Law Commons^™

Beyond The Threshold Of Protection: Examining Non-Refoulement's Erosion In Contemporary Refugee Law Through The Eu-Turkey Agreement, Aya Osman

Dissertations and Theses

This thesis examines the contemporary relevance and practical implementation of the principle of non-refoulement as established in the 1951 Refugee Convention. While this fundamental principle of international refugee law prohibits the return of individuals to countries where they face persecution, torture, or human rights violations, its widespread violation by state parties raises critical questions about its continued effectiveness and the broader validity of the Convention's framework in today's global context. Through a methodological approach combining legal analysis and case studies of state practices, this paper investigates whether the 1951 framework remains valid and in effect when addressing refugee and immigration …

Re-Recording The Record: The Case For A Stronger Moral Right Of Integrity In The United States, Alexandria Touron

Fordham Law Review

In the United States, musical artists have limited legal recourse over transferring ownership of their music to third parties, even when such transfers may harm the artist’s reputation or the integrity of the work. Even the most prominent musicians, like Taylor Swift, must operate within an industry structure that normalizes the transfer of rights and, thus, control of their creative works. This occurs because U.S. law ties artists’ rights almost exclusively to economic ownership of their work unless they specifically bargain to keep their moral rights. However, most other countries have comprehensive moral rights frameworks where all artists can protect …

Carceral Firms In Disguise: Prison Labor, Human Rights, And The Public-Private Divide, Mao-Hong Lin

Emory International Law Review

The prohibition of forced labor is a globally recognized principle. International laws such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights explicitly ban all forms of slavery, including forced labor, with an exception for forced labor behind bars. Further, ILO asserts that forced prison labor must be conducted solely under the control of public authorities, explicitly excluding private entities from involvement. ILO’s prohibition against private use of prison labor is based on two main concerns: abuse of power over inmates and unfair competition between inmates and …

Frandship Ended With Anti-Suit Injunctions? U.S. And European Responses To Chinese Anti-Suit Injunctions In Standard-Essential Patent Litigation, Richard Li

Emory International Law Review

No abstract provided.

Josef Bohatec: The First Historian Of The Calvinist Reformation Of Rights, John Witte Jr., Thomas Jared Farmer

Emory International Law Review

This Article analyzes the pioneering work of the first great historian of Calvinist rights talk, Josef Bohatec (1876–1954), a Moravian-born and Vienna-based church historian. Bohatec built on the earlier efforts of several German scholars who were excavating pre-Enlightenment sources of human rights going back to antiquity. But Bohatec placed strong new emphasis on the original rights contributions of sixteenth-century Protestant reformer John Calvin (1509-1564) and his followers. Bohatec showed how Calvin’s legal training shaped the many new statutes and rights ordinances that he crafted for Geneva. He also showed how Calvin’s theological training shaped his highly innovative Protestant legal and …

Unseating The Israeli Government From The Un General Assembly In Case Of Non-Compliance With The Advisory Opinion Of 19 July 2024, Maryam Jamshidi

Publications

No abstract provided.

Indigenous Peoples In International (Treaty) Diplomacy, Kristen A. Carpenter

Publications

International diplomacy has traditionally been considered the exclusive prerogative of states, who engage with each other on matters of peace, conflict, and trade with an eye to national interests and global wellbeing. This is one of a series of works considering "Indigenous Diplomacy"—a practice in which Indigenous Peoples engage with states, as well as other Indigenous Peoples, groups, and individuals in bilateral and multilateral settings, informed by Indigenous values, to advance rights, relationships, and remedies, as well as peace and security. This Article examines one category of Indigenous Diplomacy, namely the diplomatic processes surrounding modern and contemporary international treaties. With …

Contested Criminalization, Steven Arrigg Koh

Faculty Scholarship

How does the U.S. government decide to deploy criminal justice abroad? From the Syrian civil war to the Israel-Gaza conflict, Russia-Ukraine War, and U.S.-China relations, criminal law sits at the heart of contemporary U.S. foreign relations. And yet legal scholarship has never precisely explained how the U.S. government deploys or supports criminal prosecutions abroad, often defaulting to simplistic labels of the United States as exceptionalist, carceral, or isolationist. This Article rectifies this by introducing a theory of contested criminalization, piercing the veil of U.S. government decisionmaking in its use of criminal law in foreign policy. According to this process, …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Lewis & Clark Law Review

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Rights As Remedies: Using Latin American Legal Channels To Halt U.S. Border Externalization, Natalie Lerner

Lewis & Clark Law Review

The first Trump Administration saw intense border crackdowns and a ramping up of restrictions on asylum. While some of these policies shifted under President Biden, many were recreated under new names. The second Trump Administration has functionally closed the border and deported asylum seekers to third countries such as Costa Rica and Panama, leaning heavily on Latin American countries to accept expelled migrants. As U.S. courts fail to preserve asylum law domestically, international law, as integrated into the constitutions of Latin American countries, can provide a valuable litigation tool to block those countries from participating in the U.S. border externalization …

The Legality Of Nuclear-Weapons Sharing Arrangements Under International Law: United States-Nato And Russia-Belarus, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Essay argues that certain nuclear sharing agreements between nuclear and non-nuclear powers are legal under the Nuclear Non-Proliferation Treaty. This topic is highly important as Russia has announced its stationing of nuclear weapons in Belarus and Belarus has signaled its intent to use them.

Worker Protection Or Commercial Facilitation: The British Empire, Labor Governance And The Gradual Invisibilization Of Labor Coercion During The Age Of High Imperialism, Christopher Roberts, Michelle Ong

Seattle Journal for Social Justice

This article considers labor governance and coercive labor practices in the British Empire between the late nineteenth and early twentieth centuries. In particular, it focuses its attention on several major commissions of inquiry undertaken around the British Empire in the period, as well as reforms that took place alongside those inquiries. In part, the article concludes these reforms were motivated by protective purposes, demonstrating some degree of genuine concern with workers’ well-being. More significantly, however, it finds these reforms were motivated by British imperial desire to ensure stable labor supplies, enhance the legitimacy of the British Empire, and establish more …

The British Museum's Deceit In The Parthenon Marbles Controversy, Hannah M. Bartfield, Morgan E. Spencer, David Rudenstine

Cardozo Arts & Entertainment Law Journal

The article challenges the British claim of legal ownership over the Parthenon sculptures, arguing that the documents cited by the British government and the British Museum to justify the removal of the marbles are flawed and intentionally misleading. Through a detailed analysis of the Italian and English documents, the article demonstrates that the British narrative of lawful removal lacks credibility, as the documents contain significant discrepancies and mistranslations that undermine their validity. The evidence presented, including scholarly critiques, conclusively discredits the British claim, emphasizing the need for accountability and the return of the marbles to Greece.

Un Tax Negotiations: North-South Tensions And The Challenge Of Institutional Legitimacy, Assaf Harpaz

Scholarly Works

The drafting process for a United Nations Framework Convention on International Tax Cooperation, along with two early protocols, is now underway. A UN framework convention represents a Global South effort to shift international tax policymaking from the OECD to the UN. For developing countries, the UN has long been viewed as a more inclusive space for tax policy negotiations, producing more favorable but historically less influential standards compared to the OECD.

Support for the UN framework convention, including its terms of reference, has been sharply divided across traditional Global North-South lines. The backlash following the OECD’s recent two-pillar reform triggered …

Global Tax Wars In The Digital Era, Assaf Harpaz

Scholarly Works

The digital economy fundamentally disrupts international tax principles that rely on physical presence. When a business earns income abroad, the country of residence (where the taxpayer resides) and the country of source (where income is generated) both have legitimate, competing claims to tax that income. The international tax system tends to favor residence-based taxation. The source country has the right to tax business profits only if the enterprise carries on a permanent establishment within its borders, which typically requires physical presence. The permanent establishment standard becomes flawed in a digital economy where profit shifting practices are abundant and businesses no …

International Arbitration And Conflicts Of Law: Three Hard Questions For Symeon, Peter B. Rutledge

Scholarly Works

The presence of a foreign element in a legal relationship inevitably introduces intricate choice-of-law issues. This postulate holds especially true in the context of international arbitration. Arbitration involves an exceptional degree of procedural freedom (including over the choice of the applicable law) and a distinctive conflict-of-laws regime that may be unbound from a particular national legal system. This article examines several choice-of-law issues arising in the context of international arbitration. In particular, Section I of this article addresses whether the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, otherwise known as the New York Convention, is selfexecuting …

Trademark Proprietors' "Moral Right" As An Exception To The Doctrine Of Exhaustion Of Rights In Trademarks, Sahana Simha, Ram Mohan M P

American University Business Law Review

Trademark law is primarily viewed as a consumer protection law. Proprietary and consumer interests are not always balanced. This is especially the case with the doctrine of exhaustion of rights in trademarks, where the trademark owner loses control over the further distribution of their trademarked product once sold. Existing statutory exceptions to this doctrine allow the proprietor to take action against resellers only when the product has been impaired or changed. The exceptions do not account for harm or damage to the reputation and goodwill associated with a trademark as a ground to override exhaustion. This article analyzes legislative and …

Protection Of Male And Female Sexed Children From Genital Cutting: Making Sense Of Recent Legal Developments, J. Steven Svoboda

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the disparate legal treatment of female genital cutting (FGC) and male genital cutting (MGC), arguing for a more consistent approach that recognizes both practices as violations of bodily integrity. It highlights the ethical and legal inconsistencies in how these practices are viewed and regulated, advocating for a unified legal framework that prioritizes consent and the rights of the individual.

Introduction: In Honor Of Professor Megan A. Fairlie, Antony Page

FIU Law Review

No abstract provided.

Provisional Release At International Criminal Courts And Tribunals – Lessons Learned?, Ava Schuster, Göran Sluiter

FIU Law Review

This article builds on Professor Meghan Fairlie’s earlier critique of pre-trial detention practices at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Fairlie identified significant shortcomings in safeguarding the right to liberty and the presumption of innocence of detainees, arguing that the Tribunal’s approach was inconsistent with international human rights law (IHRL). Fifteen years later, how has the International Criminal Court (ICC) addressed these concerns? While the Rome Statute introduces notable improvements, including an explicit commitment to IHRL, the Court’s practice still heavily favors detention over liberty. A key issue remains the ICC’s reliance on State cooperation for provisional …

Attendant Circumstances: A Reflection On Professor Megan A. Fairlie’S Mentorship, Casey Waldeck

FIU Law Review

No abstract provided.

The Complete Bibliography Of Professor Megan A. Fairlie

FIU Law Review

No abstract provided.

The North American Gap Ungulates Must Migrate Physically And Legally: Elk As A Case Study, Alex Wendlandt

Wyoming Law Review

Humans have tracked elk hoof prints in North America since ancient times, recognizing the significance of these migratory ungulates in culture, mythology, dietary value, and utility. As migratory ungulates, elk respond to changes in their environment by migrating to and from their summer and winter ranges. Today, elk migrations continue across the jurisdictional boundary of the northern United States and southern Canada, spreading ecological and economic benefits with each track they make. Unfortunately, ungulate migration is an “endangered phenomenon” due to loss of connectivity and loss of habitat. While the United States and Canada have acknowledged the importance of, and …

Prof. Peter Hay: Private International Law’S Transatlantic Bridge, Patrick J. Borchers

Emory International Law Review

No abstract provided.

From Litigation To Arbitration: Empirical Insights Into The Dmca Notice-And-Takedown System In Cross-Border E-Commerce Copyright Disputes, Baichuan Huang

Emory International Law Review

In cross-border disputes, the Digital Millennium Copyright Act (DMCA) notice-and-takedown system’s reliance on federal litigation as its final step faces serious procedural obstacles. An empirical analysis of twenty-four lawsuits filed in the Southern District of New York (SDNY) reveals non-appearing defendants, protracted proceedings, and Amazon’s occasional reinstatement of infringing products based on statutorily defective counter-notices. SDNY’s routine approval of email service on foreign defendants raises additional concerns about treaty violations and inconsistent application of legal standards. To address these inefficiencies, this Comment proposes a public, arbitration-like mechanism as an alternative to litigation. While private arbitration models—such as Amazon’s Patent Evaluation …

Table Of Contents, Administration, Faculty, Submission Information

South Carolina Journal of International Law and Business

No abstract provided.

Navigating The Seas Of History In International Law, Valentina Vadi

South Carolina Journal of International Law and Business

Inquiries into questions of time, history, and international law have recently come to the fore. So far, however, many studies have only examined developments in international law from a temporally and thematically fragmented, brief, and narrow perspective. Due to international law’s growing normative and institutional fragmentation and emphasis on specific crises, episodes, and events, many analyses focus on transient trends and particular facets of international law. This study suggests an alternative to these constrained viewpoints: a thorough, multilayered, and broad perspective to questions of international law, drawing on Fernand Braudel’s tripartite theory of time.

Braudel’s theory of time provides valuable …

Lambat Asal Selamat: The Slow But Safe Twenty-Five Year Recalibration Of Personal Bankruptcy In Malaysia, Jason J. Kilborn

South Carolina Journal of International Law and Business

A popular Malay proverb advises, “[L]et it be slow, as long as it is safe” (biar lambat asal[kan] selamat),1 combining the sentiments of two similar English proverbs: “haste makes waste,” and “slow and steady wins the race.” These principles certainly seem to have guided Malaysian lawmakers in the quarter-century, multistage development of the most important element of modern bankruptcy law: the discharge. Adopted in 1967,2 Malaysian bankruptcy law has long included a very limited debt discharge, but as it left more and more economically debilitated debtors in perpetual bankruptcy limbo, policymakers became dissatisfied with leaving a huge and growing mass …

Implementation Of Uniform Competition Protocol In African States: Best Foot Forward In The Optimization Of The Afcfta, Ndubuisi Augustine Nwafor

South Carolina Journal of International Law and Business

Before the emergence of the Protocol to the African Continental Free Trade Area Agreement on Competition (AfCFTA Competition Protocol), there was no unified competition framework to regulate the African Continental Free Trade Area. What existed was a fragmentation of regional competition frameworks created along regional economic ties, characterised by confusing overlaps and multiple memberships. In addition to the fragmented approach, Africa was not represented at the global level when leading competition institutions from other regions made decisions on anticompetitive conduct with worldwide implications. Adopted by the African Union (AU) in 2023, the AfCFTA Competition Protocol challenges the existing situation. It …

Upholding The Absolute Prohibition Of Torture: Afchpr On Detention In Tanzania, Aly Orvis

Human Rights Brief

On September 3, 2024, the African Court on Human and Peoples’ Rights (AfCHPR) rendered its decision in Habyalimana Augustino and Muburu Abdulkarim v. United Republic of Tanzania. The case involved two Burundian nationals who, as refugees in Tanzania, were implicated in a murder-for-hire scheme. This scheme was allegedly orchestrated by Mama Mboya—the wife of a high ranking commanding officer who suspected the victim of having an affair with her husband. Convicted in 2007, the applicants were sentenced to death by hanging. In their petition to the AfCHPR, they argued that they had been subjected to torture and inhumane conditions at …