transnational Law

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa entered into force in 2005. Met with much celebration for the protection it would provide African women, the Protocol was heralded as one of the most forward-looking human rights instruments. Now, fifteen years after it was conceived, the Protocol deserves a full assessment of the issues that it has faced in accession and will face in implementation. This Note analyzes the way in which the Protocol was developed and the effect the Protocol's language will have on its ability to achieve its …

Replacing Slingshots With Swords: Implications Of The Antigua-Gambling 22.6 Panel Report For Developing Countries And The World Trading System, Georgia Hamann

Vanderbilt Journal of Transnational Law

In December 2007, the WTO awarded Antigua the right to suspend TRIPS obligations at a value of $21 million. This decision represents the WTO's continuing evolution into a body capable of addressing the concerns of developed countries while balancing the legitimate interests of developed nations. For the second time, the WTO has authorized suspension of intellectual property protection under the TRIPS agreement. Such a remedy, if widely adopted, has the capacity to address concerns surrounding effective retaliation by small economies versus large economies, which traditionally have discouraged developing countries from participating in WTO dispute resolution. Additionally, the remedy seems likely …

The Arctic: An Opportunity To Cooperate And Demonstrate Statesmanship, Dr. Hans Corell

Vanderbilt Journal of Transnational Law

The Article discusses in four distinct parts disputes relating to maritime boundaries in the Arctic; "gaps" in the legal regime in the Arctic; environmental and security concerns; and the administration of the Arctic.

Regarding the first item, the Article maintains that the point of departure is that the United Nations Convention on the Law of the Sea applies also in the Arctic. Overlapping claims by the coastal states are perfectly legitimate and thus should not be dramatized. What matters is how such differences are resolved.

Referring to suggestions that there are "gaps" in the Arctic legal regime and that a …

Arctic Warming: Environmental, Human, And Security Implications, Mary B. West

Vanderbilt Journal of Transnational Law

Arctic warming has myriad implications for the Arctic environment, residents, and nations. Although definitive predictions are difficult, without question the scope and rapidity of change will test the adaptive capacities of the Arctic environment as well as its residents. Warming is affecting marine ecosystems and marine life, terrestrial ecosystems, and the animals and people who depend on them. Human impacts include effects on access to food and resources; health and well being; and community cohesion, traditions, and culture. Increased shipping and resource activity create the need for additional maritime presence and security; better environmental and safety regulations; peaceful resolution of …

Judicial And Arbitral Proceedings And The Outer Limits Of The Continental Shelf, John E. Noyes

Vanderbilt Journal of Transnational Law

This Article explores when international third-party dispute settlement forums may hear cases concerning the outer limits of a continental shelf beyond 200 nautical miles from baselines. The 1982 Convention on the Law of the Sea articulated determinate rules for establishing those limits and created an institution--the Commission on the Limits of the Continental Shelf--to make recommendations concerning them. Limits set by coastal states "on the basis of" such recommendations "shall be final and binding." Yet the Law of the Sea Convention's third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans.

International …

International Security And International Law In The Northwest Passage, James Kraska

Vanderbilt Journal of Transnational Law

Concern over the loss of sea ice has renewed discussions over the legal status of the Arctic and subarctic transcontinental maritime route connecting the Atlantic and Pacific Oceans, referred to as the "Northwest Passage." Over the past thirty years, Canada has maintained that the waters of the Passage are some combination of internal waters or territorial seas. Applying the rules of international law, as reflected in the 1982 United Nations Law of the Sea Convention, suggests that the Passage is a strait used for international navigation. Expressing concerns over maritime safety and security, recognition of northern sovereignty, and protection of …

Who Controls The Northwest Passage?, Michael Byers, Suzanne Lalonde

Vanderbilt Journal of Transnational Law

From Martin Frobisher in 1576 to John Franklin in 1845, generations of European explorers searched for a navigable route through the Arctic islands to Asia. Their greatest challenge was sea-ice, which has almost always filled the straits, even in summer. Climate change, however, is fundamentally altering the sea-ice conditions: In September 2007, the Northwest Passage was ice-free for the first time in recorded history. This Article reviews the consequences of this development, particularly in terms of the security and environmental risks that would result from international shipping along North America's longest coast. It analyzes the differing positions of Canada and …

Treason In The Age Of Terrorism: An Explanation And Evaluation Of Treason's Return In Democratic States, Kristen E. Eichensehr

Vanderbilt Journal of Transnational Law

Treason is an ancient crime, but it fell into disuse in most Western democratic states after World War I. Now it is making a comeback with prosecutions or threatened prosecutions against a new type of enemy--accused terrorists--in the United States, the United Kingdom, and Israel. In the postwar period, commentators wrongly argued that treason would no longer be prosecuted because it is antiliberal, too difficult to prove, unnecessary because modern democracies are stable and secure, and premised on an extinct sense of loyalty to the state. This Article begins by debunking these claims and explaining treason's recent reappearance. First, democratic …

Nafta Cross-Border Trucking: Mexico Retaliates After Congress Stops Mexican Trucks At The Border, Chad Macdonald

Vanderbilt Journal of Transnational Law

The North American Free Trade Agreement (NAFTA) entitles Mexican tractor-trailers to enter the U.S. to deliver cargo from Mexico. In spite of NAFTA, the U.S. has only allowed Mexican trucks to operate in the U.S. during a controversial demonstration project that granted U.S. operating licenses to a select number of Mexican trucks during the Bush administration. The dispute over NAFTA's cross-border trucking provisions climaxed on March 16, 2009, when Mexico imposed $2.4 billion in retaliatory tariffs on U.S. imports in response to U.S. noncompliance.

This Note chronicles the U.S.-Mexico cross-border trucking dispute and argues that the U.S. should re-start a …

"Shelter Chic": Can The U.S. Government Make It Work?, Kristina R. Montanaro

Vanderbilt Journal of Transnational Law

This Note discusses government donations of seized counterfeit goods to charitable institutions and the implications of these practices. The Customs and Border Protection (CBP) contributions to the Red Cross for the Hurricane Katrina relief effort serve as a backdrop for important concepts. In making these contributions, the CBP relied on its emergency authority and a presidential proclamation to avoid basic statutory requirements that it (a) obtain consent from the right holders and (b) de-trademark counterfeit goods prior to donation. While the donations inarguably benefitted countless disaster victims and freed up valuable CBP warehouse space, they may have had a detrimental …

The Crisis Of International Law, Rafael Domingo

Vanderbilt Journal of Transnational Law

This Article delves into the reasons for the current crisis in the traditional international law system, considering how the system developed through the centuries in order to respond to the needs and circumstances of past historical epochs, as well as how the system is no longer capable of meeting the unique developments and needs of life in the Third Millennium. The Article considers the fundamental problems of a state-based system of international law that--rather than focusing on the prime actor and focus of the law, the human person, and his inherent dignity--concentrates on and gives enormous power to the artificial …

Eu Law, International Law And Economic Sanctions Against Terrorism: The Judiciary In Distress?, P. Takis Tridimas

Faculty Scholarship

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organizations in pursuance of UN Security Council (UNSC) Resolutions seeking …

Restating The U.S. Law Of International Commercial Arbitration, Catherine A. Rogers

Faculty Scholarship

In December 2007, the American Law Institute ("ALI") approved the development of a new Restatement, Third, of the U.S. Law of International Commercial Arbitration (the "Restatement"). On February 23, 2009, the Restaters and authors of this Essay presented a Preliminary Draft of a chapter of the Restatement (the "Draft") at an invitational meeting in New York. The Draft addresses Recognition and Enforcement of Arbitral Awards. This brief Essay provides some reflections of the Reporters from the process of producing and presenting the Draft. Subsequent Drafts have been produced and approved by the ALI.

Courts, Clergy, And Congregations: Disputes Between Religious Institutions And Their Leaders, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For nearly forty years, the courts have barred a variety of lawsuits by clergy against their religious entity-employers. These suits frequently involve matters of civil rights, such as sex-based discrimination in employment, but they also involve claims of defamation, violation of fair labor standards, and breach of employment contracts, among others. To justify the barriers to these suits, courts typically rely on concepts drawn from the First Amendment's Religion Clauses. In particular, courts frequently invoke theories of free exercise of religion by religious institutions, or notions of "excessive entanglement" between church and state, to justify this line of case law. …

The Dark Side Of Universal Banking: Financial Conglomerates And The Origins Of The Subprime Financial Crisis, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Since the subprime financial crisis began in mid-2007, banks and insurers around the world have reported $1.1 trillion of losses. Seventeen large universal banks account for more than half of those losses, and nine of them either failed, were nationalized, or were placed on government-funded life support. Central banks and governments in the U.S., U.K. and Europe have provided $9 trillion of support to financial institutions to prevent the collapse of global financial markets.

Given the massive losses suffered by universal banks, and the extraordinary governmental assistance they have received, they are clearly the epicenter of the global financial crisis. …

Outsourcing Immigration Compliance, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

Immigration is a hot button issue about which Americans have sent a clear message. They prefer not to admit more aliens until the government is able to credibly screen for entrants who will abide by the terms of admission and sanction those who do not. While immigration debates now focus almost entirely on undocumented workers, they have overshadowed another critical, yet poorly understood challenge: designing institutions to properly screen for aliens who are visa-compliant and sanction non-compliant aliens. Because failed guest worker programs unquestionably increase the size of the undocumented population, this article addresses the difficulty of institutional design by …

The Transformation Of Originality In The Progressive-Era Debate Over Copyright In News, Robert Brauneis

GW Law Faculty Publications & Other Works

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American …

Cultural Cognition Of The Risks And Benefits Of Nanotechnology, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

We conducted an experimental public opinion study of the effect of balanced information on nanotechnology risk-benefit perceptions. The study found that subjects did not react in a uniform, much less a uniformly positive manner, but rather polarized along lines consistent with cultural predispositions toward technological risk generally.

What Do We Owe Future Generations?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

In the United States, it is common for legal scholars, economists, politicians and others to claim that we are selfishly harming "our children and grandchildren" by (among many other things) running large government budget deficits. This article first asks two broad questions: (1) Do we owe future generations anything at all as a philosophical matter? and (2) If we do owe something to future generations, how should we balance their interests against our own? The short answers are "Probably" and "We really are not sure."

Finding only general answers to these general questions, I then look specifically at U.S. fiscal …

Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan

GW Law Faculty Publications & Other Works

As part of the George Washington Law Review's symposium "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century," participants discussed the nature of intergenerational obligations as they relate to fiscal policy. The panelists reached consensus that intergenerational justice is not an appropriate lens through which to analyze fiscal issues, because there is no obvious starting point from which to build a moral consensus about whether current generations owe anything at all to future generations, much less how to quantify any such obligation. In addition, even pessimistic forecasts indicate that future generations will …