Law Commons^™

Talking Foreign Policy: Responding To Rogue States, Milena Sterio, Todd F. Buchwald, James Johnson, Michael P. Scharf, Paul R. Williams

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ambassador: …

The Trump Administration And The International Criminal Court: A Misguided New Policy, Milena Sterio

Law Faculty Articles and Essays

In a recent speech, National Security Advisor John Bolton delivered remarks on "Protecting American Constitutionalism and Sovereignty from International Threats." In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court). According to Bolton, the ICC "has been ineffective, unaccountable, and indeed, outright dangerous." While Bolton and others in the Trump Administration are at liberty to craft new policies, it is important that such policies be based on accurate facts and an accurate understanding of the law.

This Article highlights factual errors from Bolton's remarks and criticizes some of his arguments as misguided and …

Talking Foreign Policy: North Korea Summit, Milena Sterio, Shannon French, Tim Webster, Paul R. Williams, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by the Dean of Case Western Reserve University School of Law, Michael Scharf, in which experts discuss important foreign policy issues.The purpose of the radio show is to cover some of the most salient foreign policy topics and discuss them in a way that can make it easier for listeners to grasp.

Talking Foreign Policy is recorded in the WCPN 90.3 Ideastream studio, Cleveland's NPR affiliate. Michael Scharf is joined each session with a few expert colleagues known for their ability to discuss complex topics in an easy-to-digest manner:

• The ethicist: …

Talking Foreign Policy: Jesner V. Arab Bank, Milena Sterio, Thomas Buergenthal, Carsten Stahn, Avidan Cover, Timothy Webster, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Judge Thomas Buergenthal, the youngest survivor of the Auschwitz death camp, who went on to become the Dean of American University Law School, to serve for twelve years as a judge on the Inter-American Court of Human Rights, and then …

Corporate Liability For Human Rights Violations: The Future Of The Alien Tort Claims Act, Milena Sterio

Law Faculty Articles and Essays

This paper addresses complex legal issues in light of and in the context of Jesner v. Arab Bank, a case involving the scope of corporate liability for human rights abuses under the Alien Tort Claims Act (ATCA). Part I provides a brief overview of the Jesner case. Part II outlines the case Kiobel v. Royal Dutch Petroleum Co. and its holding. Part III discusses Kiobel's shortcomings, including the vagueness of its "touch and concern" test and its failure to specify which law—international or domestic—applies to the issue of corporate liability under the ATCA. Part IV then proposes other …

Sequencing Peace And Justice In Syria, Milena Sterio

Law Faculty Articles and Essays

Since 2011, the conflict in Syria has caused the death of hundreds of thousands of individuals and the displacement of millions. Efforts to refer the Syrian situation to the International Criminal Court (ICC) have consistently failed despite well-documented reports about the commission of serious crimes in Syria, including the use of chemical weapons against civilians, torture, the use of child soldiers, and crimes of sexual violence.

This Article explores whether the dual goals of peace and justice can be reconciled in the Syrian context and how these goals may be properly sequenced in order to potentially achieve long-lasting peace in …

The Hague Working Group On Space Resources: Creating The Legal Building Blocks For A New Industry, Mark J. Sundahl, Chelsey Davis

Law Faculty Articles and Essays

Given the inherently international (or more accurately, extranational) nature of asteroid mining, an international discussion has also arisen at the United Nations and other fora. In order to prepare the way for the future regulation of space resource extraction, The Hague Space Resources Governance Working Group (Working Group) was created to develop so-called "building blocks" for use in the construction of a future legal framework governing mining activities. This "legal framework" may take the form of a treaty, but it is more likely to be a soft form of international law, such as a U.N. resolution, or a model domestic …

The Duty To Charge In Police Use Of Excessive Force Cases, Rebecca Roiphe

Cleveland State Law Review

Responding to the problems of mass incarceration, racial disparities in justice, and wrongful convictions, scholars have focused on prosecutorial overcharging. They have, however, neglected to address undercharging—the failure to charge in entire classes of cases. Undercharging can similarly undermine the efficacy and legitimacy of the criminal justice system. While few have focused on this question in the domestic criminal law context, international law scholars have long recognized the social and structural cost for nascent democratic states when they fail to charge those responsible for the prior regime’s human rights abuses. This sort of impunity threatens the rule of law and …

Foreign Corrupt Practices Act Statistics, Theories, Policies, And Beyond, Mike Koehler

Cleveland State Law Review

The Foreign Corrupt Practices Act (FCPA) is not a new law; it was enacted in 1977. Nevertheless, 2015 was a commemorative year, as it marked the fifth anniversary of the Department of Justice declaring a “new era” of FCPA enforcement, the fifth anniversary of Congressional FCPA reform hearings, and the third anniversary of the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) issuing FCPA guidance. In addition to these mileposts, 2015 was also a notable year in several other respects as highlighted in this article.

This article, part of an annual series, paints a picture of FCPA and …

Talking Foreign Policy: Art, Diplomacy And Accountability, Milena Sterio, Mark Ellis, Shannon French, Bill Schabas, Paul R. Williams, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Paul R. Williams, President and cofounder of the Public International Law & Policy Group, who has advised parties to treaty negotiations around the world
• Mark Ellis, Executive Director of the International Bar Association
• Bill Schabas, a professor at Middlesex University …

Year In Review Lecture, Milena Sterio

Law Faculty Articles and Essays

No abstract provided.

The Karadžić Genocide Conviction: Inferences, Intent, And The Necessity To Redefine Genocide, Milena Sterio

Law Faculty Articles and Essays

This Article first discusses and analyzes the Genocide Convention and its strict definition of genocide and the "intent" requirement. It then focuses on the evolution of this definition in light of the recent Karadžić case. This Article demonstrates that in modern-day conflicts, the finding of genocidal intent may be an impossible task for the prosecution and that the ICTY Trial Chamber’s method of inferring intent based on knowledge and other indirect factors may be the only way that prosecutors will be able to obtain future genocide convictions. This Article then discusses a possible re-drafting and re-conceptualizing of the genocide definition …

Individual Criminal Responsibility For The Destruction Of Religious And Historic Buildings: The Al Mahdi Case, Milena Sterio

Law Faculty Articles and Essays

Ahmad Al Faqi Al Mahdi, also known as Abou Tourab, was a member of the radical Islamic group Ansar Eddine, serving as one of four commanders during its brutal occupation of Timbuktu in 2012. The International Criminal Court (ICC) indicted Al Mahdi on several charges of war crimes for intentional attacks against ten religious and historic buildings and monuments. All the buildings that Al Mahdi was charged with attacking had been under UNESCO protection and most had been listed as world heritage sites.

The case against Al Mahdi at the ICC unfolded relatively quickly and efficiently, from the official Malian …

Mitigating Cyber Risk In It Supply Chains, Maureen Wallace

Global Business Law Review

This note argues that the United States needs to utilize current federal agencies to begin introducing cyber supply chain risk management regulation for IT supply chains. Cyber supply chain risk management is a critical area of cybersecurity that has barely been recognized by the United States government. The globalization of the digital world has introduced a new spectrum of risk management issues that affect the products exchanged by businesses and consumed by individuals and government agencies. While there have been some initiatives toward the promotion of tighter cybersecurity regulation, most initiatives only concern the public sector, leaving the private sector …

How New York Investors Financed The Looting Of Syria, Ukraine, And Iraq: The Need To Increase Civil Liabilities For "Current Possessors" Of Stolen Antiquities In The 21st Century, Lukas Padegimas

Global Business Law Review

This note argues that the U.S. should pass its own self-policing legislation that will make it less enticing for thieves to try to sell stolen antiquities to the U.S. market. Our world heritage is under threat from undeterred looting, which results in antiquities vanishing from museum storerooms and archeological sites before ending up in the storerooms of investors. Currently, source nations that attempt to have stolen antiquities returned are deterred by the high legal costs involved. As the biggest market for stolen cultural property, states within the U.S. should amend current replevin laws so that the possessors of stolen cultural …

Replacing Havoc: Creating Rules For Sovereign Default, Edward J. Kelley

Cleveland State Law Review

Sovereign debt is an ongoing threat to a State’s economic stability and its citizens’ standard of living. A single occurrence of default begins a cycle in which it becomes increasingly more difficult for an indebted State to pay its debts and ensure the survival of its citizens. Because central banking systems and direct spending are often inadequate methods to boost an indebted State’s economy, a more expansive solution to sovereign debt is required. The initial solution to the growing problem of sovereign debt is an international treaty that will allow the world economy to establish monitoring mechanisms to prevent debt …

A Quest For Consistency: The Meaning Of 'Direct' In The Foreign Trade Antitrust Improvements Act, Richard Lobas

Global Business Law Review

This note argues that the United States courts need to apply a more consistent interpretation of the meaning of "direct" within the context of the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA serves to apply U.S. antitrust law, specifically the Sherman Act, to trade or commerce with foreign nations. One scenario in which this law may be applied is when trade or commerce with a foreign nation has a "direct, substantial, and reasonably foreseeable" effect on domestic commerce. However, courts purport to apply different standards to determine whether an effect is direct, leading to confusion and inconsistency. Contributing to …

Deep Dive, Chicago Style: A Roadmap For Understanding International Tax Reform, Michael J. Veneri Jr.

Global Business Law Review

This note discusses the potential alternatives for international tax reform and evaluates them based upon the Chicago school of economic theory principles and the ability to eliminate "tax plays." The United States could modify the existing international taxation system with (1) the 2015 Obama Administration proposals, (2) a modified territorial system as proposed by Rep. Dave Camp, (3) a credit system with source-of-income rules without the deferral privilege, or (4) formulary apportionment system based on either a single-factor or a three-factor system. By eliminating a U.S. multinational corporation's ability to participate in "tax plays," inefficient rent-seeking behavior can be curtailed, …

Blessings And Curses: Israel And Lebanon's Maritime Boundary Dispute In The Eastern Mediterranean Sea, Andrew Shibley

Global Business Law Review

This note argues that Israel and Lebanon should submit their maritime border dispute to an arbitral tribunal under the United Nations Convention on the Law of the Sea. Before submitting the dispute to the tribunal, the two countries should agree upon an exclusive appellate remedy to be used in the event that at least one country is unsatisfied with the decision of the arbitrators. Alternatively, Israel and Lebanon could employ other dispute resolution options under the United Nations Convention on the Law of the Sea, or submit to the International Court of Justice. It is important that Israel and Lebanon …

Talking Foreign Policy: The Iran Nuclear Accord, Milena Sterio, Avidan Cover, Mike Newton, Paul Williams, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Milena Sterio, Associate Dean and Professor of Law at Cleveland-Marshall College of Law. Sterio is also one of six permanent editors of the IntLawGrrls blog and an expert in the field of international law
• Avidan Cover, Director of the Institute …

President Obama's Legacy: The Iran Nuclear Agreement?, Milena Sterio

Law Faculty Articles and Essays

Iran, the United States, and several world super-powers signed a historic nuclear agreement over the summer of 2015. The Agreement is a comprehensive plan of action, with an unprecedented level of minutia and detail regarding Iran’s commitment to curb its nuclear program in exchange for the lifting of United Nations-imposed sanctions against Iran. This Agreement, if it is successfully implemented, may represent President Obama’s most significant foreign policy achievement and may become the most important element of President Obama's legacy.

This article examines the Iran Nuclear Agreement by focusing on the events that led to the imposition of sanctions against …

Self-Determination And Secession Under International Law: Nagorno-Karabakh, Milena Sterio

Law Faculty Articles and Essays

The principle of self-determination grants minority groups defined as “peoples” the right to auto-determine their political future. This principle, while stemming back to post-World War I ideologies, has guided decolonisation and has served as the theoretical underpinning of former colonies’ independence quests. In the more recent decades, however, questions have surfaced regarding this principle’s applicability in the non-decolonisation paradigm: can secessionist movements rely on the principle of self-determination to justify their independence demands? Or, does the principle of self-determination in the non-decolonisation paradigm only bestow a right to internal autonomy on secessionist entities, while obligating them to remain within the …

The Applicability Of The Humanitarian Intervention 'Exception' To The Middle Eastern Refugee Crisis: Why The International Community Should Intervene Against Isis, Milena Sterio

Law Faculty Articles and Essays

The refugee crises in Iraq and Syria, which has been evolving over the past decade as a result of both ongoing conflict in these countries and the recent surge of Islamic State-led violence, has morphed into a true humanitarian catastrophe. Tens of thousands of refugees have been subjected to violence and have been dispersed and forced to live under dire conditions; such massive population flows have destabilized the entire region and have threatened the stability of neighboring countries. The United States and several other countries have been engaged in a military air strike campaign against the Islamic State, but the …

Self-Determination And Secession Under International Law: The New Framework, Milena Sterio

Law Faculty Articles and Essays

This Article argues toward the necessity to develop a new international law framework on secession. The development of such a normative framework is necessary in order to address various secessionist situations around the globe and to replace the resolution of secessionist struggles through politics of the Great Powers with true legal norms.

This Article first analyzes several examples of successful and failed secessions in recent history. Next it focuses on existing international law on the subject matter of secession and concludes that existing norms are insufficient and indefinite. Finally, it develops a new proposed framework on secession, which attempts to …

Assessing The Velocity, Scale, Volume, Intensity And “Creedal Congruence” Of Immigrants In Setting A Nation’S Admissions Policy, David Barnhizer

David Barnhizer

Table of Contents Death of the “Melting Pot” The Rejection of Assimilation and the Rise of “Identity Sects” Western Europe and the US Face Significant Challenges to Their Creeds and Cultures The Radicalizing Search for Identity and Meaning The Velocity, Scale and Difference of Migrant Entry Into Dissimilar Cultures Assimilation Is Not Easy Under the Best of Circumstances ISIS, al-Qaeda and The Old Man of the Mountain What Are the Creedal Values For Which Western Nations Should Expect Commitment from Immigrants and Citizens? “Warning! Do Not Approach!” Beyond Non-Assimilation to Cultural Transformation The Right to Preserve a “Cultural Ecosystem” The …

Talking Foreign Policy: A Discussion On Cyber Warfare, Milena Sterio, Shannon French, Michael Newton, Peter Singer, Michael P. Scharf

Law Faculty Articles and Essays

Talking Foreign Policy is a one-hour radio program, hosted by Case Western Reserve University School of Law Co-Dean Michael Scharf, in which experts discuss the salient foreign policy issues of the day. Dean Scharf created Talking Foreign Policy to break down complex foreign policy topics that are prominent in the day-to-day news cycles yet difficult to understand.

This broadcast featured:

• Peter Singer, Director of the Center for 21st Century Security and Intelligence, Brookings Institution
• Michael Newton, Professor of Law, Vanderbilt University
• Milena Sterio, Associate Professor of Law, Cleveland-Marshall College of Law
• Shannon French, Professor of Philosophy and Director of the …

The Covert Use Of Drones: How Secrecy Undermines Oversight And Accountability, Milena Sterio

Law Faculty Articles and Essays

Under the Obama Administration, the number of drone strikes has sharply increased, prompting criticism and concern. As one commentator has noted, “[u]nder Obama, drone strikes have become too frequent, too unilateral, and too much associated with the heavy-handed use of American power.” Many scholars have focused on the legal issues arising from the use of drones, analyzing their legality under applicable law of self-defense, as well as under international humanitarian law and international human rights law.

This Article highlights another problematic aspect of the current American use of drones, which is secrecy. As will be argued below, because a large …

Reproductive Justice, Public Policy, And Abortion On The Basis Of Fetal Impairment: Lessons From International Human Rights Law And The Potential Impact Of The Convention On The Rights Of Persons With Disabilities, Carole J. Petersen

Journal of Law and Health

This article argues that we should consider not only American constitutional law but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR)13 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the …

Book Review: Analyzing The Effectiveness Of The Tallinn Manual’S Jus Ad Bellum Doctrine On Cyberconflict,: A Nato-Centric Approach, Terence Check

Cleveland State Law Review

Review of: Tallinn Manual on the International Law Applicable to Cyber Warfare, Michael Schmitt, ed., New York: Cambridge University Press, 2013.

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …