Law Commons^™

Functional Statehood In Contemporary International Law, William Thomas Worster

Brooklyn Journal of International Law

The international community lacks a form of territorial-based, international legal personality distinct from statehood, and yet, non-state, territorial entities of varying degrees of autonomy or independence need to function within the international community in some form. Some of these entities cannot be recognized as states because their creation violates jus cogens norms, though others are not recognized based on an assessment that they may not fully qualify as a state or that there are political reasons to refuse recognition. However, existing states still need to engage with these territorial quasi-states through the only paradigm the international community has—statehood. For example, …

The Amazon Ablaze: Are The Environmental Policies Of The Bolsanaro Administrative In Contravention Of Brazil’S Commitment To The Convention On Biological Diversity?, Jordan Johnson

Brooklyn Journal of International Law

In the Summer of 2019, the Amazonian Rainforest in Brazil experienced an unprecedented increase forest fires. This dramatic uptick in forest fires, according to environmental officials and scientists, is believed to have been caused by recent, rampant illegal deforestation of the Brazilian Amazonian Rainforest. Furthermore, some within the scientific community believe that the increased deforestation and ensuing forest fires are attributable to the anti-environmental protections and pro-development policies of Brazil's President, Jair Bolsonaro. Since taking office in January 2019, President Bolsonaro has publicly endorsed and encouraged deforestation of the Amazon as a means to spur economic development within Brazil. This …

Common Article 1 And The Duty To "Ensure Respect", Michael N. Schmitt, Sean Watts

International Law Studies

Common Article 1 to the four 1949 Geneva Conventions requires Parties to those instruments to “respect and to ensure respect for the present Convention in all circumstances.” The provision is a corollary to the general international legal obligation of States to honor their treaty commitments, expressed classically in the maxim pacta sunt servanda.

Yet, academics and private organizations now use Common Article 1 as a vehicle to reimagine States’ enforcement obligations under the Geneva Conventions. Reinterpreting the article beyond its original meaning, they claim the article includes an “external” obligation—a duty on the part of all States to use …

Autonomous Cyber Weapons And Command Responsibility, Russell Buchan, Nicholas Tsagourias

International Law Studies

Autonomous cyber weapons have made their way onto the battlefield, raising the question of whether commanders can be held criminally responsible under command responsibility when war crimes are committed. The doctrine of command responsibility has a long history in international criminal law and comprises three core elements: the existence of a superior-subordinate relationship, the commander’s knowledge of the crime, and the commander’s failure to prevent or repress the subordinate’s criminal actions. This article unpacks the content of these elements and applies them to autonomous cyber weapons by treating them as being analogous to soldiers since they operate within an organized …

The Human Dimension Of Peace And Aggression, Chiara Redaelli

International Law Studies

Since the adoption of the Charter of the United Nations, the current international legal framework has drastically changed. In its traditional understanding, aggression is “the supreme international crime” aimed at protecting sovereignty and the territorial integrity of states. On the other hand, the U.N. Charter endorses an understanding of peace in the negative sense, that is, as mere absence of war. As human rights have gained momentum, they have helped reshape the legal landscape, a phenomenon referred to as the humanization of international law. How do peace and aggression fit within the humanized legal framework? This article will investigate the …

"If Consent Is Bought, It Is Not Freely Chosen": Compromised Consent In Prostituted Sex In Ireland, Ivana Bacik

Dignity: A Journal of Analysis of Exploitation and Violence

This article offers feminist arguments for the reconsideration of consent as a legal concept, informed by insights gained through the work of the #MeToo movement and other feminist campaigns. It suggests that consent may be seen as legally compromised in certain contexts of structured gender inequality, such as domestic violence, workplace sexual harassment, and prostitution. The legal understanding of consent in such contexts is antithetical to the conception of consent as “freely and voluntarily” given within a mutual sexual relationship. This understanding of consent underpins the recent introduction of the Nordic model approach into Irish law through the Criminal Law …

Global Apathy And The Need For A New, Cooperative International Refugee Response, Emily Gleichert

Northwestern Journal of Law & Social Policy

While an increasing number of nations move toward isolationist, nationalist policies, the number of refugees worldwide is climbing to its highest levels since World War II. The United Nations High Commissioner for Refugees (UNHCR) is the international body tasked with protecting this population. However, the office’s traditional solutions for refugees – local integration, resettlement in a third country, and voluntary repatriation – have mostly eluded refugees who spend an average of twenty years in exile. The limitations UNHCR’s structure imposes on the office, specifically in its ability to fund its operations and compel nations to act, have contributed to its …

Survivor: An Analysis Of The Term From India, Pravin Patkar

Dignity: A Journal of Analysis of Exploitation and Violence

This article discusses the need for greater conceptual clarity of the term survivor. It raises questions about the propriety of the term to refer to the victims of sex trafficking. It points out that in the Indian context, the term victim is legally and operationally defined. It cautions against the hasty incorporation of the term survivor into public policies addressing the trafficked victims' problems. Different social platforms use the term survivor differently, and the difference is not nominal. The use of the term survivor is both casual as well as intentional. The term survivor trivializes the exploitation and makes invisible …

Autonomy And Precautions In The Law Of Armed Conflict, Eric Talbot Jensen

International Law Studies

Already a controversial topic, legal debate and broader discussions concerning the amount of human control required in the employment of autonomous weapons—including autonomous cyber capabilities—continues. These discussions, particularly those taking place among States that are Parties to the 1980 Certain Conventional Weapons Convention, reveal a complete lack of consensus on the requirement of human control and serve to distract from the more important question with respect to autonomy in armed conflict: under what conditions could autonomous weapons “select” and “attack” targets in a manner that complies with the law of armed conflict (LOAC).

This article analyzes the specific LOAC rules …

Irreconcilable Differences: The Thresholds For Armed Attack And International Armed Conflict, Laurie R. Blank

Notre Dame Law Review

This Article explores the gap between the definition of armed attack and the threshold for international armed conflict to identify such possible consequences of the different definitions for the application of either or both bodies of law and to consider whether efforts to reconcile the different meanings are feasible and, more importantly, desirable or problematic. The first Part briefly presents the definition of armed attack and the threshold for international armed conflict, with a focus on the purpose of the particular thresholds and definitions for the two terms in order to provide a foundation for the main comparisons and discussion …

The Interplay Of International Obligations Connected To The Conduct Of Others: Toward A Framework Of Mutual Compliance Among States Engaged In Partnered Warfare, Berenice Boutin

International Law Studies

This article examines international obligations that arise in relation to the conduct of other States, and analyzes how they apply and interact in the context of partnered warfare. It investigates rules of State responsibility relevant to the context of partnered warfare, as well as primary norms that impose obligations connected to the conduct of others. In essence, they consist of obligations not to actively help to or to blindly let others do what a State would not do itself. It is argued that, taken together, these rules form the contour of an overarching framework of mutual compliance among States cooperating …

Will Cyber Autonomy Undercut Democratic Accountability?, Ashley Deeks

International Law Studies

In recent years, legislative bodies such as the U.S. Congress and the U.K. Parliament have struggled to maintain a role for themselves in government decisions to conduct military operations against foreign adversaries. Some of these challenges arise from constitutional structures, but they are also due to the changing nature of conflict: a shift away from large-scale kinetic operations and toward smaller-scale operations—including cyber operations—that are less visible and that do not require robust legislative support. These modern operations leave legislatures to engage in ex post and sometimes ineffective efforts to hold their executive branches accountable for international uses of force …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Autonomous Cyber Capabilities Below And Above The Use Of Force Threshold: Balancing Proportionality And The Need For Speed, Peter Margulies

International Law Studies

Protecting the cyber domain requires speedy responses. Mustering that speed will be a task reserved for autonomous cyber agents—software that chooses particular actions without prior human approval. Unfortunately, autonomous agents also suffer from marked deficits, including bias, unintelligibility, and a lack of contextual judgment. Those deficits pose serious challenges for compliance with international law principles such as proportionality.

In the jus ad bellum, jus in bello, and the law of countermeasures, compliance with proportionality reduces harm and the risk of escalation. Autonomous agent flaws will impair their ability to make the fine-grained decisions that proportionality entails. However, a …

Special Rules Of Attribution Of Conduct In International Law, Marko Milanovic

International Law Studies

Are there are any special rules of attribution in international law? Are there, in other words, imputational rules that are not recognized as such in general international law, but are specific to particular branches of international law? This is the first article to systematically analyze the notion of special rules of attribution in international law. In particular, it searches for such rules in international humanitarian law, the law on the use of force, and European human rights law.

The article argues that, to the extent special rules of attribution exist, they are rare and never uncontroversial. In most situations, putative …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Lethal Autonomous Weapon Systems: Translating Geek Speak For Lawyers, Linell A. Letendre

International Law Studies

This article provides an overview of robotics and autonomous systems so that attorneys can better understand the systems and design principles of lethal autonomous weapon systems (LAWS) that may be used in an armed conflict. Using the lens of establishing a common language between engineers and attorneys, the article introduces the basics of robotics terminology, explores how autonomous systems work by explaining control systems and control architecture, and examines how autonomous systems learn and reason. It also suggests a number of questions attorneys should ask engineers during the design process in order to ensure autonomous systems are designed in a …

A Radiographic Analysis Of Compliance With The Decisions Of The Inter-American Court Of Human Rights, Max Silva Abbott

ILSA Journal of International & Comparative Law

This study examines the compliance level of all Inter-American Court of Human Rights judgments until December 31, 2018. The paper contrasts the data on implementation with the majority narrative regarding the degree of influence that the Inter-American Court has in protecting human rights. It also includes an Annex listing all court cases and judgments until December 2018 (Judgements on Merits, Complementary Judgments, Provisional Measures, Monitoring Compliance with Judgment and Reimbursement), and their corresponding implementation status (full compliance, partial compliance, unfulfilled, pending).

Protecting The Flores And Hutto Settlements: A Look At The History Of Migrant Children Detention And Where Immigration Policies Are Headed, Megan Kauffman

Immigration and Human Rights Law Review

The Flores and Hutto settlement agreements established basic standards the government must meet when detaining minor children. This comment discusses the history and importance of the Flores and Hutto agreement and the current administration’s attempt to limit and circumvent both agreements.

Increasing Case Traffic: Expanding The International Criminal Court's Focus On Human Trafficking Cases, Nadia Alhadi

Michigan Journal of International Law

Human trafficking falls within the jurisdictional competence of the International Criminal Court (“ICC”) as one of the article 7 crimes against humanity, whether committed in an atmosphere of conflict or in times of relative peace. Despite the ICC’s jurisdiction, as well as the globally pervasive nature of peacetime trafficking in particular, the ICC has not yet heard a human trafficking case.

Accountability at the international level, however, is crucial, and the ICC’s oversight has the potential to fill gaps in the current anti-trafficking regime. This note explores this potential, and then examines whether the text of the Rome Statute or …

The Dangers Of Humanitarian Intervention And The Responsibility To Protect Doctrine, And A Partial Solution, Matthew Bellinger

Indiana Journal of Global Legal Studies

When the United Nations (UN) was formed, one of its most important goals was to render war obsolete. The UN Charter states as a goal the hope to "save succeeding generations from the scourge of war." When President Franklin D. Roosevelt first described his vision for a post-World War II international organization, he envisioned an organization that would promote and facilitate "international cooperation . . . to consider and deal with the problem of world relations." He also wanted a council that would "concern itself with peaceful settlement of international disputes." The UN Charter itself took the then-unprecedented step of …

Nazi-Confiscated Art: Eliminating Legal Barriers To Returning Stolen Treasures, Stephanie J. Beach

Loyola of Los Angeles Law Review

World War II ended over three-quarters of a century ago, but there still remain prisoners of war. Before and during the war, the Nazis confiscated approximately 650,000 works of art—an “art theft” orchestrated by Adolf Hitler to rid society of Jewish art and artists and to collect worthy works to build his own art capital. Seventy-five years later, looted Holocaust-era artworks are still either undiscovered or in the possession of museums across the globe without proper ownership attribution or payment to Holocaust survivors or their heirs. There are modern remedies, such as the 1998 Washington Conference on Holocaust Era Assets, …

Consensus Statement From The Santa Cruz Summit On Solitary Confinement And Health

Northwestern University Law Review

No abstract provided.

Human Supremacy As Posthuman Risk, Daniel Estrada

The Journal of Sociotechnical Critique

Human supremacy is the widely held view that human interests ought to be privileged over other interests as a matter of ethics and public policy. Posthumanism is the historical situation characterized by a critical reevaluation of anthropocentrist theory and practice. This paper draws on animal studies, critical posthumanism, and the critique of ideal theory in Charles Mills and Serene Khader to address the appeal to human supremacist rhetoric in AI ethics and policy discussions, particularly in the work of Joanna Bryson. This analysis identifies a specific risk posed by human supremacist policy in a posthuman context, namely the classification of …

Complicity In The Perversion Of Justice: The Role Of Lawyers In Eroding The Rule Of Law In The Third Reich, Cynthia Fountaine

St. Mary's Journal on Legal Malpractice & Ethics

A fundamental tenet of the legal profession is that lawyers and judges are uniquely responsible—individually and collectively—for protecting the Rule of Law. This Article considers the failings of the legal profession in living up to that responsibility during Germany’s Third Reich. The incremental steps used by the Nazis to gain control of the German legal system—beginning as early as 1920 when the Nazi Party adopted a party platform that included a plan for a new legal system—turned the legal system on its head and destroyed the Rule of Law. By failing to uphold the integrity and independence of the profession, …

The Changing Face Of Terrorism And The Designation Of Foreign Terrorist Organizations, Patrick J. Keenan

Indiana Law Journal

In this Article, I take up one slice of what should be a broad re-examination of

U.S. law and policy. I argue that the new attacks have been undertaken by entities

that can and should be designated as foreign terrorist organizations. Doing this would

permit prosecutors to target those who support these entities with tools that are not

currently available. This Article is both a doctrinal argument that directly addresses

the many legal hurdles that make designating groups, such as foreign hackers and

troll farms, terrorist organizations a complicated endeavor, and a policy argument

about how U.S. law and policy …

Beyond Human Shielding: Civilian Risk Exploitation And Indirect Civilian Targeting, Geoffrey S. Corn

International Law Studies

Few violations of the law of armed conflict (LOAC) are as pernicious as using civilians to shield military objectives from attack. This unlawful tactic unfortunately seems to be an all too common practice of organized armed groups, especially in conflicts against tactically superior conventional state armed forces. The very term "human shielding" presupposes, however, the ultimate objective is to prevent an opponent from attacking the shielded military objective or, in the alternative, substantially complicate that attack decision. But is a shielding effect always the ultimate objective of such civilian exploitation? This article argues that the answer is no; that there …

Strategic Proportionality: Limitations On The Use Of Force In Modern Armed Conflicts, Noam Lubell, Amichai Cohen

International Law Studies

The nature of modern armed conflicts, combined with traditional interpretations of proportionality, poses serious challenges to the jus ad bellum goal of limiting and controlling wars. In between the jus ad bellum focus on decisions to use force, and the international humanitarian law (IHL) regulation of specific attacks, there is a far-reaching space in which the regulatory role of international law is bereft of much needed clarity. Perhaps the most striking example is in relation to overall casualties of war. If the jus ad bellum is understood as applying to the opening moments of the conflict, then it cannot provide …

Holocaust, Genocide, And The Law: A Quest For Justice In A Post-Holocaust World By Michael J. Bazyler, Irina Samborski

Osgoode Hall Law Journal

LAW IS COMMONLY THOUGHT OF as an antidote to genocide rather than its facilitator. In Holocaust, Genocide, and the Law, Professor Michael Bazyler of Chapman University’s Fowler School of Law refutes the notion that the Holocaust was an extralegal event—instead, he isolates the law as the preferred instrument of wholesale murder and destruction. The book traces the long shadow that the Holocaust has cast on the contemporary corpus of international law and many legal systems across the world. While it tells the unfolding catastrophe of the Holocaust as a legal history, the book considers the legal triumphs that followed the …

Implementing Undrip In Canada: Any Role For Corporations?, Basil Ugochukwu

The Transnational Human Rights Review

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) offers guidance on how the rights of indigenous populations could be protected in the context of member states of the United Nations. While the Declaration prescribes what states need to do to effectively realize its objective, question is whether there are expectations on non-state actors such as corporations to contribute towards attaining those objectives. Though on the one hand the UNDRIP is textually not directed at corporations, on the other hand, corporations are routinely implicated in environments where massive violations of indigenous rights have occurred in various regions of …