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Articles 1 - 30 of 254
Full-Text Articles in Law
Blue Carbon, Red States, And Paris Agreement Article 6, Adam D. Orford
Blue Carbon, Red States, And Paris Agreement Article 6, Adam D. Orford
Scholarly Works
Coastal U.S. states, including many that have opposed proactive U.S. climate policies, are contemplating entrance into the supply side of the international carbon credit markets by, among other things, hosting revenue-generating blue carbon projects on their submerged lands. The voluntary carbon credit markets already facilitate private investment in such activities, and the emerging Paris Agreement Article 6 framework is poised to generate investment interest at the national level as well. Reviewing these trends, this Perspective questions whether this is good climate, environmental, and social policy, and advises further oversight and accountability.
The Pledging World Order, Melissa J. Durkee
The Pledging World Order, Melissa J. Durkee
Scholarly Works
There is an emerging world order characterized by unilateral pledges within a legal or “legal-ish” architecture of commitments. The pledging world order has materialized in the international legal response to climate change and in other diverse sites. It crosses and blurs the public-private divide. It erodes distinctions between multilateralism and localism, law and not-law, and progress and stasis. It is both a symptom of and a contributor to the dismantling of the Westphalian and postwar orders. Its report card is mixed: While pledging can be highly ineffective as a legal technology, the pledging world order may respond to some legitimacy …
Industry Groups In International Governance: A Framework For Reform, Melissa J. Durkee
Industry Groups In International Governance: A Framework For Reform, Melissa J. Durkee
Scholarly Works
At a time when many international organizations are focusing on bringing companies on board as partners for important goals like climate mitigation and adaptation, but even shareholders of major multinational companies are seeking to discipline pernicious lobbying by trade associations, it is important to evaluate how to maximize the benefit and restrain the harms of business participation in international governance. This article offers a brief history of engagement between international organizations and industry and trade associations, reviews arguments for embracing or restraining the participation of those groups, and develops a five-part framework for regulations to govern their access.
A Guide To Mireille Delmas-Marty's “Compass”, Diane Marie Amann
A Guide To Mireille Delmas-Marty's “Compass”, Diane Marie Amann
Scholarly Works
This essay appears as the Afterword (pp. 55-64) to a volume featuring an important work by the late Mireille Delmas-Marty (1941-2022) titled A Compass of Possibilities: Global Governance and Legal Humanism. A Collège de France de Paris law professor and one of the pre-eminent legal thinkers of her generation, Delmas-Marty and the essay’s author were longtime colleagues and collaborators. The volume contains an English translation of a 2011 lecture by Delmas-Marty, originally titled “Une boussole des possibles: Gouvernance mondiale et humanismes juridiques.” Amann’s essay surveys that writing, in a manner designed to acquaint non-francophone lawyers and academics with Delmas-Marty’s …
Privatizing International Governance, Melissa J. Durkee
Privatizing International Governance, Melissa J. Durkee
Scholarly Works
The theme of this panel is “Privatizing International Governance.” As the opening vignettes should make clear, public-private partnerships of all kinds are increasingly common in the international system. Since United Nations Secretary-General Kofi Annan's launch of the Global Compact in 2000, the United Nations has increasingly opened up to business entities. Now, the Sustainable Development Goals, the Global Compact, and the Guiding Principles on Business and Human Rights all encourage engaging with business entities as partners in developing and executing global governance agendas. These partnerships are seen by some as indispensable to sustainable development, international business regulation, climate change mitigation, …
International Environmental Law At Its Semicentennial: The Stockholm Legacy, Melissa J. Durkee
International Environmental Law At Its Semicentennial: The Stockholm Legacy, Melissa J. Durkee
Scholarly Works
The 1972 United Nations Conference on the Human Environment produced the Stockholm Declaration, an environmental manifesto that forcefully declared a human right to environmental health and birthed the field of modern international environmental law. The historic event powerfully “dramatized . . . the unity and fragility of the biosphere,” sparking a remarkable period of international legal innovation and cooperation on environmental protection in the decades to come.
The Stockholm Declaration can be rightly celebrated for putting environmental issues on the international legal agenda and driving the development of environmental law at the domestic level around the world. At the same …
International Child Law And The Settlement Of Ukraine-Russia And Other Conflicts, Diane Marie Amann
International Child Law And The Settlement Of Ukraine-Russia And Other Conflicts, Diane Marie Amann
Scholarly Works
The Ukraine-Russia conflict has wreaked disproportionate harms upon children. Hundreds reportedly were killed or wounded within the opening months of the conflict, thousands lost loved ones, and millions left their homes, their schools, and their communities. Yet public discussions of how to settle the conflict contain very little at all about children. This article seeks to change that dynamic. It builds on a relatively recent trend, one that situates human rights within the structure of peace negotiations, to push for particularized treatment of children’s experiences, needs, rights, and capacities in eventual negotiations. The article draws upon twenty-first century projects that …
Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen
Journeys Through Space And Time While Reading International Law And The Politics Of History, Found On A Palimpsest, Translated For You, The Reader, Harlan G. Cohen
Scholarly Works
I was invited to a symposium on Anne Orford’s book, International Law and the Politics of History. On my way there, my mind wandered, and I found myself lost in a forest of half-remembered stories and unfinished thoughts. Searching for a way out, this is what I discovered.
Metaphors Of International Law, Harlan G. Cohen
Metaphors Of International Law, Harlan G. Cohen
Scholarly Works
This chapter explores international law in search of its hidden and not-so-hidden metaphors. In so doing, it discovers a world inhabited by states, where rules are mined or picked when ripe, where trade keeps boats forever afloat on rising tides. But is also unveils a world in which voices are silenced, inequality is ignored, and hands are washed of responsibility.
International law is built on metaphors. Metaphors provide a language to describe and convey the law’s operation, help international lawyers identify legal subjects and categorize situations in doctrinal categories, and provide normative justifications for the law. Exploring their operation at …
On Command, Diane Marie Amann
On Command, Diane Marie Amann
Scholarly Works
By reference to the Lieber Code and other sources, this essay emphasizes the history of responsibility underlying the doctrine of command responsibility, and further criticizes developments that seem to have intermingled that doctrine with what are called “modes of liability. The essay urges that consideration of commander responsibility stand apart from other such “modes,” and cautions against a jurisprudence that raises the risk that, before fora like the International Criminal Court, no one can be held to account. It appears in a symposium issue exploring a 2020 Cambridge University Press book by Darryl Robinson, Justice in Extreme Cases: Criminal Law …
Introduction To The Symposium On Frédéric Mégret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa J. Durkee
Introduction To The Symposium On Frédéric Mégret, "Are There 'Inherently Sovereign Functions' In International Law?", Melissa J. Durkee
Scholarly Works
Imagine a future in which the U.S. government has closed the postal service, shuttered its administrative apparatus, and stopped funding education. Confirmation battles have dismantled the federal judiciary, with most adjudication now performed by private arbitrators. After years of erosion of public standards, corporate environmental and labor practices are now left to voluntary self-regulation and market pressures. Private military and security companies command and regulate a vast military infrastructure, executing contracts to meet U.S. intelligence and defense requirements. Prisons have been fully privatized. After losing faith in elections, the U.S. populace no longer insists on them. The country is administered …
Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton
Self-Defense To Cyber Force: Combatting The Notion Of 'Scale And Effect', Thomas Eaton
Scholarly Works
The ability to reach out, with a few keystrokes or a couple lines of code, through the interconnected world of cyberspace and create militarily advantageous effects 10,000 miles away has changed warfare as previously conceived, perhaps more than any other advancement in any other domain of war. Cyber weapons are weapons, and whatever law applies to conventional weapons equally applies to cyber weapons. Long before cyber operations were even science fiction, there was much debate over what constituted a use of force that would justify force in response. In many ways, the debate over what constitutes cyber-attacks has been pasted …
Interpretive Entrepreneurs, Melissa J. Durkee
Interpretive Entrepreneurs, Melissa J. Durkee
Scholarly Works
Private actors interpret legal norms, a phenomenon I call "interpretive entrepreneurship." The phenomenon is particularly significant in the international context, where many disputes are not subject to judicial resolution and there is no official system of precedent. Interpretation can affect the meaning of laws over time. For this reason, it can be a form of "post hoc" international lawmaking, worth studying alongside other forms of international lobbying and norm entrepreneurship by private actors. The Article identifies and describes the phenomenon through a series of case studies that show how, why, and by whom it unfolds. The examples focus on entrepreneurial …
Are We (Americans) All International Realists Now?, Harlan G. Cohen
Are We (Americans) All International Realists Now?, Harlan G. Cohen
Scholarly Works
Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean …
International Law As Behavior: An Agenda, Harlan G. Cohen, Timothy Meyer
International Law As Behavior: An Agenda, Harlan G. Cohen, Timothy Meyer
Scholarly Works
Over the past few decades, scholars in a variety of fields – economics, psychology, sociology, anthropology, and international relations, among others – have made enormous strides studying the behavioral roots of international law by exploring individual motivations, describing organizational cultures, and mapping communities of practice. Taken together, the work of these scholars presents a complex, nuanced understanding of how international law works. However, these projects are rarely considered together: often separated by academic enclosures and focused on different subfields within international law, communication among scholars using different methodologies is restricted. The goal of this book is to break down some …
Justice As Message Symposium: What We See When We See Law … Through The Eyes Of Dame Laura Knight, Diane Marie Amann
Justice As Message Symposium: What We See When We See Law … Through The Eyes Of Dame Laura Knight, Diane Marie Amann
Scholarly Works
The eye cannot help but be drawn to the cover of Justice as Message, the new analysis by Carsten Stahn of, to quote the subtitle, Expressivist Foundations of International Criminal Justice. On the high-gloss paper jacket we see a tableau of blacks and browns and olive drab, accented only by the purple of a lawyer’s robe and the teal of a dossier perched on the bar behind him. In front, we see that the bench is buried in paper – paper that turns to ashes as the back wall gives way to a vision of buildings in ruin …
Circuit Split Deepened By Second Circuit's 'Functional' Test Application In Recent Section 1782 Ruling, Peter B. Rutledge, Emina Sadic Herzberger
Circuit Split Deepened By Second Circuit's 'Functional' Test Application In Recent Section 1782 Ruling, Peter B. Rutledge, Emina Sadic Herzberger
Popular Media
Federal law authorizes district courts to order discovery for use in a proceeding before a "foreign or international tribunal." While that law, 28 U.S.C. § 1782, permits interested persons to request such discovery, neither the statutory language nor Supreme Court jurisprudence definitively resolves whether private arbitral tribunals fall within its scope. Unsurprisingly, the lack of clear guidance on this matter has triggered a circuit split, with the Second and Fifth Circuits generally declining to extend § 1782 to private arbitral tribunals while the Fourth and Sixth Circuits broadly interpret the statutory language to apply § 1782 to private arbitral tribunals. …
2020-21 Executive, Managing And Editorial Boards, Georgia Journal Of International And Comparative Law
2020-21 Executive, Managing And Editorial Boards, Georgia Journal Of International And Comparative Law
GJICL Editorial Boards
No abstract provided.
Welcoming Participation, Avoiding Capture: A Five-Part Framework, Melissa J. Durkee
Welcoming Participation, Avoiding Capture: A Five-Part Framework, Melissa J. Durkee
Scholarly Works
What role should non-state actors have in the work of international organizations? It is particularly fitting that this panel is titled “between participation and capture,” because the phrase calls up the conflicting values that animate this question. When we think of non-state actors “participating” in the work of international organizations, we think about open, transparent organizations that are receiving the benefit of diverse perspectives and expertise. We may associate this phrase with process, access, and legitimacy in governance. On the other hand, when we think about non-state actors “capturing” the agenda of international organizations, we have a conflicting set of …
Glimpses Of Women At The Tokyo Tribunal, Diane Marie Amann
Glimpses Of Women At The Tokyo Tribunal, Diane Marie Amann
Scholarly Works
Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the …
The Future Of Space Governance, Melissa J. Durkee
The Future Of Space Governance, Melissa J. Durkee
Scholarly Works
Fifty years after the first moonwalk, the prospect for a new set of multilateral agreements governing outer space is remote, yet the legal questions raised by activity in space are mounting. With little prospect of new treaties, nations will need to make do with existing treaty law, generate customary rules to govern new applications, or develop forms of sub-legal understanding and cooperation. This special conference issue of the Georgia Journal of International and Comparative Law addresses these questions.
Nations And Markets, Harlan G. Cohen
Nations And Markets, Harlan G. Cohen
Scholarly Works
Economics and security seem increasingly intertwined. Citing national security, states subject foreign investments to new scrutiny, even unwinding mergers like the purchase of Grindr or the creation of TikTok. The provision of 5G has become a diplomatic battleground – Huawei at its center. Meanwhile, states invoke national security to excuse trade wars. The U.S. invoked the GATT national security exception to impose steel and aluminum tariffs, threatening more on automotive parts. Russia invoked that provision to justify its blockade of Ukraine, as did Saudi Arabia and the UAE to excuse theirs of Qatar. And with the spread of COVID-19, states …
Telling Our Stories At Ifla’S 2019 Meeting In Athens, Greece, Anne Burnett
Telling Our Stories At Ifla’S 2019 Meeting In Athens, Greece, Anne Burnett
Articles, Chapters and Online Publications
Anne Burnett summarizes the 85th World Legal Information Congress (WLIC) and the International Federation of Library Associations and Institutions’ (IFLA) annual meeting held at the Megaron Convention Center, located in the Kolonaki neighborhood of Athens, Greece. Specially Burnett reviews two IFLA sponsored programs held August 26 - 27, 2019.
DipLawMatic Dialogues is the official blog of the Foreign, Comparative, and International Law Special Interest Group of the American Association of Law Libraries. The FCIL-SIS serves as a forum for the exchange of ideas and information on foreign, comparative and international law and legal research. This blog is intended …
2019-20 Executive, Managing And Editorial Boards, Georgia Journal Of International And Comparative Law
2019-20 Executive, Managing And Editorial Boards, Georgia Journal Of International And Comparative Law
GJICL Editorial Boards
No abstract provided.
The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan G. Cohen
The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan G. Cohen
Scholarly Works
A feature of the Norman J. Shachoy Symposium: The Rabbinic Idea of Law: Interactions and Implications
Inspired by Chaim Saiman’s brilliant book, Halakhah: The Rabbinic Idea of Law, this essay draws connections between the lived experiences of international law and Jewish law, focusing in particular on (1) the centrality of practice, (2) the search for and construction of authority in communities of practice (the “invisible college”), (3) the challenges and opportunities of fragmentation and pluralism, and (4) the difficulty translating their methods to more state-like institutions, like courts and legislation. The hope is that this testimony of one of H.L.A. …
Introduction To The Symposium On Julian Nyarko, “Giving The Treaty A Purpose: Comparing The Durability Of Treaties And Executive Agreements”, Harlan G. Cohen
Introduction To The Symposium On Julian Nyarko, “Giving The Treaty A Purpose: Comparing The Durability Of Treaties And Executive Agreements”, Harlan G. Cohen
Scholarly Works
Winning And Losing In Investor-State Arbitration, Tim Samples
Winning And Losing In Investor-State Arbitration, Tim Samples
Scholarly Works
As tensions between investors’ rights and sovereign power escalate, investor-state dispute settlement has become a focal point of backlash and controversy. As a result, ISDS now embodies two opposing currents in international law: (i) the erosion of sovereignty that accompanied economic globalization, trade frameworks, and investment treaties following the Second World War and (ii) more recently, reassertions of sovereignty prompted by recent backlashes against the global economic order. This Article measures and evaluates outcomes of the ISDS system for sovereign participants. Using the best available data, this Article contributes more detailed assessments of sovereign winners (home states of claimants) and …
Book Review: Not Enough: Human Rights In An Unequal World, Harlan G. Cohen
Book Review: Not Enough: Human Rights In An Unequal World, Harlan G. Cohen
Scholarly Works
Review of the book Not Enough: Human Rights in an Unequal World. By Samuel Moyn. Cambridge, Massachusetts, Harvard University Press 2018. Pp. ix, 220. Index.
Patent Law And The Emigration Of Innovation, Greg Day, Steven Udick
Patent Law And The Emigration Of Innovation, Greg Day, Steven Udick
Scholarly Works
Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. However, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent, considering that patent law is bound by strict territorial limitations (as a result, one cannot strengthen their patent protection by innovating abroad). In essence, then, industry leaders are deeply divided from scholarship about whether innovative firms seek out jurisdictions offering stronger patent rights, affecting the rate of innovation.
To resolve this puzzle, we offer a novel theory of patent rights — which …
Book Review: Global Lawmakers: International Organizations In The Crafting Of World Markets By Susan Block-Lieb And Terence C. Halliday, Melissa J. Durkee
Book Review: Global Lawmakers: International Organizations In The Crafting Of World Markets By Susan Block-Lieb And Terence C. Halliday, Melissa J. Durkee
Scholarly Works
Susan Block-Lieb and Terence Halliday gradually build up an empirically grounded, meticulously realized argument that individual lawmakers matter. When one allows facts to inform theory rather than the other way around, the authors show, what becomes clear is that individual lawmakers are not just governmental delegates, but a whole variety of professionals, industry association representatives, and others with some stake in the lawmaking process. These actors work not just through formal processes, but also through an array of informal ones. Most importantly, their presence matters to the content of the legal norms that take hold around the world. The book …