Law Commons^™

Authorizations For The Use Of Force, International Law, And The "Charming Betsy" Canon, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

Although international law has figured prominently in many disputes around actions of the U.S. military, the precise relationship between international law and the President's war powers has gone largely unexplored. This Article seeks to clarify one important aspect of that relationship: the role of international law in determining the scope of Congress's general authorizations for the use of force. In the seminal case of Hamdi v. Rumsfeld, the plurality opinion used international law to interpret the authorization by Congress for the use of force, but did so without adequate attention to the content or interpretive function of international law. This …

Historical And Social Perspectives On The Regulation Of The International Trade In Archaeological Objects: The Examples Of Greece And India, Neil Brodie

Vanderbilt Journal of Transnational Law

Two empirical studies of the trade in cultural material have shown that strong export controls work. Between 1820 and 1870, pre-unification Italian states with strong export controls in place retained more of their cultural heritage (measured in terms of paintings and antique books) than states with weak or no controls. Thefts from cultural institutions in the Czech Republic rose sharply after 1989, the year the "Iron Curtain" was raised; though this example also highlights the curtailment of civil liberties that might be necessary for strong export controls to work and that are probably unacceptable in a liberal society. '

This …

Subjects Of International Law: A Power-Based Analysis, Guido Acquaviva

Vanderbilt Journal of Transnational Law

In this Article, the Author challenges the definition of the term "state" that is commonly accepted in legal scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of …

Globalization In Art Law: Clash Of Interests And International Tendencies, Erik Jayme

Vanderbilt Journal of Transnational Law

In my view, it is important to articulate the different interests involved in international art cases. Globalization has added the interests of the global civil society to the traditional claims and counter claims of private parties and of states or nations. Thus, public access to art works has been fostered by anti-seizure statutes protecting international exhibitions. And, it is this line of tendencies and arguments which conceives of famous art works as treasures of mankind and which should prevail in the future.

Preventing Repeat Offenders: North Korea's Withdrawal And The Need For Revisions To The Nuclear Non-Proliferation Treaty, Raven Winters

Vanderbilt Journal of Transnational Law

The Nuclear Non-Proliferation Treaty (NPT) took effect on March 5, 1970, with the following purposes: to prevent the proliferation of nuclear arms, promote nuclear disarmament, and encourage the peaceful use of nuclear energy. Even though the NPT was initially intended as a temporary solution to the threat of nuclear weapons, in 1995 the parties to the NPT voted to extend it indefinitely. For the most part, the NPT has been successful in achieving its goals. Recent challenges to the NPT, however--namely North Korea's withdrawal from the NPT in January 2003--have revealed several weaknesses inherent in the NPT. To strengthen the …

Reflections On Litigating Holocaust Stolen Art Cases, Donald S. Burris, E. R. Schoenberg

Vanderbilt Journal of Transnational Law

In this Article we have attempted to provide an overview of the Nazi-looted art cases in their historical context. We have based the discussion on our knowledge and experience in litigating art law cases, particularly cases involving Nazi art looting, post-war restitution, and recent developments in art law.

Any discussion of the legal implications of crimes committed by Nazi authorities during the Holocaust must begin with an obvious disclaimer. While bringing cases to recover artwork stolen by Nazi authorities is self-evidently a worthy pursuit, and while our firm is very proud to be intensively involved in this effort, we cannot …

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I, Rachel Vorspan

Vanderbilt Journal of Transnational Law

In this-Article Professor Vorspan examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on detention, deportation, conscription, and confiscation of property, the Author revises the conventional depiction of the English judiciary during World War I as passive and peripheral. She argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal freedom. Second, they …

Immunity For Artworks On Loan? A Review Of International Customary Law And Municipal Anti-Seizure Statutes In Light Of The "Liechtenstein" Litigation, Matthias Weller

Vanderbilt Journal of Transnational Law

Are we witnessing the emergence of a legal principle of immunity for artworks on loan from abroad? This Article analyzes to what extent such a principle exists or is about to come into being and what its legal potential might be. To this end, Part II examines one of the leading cases about artworks on loan, the Liechtenstein case, and compares it to other controversies about loaned artworks to identify possible signs of a development in court practice towards a principle of immunity for artworks on loan. Against the background of the legal weaknesses of a yet inchoate concept of …

International Legal Dimensions Of Art And Cultural Property, Jeffrey A. Schoenblum

Vanderbilt Journal of Transnational Law

The market for art and cultural property is international.' Demand is intense and not particularly local in terms of consumer preference. Supply responds to this intense international demand. Like most anything else, art finds its way to whomever is prepared to pay for it. Regulation affects how it arrives at its ultimate destination, but generally does not prevent it from getting there...

The symposium's contributors have sought to address the complex legal and policy issues raised by an explosive global market in art and cultural property. These articles will prove invaluable in the shaping of the international legal response to …

The Iraqi Special Tribunal: A Human Rights Perspective, Michael A. Newton

Vanderbilt Law School Faculty Publications

The creation of the Iraqi Special Tribunal in December 2003 by Iraqi authorities who were at the time under the legal occupation of the Coalition Provisional Authority marked the emergence of a new form of internationalized domestic tribunals. The Iraqis succeeded in incorporating the full range of modern crimes into their domestic codes alongside some carefully selected domestic offenses, while amending domestic procedural law in some key ways to align the process with established international law related to the provision of full and fair trials. The subsequent investigations and the beginning of trial proceedings generated major debates about the legitimacy …

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …

The International Law Of Environmental Warfare: Active And Passive Damage During Armed Conflict, Eric T. Jensen

Vanderbilt Journal of Transnational Law

One of the constant elements of warfare is its degrading effects on the environment. Many writers blame this destruction of the environment on inadequate standards in the international law of environmental warfare. To remedy this shortfall, the international law of environmental warfare should be categorized as either passive or active environmental warfare. Active environmental warfare requires the intentional "use" of the environment as a weapon of waging armed conflict. Passive environmental warfare includes acts not specifically designed to "use" the environment for a particular military purpose but that have a degrading effect on the environment. Passive environmental warfare violates international …

The Purpose Of Copyright Law In Canada, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

IN THREE RECENT CASES, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the …